The Sanity Fringe

Gingrich's Appeal

2012-01-30T09:49:00.000-08:00

Newt Gingrich appeals to many Republican voters because of Gingrich's obvious disdain for Democrats.

Unfortunately, voters soon realize that he as a great deal of disdain for Republicans also.

Which explains why his poll numbers keep going up down.

The Bain Identity

2012-01-26T21:05:00.000-08:00

Mitt Romney has been criticized from both left and right as a "flip-flopper." Someone who will say whatever needs to be said in order to move ahead politically. He will say whatever he needs to say in order to get nominated, then say what he needs to say to get elected, and then say what he needs to say to govern. All without any real commitment or sincere belief.

When he ran for governor of Massachusetts, he ran as a moderate and he governed as a moderate, and now that he's running for president in a conservative Republican field he's running as a conservative. In the general election, running against Obama, he'll portray himself as a moderate, and who knows how he would govern?

What doesn't seem to have gotten much press is that Romney ran Bain Capital the same way.

According to this piece in the Washington Post, written by an investment banker who often dealt with Bain Capital while Romney was in charge, Bain Capital had a nasty habit of doing what might be called a "bait and switch." In a private offering, the firm that makes the highest initial bid gets favored position to negotiate the final deal. Bain would make the high bid, eliminate the competition, and then use its favored position to negotiate the price down below its original bid. Some renegotiation is normal when new conditions are discovered on "due diligence" (closer scrutiny), but Bain negotiated downward too often and too flagrantly.

In other words, Bain would say what it needed to say in order to get a favorable negotiating position, and then change its price once it had the position it wanted and the other side was at a disadvantage.

This is what some people would call "gaming the system," and what other people would call "dishonest."

If this description of Bain Capital is correct, then "flip-flopping" is not a fluke of Romney's political career. It is a fundamental character flaw of the man. He lacks integrity.

Romney v. Santorum

2012-01-04T18:29:00.000-08:00

Following the results of the Iowa caucuses, the primary matchup for the Republican nomination seems to be between:

1. A candidate who strapped the family dog in a crate to the roof of the car in order to drive from Massachusetts to Canada.

And:

2. A candidate who took the body of a stillborn baby home from the hospital to show his other children.

So it goes.

What was Santorum Thinking?

2011-09-24T14:31:00.000-07:00

In Thursday's Republican presidential debate, former Senator Rick Santorum was asked whether as President he would make any changes to the military that would undermine the recent repeal of Don't Ask-Don't Tell.

Santorum responded by saying "Yeah, I -- I would say, any type of sexual activity has absolutely no place in the military."

What?

Did he think that, before the repeal of DADT, the military was chaste?

And then he went on to say: "And the fact that they're making a point to include it as a provision within the military that we are going to recognize a group of people and give them a special privilege to -- to -- and removing 'don't ask/don't tell' I think tries to inject social policy into the military."

Does he think that the repeal of DADT gives gay and lesbian soldiers a special privilege to engage in sex at times or in places not permitted to heterosexual soldiers?

So what was he thinking?

He seems to have a perspective that 180 degrees opposite from the majority of American people who believe that the repeal of DADT will remove social policy from the military.

Taxing the Wealthy

2011-09-20T06:54:00.000-07:00

President Obama's proposal to impose higher taxes on those earning more than $1 million each year (which would certainly qualify as "wealthy" by anyone's definition) in order to insure that the wealthy pay at least the same rate of tax as middle income Americans, has produced the usual claims that higher taxes on the wealthy will hurt economic growth.

Claims which are absolute nonsense (to put it politely).

Economic growth generally comes from increasing demand for goods and services, and demand comes from four areas:

Domestic consumer spending (including housing);
Investments by businesses in plant and equipment;
Exports (i.e., sales to other countries); and
Government spending on goods and services.

Increasing taxes on the wealthy would have no effect on exports, and would allow more spending by the government (which is expansionary), so increasing taxes on high-income Americans would reduce only the first and second types of demand, if its going to reduce anything.

Almost by definition, wealthy people earn more than they spend on themselves. Someone who earns $1 million each year is not going to be spending that $1 million, but is going to be saving or reinvesting most of it. So increasing taxes on the wealthy is not going to reduce consumer spending.

Increasing taxes on the wealthy might affect business investments, because wealthy people who invest in stocks and corporate bonds help those businesses raise capital for investments in new plant and equipment. But that's not what's happening right now.

Because demand is down, businesses currently have excess capacity, meaning that they have plants and equipment that they are not using to full capacity and have no need to invest in more.
As a result, businesses are currently holding hundreds of billions of dollars of uninvested cash.
Because businesses don't need cash to invest and aren't looking for capital or loans, investors are putting their money into federal securities, which is driving interest rates on federal securities down to record lows. (At the August 31 auction of inflation-protected bonds, four-year bonds actually sold at a negative yield, meaning that investors were willing to pay the United States to hold their money for them as long as they got back money with the same value.)

What that means is that, if you let a wealthy person keep more of their income, they are going to take that money and buy more government securities and not invest the money in the economy.

Right now, the best way to expand the economy is through increased government spending that will put more money in the hands of consumers, and that means tax breaks for middle-income taxpayer and more government spending on construction, which provides more employment.

Which is what President Obama is proposing.

God's Wrath

2011-09-05T05:58:00.000-07:00

Every time a major storm hits a major city (e.g., Katrina and New Orleans or Irene and New York), someone, somewhere, says that God is punishing that city because of its acceptance (or tolerance) of homosexuality.

But isn't the opposite claim just as easy to make?

Isn't it possible that the extended and extreme drought in Texas is God punishing Texas being hostile to homosexuals?

Is Osama bin Laden Really Dead?

2011-05-09T21:00:00.000-07:00

To those who think that Osama bin Laden might be alive, two questions:

1. If OBL were alive, wouldn't his #1 priority be to release a new video, showing him holding a newspaper with a current headline (perhaps one announcing his own death), in order to demonstrate that the leaders of the USA are incompetent, or liars not to be trusted, or both, and so rally his followers?

2. Isn't the continuing absence of any such video further evidence that OBL is in fact dead?

I doubt that bin Laden is a fan of western literature, but I am quite sure that, if her were alive, he would love to announce that the reports of his death were an exaggeration.

The Rhetoric of Violence

2011-01-12T01:00:00.000-08:00

[This is something I wrote in back in August of 2010, but for some reason never published. The recent events in Tucson make me regret not publishing it sooner.]

Republican leaders have gone through the motions of renouncing the threats of violence that have been reported against Democratic leaders during and following the enactment of health care reform, and those Republication leaders seem to consider themselves entirely free of any responsibility for those threats. But those threats are entirely consistent with the rhetoric of the right, including the rhetoric of Republican leaders, and the rhetoric helped to justify violence in the minds of the far right.

Both international law and domestic law recognize times when violence can be justified. The most-well known example in domestic law is the law of self-defense, which allows you to touch, injure, or even kill another person in order to defend yourself against an attack. More broadly, there is a "justification" defense, which allows the use of violence to defend others and not just yourself.

And international law recognizes that a nation may legitimately use force to defend itself against invasions or other foreign threats.

But in each case, the level of violence that can be exerted must be appropriate to the level of violence of the aggressor. You can't respond to verbal threats with physical force, and you can't respond to physical force with deadly violence. In other words, you can't shoot someone who slaps you or shoves you. Similarly, the use of force by nations must be "proportional" to the threat. A country can't bomb a city in response to a border obstruction.

If the health care reform enacted by the Democrats were nothing more than bad policy, bad philosophy, or bad judgment, threats of violence could obviously not be justified, even by the most fervent opponents. But that's not the way the issues were framed by Republicans and conservatives. The health care bill was described as "oppressive" and would deprive Americans of "freedoms." Earlier, there was talk of "death panels." And the procedures used to enact health care reform were attacked as undemocratic and illegitimate. The Republicans described health care reform not merely as bad policy, but as the product of an oppressive, illegitimate government that threatens our life, liberty, and property. They described health care reforms in terms that, if taken literally, would justify armed revolution.

The extremist rhetoric of Republican leaders might not have incited threats of violence by the right, but the rhetoric justified threats of violence. And their defense is that they should not have been taken seriously?

The Pennsylvania Pendulum

2010-10-31T10:14:00.000-07:00

A piece of history that's working against Joe Sestak on Tuesday is that, true to the pattern for the past 60 years Pennsylvania will be electing a Republican governor.

For the past 60 years, the voters in Pennsylvania have changed the party in the governor's mansion every eight years, like clockwork. Ed Rendell, a Democrat, has served his eight years, so it's time to elect a Republican governor, and that would be Tom Corbett.

And vote-splitting takes extra effort, so a voter who votes for a Republican governor is more likely to vote for a Republican senator.

Sestak could still be elected to the Senate even if Tom Corbett is elected governor, but it will be a little bit harder, and in a close election that little extra edge could make a difference.

Trickle-Up Economics

2010-10-17T13:58:00.001-07:00

I suffer from a certain amount of cognitive dissonance every time I hear a conservative politician or pundit talk about the need for tax cuts for the wealthiest 2% of Americans in order to stimulate the economy. What I hear on the news almost every night is that the biggest factor driving the economy is consumer spending, and that they economy is not recovering because consumer spending remains weak.

So, if lack of consumer spending is the problem, the solution should be policies that give consumers more income to spend, right?

No, the mantra from the right is that we need more money in the hands of wealthy individuals and businesses. Of course, the very meaning of "wealthy" is having more income than you need to spend, which means that increasing the disposable income of the wealthy does not increase consumer spending but simply makes the wealthy wealthier. Investments in plants and equipment would also help the economy, but businesses are investing now because the economy is so bad (the kind of self-reinforcing behavior that makes "boom and bust" cycles work), and most investors are not putting their money into new businesses creating new jobs but into government securities, which is why interest rates are so low.

During the Reagan years, the belief that reducing taxes for the rich would stimulate the economy was called "trickle-down economics." But if consumer spending is the issue, then what we really need is trickle-UP economics. We need to adopt policies and programs that put more money into the hands of the lower economic levels where it will translate into consumer spending and economic growth for the entire economy.

The following chart presents empirical evidence of this truth also. This chart was originally published by Slate and it shows the income growth of different income levels during Republican administrations and Democratic administrations based on data compiled by Princeton political science professor Larry M. Bartels.

The chart obviously shows what it was intended to show, which is that the policies of Democratic presidents cause greater economic growth among the lower income levels, while the policies of Republican presidents promote more growth at the higher levels and less growth at the lower levels. But there's another inference which can be derived from the chart, which is that everyone does better when the lowest income levels are rising. For the top 5%, the income growth might be pretty much the same either way, but for everyone else, there is a correlation between income growth at the lowest levels and income growth at all levels.

So it's not necessarily a zero-sum game, and the "class warfare" that conservatives complain about might not be necessary, because policies that benefit the working class are going to benefit the wealthy, but policies that benefit the wealthy don't seem to benefit wage earners.

Why Health Care Reform Won't Be Repealed

2010-09-29T05:37:00.000-07:00

Even if Republicans were to get majorities in both houses of Congress, there really is no likelihood of health care reform being repealed, because repeal won't have full Republican support, despite what Republican may be claiming in their "Pledge to America."

Republicans are claiming to support, and re-enact, all the things that people like. Specifically:

We will make it illegal for an insurance company to deny coverage to someone with prior coverage on the basis of a pre-existing condition, eliminate annual and lifetime spending caps, and prevent insurers from dropping your coverage just because you get sick.

Of course, the Patient Protection and Affordable Care Act of 2010 already does all those things, and those are the parts of the act that people like and support. What the Republicans want to get rid of are what are referred to as the "burdensome mandates," such as the requirement that all but the smallest businesses provide health insurance for employees, and the "individual mandate" that requires individuals not covered by employer-provided insurance to get health insurance or pay a special tax.

The reason that Republicans won't be able to repeal those parts of the act is that those are the parts of the act that the insurance industry likes. Requiring insurers to provide insurance to sick people without requiring healthy people to buy insurance is a prescription for economic disaster, because there would be nothing to stop healthy people from dropping their coverage until after they get sick. So insurers would have to provide the same (or greater) levels of benefits while the number of insureds shrinks, which would cause premiums to skyrocket.

And Republicans know this, which is why the "Pledge" is so specific about the parts of the act that they would want to keep and so vague about exactly what would be repealed. They know that, if they come right out and say that they are going to repeal the employer and individual mandates, they will be (or at least should be) ridiculed for proposing a completely unworkable system.

So if the Republicans actually try to repeal health care reform with actual legislation, they will be caught between a rock and a hard place. If they repeal the entire health care reform act without providing patient protection they will anger voters, but if they repeal the employer and individual mandates and leave the patient protections in place they will anger (if not bankrupt) some of the biggest contributors.

So it's pretty safe to say that there's going to be lots of rhetoric, but not much actual repeal.

Overreaching by the Pennsylvania AG

2010-08-31T05:57:00.000-07:00

The Attorney General of Pennsylvania, Thomas Corbett, is now running for governor, and it will be interesting to see what will happen to Pennsylvania's role in the lawsuit Corbett joined in seeking to have the new health care reform law ("The Patient Protection and Affordable Care Act," H.R. 3590, P.L. 111-148) declared unconstitutional. Corbett was able to join in the lawsuit even though the governor of Pennsylvania, Edward Rendell, is a Democrat who actively supported passage of the health care bill, because the AG of Pennsylvania is an elected office that is largely independent of the governor. So, somewhat ironically, Corbett will be unable to continue to support the lawsuit if he is elected governor, because the next AG will be able to decide whether to proceed.

And Corbett never should have joined in the lawsuit, because it was outside of his powers as AG. If the lawsuit were just challenging the parts of the act that affect state government operations and revenues (mainly the provisions expanding Medicaid, which is a program created by federal law but only partially funded by the federal government), it would have been within his powers to represent the interests of the state, but the lawsuit also challenges the provisions requiring individuals to purchase health insurance (the "individual mandate"), and that is not within the powers of the AG.

The complaint that was filed says that the Attorneys General who are the plaintiffs seek "to protect the individual freedom, public health, and welfare of their citizens and residents" and specifically asks the court to order the federal government not to enforce the act against both the states represented by the AGs and the citizens and residents of those states.

But who gave the Attorney General of Pennsylvania the right to "protect" the individual interests of citizens and the right to represent their individual interests in court? And what if I (or other citizens) don't want the AG representing me in this lawsuit?

There is an allegation in the complaint that the Florida AG has "broad statutory and common law authority to protect the rights of the State of Florida and its people." There is no similar allegation regarding the powers of the Pennsylvania AG, and I don't believe that AG Corbett has the legal power to represent the people of Pennsylvania (i.e., the individual citizens of Pennsylvania separate from the government of Pennsylvania) in this lawsuit.

Section 4.1 of the Pennsylvania Constitution creates the office of Attorney General and declares that the AG " the chief law officer of the Commonwealth and shall exercise such powers and perform such duties as may be imposed by law." The law that seems most relevant is section 204 of the Commonwealth Attorneys Act, Act of October 15, 1980, P.L. 950, 71 P.S. §732-204, which states in subsection (c) that the AG shall represent "the Commonwealth and all Commonwealth agencies" in civil litigation. There is also the power to represent the Commonwealth and its citizens in federal antitrust litigation, but there is no general power to represent the citizens of Pennsylvania in any other kind of civil litigation. (On the inability of the AG to represent private parties, or enter into settlements affecting the rights of private parties, see Commonwealth v. Philip Morris, Inc., 40 Pa.D.& C. 225 (1999).)

It is possible that AG Corbett thinks that the statutory power to "intervene in any other action, including those involving ... the constitutionality of any statute" (71 P.S. §732-204(c)) allows him to join in this lawsuit but, unless the context clearly indicates otherwise, the word "statute" is defined to mean the statutes enacted by the General Assembly of Pennsylvania. 1 Pa.C.S. §1991. (And the context here does not clearly indicate a broader meaning of "statute." Quite the opposite, in fact, because it makes sense to give the AG the duty and power to defend state statutes against challenges to constitutionality, but it makes no sense to give the Pennsylvania AG the general power to challenge the constitutionality of federal statutes.)

The attempt by AG Corbett to challenge the constitutionality of the provisions of federal law which affect individual citizens of Pennsylvania but not the government of Pennsylvania is therefore outside of his power (what lawyers sometimes call "ultra vires") and the courts should deny him any standing to make those challenges.

But that might become moot if the next AG decides to withdraw from the suit.

Overreaching by the Pennsylvania AG

2010-03-25T05:44:00.000-07:00

I was surprised to read that the Attorney General of Pennsylvania, Thomas Corbett, had joined in the lawsuit seeking to have the new health care reform law ("The Patient Protection and Affordable Care Act," H.R. 3590, P.L. 111-148) declared unconstitutional, because the governor of Pennsylvania, Edward Rendell, is a Democrat who actively supported passage of the health care bill. I knew that the AG of Pennsylvania is an elected office, but had forgotten that the current AG is a Republican, not a Democrat. (I live in Pennsylvania and it is a fairly moderate state politically, and tends to alternate regularly between Republican and Democratic administrations.)

If the lawsuit were just challenging the parts of the act that affect state government operations and revenues (mainly the provisions expanding Medicaid, which is a program created by federal law but only partially funded by the federal government), I would be somewhat annoyed, but what really bothers me is that the lawsuit also challenges the provisions requiring individuals to purchase health insurance (the "individual mandate").

The complaint that was filed says that the Attorneys General who are the plaintiffs seek "to protect the individual freedom, public health, and welfare of their citizens and residents" and specifically asks the court to order the federal government not to enforce the act against both the states represented by the AGs and the citizens and residents of those states.

But who gave the Attorney General of Pennsylvania the right to "protect" my individual freedom and the right to represent my individual interests in court? And what if I don't want him representing me in this lawsuit?

There is an allegation in the complaint that the Florida AG has "broad statutory and common law authority to protect the rights of the State of Florida and its people." There is no similar allegation regarding the powers of the Pennsylvania AG, and I don't believe that AG Corbett has the legal power to represent the people of Pennsylvania (i.e., the individual citizens of Pennsylvania separate from the government of Pennsylvania) in this lawsuit.

Section 4.1 of the Pennsylvania Constitution creates the office of Attorney General and declares that the AG " the chief law officer of the Commonwealth and shall exercise such powers and perform such duties as may be imposed by law." The law that seems most relevant is section 204 of the Commonwealth Attorneys Act, Act of October 15, 1980, P.L. 950, 71 P.S. §732-204, which states in subsection (c) that the AG shall represent "the Commonwealth and all Commonwealth agencies" in civil litigation. There is also the power to represent the Commonwealth and its citizens in federal antitrust litigation, but there is no general power to represent the citizens of Pennsylvania in any other kind of civil litigation. (On the inability of the AG to represent private parties, or enter into settlements affecting the rights of private parties, see Commonwealth v. Philip Morris, Inc., 40 Pa.D.& C. 225 (1999).)

It is possible that AG Corbett thinks that the statutory power to "intervene in any other action, including those involving ... the constitutionality of any statute" (71 P.S. §732-204(c)) allows him to join in this lawsuit but, unless unless the context clearly indicates otherwise, the word "statute" is defined to mean the statutes enacted by the General Assembly of Pennsylvania. 1 Pa.C.S. §1991. (And the context here does not clearly indicate a broader meaning of "statute." Quite the opposite, in fact, because it makes sense to give the AG the duty and power to defend state statutes against challenges to constitutionality, but it makes no sense to give the Pennsylvania AG the general power to challenge the constitutionality of federal statutes.)

The attempt by AG Corbett to challenge the constitutionality of the provisions of federal law which affect individual citizens of Pennsylvania but not the government of Pennsylvania is therefore outside of his power (what lawyers sometimes call "ultra vires") and the courts should deny him any standing to make those challenges.

Why Turkeys Run the World

2010-03-03T04:57:00.001-08:00

The Senator Bunning/unemployment benefit extension fiasco is another illustration of a fundamental truth that was revealed to me some years ago in a book (more of pamphlet really) titled "Why Turkeys Run the World." The fundamental truth is that real decision-making power does not reside in the people with a goal or a mission or something to accomplish. The real power rests with people without any goal or agenda whatsoever.

Take Senator Bunning (please). The reason he was able to block Senate action was due in large part to the peculiar (to say the least) rules of that body, but the reason he was so successful was that he wasn't actually trying to accomplish anything, or even actually trying to block anything. If he had been trying to accomplish something, then the other Senators could have negotiated with him. But he didn't actually want anything, so there was nothing to offer him. It was his very purposelessness that gave him power.

A similar dynamic was seen in Senator Lieberman's self-indulgent opposition to health care reform. The real problem was not that Lieberman supported health care reform, or that he opposed it, but that he really didn't give a damn one way or another. Not really caring what happened, he had much greater freedom of action, and much greater power, than the Senators who stood for something.

Elections are usually decided by the independents in the middle, not with the stalwarts on either side of the political divide. Similarly, Congressional power resides in the indifferent and the unprincipled, not the dedicated.

Yoo's Professional Misconduct

2010-02-21T13:50:00.000-08:00

Although Associate Deputy Attorney General David Margolis has decided that John Yoo's "poor judgment" did not rise to the level of professional misconduct, the issue is not yet settled, because what is essentially the same issue is being litigated in federal district court, and is now before the 9th Circuit Court of Appeals.

In the recently-released final report of the Office of Professional Responsibility within the U.S. Department of Justice, the OPR concluded that many of the misstatements and omissions in the legal memoranda that John Yoo (then in the Office of Legal Counsel) approved on the use of "enhanced interrogation techniques" were intentional and constituted professional misconduct because he failed to provide legal advice that was thorough, objective, and candid. The OPR concluded that Yoo failed to provide the proper level of legal advice because he "put his desire to accommodate the client" (i.e., the policy makers in the Bush White House) above his professional obligations.

In rejecting the conclusion that the misstatements and omissions constituted professional misconduct, Assoc. Deputy Attorney General Margolis disagreed that Yoo wanted to tell the policy makers within the Bush administration what they wanted to hear, and concluded instead that Yoo was telling the Bush administration what Yoo wanted them to hear. "While I have declined to adopt OPR's findings of misconduct, I fear that John Yoo's loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, views of executive power while speaking for an institutional client."

But is the sincerity of Yoo's ideology a defense to charges of professional misconduct?

That issue may be addressed in a federal district court action brought by Jose Padilla against John Yoo in which Padilla alleges that John Yoo's memos resulted in Padilla's imprisonment (and mistreatment). Padilla v. Yoo, No. 3:08-cv-00035-JSW (U.S.D.C. N.D. Cal.) Yoo moved to dismiss the lawsuit on the grounds that, among other things, he was a federal officer entitled to immunity to suit. In a ruling last June, the court ruled that Yoo was not entitled to immunity because the opinions expressed in Yoo's memos violates "clearly established statutory or constitutional rights of which a reasonable person would have known."

The district court ruling is currently on appeal to the 9th Circuit (No. 09-16478), and one of the issues being argued is whether Padilla's complaint alleges facts that constitute unprofessional conduct by Yoo, and a brief filed by a group of professors of legal ethics say that it does. According to the "amicus" brief filed by "legal ethics scholars" last month, Padilla has alleged that Yoo "stepped beyond his role as a lawyer to participate directly in developing policy in the war on terrorism," and that allegation supports the conclusion that Yoo did not merely give "poor" or "incorrect" legal advice, but gave advice that violated ethical rules.

In other words, Margolis seems to believe that Yoo did not act unethically because he only allowed his own views to interfere with his obligation to give impartial legal advice, while the legal scholars filing the amicus brief with the 9th Circuit believe that Yoo acted unethically because he allowed his own views to interfere with his obligation to give impartial legal advice.

Now, the 9th Circuit is being asked to rule on allegations and not evidence, but the fact that the OPR has already concluded that Yoo's erroneous legal advice was not accidental but intentional suggests that Padilla will be able to prove the same thing. And Padilla may be able to avoid the mistake that the OPR may have made in assuming that Yoo gave bad legal advice to please the White House and failing to consider that Yoo might have given bad legal advice to please himself.

The Upcoming Tax Brawl

2010-02-05T04:31:00.000-08:00

There's been some media attention to the strange one-year repeal of the federal estate tax, and a few comments on the failure of Congress to pass an "extenders" bill to prevent a number of tax provisions from expiring at the end of 2009, but I have yet to see any public comment on what will be THE political story of 2010, which is that all of the Bush tax cuts will be expiring at the end of the year and, unless Congress acts, almost every tax-paying American will be paying more in federal income tax next year.

For the wealthiest Americans, allowing the Bush tax cuts to "sunset" will be quite a shock. A family of four with $500,000 of income filing a joint return with no itemized deductions would pay $136,208 in federal income tax in 2010, but will have to pay $158,801 in 2011, a $22,607 increase, unless Congress acts. If that $500,000 of income includes qualified dividend income, which is taxed at the capital gain rate of 15% instead of the maximum rate of 35% on ordinary income, the results are even more dramatic. In 2010, $500,000 of income with $250,000 of qualified dividends would result in $89,201 of federal tax, but in 2011 the tax jumps up to $158,801, an increase of $69,600, or almost 80%, in only one year.

Barack Obama campaigned on the pledge (which he has repeated several times since being elected), that he will not raise taxes for those earning less than $250,000. For a family of four with $250,000 of income, their tax bill is $51,701 under current law, but goes to $59,341 in 2011, a $7,640 increase.

Reducing the family's income reduces the impact, but the impact is still there. For a family earning $50,000, the tax bill would be $2,763 under current law, but jumps to $3,878, more than $1,000 more, in 2010.

Even a family earning as little as $30,000 would be affected. That family would owe $400 in federal income tax in 2010, but if the 10% tax bracket and marriage penalty relief both expire, that family's tax bill more than doubles, going from $400 to $878.

And here is where the Senate will jump into inaction. As we have seen very clearly in the attempt at health care reform, it takes only 41 Republican votes in the Senate (which the Republicans now have with newly-elected Scott Brown seated) to block any attempt to raise income tax rates for the wealthy. But these tax increases are already enacted and will happen if Congress does nothing, and it also takes only 41 Democratic votes in the Senate (or the Democratic majority in the more progressive House) to block any extension of the tax cuts for the wealthy.

So it's going to be like health care, only worse. At least with health care, Republicans paid lip service to the idea of reform and compromise, but when it comes to taxes Republicans are going to even pretend to be interested in negotiating with Democrats. With increasing pressure from "tea partiers" and the extreme right, and facing election battles at the end of 2010, Republicans have no reason to do anything but draw a hard line and insist on making the Bush tax cuts permanent.

And Republicans also have every reason to block anything the Democrats try to enact, because they would really like to go into the 2010 election being able to point to enormous tax increases on working Americans in 2011 and blaming it on the Democrats who control Congress.

So it's going to be bloody. It's going to be a bare-knuckled street brawl with knives and chains, and if the Democrats don't get their act together and enact real tax reform before November, they're going to find themselves down on the ground, bloody, and being kicked in the face.

Dred Scott v. Citizens United

2010-01-24T20:43:00.000-08:00

In Dred Scott v. Sandford, 60 U.S. 393 (1857), the Supreme Court declared that, whether of not someone was a "person" within the meaning of the Constitution was to be determined solely by reference to the Constitution, and Congress and the States had no say in the matter. Specifically, a person descended from a person imported as a slave could never be a "citizen" or a "person" within the meaning of the Constitution.

The decision is widely regarded as one of the worst in the history of the United States. It perpetuated slavery, it lead to the Civil War, and it was directly refuted by the 14th Amendment, one of only four (at most) Supreme Court opinions to have been reversed by constitutional amendments.

The recent Supreme Court decision in Citizens United v. Federal Election Commission, 558 U.S. ___, No. 08-205 (1/21/2010), goes to the opposite extreme, because it holds that anything that a state declares to be a "person" is a "person" for all purposes of the Constitution, and Congress has no say in the matter.

The Dred Scott decision eviscerated the federal government by declaring that whether a slave was a "person" was determined solely by constitutional law and Congress was powerless.

The Citizens United decision eviscerates the federal government by declaring that whether a corporate is a "person" is determined solely by state law and Congress is powerless.

Let's hope that fewer Americans die this time.

Taxing Political Expenditures

2010-01-24T06:37:00.000-08:00

The Supreme Court's recent decision in Citizens United v. Federal Election Commission severely restricts the ability of Congress to regulate, much less prohibit, the use of corporate money to influence elections, but what about Congress's power to tax that money?

As it is now, corporations cannot claim expenses of attempting to influence elections or legislation as business expense (see Internal Revenue Code section 162(e)). So corporate profits that are spent on electioneering are effectively subject to income tax at the corporate level. The shareholders bear the burden of the tax, but very indirectly.

But what if the expenses of electioneering were considered a form of a dividend?

This is not unprecedented, because there are lots of places in the Internal Revenue Code in which something that looks like one thing is recharacterized as something else. To take just one example, IRC section 7872 says that if a corporation makes an interest-free loan to a shareholder, the loan is recharacterized as an interest-bearing loan at a market rate of interest, with imputed interest payments by the shareholder to the corporation and imputed dividend payments in the same amounts by the corporation to the shareholder. There are also many rulings and court decisions in which officers or shareholders who have used corporate money to pay personal expenses are held to have received either compensation or dividends from the corporation.

So it would not be unreasonable for Congress to say that, if a corporation uses its money to advance the personal political beliefs of the officers or shareholders, that money should be considered to be payments to those officers or shareholders. For most publicly-traded corporations, dividends are not tax-deductible by the corporation, so income paid out as dividends is taxed twice, once at the corporate level and again at the shareholder level.

But the really nasty part is that Congress could offer corporations a choice: If the political expenses are approved by the shareholders, then the expenses could be considered a dividend to those shareholders, but if the political expenses are approved only by the board of directors, then the income falls on the directors alone.

Neither alternative is going to be very appealing to corporations. Getting shareholder approval for political spending could turn shareholder meetings into political battles, and stock prices could suffer if investors decide that they don't want to own a stock that pays a dividend of $10 while the investor has $12 of taxable income. But directors are certainly not going to want to pay personal income tax on what might be millions of dollars of income they never actually received.

Taxing directors or shareholders on the money spent on corporate electioneering might not solve the problem of corporate influence, but it might make it more difficult and more painful.

How Do Hate Crimes Affect Interstate Commerce?

2009-10-23T10:14:00.000-07:00

And is there anything left that does not affect interstate commerce?

The question arises because the U.S. Constitution did not give Congress the power to legislate generally, over any subject, but only over the subjects listed in the Constitution, one of which is the regulation of interstate commerce.

And so, in S. 909, the "Matthew Shepard and and James Byrd Jr. Hate Crimes Prevention Act," which yesterday became part of the 2010 defense appropriate act (S. 1390), Congress dutifully found that violence motivated by bias "affects interstate commerce."

Really?

When the Constitution was first proposed and then ratified in the late 1700s, interstate commerce was relatively limited. Most food was grown within a few miles of where it was eaten, and most goods were manufactured locally, and by hand. The industrial revolution was just beginning, and the only means of transporting goods long distances was by horse-drawn wagon or by sea.

As our economy has grown larger and more complicated, the importance of interstate commerce has also grown. Today, it's difficult to find anything in any store that was not either grown or manufactured in a different state or includes materials from a different state. And as interstate commerce grew, the power of Congress grew, so that Congress began regulating not just railroads and the interstate movement of goods, but also agriculture, manufacturing, working conditions, and product safety.

When it involves interstate commerce, Congress can legislate against discrimination and bias. The Civil Rights Act of 1965, which made it illegal for hotels, restaurants, and other public accommodations to discriminate based on race was based on the power of Congress to regulate interstate commerce, because there is no power in Congress to legislate against discrimination generally. (The 14th Amendment prohibits states from denying equal protection and does not prohibit private discrimination.) Later legislation has prohibited discrimination in housing and employment, and has extended to not just racial discrimination but also discrimination based on gender, ethnicity, religion, and disabilities.

I agree with all of this. We have a national economy, and we should have national laws regulating that economy. But do two homophobes beating up a gay man outside of a bar really affect the national economy?

According to Congress, it does. Section 2 of S. 909 states (in part) that violence motivated by bias:

substantially affects interstate commerce in many ways, including the following:

(A) The movement of members of targeted groups is impeded, and members of such groups are forced to move across State lines to escape the incidence or risk of such violence.

(B) Members of targeted groups are prevented from purchasing goods and services, obtaining or sustaining employment, or participating in other commercial activity.

(C) Perpetrators cross State lines to commit such violence.

(D) Channels, facilities, and instrumentalities of interstate commerce are used to facilitate the commission of such violence.

(E) Such violence is committed using articles that have traveled in interstate commerce.

The statute itself limits the crimes relating to gender, religious, gender identity, and other biases to those occurring "during the course of, or as the result of, the travel of the defendant or the victim--(I) across a State line or national border; or (II) using a channel, facility, or instrumentality of interstate or foreign commerce," those committed using a "channel, facility, or instrumentality of interstate or foreign commerce" or using a "firearm, dangerous weapon, explosive or incendiary device, or other weapon that has traveled in interstate or foreign commerce," and those that "interferes with commercial or other economic activity in which the victim is engaged at the time of the conduct" or "otherwise affects interstate or foreign commerce."

It's difficult to imagine any crime of violence, anywhere, that wouldn't fall under one of those categories. For example, it's pretty safe to say that guns, knives, and even baseball bats are manufactured and sold in interstate commerce, so any crime, committed with any gun, knife, or baseball bat that ever crossed any state line, can now be a federal crime.

And my hypothetical about two homophobes beating up a gay man outside of a bar is a crime falling within the new statute if the fight arose after the victim bought a beer in the bar (which is interstate commerce) or caused the victim to miss a day of work (which affects interstate commerce).

United States v. Lopez, 514 U.S. 549 (1995), is often cited as limiting Congressional power, because in that case the Supreme Court ruled unconstitutional a law that made it a crime to carry a gun within a "school zone," rejecting arguments raised by the government that violence near schools will affect interstate commerce. However, the statute in question did not include any specific requirement that the crime be found to be "in interstate commerce" or "affect interstate commerce," and there were no findings by Congress about how the presence of guns near schools would affect interstate commerce, so the decision could be distinguished from S. 909 and it is not clear how the Supreme Court will react to "findings" and statutory "limits" like those found in S. 909.

One would think that there is a limit to congressional power, and that Congress cannot extend its power merely because the crime is carried out using some weapon that once crossed a state line, or because of some relatively minor and unintended economic consequence of the crime. But maybe not.

Health Care Dichotomy

2009-08-14T15:37:00.001-07:00

Conservatives seem to be expressing two fears about health care reform:

1. The government will intrude into the patient-doctor relationship, interfering with things like end-of-life decisions.

2. The government will NOT intrude into the patient-doctor relationship, allowing things like legal abortions.

The first fear is especially peculiar, because it was conservatives who wanted the federal government to intrude into the end-of-life decisions of the Schiavo family.

The lesson I draw from this is that conservatives don't want the government intruding into your decisions as long as you make the decisions that conservatives approve of. If you make any other decision, well then the government will have to step in.

In which case, it's your own fault for not being more moral and sensible.

Palin the Usurper

2009-07-27T19:51:00.000-07:00

While watching a Sarah Palin retrospective tonight, following her resignation as governor of Alaska, a question occurred to me:

Was the election of Barack Obama, a former president of Harvard Law Review and Senator from Illinois, as the first African-American President of the United States, almost upstaged/eclipsed (or was it upstaged/eclipsed?) by a former beauty pagent contestant who was an unsuccessful candidate for Vice-President of the United States?

On "This Week with George Stephanapolous" on 7/26, conservative commentator George Will complained about the continuing over-exposure given to the pronouncements of Barack Obama on every subject. But hasn't Obama at least been elected to a national office? How do we explain the continuing attention given to the utterances of Sarah Palin?

Yoo, Torture Memos, and "Reasonable Officials"

2009-06-16T23:25:00.000-07:00

On June 12, a federal judge has issued a stinging rebuke to John Yoo for the opinions he wrote for the Bush administration supporting indefinite detentions and "harsh interrogations." The judge ruled that Yoo's opinions were not merely wrong, but were unreasonably wrong when applied to an American citizen classified as an "enemy combatant."

This should be the first of many judicial opinions that forcefully and unequivocably reject the reasoning of Yoo's "torture memos."

The ruling was in a civil action filed by Jose Padilla against John Yoo in which Padilla has claimed that Yoo's legal opinions, written by Yoo while he was serving in the Department of Justice, caused Padilla to be deprived of civil rights. The complaint alleges unconstitutional detention without due process of law and mental and physical abuse. In rejecting Yoo's claim of immunity from personal liability for acts he performed while an official of the federal government, the judge held that Yoo's legal opinions were unreasonably wrong because Padilla's constitutional rights were "clearly established."

Some background: Jose Padilla is a citizen of the United States who was arrested at Chicago's O'Hare airport, initially charged with conspiracy to construct a "dirty" (i.e., radioactive) bomb, but then turned over to the military who held him in near-solitary confinement for almost four years before he was finally returned to the civilian courts where he pled guilty to crimes less serious than the ones he was initially charged with. (He could not have been convicted of the crimes for which he was originally charged because the original charges were dismissed "with prejudice" when the Bush administration insisted he be surrendered to military custody, and so the dismissal barred any future prosecution for the same crimes due to the constitutional prohibition of double jeopardy for the same offense.)

John Yoo was an official of the White House, and then the Office of Legal Counsel in the Department of Justice, and his legal opinions formed the basis for the Bush adminstrations claims of the powers of the President to order detentions and "harsh interrogations" notwithstanding constitutional guarantees of due process and statutory prohibitions against torture.

In 2008, and after his conviction, Padilla and his mother filed suit against Yoo, claiming that as a result of Yoo's legal opinions Padilla had been detained without charge and without access to legal counsel and had been subjected to severe and prolonged isolation, sleep deprivation, extreme temperatures, painful stress positions, threats of death, and other forms of physical and mental abuse. Padilla and his mother asked for a judgment that those conditions were unlawful and unconstitional, for $1 (one dollar) in damages, and for other relief. Padilla v. Yoo, No. 3:08-cv-00035-JSW (U.S.D.C. N.D. Cal. 1/4/2008).

After some procedural sparring, Yoo moved to dismiss the complaint for failure to state a proper cause of action. In deciding this motion, the court did not decide whether what Padilla claimed was true, but merely whether Padilla could win the lawsuit against Yoo if it turned out that everything that Padilla had alleged was actually true. In deciding this motion, the court addressed two major issues:

1. Whether there is a cause of action and legal remedy in court for these kinds of allegations; and, if there is a cause of action

2. Whether the action is foreclosed by the usual immunity of government officials from any personal financial liability for their actions performed in the course of their duties.

On the first issue, the court ruled that the decision of the Supreme Court in Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), which held that a lawsuit could exist for violations of the constitution, required the court to find a civil remedy for Padilla even though neither the Constitution nor any federal statute expressly stated that Padilla could sue Yoo. (This is an issue that will almost certainly be contested on appeal.)

On the second and at present more interesting issue, the court pointed out that the immunity of government officials for personal liability is a "qualified" immunity, which means that the official is immune unless their conduct violates "any clearly established statutory or constitutional rights of which a resonable person would have known." The court then stated that, in determining whether a government official should be held personally liable for questioned conduct, the issue was "whether, under that clearly established law, a reasonable official could have believed that the conduct was lawful." Applying that standard to the allegations made by Padilla against Yoo, the court then reached the following conclusions:

1. Yoo could be held responsible for deprivations of constitutional rights consistent with his legal opinions because "government lawyers are responsible for the foreseeable consequences of their conduct" and Padilla alleged circumstances that made his mistreatment reasonably foreseeable by Yoo.

2. Padilla sufficiently alleged that his constitutional rights were violated by denial of access to courts in violation of the 5th Amendment and cruel and unusual treatments that would be violations of the 8th Amendment.

3. Padilla's constitutional rights were "clearly established." In reaching this conclusion, the court rejected Yoo's arguments that the presidential designation of Padilla as an "enemy combatant" created any uncertainty about Padilla's constitutional rights.

The necessary, if not explicit, implication of the court's holdings is that Yoo's legal conclusions were not just wrong, but were not the conclusions of a "reasonable" federal officer. Padilla v. Yoo, No. 3:08-cv-00035-JSW (U.S.D.C. N.D. Cal. 6/12/2009).

Still to come is the report of the Department of Justice's Office of Legal Counsel on whether the opinions of John Yoo and Jay Bybee departed from professional standards to such an extent that they should be disciplined for failing to adhere to the rules of professional conduct.

Ozzie Myers in Iran

2009-06-16T19:13:00.000-07:00

Reading about the "election" results in Iran, I can't help but marvel at the inexperience (or incompetence) of whoever was put in charge of fixing the results. Facing what was believed to be a close election, you don't report a 64-35 landslide, and certainly not before the ballots could have been counted.

A better role model would have been Mayor Richard Daley of Chicago, who in 1960 waited until the rest of Illinois had reported its results before announcing the votes from Cook County, which gave John F. Kennedy a margin of victory large enough to carry the state and the Electoral College. That shows a certain amount of subtlety.

The results from Iran remind me of south Philadelphia (and Democratic) politician Michael "Ozzie" Myers who, early in his career and before he was allowed to be elected to Congress (where he got ensnared in the "Abscam" sting and was sent to prison), was entrusted with the job of getting signatures on a nominating petition for a Democratic candidate. When the petition was challenged, it was learned that one of the "signatures" on the petition belonged to a voter who had no fingers.

Maybe after a few more years of democracy, Iran will learn how to fix an election the right way.

Spring Begins (Obviously and Yet Unofficially)

2009-03-15T07:55:00.000-07:00

Last weekend, it was about 70 degrees today in the Philadelphia area, so the snows from the previous week were melting, snowdrops and crocuses were blooming, and dogwoods were budding. Unmistakable signs of spring.

The weather since then has been cooler, but daffodils and tulips are sprouting, and spring has undeniably arrived.

And yet somewhere in TV-land, some weatherman solemnly pronounced that spring does not “officially” begin for another week or two. And everyone will nod and agree, because everyone “knows” that spring begins with the vernal equinox on March 21.

These kinds of pronouncements about the “official” start of spring (or summer, or fall, or winter) always annoy me. Who declared that March 21 is the “official” start of spring? What legislature, executive or judicial officer, or authority made that decision?

If we go to an actual official source for weather and climate information, the National Weather Service of the National Oceanic and Atmospheric Administration (which is part of the United States Department of Commerce), we find that “spring” is defined as:

“The season of the year comprising the transition period from winter to summer occurring when the sun is approaching the summer solstice. In the Northern Hemisphere, spring customarily includes the months of March, April and May.”

There are similar definitions of summer (June, July, and August), autumn (September, October, and November), and winter (December, January, and February).

The National Weather Service applies these definitions in its operations, because it keeps seasonal statistics based on a spring that begins on March 1 and ends on May 31. When you read about the coldest (or warmest or wettest or driest) “spring on record,” you are reading about a “spring” that begins on March 1 and ends on May 31.

So in the most “official” source of weather information in the United States, we find that spring began on March 1.

But let’s forget for the moment about what is or is not “official” and look at what would be the most sensible or logical way to define the start of spring.

Let’s start with the assumption that each of the four seasons is of equal length, so each season will be about three months, or about 91 days. Spring is a transition from winter to summer, so let’s look at when winter ends and when summer begins. There are two or three different ways we might define winter (and summer):

1. Winter might be defined as the three months (or 91 days) with the least sunlight. Summer would be the 91 days with the most sunlight.

2. Winter might be defined as the coldest three months (or 91 days). Summer would be the 91 warmest days.

3. Seasons might also be defined by agriculture. Spring is the planting season, summer is the growing season, autumn is the harvest season, and winter is the season when you try not to freeze or starve until spring arrives.

As for the first possible definition, the shortest day of the year is the winter solstice on December 21, so that would be the middle of winter (and not the beginning of winter). Similarly, the summer solstice (June 21) would be the middle of summer. And indeed, until the invention of TV weathermen, December 21 was known as “midwinter,” and June 21 was known as “midsummer.” Going forwards 45 days from December 21, and backwards 45 days from June 21, we find that spring begins on February 4 and ends on May 7. This is also consistent with the celebration of May Day (on the first of May) as the beginning of summer.

Another of the possible definitions of “winter” and “summer” relate to 91 day period with the coldest (or warmest) weather. By that definition, winter would begin in early December and end in early March, while summer would begin in early June and end in early September. For example, a chart of a 30-year average of high and low daily temperatures for Philadelphia shows that the coldest 90 days of the year (with average daily high temperatures of no more than 47 degrees) begin on December 5 and end on March 5, while the 92 warmest days (with average daily high temperatures of 79 or above) begin on June 7 and end on September 7. So, looking at the transition from winter temperatures to summer temperatures, spring would begin on March 5 and end on June 7.

As far as the agricultural calendar is concerned, most crops are planted in March and April, and the harvesting of most crops begins in August. (In fact, the word "harvest" is from the old English word hærfest, which meant "autumn.") This suggests (once again), that summer begins in May and ends in August. This is also consistent with the celebration of May Day, on the first of May, as the beginning of summer, which puts the beginning of spring in early February.

All of these different approaches to defining spring would put the beginning of spring somewhere between the beginning of February and the first week of March, which makes the choice of March 1 by the National Weather Service eminently sensible and the choice of March 21 by TV weathermen and the publishers of calendars as decidely strange.

So how did we come to believe that spring “officially” began on March 21? Blame the astronomers.

The stars and constellations that are visible at night change during the year, and so astronomers like to refer to the appearance of the night sky during each season. Being astronomers (and not meteorologists), they want an astronomic event to divide the seasons, and so they somewhat naturally chose the equinoxes and solstices. And they wanted those events to mark the boundaries of the seasons and not the middles, so they made the vernal equinox the beginning of astronomic spring instead of the middle. (I have to admit that exactly how and when astronomers decided to move the summer solstice from the middle of summer to the beginning of summer is not yet clear to me.)

The National Weather Service explicitly recognizes the difference between meteorological seasons and astronomic seasons in its definition of autumn:

“Autumn: The season of the year that is the transition period from summer to winter, occurring as the sun approaches the winter solstice. Meteorological autumn (different from standard/astronomical autumn) begins September 1 and ends November 30.”

I referred to declarations of the “official” start of seasons as “annoying,” and I find them so for several reasons:

As I’ve explained above, it is factually incorrect, because no official or other authority has ever declared that spring begins on March 21.

It also results in TV weathermen producing commentary that is borderline gibberish, such as describing a warm day in early June as something unusual because “summer has not yet officially arrived.” News flash: It gets warm in June. For a weatherman to insist on a meaning for “summer” that does not include the warmest days of the year is idiotic and an insult to the intelligence of the listener (me).

Finally, defining an “official” start of seasons in a way that is out of touch with reality is disturbingly unnatural and in a way inhuman. It signifies to me that I am living in a society so out of touch with the natural world, and nature itself, that it would fix artificial dates and times to the change of the seasons and ignore the gradual and beautiful changes actually going on around us.

Unsocialized Medicine

2008-10-06T03:36:00.000-07:00

As Paul Krugman first pointed out (see ), the quotation from Ronald Reagan that Sarah Palin used at the end of the Vice Presidential debate was taken from a recording that Reagan made in the 1950s in opposition to the enactment of Medicare (aka, "socialized medicine"). I doubt the quotation was selected at random, or its relationship to the earlier health care debate was coincidental, because fear of the goverment has been a persistent theme of those opposed to government-paid health care.

This anti-goverment theme was explicit in Palin's criticism of Obama's plans for health care, which she described as a "universal government run program," adding that, "unless you're pleased with the way the federal government has been running anything lately, I don't think that it's going to be real pleasing for Americans to consider health care being taken over by the feds."

Of course, "lately" the government has been run by Republicans, but let's ignore that unintentional admission of Republican ineptitude because governmental incompetence is still a truism for many people. Except that we now have experience with government-run health care in the United States. It's called Medicare, and people like it. Independent surveys show that people are generally more satisfied with Medicare than with private health insurance. (See, for example, "Medicare v. Private Insurance: Rhetoric and Reality" at http://content.healthaffairs.org/cgi/content/full/hlthaff.w2.311v1/DC1)

Knee-jerk opposition to all things governmental overlooks the advantages of a government-run, bureaucratic system, one of which is that the elimination of the profit motive actually makes Medicare more efficient, and more consumer-friendly, than private insurance.

A private insurance company makes a profit by charging premiums in excess of the covered medical costs of its policyholders. One way for an insurer to increase profits would be to raise premium prices, but consumers can easily shop among insurance companies by comparing premium costs, so market pressures will keep premiums competitive. The other way to increase profits is by reducing the medical benefits paid. This can be done by screening out applicants who might incur higher than average medical costs (e.g., those with "pre-existing" conditisions) and by scrupulously denying claims for any benefits not absolutely required by the terms of the policy. And both screening applicants and screening claims requires more administrative oversight. (For that reason, a good way to shop among competing insurance companies is to look at both the costs of the premiums they charge and the percentage of the premiums paid in administrative costs compared to benefits paid. You're more likely to get value for your money from a company that pays a larger percentage of premiums back to its customers in the form of benefits.)

A government-run, bureaucratic system, by comparison, has no profit motive. There is therefore no incentive to screen applicants or claims more than is necessary to comply with the terms of the program. As a result, Medicare is much more efficient that private insurance companies. According to Paul Krugman (once again) in today's (10/6) column, for private insurance companies selling individual health plans, 29 percent of their total costs are administrative costs, and not medical benefits, while Medicare spends only 3 percent of its money on administration.

That's right, it is private industry that has bloated, inefficient bureaucracies, and not the government.

The other advantage to a government bureaucracy over a private bureaucracy is that the government bureaucrat doesn't really care whether he (or she) grants or denies your claim for benefits. It's not his money, so what does he care?

The private bureaucrat does care, because the profitability of his employer is at stake. In fact, investigation often find that private insurance companies provide implicit incentives for their employees to deny claims for benefits and disincentives to allowing claims. By constrast, government workers are often rated by the volume of claims processed without regard to whether the claim is allowed or denied. So a government bureaucrat may have an incentive to pay a large number of claims quickly, while a private bureaucrat has an incentive to pay fewer claims slowly.

Bottom line: We mustn't let soundbite appeals to knee-jerk ideologies obscure the reality that "socialized medicine" works in other countries and it works here too.

Looking Backwards

2008-10-02T20:02:00.000-07:00

I just finished watching the vice-presidential debate between Joseph Biden and Sarah Palin, and the line that sticks in my mind is the one Palin recited (I don't give her any credit for any original thoughts) after Biden described McCain's voting history, because Palin said, "There you go again, looking backwards."

The biggest challenge of the McCain campaign is that is must distance itself from both the past and the present. The past is the record of the Republican party, which has controlled Congress for 10 0f the last 12 years, the record of John McCain, who has been in the Senate for the last 26 years, and the record of George W. Bush, who has been President for the last 7 years. The present is the platform of John McCain, which is a platform of increasing tax breaks for the wealthy, continued dependence on fossil fuels, and the continuation of a unilateral foreign policy based on military force.

The promise of the McCain-Palin campaign is that we didn't really mean what we did in the past, we don't mean what we say about the present, and we're going to do something different in the future. Just trust us.

And Joe Biden had the correct response, which is that the past is prologue.

Talking Points Salad

2008-10-01T14:58:00.000-07:00

Listening to interviews and off-the-cuff statements by VP Republican candidate Sarah Palin, I get the feeling I'm listening to a talking-points salad. She takes the talking points she's been given by the McCain campaign, then chops them up and puts them together in a random way to create a kind of word salad.

To see and hear what I'm talking about, here's a montage of memorable moments to date, put together by Josh Marshall's Talking Points Memo.

Partisanship

2008-09-29T20:18:00.000-07:00

Sorry, but this makes no sense whatsoever.

The follow are two consecutive sentences from a statement by John McCain on 9/29/2008:

"Senator Obama and his allies in Congress have infused unnecessary partisanship into the process. Now is not the time to fix the blame; now is the time to fix the problem."

If Senator McCain was not "fixing the blame," then what was he doing?

The Mythical McCain-Month

2008-09-25T11:09:00.000-07:00

In "The Mythical Man-Month," software manager Frederick P. Brooks Jr. explained that adding workers to a software project that was behind schedule would only slow the project down, and not speed it up. This happens because adding new workers forces the existing workers to stop what they are doing to explain to the new workers what has been done, what needs to be done, and what is being done, as well as the increase in time needed for communications among a greater number of workers.

For similar reasons, John McCain's decision to suspend his campaign in order to travel to Washington to intervene in the Congressional efforts to fix the current mess in the nation's credit markets can only slow things down, and not speed things up.

McCain admits he knows nothing about economics, and has also admitted that, as of two days ago, he had not yet read Treasury Secretary Henry Paulson's three-page bailout proposal. It will therefore take a great deal of time to bring McCain current on the economic and political issues at stake, as well as the history and current state of the negotiations within Congress and between Congress and the executive branch.

Unfortunately, McCain can't tell the difference between leadership and showboating, which is why he will almost certainly make things worse instead of better.

Pit Bull with Lipstick

2008-09-06T08:42:00.000-07:00

What scares me most about Sarah Palin is not her ignorance, inexperience, or ideology, but her inability to work with or even listen to anyone she doesn't already agree with. That, coupled with what has been described as her viciousness and vindictiveness, is frightening.

The messes made by Bush in Iraq, FEMA, the Dept. of Justice, and the U.S. economy came from his willingness to listen to (and reward with jobs) the people he liked and agreed with, while ignoring (or firing) the people he didn't like.

For Palin, Trooper-gate, the mass firings after she became mayor, and just about everything else I've read about her demonstrates that, given power, she would do the same as Bush did AND MORE.

She lacks not only the skills and experience to lead, but the temperament as well.

Which McCain to Vote For?

2008-09-05T04:30:00.000-07:00

The McCain-Palin campaign is now offering the American people a variety of different John McCains to vote for.

You can vote for the McCain who promises to "change Washington," or you can vote for the McCain that has spent 26 years in the Senate in Washington and voted along with the Bush administration 90% of the time over the last eight years.

You can vote for the McCain who says that the Democratic nominee, Barack Obama, is not qualified to be President after only four years in the U.S. Senate, or you can vote for the McCain who says that his running mate, Sarah Palin, is qualified to be President after two years as the governor of the fourth-smallest state (by population).

You can vote for the McCain who is knowledgeable about foreign policy, or you can vote for the McCain who can't remember whether Iran is arming Sunni muslims or Shia muslims in Iraq.

You can vote for the McCain who wants to promote bipartisanship, or you can vote for the McCain who runs attack ads comparing Obama to Paris Hilton.

So many choices.

A Dancing Queen in Go-Go Boots?

2008-08-31T06:06:00.000-07:00

On July 30, 2008, Blender reported that presumptive Republican Presidential nominee John McCain's favorite song is "Dancing Queen" by ABBA.

And Alaska Governor Sarah Palin had previously told Vogue magazine that “I wish they’d stick with the issues instead of discussing my black go-go boots."

Obviously, you could never make this stuff up, and it's more than somewhat disturbing, because McCain obviously didn't pick Palin as his vice-presidential nominee for her presidential qualifications or her national campaign experience.

The Timetable is Half Full

2008-07-28T19:35:00.000-07:00

Much of the public discourse over the benefits/dangers of a "timetable" for withdrawal from Iraq try to paint a picture in black and white that is more a matter of perspective: Is a timetable for withdrawal a claim of victory or a concession of defeat? (I.e., is the glass half empty or half full?)

The establishment of a timetable for withdrawal is really nothing but a change of attitude. Under the Bush administration, the attitude has been that we intend to stay in Iraq until we need to leave. A timetable for withdrawal expresses the attitude that we intend to leave unless we need to stay.

And withdrawal is an attitude that American citizens and soldiers have grown to like.

Is Bush Naive?

2008-07-17T04:07:00.001-07:00

As recently as May 15, John McCain said that that Barack Obama's willingness to talk to Iran demonstrated "naiveté and inexperience and lack of judgment."

Now, it's been learned that the Bush administration is sending a representative to talk to Iran about its nuclear program.

So, is McCain going to attack President Bush as "naive" and lacking judgment? Bush is naive and inexperienced (despite seven years in office) and lacks judgment, but that's beside the point. This is an opportunity for McCain to show how "tough" and independent he really is, and it would be a shame to pass that up.

McCain could take his cue from former U.S. Ambassador to the United Nations John Bolton, who described the planned talks as "further evidence of the administration’s complete intellectual collapse.” And Bolton was considered a neoconservative ally of the Bush administration, having served as Undersecretary of State for Arms Control and International Security for four years before President Bush pushed him into position of ambassador to the U.N. through an interim appointment to avoid Democratic opposition in the Senate.

Antonin, Get Your Gun

2008-06-28T14:00:00.000-07:00

The Supreme Court's recent decision in District of Columbia v. Heller, No. 07–290 (6/26/2008), has garnered a lot of attention as a confirmation of the 2nd Amendment's "right to keep and bear arms." But there is both less to the opinion, and more to the opinion, than first meets the eye.

The jurisprudential weaknesses of the majority opinion authored by Justice Antonin Scalia are beyond the scope of this blog posting (I may elaborate later), but the actual holding of the case, and the true effect of the opinion, need to be explained more fully than has been covered in the popular press to date.

Although the Supreme Court held that the Second Amendment's "right of the People to keep and bear arms" was an individual right and not a right of the states to maintain militias, and held that a ban on handguns violated the Second Amendment, the holding of the case was still relatively narrow because the law in question was an ordinance of the District of Columbia and not a statute enacted by one of the states.

The District of Columbia is a peculiar place, constitutionally speaking, because it is governed by Congress in accordance with Article I, Section 8, clause 17, of the Constitution, and is not a "state" (or a part of any state) within the meaning of the Constitution. That peculiarity is important because, technically speaking, the Bill of Rights (the first ten amendments to the Constitution, including the 2nd Amendment) are binding only on the federal government and not the states. The fundamental freedoms guaranteed by the Bill of Rights apply to the states only through the 14th Amendment's guarantee of due process of law. So (for example), a state law that violates the right to freedom speech is not, technically speaking a violation of the 1st Amendment, which only applies to the federal government, but is a violation of the 14th Amendment.

In the Heller case, Scalia's opinion specifically recognized that the question of whether 2nd Amendment rights were "incorporated" into the 14th Amendment (and so applicable to the states) was not before the court, and that the court had previously ruled that the 2nd Amendment did not apply to the states. This is explicit in footnote 23, discussing a statement in United States v. Cruikshank, 92 U. S. 542, 553 (1876) that stated that the 2nd Amendment only limited the power of Congress, and was not incorporated into the 14th Amendment:

With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.

Slip Opinion, page 48, note 23 (emphasis added).

This footnote says (and suggests) several things.

First, the question of whether the 2nd Amendment applies to state legislation was not before the court in Heller and was not decided, and so remains an open question.

Second, the Supreme has in past decisions (Presser and Miller) affirmed that the 2nd Amendment applies only the federal government.

Third, that Cruikshank (and perhaps later decisions) did not interpret the 14th Amendment in the same way that later decisions interpreted that amendment.

The third point, combined with Scalia's citations to statements made in Congress during the debates over the 14th Amendment that the 2nd Amendment represented a "fundamental right" enjoyed by American citizens (see pages 41-47), are clear signals that Scalia believes the 2nd Amendment does apply to the states, and is just waiting for right case in which to make that decision.

Boumediene "Worst Decision"?

2008-06-15T07:40:00.000-07:00

Last Thursday, the Supreme Court announced its decision in Boumediene v. Bush, which allows detainees at the U.S. Naval Air Station at Guantanamo Bay to have access to federal courts in order to challenge the legality of their detentions. On Friday morning, speaking at a "town-hall style" meeting in New Jersey, presumptive Republican presidential nominee John McCain referred to the decision as “one of the worst decisions in the history of this country.” That is ridiculous hyperbole even from a conservative Republican point of view.

Let's put the decision in perspective:

The decision affects only about 280 people held at Guantanamo Bay. The majority opinion clearly states that the military base at Guantanamo Bay is unique because it is not, technically speaking, part of the United States, and yet it is under the complete control of the United States. The decision will never be applied to detainees held in prisons in Iraq or Afghanistan.

The decision does not set anyone free. The decision only allows them access to federal courts for purposes of challenging the legality of their detentions. If the Bush administration can demonstrate to the courts that the detentions are legal under U.S. law or international law, then the detentions will continue.

From the point of view of a conservative, the Boumediene decision has got to be small potatoes compared to decisions like Roe v. Wade, which has lead to the deaths of innocent fetuses by abortion, or Miranda v. Arizona, which required that warnings be given before police can interrogate suspects and which has resulted in thousands of admittedly guilty criminals going free, or even Lawrence v. Kansas, which gave homosexuality some constitutional protection.

So why the hyperbole? In the grand scheme of things, why should a conservative care whether or not a handful of detainees have been granted access to federal courts?

Two possible reasons:

It's better to be on offense than defense. McCain is going to have a difficult time defending the record of the Bush administration (and McCain's voting record) on domestic and foreign policy issues, so it's better to be on the attack against the decisions of the Supreme Court than trying to defend the decisions of the Bush administration and the Republican party over the last 7 years.
The fear game. What has won elections for Republicans over the last several decades is fear. Fear of desegregated schools (i.e., blacks and liberal judges), fear of crime (i.e, blacks and liberal judges), fear of affirmative action (i.e., blacks and liberal judges), fear of loss of jobs (i.e., Hispanics and blacks and liberal judges), fear of gay marriage (i.e., fear of homosexuals and liberal judges), and fear of terrorism (i.e., fear of Arabs and blacks). Attacking the Supreme Court as "soft on terrorism" effectively combines the most important elements of almost every traditional conservative fear, because it combines traditional white xenophobia with traditional conservative antipathy to the court system.

Look for more of "the fear game" as the McCain campaign continues.

Florida, Michigan, and Zimbabwe

2008-06-01T06:15:00.000-07:00

Hillary Clinton's comments comparing the primaries in Florida and Michigan with the elections in Zimbabwe were half right. She was right that there is something wrong with changing the rules of an election when you don't like the result, but she was wrong to think that she is different from Robert Mugabe.

People went to the polls in Zimbabwe thinking that their votes would count. But then Mugabe saw that the results weren't what he wanted, so he changed the rules and the results didn't count.

In Florida and Michigan, people went to the polls thinking that their votes would not count. But then Clinton saw that the results weren't what she wanted nationally if Florida and Michigan didn't count, so she tried to change to the rules to make the results count.

Campaigning in June

2008-05-26T05:15:00.001-07:00

Hillary Clinton's remark about Robert Kennedy's assassination in June after the California primary has been widely commented upon, and I don't want to attribute any dark motives to what she said, but it's worth looking at the comment in the context of what she says she meant, which is that it is not unusual for candidates to be competing in primaries in June.

She first referred to her husband's 1992 primary contests, and how he did not "wrap up" the Democratic nomination until he won the California primary. That is only half true. Bill Clinton swept the "Super Tuesday" primaries in March (not February) and was considered the nominee apparent after that. Paul Tsongas withdrew from the race later that month, leaving only one other candidate still campaigning, Jerry Brown.

California was one of the last primaries and Brown had won only three states, New Hampshire, Colorado, and Connecticut, so he had virtually no chance at the nomination. (Clinton won 39 states, including California, and Paul Tsongas won 6.) Brown apparently thought that, if he could win California (his home state, in which he had served as governor) by a large margin, he might be able to deny Clinton a first-ballot victory and perhaps play the role of spoiler.

In trying to justify her continued campaign by reference to the 1992 primaries, Hillary is comparing herself to Jerry Brown, the spoiler, and not Bill Clinton, the eventual nominee. And California was (and is) a big state, with lots of delegates at stake, and was Brown's home state, which he had a reasonable expectation of winning (although he did not). How does that justify Hillary Clinton continuing to campaign in Puerto Rico, Montana, and South Dakota?

The reference to Robert Kennedy campaigning in California in June of 1968 is even more of a reach. The eventual party nominee was Hubert Humphrey, who declared his candidacy only after President Johnson made the surprise announcement in March of 1968 that he would not seek reelection. Entering the race so late, Humphrey was not able to register for any of the primaries, and so he did not win any primaries at all. Becoming the nominee of the party without winning a single primary was possible then because the majority of Democratic delegates were what we would now call "superdelegates" chosen by political leaders and not by primaries or caucuses. It was only after the Democratic party changed its rules during the 1968 convention itself that the primary system began to have real political importance.

In the 1968 primary campaigns, Robert Kennedy (and Eugene McCarthy) were trying to do what John Kennedy had done in 1960, which was to use the primary system as a springboard to challenge the political establishment. But Hillary Clinton is the political establishment. She is now hoping to use the last few primary contests to challenge the candidate (Barack Obama) who has proven to be the more popular candidate, winning more total votes than she received in the contests in which they competed.

So where does that leave Hillary Clinton? It leaves here exactly where she is now, continuing to compete in a race she can't really win and looking for some justification other than her own personal ambitions.

Good News from Basra

2008-04-07T05:16:00.000-07:00

If good news can come from people shooting and killing each other, then there was good news from Basra last week.

Briefly, for those who weren't paying attention: The official government of Iraq, lead by Prime Minister Nuri Kamal al-Maliki, a Shiite, attempted to take control of Basra, the second-largest city in Iraq, which has actually been controlled by Shiite militias, and not the government, for quite some time. After several days of fighting (and more than several desertions from the Iraqi forces), a cease-fire was negotiated between al-Maliki and Shiite cleric Moktada al-Sadr, who told his followers to stop fighting, and they stopped fighting. (Mostly. There is still some fighting going on in Sadr City, outside Baghdad.)

This is good news for several reasons:

1. It means that we finally have a clearly defined civil war, with organized forces lead by identifiable leaders. In the past, attempts to describe the war in Iraq as a "civil war" were rejected by many who claimed that the violence was too disorganized and too chaotic to be a civil war. At least in Basra, the violence is now organized enough to be recognizable as a civil war.

2. It demonstrates once again (if additional demonstrations were needed) that "the surge" accomplished very little beyond policing Baghdad, and that there is no military solution to the problems in Iraq, which are ultimately political.

3. It demonstrates that negotiated political solutions are possible. It has been said that politics is the art of the possible. If the Maliki government can now see that there is no possible military solution to Basra, but a political solution is possible, it may have no choice but to take the political solution.

Faced with these truths, there is only one possible conclusion: It's time for us to leave. Our continuing military presence in Iraq can do nothing to change the long-term prospects for a stable Iraq, and perpetuates the illusion of an Iraqi government that is not really governing and might never be able to govern in the way we expected.

Some politicians (such as Sen. Joseph Biden) and some commentators have suggested that Iraq might have to be broken up into semi-autonomous regions under a rather weak central government that will exist mainly to administer oil revenues and provide national security. In fact, that is what is already happening, with Kurds controlling northern Iraq, Sunni chiefs controlling western Iraq, and Shiite militias (as we have now seen) controlling southern Iraq. Only Baghdad, in the middle, remains problematical.

This is obviously not the Iraq that the Bush administration wants, but right now what the administration wants is last on my list of priorities.

Left to themselves, the Iraqis might be able to figure out how to govern themselves and make a federal government work. The continuing presence of American forces can only slow the process down, and possibly distort it, by obscuring the true powers in Iraq.

So it's time to leave.

Mis-Speaking

2008-03-29T05:06:00.000-07:00

The divergences (shall we say) between Hillary Clinton's descriptions of her trip to Bosnia and what actually happened are now well documented. See, for example, the video compilation at http://blip.tv/file/778770. And there is talk now that the incident has "blown over."

But has it?

There are also problems with her claims of having been "instrumental" in the peace process in Northern Ireland, a claim that has been refuted by just about everyone who was actually involved in the peace talks.

As a result of these and other statements by Clinton, the non-partisan Annenberg Public Policy Center's "FactCheck.org" has described her claims of foreign policy experience as "exaggerated."

What might that mean for the general election?

During the 2000 election, Al Gore was repeatedly held up to ridicule because he had claimed to have "invented the Internet," and had claimed that he and his wife were the models for the central characters in Erich Segal's Love Story, even though Al Gore did not make those claims.

During the 2004 election, John Kerry came under attack by the "Swift Boat Veterans for Truth" for allegedly lying on the military reports that resulted in military citations and medals during his service in Vietnam 40 years before. The stories told by the "Swift Boat Veterans" were politically motivated and were eventually found to be not credible, but not before political damage was done.

That's what Republicans and conservatives have done when they have had to fabricate in order to create the appearance of dishonesty in a Democratic candidate. What is going to happen when they have recent and well-documented evidence of what appears to be dishonesty?

It's going to a long campaign for Hillary Clinton in the fall if she is forced to spend most of her time explaining that she "mis-spoke" repeatedly during her primary campaign.

Panaceas

2008-03-02T14:13:00.000-08:00

There are an increasing number of "solutions" that Republicans and conservatives seem to want to apply regardless of the problem.

Tax cuts are one. If the economy is going well, tax cuts are needed to sustain economic growth. If the economy falters, tax cuts are needed to stimulate the economy. If the federal deficit gets too big, then tax cuts are needed to stimulate the economy in order to produce higher tax revenues. Tax cuts are the remedy to every economic problem.

Keeping our troops in Iraq is also the conclusion no matter what happens. If things are going badly, then we need to maintain troop levels in order to avoid losing. If things improve, we still need to maintain troop levels because we're winning. No matter what happens in Iraq, the solution is military.

Imprisonment is also a "solution" that seems to have gotten out of control. We now have 1% of our population in prison, which is the highest incarceration rate in our history and the highest incarceration rate in the world. Imprisonment is applied not just to violent crimes but to social crimes such as drug addiction, gambling, and prostitution. And if people who are released from prison commit another crime, make the prison sentences longer. It doesn't make any difference what the crime was, or whether crime rates are going up even as prison terms are getting longer, the solution is still to make the prison sentences longer still.

The Establishment Candidate

2008-02-24T12:51:00.000-08:00

The "establishment candidate" usually has a number of advantages over candidates without the same political connections. With political experience usually comes better political connections, and that means better fund-raising, better organizations in local vote-getting efforts, and better campaign management. So why is Barack Obama looking like the establishment candidate while Hillary Clinton is looking like the clumsy newbie?

Obama has been better at fund-raising and better at grass-roots organizing, with more campaign operatives in more states producing more votes. And there is growing evidence that Obama has run a more cost-effective campaign, getting more bang for its campaign buck.

The one area in which Clinton still seems to have an edge is in the votes of the "super delegates," but let's hope it doesn't come to that. It's not going to be good for the Democratic Party if Obama comes into the convention with more delegates, more votes, and more energy, but then loses because of the votes of non-elected delegates.

Getting Tough

2008-02-22T15:13:00.000-08:00

Following some of Hillary Clinton's recent primary losses, there were reports (and observations) that she would be "taking off the gloves" to drive home her message that she is better qualified than Barack Obama to be President.

This is more likely to be annoying than effective.

In this and other recent events I am reminded of something "Miss Manners" (Judith Martin) wrote many years ago about the etiquette of participating in public political discourse:

If people do not agree with you, it is not necessarily because they do not understand your position. The reason that the same few people use most of the time at any given meeting is that they entertain this erroneous assumption. Stating your position louder after each statement of opposition occasionally wears down a few of the weaker souls, who drift off down the block, but it does not win the hearts and votes of the majority.

Judith Martin, Miss Manners' Guide to Excruciatingly Correct Behavior (Warner Books 1982), page 252.

The fact that people are not voting for Hillary Clinton does not mean that they have not heard her, or do not understand her position, but that they do not agree with her. For her to restate her position more loudly, more emphatically, and perhaps more shrilly, is not going to win the hearts and votes of the majority.

Change and Experience

2008-02-10T06:48:00.000-08:00

The polls are saying that Americans want "change," and Hillary Clinton is responding to those polls with two messages: that she will work for change, and that she has the advantage of experience and will "know what to do" on the first day in office. Ignoring for the moment the issues of whether Clinton really has any experience comparable to being President, whether her experiences in the past are likely to be applicable to future circumstances, and whether she has actually learned anything from her experiences, there are at least two things wrong with those two messages of her campaign.

The first problem is that the two messages are contradictory. A call for "change" is not a call for a particular solution, because if the voters knew exactly what solution they wanted they would vote for the candidate advocating that solution. A call for "change" is instead a call for a new and different perspective, a creative search for a "third way" that is not apparent at the moment. To a voter looking for that kind of new direction, the claim that Clinton already knows what to do the first day in office is not appealing.

The other problem is that the messages of the Clinton campaign are all about the ends and not about the means, about substance and not style, and the desire for change seems to be a desire not just for different results but for a different way of getting those results. Specifically, many voters seem to be tired of partisan animosity and the bickering and acrimony that goes along with it. They don't want to beat Republicans so much as they want to convince them to help advance the common goals shared by most Americans. Barack Obama's message of unity is therefore going to be more appealing to voters looking for change than Clinton's message that her experience in fighting Republicans will make her more effective in fighting them in the future. In touting her credentials of divisiveness, and conducting a campaign of divisiveness, Clinton has completely overlooked what might be the most important kind of change, which is a change in the way we think about politics.

Voting is usually more intuitive than intellectual, and I think that the majority of Democratic voters feel uneasy about the messages about Clinton campaign even if they don't (or can't) explain exactly why they are uneasy. Which is why I expect Obama to win a majority of the delegates elected to the Democratic convention.

Whether that majority will be enough to win the nomination is, unfortunately, a different story.

"Winning" Florida

2008-01-31T03:45:00.000-08:00

Yesterday, Hillary Clinton's campaign website blared that she had "won" in Florida, and she has publicly claimed victory, and also stated that she will work to seat the Florida (and Michigan) delegates at the Democratic national convention.

All of which turns my stomach.

When the Democratic National Committee decided to strip Michigan and Florida of their delegates to the convention, because they has scheduled their primaries earlier than allowed by DNC rules, all of the candidates (including Hillary) pledged not to campaign in those states. But Clinton's pledge came when she was leading in the polls.

Then she lost the Iowa caucuses to Barack Obama. Still, she insisted while campaigning in New Hampshire that Michigan and Florida were "meaningless."

Then Clinton "won" Michigan, with 55.4% of the vote. That sounds good, except that neither Obama nor John Edwards were on the ballot. In fact, the only other name on the ballot was Dennis Kucinich, who got 4% of the vote. Where did the other 40% of the votes go? To "Uncommitted," meaning "anyone but Hillary.

Then Clinton lost South Carolina. Badly. Obama out-polled her by two-to-one. Then, all of a sudden, Florida starts to look better to Clinton, and she starts talking about "listening" to Florida and using her delegates to seat delegates from Michigan (which she had already won) and Florida (where she was leading in the polls).

And then, just two days before the "meaningless" Florida primary, and nine days before "Super Tuesday," when hundreds of delegates will be at stake, Clinton takes the time to go to Florida, making stops in Sarasota and Miami. The events are "private," so she hasn't broken her pledge, but it gave her a chance to maintain her support among local political leaders, and put her name in the Florida newspapers.

Florida voters go to the polls, and Clinton gets a plurality of the vote, 49.7% to Obama's 33%. What does that mean? It means that a majority of Florida Democrats voted against Clinton. It also means that, in states in which Obama does not campaign, Clinton may be able to get more votes, if for no other reason than simple name recognition.

And then Clinton claimed victory, and stated again that she wanted Michigan and Florida delegates seated at the convention.

To call this "opportunistic" is perhaps an understatement. I think it is dishonorable. Clinton may have adhered to the letter of her pledge, but not it's spirit, and she seems to have no compunctions against using Obama's adherence to the pledge against him.

Fed Rates Redux

2008-01-31T03:40:00.000-08:00

Fearing recession, the Federal Reserve Board has dramatically lowered interest rates in order to make it easier to borrow (and spend) money.

One of the causes of the feared recession is the bursting of the housing bubble, which was caused by low interest rates leading to excessive borrowing (and spending) on housing.

So the current problem is caused by too much borrowing, and the "solution" offered by the Fed is to encourage more borrowing?

Does anyone else see a possible problem here?

Squandered

2008-01-18T04:57:00.000-08:00

The real Bush legacy (not the one he imagines) can be summed up in one word: Squandered.

At the beginning of Bush's first term, the United States had a balanced budget, moderate debt, healthy and well-equipped armed forces, and a dominant leadership position in the world community. And, after the 9/11 attacks, there was unity within the United States and sympathy from abroad.

What did Bush do with all those assets? He squandered them.

Bush's tax cuts for the wealthy has driven up our national debt to record levels.

The invasion of Iraq and the resulting pressure on our armed forces (while also trying to fight a ground war in Afghanistan) has stretched our military to the breaking point and has depleted so much equipment and morale that it would take years to recover even if the war ended tomorrow.

Our continuing use of violence and threats of violence as a solution to all problems, both on an individual level (Guantanamo Bay, secret prisons, "extraordinary rendition," and the use of what the world considers torture) and a national level (Bush now talks openly of using military power against Iran) has completely negated whatever international goodwill that existed after 9/11, and has undermined our role as a moral and diplomatic world leader.

And, the unity that arose after 9/11 was effectively killed by the realization that we'd been manipulated at best (lied to at worst) in Bush's rush to invade Iraq.

Now we're facing real threats, both in a looming recession and continuing fall in the value of the dollar, and in the rise of the power of the Taliban in Afghanistan and Pakistan, and we've got nothing to fall back on. Bush squandered the economic and military resources we should have kept for emergencies.

Gouging the Uninsured

2008-01-09T04:47:00.000-08:00

Every time I get a medical bill, I am shocked at the difference between the price of medical services and the cost of medical services.

I paid a bill this morning for a medical procedure and, according to the bill, the price of the procedure was $1,300. However, because I am insured, there was a $862 "adjustment," reducing the cost of the procedure to only $438.

This "adjustment" was not a payment by the insurance company, but reflected a price agreement negotiated between the insurance company and the doctors. The insurance company has said to the doctors, "You can quote whatever price you want, but we're only going to pay $438 for that procedure." And the doctors agreed.

What is most shocking is not just that doctors routinely bill prices that are 66% more than what they are really willing to accept as payment, but the implications of what this means for the 40% of our population that are uninsured. If you're uninsured, no one has negotiated a lower price for you, and no one will, and you're probably in no position to bargain, being in an emergency room with a serious medical problem and a poor credit history.

So if you're uninsured, you get gouged.

Remember that the next time you hear about some astronomically large medical bill that was run up by an uninsured person, or when you hear about the high cost of medical care, because what you may be hearing about is inflated prices.

The "Moment"

2008-01-07T21:23:00.001-08:00

Several times on the news tonight, I saw "the moment," when Hillary Clinton talked about her deep-felt concerns for America, and appeared to choke up, and come close to tears.

I thought it was quite good. Viewed in the context of the question that was asked, it showed that she was capable of passion, and cared deeply about the issues in the campaign.

But viewed in the context of the campaign as a whole, it raises some awkward questions. For example, if Hillary was capable of passion, where was it up until now?

Initially, her campaign was about "inevitability," meaning that she had pulled the sword from the stone and was destined to be the Democratic candidate so the voters should stop worrying about it.

Then, she was the candidate of "experience."

Now, suddenly, the day before the New Hampshire primary, she discovers that she believes passionately about the welfare of Americans.

It's all too neat, and too convenient.

She has shown that she is capable of laughing on cue. Is she also capable of choking up with emotion on cue, when her advisers have told her that its a wining strategy? My guess is: yes.

The Social Security "Crisis"

2007-12-31T12:19:00.000-08:00

We've heard for years about a "crisis" in Social Security, as benefits are predicted to exceed FICA tax revenues at some time in the future, most recently in 2005 as President Bush tried to undermine the Social Security system by allowing workers to opt out of the system and create private accounts (which even the White House eventually agreed would not solve the financial problems of the system). But the assumptions made by the Social Security Administration are conservative and new projections often push the predicted shortfall further into the future. (The latest estimates, in the 2007 reports of the Social Security Administration, say that projected tax income will begin to fall short of outlays in 2017, and the trust fund will be exhausted in 2041.) Now, there are new reasons to believe that the predicted shortfall might never occur.

According to the book "Microtrends" by Mark Penn, a growing number of people are working past the traditional retirement age of 65, either by necessity or choice. For example, the number of workers 65 and older has almost doubled in the last 25 years, and a 2005 survey by Merrill Lynch found that three fourths of baby boomers were not planning a traditional retirement.

Of course, if people work longer, they continue to contribute taxes while delaying receipts of benefits. According to an economist at the Urban Institute, Eugene Steuerle, if everyone worked just one year longer than the SSA has been assuming, and so received one year less in benefits and contributed one more year of FICA taxes, the projected shortfall would disappear.

There is also recent news that the fertility rate for American women has reversed a long-term downward trend, and is now something like 2.1 children per woman, which exceeds the "replacement rate" and is one of the highest of any industrialized nation. That means that in 20 years we may have more workers than previously expected, and more tax revenue than previously predicted.

All of which means that the so-called "crisis" in Social Security might no longer exist (assuming it ever really did exist).

But funding Medicaid and Medicare is going to be a problem.

The Bandwagon Effect

2007-12-29T10:10:00.000-08:00

It is often said that everyone loves a winner, and people like to root for a winner. The crowds at sporting events are larger when the home team is a winning team because people would rather be fans of a winning team and not a losing team.

Unfortunately, we have taken the same attitude to politics. Many people are so desirous of voting for a winner that they vote for the candidate they think will win, rather than the candidate they want to win. And so some voters will describe their own votes as "wasted" merely because their candidate failed to win.

Pundits sometimes describe this as "momentum," because popularity can be a self-fulfilling prophesy. Candidates that are perceived as successful, popular, and potential winners, become more popular and more successful simply as people hop onto what they think is a winning bandwagon.

In fact, it is arguable that Hillary Clinton's entire campaign to date has been based on this phenomenon. With an early lead in public opinion polls (which was due mainly to name recognition), her campaign has sought to present her success as inevitable, so that any vote for any other candidate is futile (and wasted).

This phenomenon also explains the importance of the early primaries in Iowa and New Hampshire. Candidates that do well in those two small states may be able to coast to national victories simply because they are perceived as winners, which causes more people to vote for them in later primaries.

Unfortunately, the mainstream media (and most pundits) actually encourage this kind of thinking by covering political campaigns as though they were sporting events. They rely on polls (and often just guesswork) to talk about who's behind and who's ahead, what are their tactics and strategies, and what are their chances, while hardly mentioning at all the real policy differences among the candidates. So most voters will go to the polls with all sorts of ideas about who's likely to win, but very little idea about which candidate stands for policies that are favored by the voter.

The bandwagon effect is also fueled (or perhaps magnified) by our "winner take all" political system, in which only the candidates with the largest plurality of votes (a majority is not needed in most elections) is elected. This discourages votes for third-party candidates, and also denies any political representation to voters representing sizable minorities of the population. (More about this another day.)

The Iranian Nuclear "Threat"

2007-12-05T05:53:00.000-08:00

In the most recent National Intelligence Estimate on Iran, the Bush administration reluctantly (and embarrassingly) admitted that the Iranian nuclear weapons program, which has been the focus of its policy towards Iraq, doesn't actually exist.

In the past, when asked about the possibility of military action against Iran, Bush has repeatedly said that "all options are on the table," and that the United States would use force against Iran if diplomacy failed.

And yet yesterday (12/4), facing questions about his own administration's assessment that Iran actually halted its nuclear weapons program in 2005, Bush repeated and confirmed his policy that "all options are on the table."

That's right, the President of the United States still holds out the possibility that we might bomb or invade a country that, according to our own intelligence agencies, (a) has no nuclear weapons, (b) is not building any nuclear weapons, and (c) has (as far as we can tell) no present intention of building any nuclear weapons, simply because that country might change its mind and start to build nuclear weapons in the future.

Is that crazy? Yes, but it is also consistent with a President who does not know how to govern or negotiate except through fear. Bush does not know how to negotiate with Iran except with threats, and Bush does not know how to lead this country without first trying to scare its citizens.

A "Hail Mary" Legacy

2007-11-28T05:35:00.000-08:00

George W. Bush is obsessed with his "legacy." Wildly unpopular in the present, he hopes for some respect in the future, despite the many obvious failures of his administration.

Now, with less than 14 months to go in his second term as President, Bush has a new goal: Peace in the Mideast.

No, not Iraq. He's already given up on that one. The Israeli-Palestinian part of the Mideast.

What else are we to make of the Arab-Israeli conference in Annapolis?

Down a lot of points, and deep in his own territory, Bush is going to throw a long one and hope it gets caught by someone.

Rating the Republican Candidates

2007-11-23T17:45:00.000-08:00

In a previous post, I explained which Democratic candidates for President I liked, and why. Today, I'm going to provide the same kinds of thoughts about the major Republican candidates.

Once again, this is not intended to be any kind of prediction about who will be nominated. Just my thoughts about who I would prefer to see as President if a Republican had to be elected for some reason (e.g., another strange Supreme Court ruling).

Mike Huckabee - Huckabee is admittedly conservative, but he has some experience running a government (as governor of Arkansas) and in the interviews I have seen, he comes off as honest and likable. So I would like to think he's not going to continue torturing people or invading other countries for ego reasons. And I'd like to think he won't lie to us more than what is absolutely necessary.

Mitt Romney - Like Huckabee, Romney also has administrative experience as a governor (Massachusetts). Probably more liberal than Huckabee, but that is canceled out (perhaps overwhelmed) by his current pandering to the religious right. Bottom line is that he's intelligent and competent, but not very honest, and I'd actually rather have an honest conservative in the White House than a dishonest moderate.

John McCain - Too old, too conservative, and no administrative experience. Comes across as likeable in interviews, but that only gives him an edge over Giuliani.

Rudolph Giuliani - Giuliani's sole claim to fame is that, after the attacks on 9/11, he didn't hop onto an airplane and head for Nebraska but actually tried to do his job. He has little experience with national issues, no judgment on personnel matters (e.g., Bernard Kerik), and his views on foreign policy are frightening. He was not well-regarded as a mayor before 9/11 and, given the opportunity, he could be the second-worst President in American history. (Second only to George W. Bush, of course.)

Fred Thompson - I don't know much about him, but everything I know I don't like. He is inexperienced, inarticulate, and hoping for the support of the religious right. Add that up and it sounds to me like trouble.

Ron Paul - An honest and likable man with views that are absolutely opposed to mine (except perhaps on the issue of Iraq) and absolutely no visible aptitude for the job of President.

Mukasey Confirmed

2007-10-19T06:18:00.000-07:00

Michael B. Mukasey has not yet been confirmed as Attorney General, but his most recent testimony before the Senate Judiciary Committee (on 10/18/2007) have confirmed that he is indeed the "moral idiot" that I described earlier.

Asked whether "waterboarding" (the controlled drowning of detainees to obtain information) might be constitutional, Mukasey answered (evasively) that, "“If waterboarding is torture, torture is not constitutional.” Mukasey either does not know, or does not care, that a Japanese officer, Yukio Asano, was tried and convicted of war crimes in 1947, and sentenced to 15 years hard labor, because he waterboarded a U.S. civilian during the second world war.

Just as troubling (or perhaps more troubling) is that Mukasey adheres to the view that the President as commander-in-chief under Article II of the Constitution can ignore the laws enacted by Congress under Article I of the Constitution. So electronic surveillance carried out on the orders of the President might be legal even if prohibited (and made a criminal act) by the laws enacted by Congress. According to Mukasey, “The president is not putting somebody above the law; the president is putting somebody within the law.”

Or, as Richard Nixon put it, ""When the president does it, that means that it is not illegal."

Rating the Democratic Candidates

2007-10-16T15:02:00.001-07:00

Everyone else has opinions about the candidates, so why shouldn't I?

What follows is not a prediction of who will win the Democratic presidential primaries, but just my summary of who I like, and why.

John Edwards - I liked John Edwards in 2004, and I still like him. In his interviews, he comes across as intelligent, thoughtful, and compassionate. He has been among the leaders in formulating and proposing a specific health care policy and in advocating our disengagement from Iraq. His major weakness is that he's never had an administrative position, and served only one term in the Senate. On the plus side, he's been already through a presidential race and knows how to campaign. I also think that he's more "electible" because he's from the south. (See my comments on Hillary Clinton, below.)

Barack Obama - I like Obama for much the same reasons I like Edwards. I give the edge to Edwards because Obama has yet to serve a full term in the Senate and has never been involved in a national campaign.

Bill Richardson - On paper, Bill Richardson is the most qualified candidate running, with 14 years in Congress, administrative experience (as the federal Secretary of Energy and as governor of New Mexico) and foreign policy experience (as Ambassador to the United Nations). I'd like to like him, but in every interview I have seen, he comes off as flat and uninspiring. I don't hear any new ideas from him, or any leadership, only credentials, and that doesn't interest me.

Hillary Clinton - I used to like Hillary Clinton. In fact, I cast a write-in vote for her for President in the 2000 primary. But she has been less than inspiring in the Senate (such as her vote to authorize the war in Iraq), and the coldness and ruthlessness of her campaign have been somewhat frightening. I no longer see much humanity in her, and I no longer have much confidence in her judgment.

I also have real doubts about Clinton's "electibility." Like her husband, she seems to bring out the bitterness in Republicans and right-leaning independent voters. And no sitting Senator from either party has been elected President since 1964 (Sen. John F. Kennedy), and no northern Democrat has been elected President in the same time, so the demographics and historical trends are all against her.

So I have a lot of misgivings about Clinton as a presidential candidate.

Those are my preferences. But, like most Democrats, I think that this is a highly qualified field, and I would be satisfied to be able to vote for any of them for President.

Next: Republicans

Fort Massacre: Iraq

2007-10-12T12:18:00.000-07:00

The movie Fort Massacre (1958), starring Joel McCrea, is usually described as a run-of-the-mill western, but there is a psychological subplot that impressed me when I saw the movie many years ago, and that haunts me still.

Briefly, the movie is about a small group of calvary troops who are caught in hostile Indian territory and are trying to get back to safety. But everything they do, and every move they make, seems to make the situation worse, and instead of avoiding the hostiles and moving closer to safety, they keep having to fight and move further from safety.

The soldiers believe that the problem is with the commanding officer, Sargent Vinson (Joel McCrea), whose wife and child were killed by Indians and who (they believe) is crazy to kill Indians and is deliberately leading them into repeated conflicts with the Indians. In a very memorable scene, Vinson (McCrea) explains that everything he has done was for the right reasons, that he has had rational reasons for everything he did, and that it was just bad luck that things did not go as he planned. And if you have ever seen how charming and sincere Joel McCrea could be, then you'll understand that, watching that scene, I believed him.

The climax to the movie comes when you suddenly realize that Vinson really is crazy and all he ever wanted to do was kill Indians even if it meant the lives of both him and his men.

Now, when I say "crazy," I'm not saying that Vinson was irrational, because he at least appeared to be very rational. What I'm saying is that Vinson did not know his own mind and had not admitted his own feelings to himself and so, when it came to judgment calls that required subjective assessments of risks, Vinson allowed himself to be led into bad choices by feelings and attitudes that he himself might not have been aware of. In other words, Vinson made what might be called a series of "Freudian" mistakes, in which his subconscious was able to affect his conscious decisions, leading to results that his subconscious wanted but his conscious mind rejected.

I don't really consider myself a Freudian, but I have come to believe that there really are very few accidents in life. Most of what happens to us is not the result of chance or luck, but is what at least a part of our mind wants to happen.

The clearest example of this would be an addiction such as alcohol or gambling. As the addiction begins to impose physical, emotional, and financial pain, causing illness, loss of family and friends, and loss of employment, many people think that the addict continues in the addiction despite the pain. A better explanation is that the addict continues because of the pain. Living with the pain of the addiction is in some way more comfortable to the addict than living without the pain, and so the addiction continues until (sometimes) the addict hits "rock bottom" and decides that maybe life without the addiction is not so bad after all.

The misbehavior or risky behavior of many children (and adults) can also be understood more clearly if you understand that the risk-taker might not view the consequences of failure as such a bad thing. A child who shoots a spitball at a teacher is not necessarily discouraged by the possibility of punishment, and in fact might be encouraged to misbehave, because the punishment itself (or the attention the punishment brings) may be part of what the child desires. Similarly, other kinds of unnaturally risky behavior can be the result of a mindset that feels some possible emotional benefit in what what the rest of us would call failure.

Okay, here's today's scary thought. What if everything that has gone wrong in Iraq was not really the result of bad intelligence, poor planning, or unexpected events. What if what we are seeing in Iraq is what George W. Bush really wants, subconsciously but not consciously.

Why would President Bush want such a thing, even subconsciously? We can't answer that question without first knowing why he was an alcoholic (which is pretty much conceded even by his supporters) or why he used cocaine (which is pretty much denied by his supporters, most of whom are in denial about a lot of things). But if you assume that many of Bush's decisions may be affected by some self-destructive desire to fail, then many events during his administration begin to make more sense. The failure to deal with Hurricane Katrina, the lack of attention to (and subsequent reversal of) what had been a successful invasion of Afghanistan, and even Bush's inattention to the famous August 2001 Presidential Daily Briefing (titled "Bin Laden Determined to Attack Inside U.S."), which lead to the 9/11 attacks themselves, are all part of a pattern.

It is also telling that, as Bush's post-invasion strategy for Iraq has clearly failed, his response has been to take more risks, ignoring the advice of the Iraq Study Group, committing more troops to Iraq, and pushing for a confrontation with Iran. Bush is like an addicted gambler on a losing streak who is nonetheless sure that his luck will change at any moment and then everything will be okay. And, just as an addicted gambler will not stop until the house refuses to extend him any additional credit, Bush will not stop until the House (and Senate) refuse to fund his military gambles.

At the end of Fort Massacre, Sgt. Vinson dies but most of his troops live. That is not the way Fort Massacre: Iraq will end. Tens of thousands of our troops (and hundreds of thousands of Iraqis) will have been killed or maimed, but the commanding officer will walk away unscathed, physically and (so far) politically.

Clarence Thomas: Complex or Conflicted?

2007-10-08T05:58:00.000-07:00

In a news report last week, following a lengthy interview with Supreme Court justice Clarence Thomas, ABC’s Jan Crawford Greenburg described him as one of "the most complex, compelling, maligned, and misunderstood figures in modern history."

I'm sure she meant that as a compliment, even though the same things could be said of the steamship Titanic or O. J. Simpson, but the word that really sprang out at me was "complex," because to me, "complex" is pretty much synonymous with "conflicted."

I have a cat that's conflicted. She will come over and rub up against your legs, and you can reach down and pet her for a few seconds, but then it's suddenly too much and she will whirl and hiss and swipe at you with her claws. Clarence Thomas seems to be the same way.

Thomas seems to have been the beneficiary of some liberal policies and liberal institutions, allowing him to get a prestigious law school education at Yale and eventually get a place on the U.S. Supreme Court. But it's "too much" and instead of purring, he lashes out with his claws.

He also seems to be angry (and conflicted) about his employment after law school. In his new book, he says that he put a 15 cent price sticker on his diploma after several employers turned him down. During his interview on "60 Minutes," Thomas said that he couldn't get a job, and that he eventually "swallowed hard" and took a job that didn't pay much money. The interviewer, Steve Kroft, described the job as "a $10,000-a-year job in Jefferson City, Mo., working for the state’s attorney general, John Danforth." But, as Frank Rich pointed out in his column in the New York Times, the position Thomas got was as an assistant attorney general, and John Danforth told a very different story in 1991, when he was a Senator supporting Thomas's appointment to the Supreme Court. Danforth testified during the confirmation hearings that he had gone to New Haven to recruit Thomas before he graduated. So Thomas had a job before he graduated, and he went from law school to one of the top law enforcement positions in state government. Furthermore, working for Danforth (also a Yale graduate) led to employment in Washington once Danforth was elected to the Senate, which led to Thomas's positions in the Reagan administration, which lead to his appointment to the U.S. Court of Appeals for the D.C. Circuit, which led to his Supreme Court appointment, in which he had the support of his first employer, Senator John Danforth. That sounds like a lot of good fortune, beginning with his first job out of law school, but all Thomas can do is complain about how few other job offers he had and how little his first job paid. (Incidentally, the top law firms paid starting salaries of only $14,000 to $16,000 back in 1974, and government service always pays less than private practice, so his starting salary was probably either average or not much below average for a beginning lawyer, even a Yale graduate.)

And Thomas's continuing obsession with Anita Hill is also puzzling. In his book, he describes her as a "mediocre lawyer." And yet, as Hill herself points out, she was also a graduate of Yale University, he recruited her to come work for him not once but twice, and he wrote a letter of recommendation that helped her get her first teaching job. And she has continued to enjoy what appears to be a successful academic career (she is now a professor at Brandeis) so she is hardly an intellectual light-weight.

And, speaking of Anita Hill, did Clarence Thomas commit perjury during his confirmation hearings in 1991? One of them must have been lying, because she made very specific allegations and he denied all of them. Looking back with the benefit of hindsight, it is increasingly clear that he was the liar and not her.

One new reason to believe that Thomas lied in 1991 is that he has not told the entire truth about other things since then. As shown above, both his book and the interviews following the publication of his book contain numerous misrepresentations about both Anita Hill and his own career.

Another reason to believe that Thomas lied is his continuing anger. My experience has been that people are more likely to be angered by accusations that contain some truth than by accusations that are completely untrue. In continuing to try to negate Professor Hill, Thomas doth protest too much.

Which exposes another conflict. Thomas was married in 1971 and divorced (despite being raised as a Roman Catholic) in 1984. So when Hill was working for him, from 1981 through 1983, Thomas was undoubtedly going through a great deal of personal pain and might have "acted out." He considers himself a moral person and a good Catholic, and yet he also tried to impose his sexuality onto a female employee and he can't be comfortable with those memories.

And so we have an angry, conflicted, perjuror on the Supreme Court.

Professor Hill has written that, "The question of whether Clarence Thomas belongs on the Supreme Court is no longer on the table — it was settled by the Senate back in 1991." If Clarence Thomas lied during his Senate confirmation hearings, then the issue of whether he belongs on the Supreme Court is not settled, and should be raised again, this time in impeachment hearings.

Torture Lite

2007-10-05T04:36:00.000-07:00

Recent stories in the New York Times (see Secret U.S. Endorsement of Severe Interrogations (October 4, 2007) and Debate Erupts on Techniques Used by C.I.A. (October 5, 2007)) make it clear that the Bush administration does not want to allow any meaningful public debate on the proper treatment of detainees.

In August of 2002, the Department of Justice produced what has come to be known as the "torture memo," which concluded that deliberately inflicting pain on a detainee was not "torture" unless the pain was equivalent to "organ failure" or “even death.” According to the NY Times, there was also a separate memorandum that described specific approved techniques.

The "torture memo" was officially withdrawn by the Department of Justice in 2004, after the original author (John Yoo) had left the Department, and after news of the content of the memo had become public. The Department of Justice then put on its website a very sanctimonious opinion titled "Legal Standards Applicable under 18 U.S.C. §§ 2340-2340A" that declared torture to be "abhorrent" and explained the meaning of terms such as "severe pain," but only in the most general way and without ever referring to any specific way of inflicting pain.

That much has been public knowledge for some time. What is news is that in 2005, after Alberto Gonzales became Attorney General, the Department issued a new, secret memorandum, again approving the infliction of physical and psychological pain. According to the NY Times, this new memorandum specifically approved not only the use of slapping, cold temperatures, sleep deprivation, loud music, and waterboarding, but allowed these techniques to be used in combinations. So it might be possible to slap around a detainee, put him in a 50 degree cell for a few hours with "music" so loud he couldn't sleep even if he could stop shivering, and then, if he does fall asleep, wake him up for some waterboarding, followed by more slapping.

(Incidentally, the NY Times and other sources continue to refer to waterboarding as "simulated drowning" or "making the subject think he is drowning." Let's be clear. Someone subject to waterboarding really is drowning. They cannot breathe, and will suffocate unless the waterboarding stops. The only difference between waterboarding and the cruel, crude, medieval practice of "dunking" is that, during waterboarding, no water can get into the victim's mouth or nose. Big deal.)

Okay, so combinations of slapping, cold temperatures, and waterboarding might not be "torture." But then Congress upped the ante, enacting the Detainee Treatment Act of 2005 and making it a crime for detainees to be subject to "cruel, inhuman or degrading treatment." Well, guess what? Then the Department of Justice declared (secretly) that the same things that they had decided weren't torture weren't even "cruel, inhuman or degrading." According to the NY Times, another secret memorandum was issued by the Department of Justice in late 2005 that reached that very conclusion.

And now, many members of Congress are upset to learn that the Department of Justice has a practice of issuing memos saying that the laws Congress has enacted don't mean what Congress thought they meant and without telling Congress that. (Which Congress should have expected, given that Bush had attached a "signing statement" to the Detainee Treatment Act of 2005 saying that he would ignore the act if he thought he had the constitutional authority to do so. See "Clarification" in this blog.)

And the response by the White House? White House press secretary Dana Perino refused to identify or discuss any specific techniques but declared that "any procedures that they use" are "tough, safe, necessary and lawful." (The "tough" I believe.)

So there you have it. Congress can pass any law it wants regarding "torture" or "cruel, inhuman or degrading treatment," and those laws don't really mean anything because the lawyers in the Department of Justice (who are appointed by the President, remember) get to define what is meant by "torture" and "cruel, inhuman or degrading treatment" and the President doesn't need to tell us (or Congress) what these definitions are.

Damn the Truth, Full Smear Ahead!

2007-10-03T06:37:00.000-07:00

A recent series of ads and commentaries involving Rush Limbaugh demonstrate the all-too-common practice of radical conservatives who, when caught in a baseless smear, simply fabricate new baseless smears.

In this case, Limbaugh made his original smear during his 9/26 program. To put the comment in context, Limbaugh was answering calls from listeners. The first caller, "Mike from Chicago" identified himself as a Republican and said that "I do believe that we should pull out of Iraq. I don't think it's winnable." Limbaugh proceeds to ridicule him, then takes a second call, who begins by saying that he as a "a retort to Mike in Chicago," and proceeds to make a lot of pro-war comments, referring to what "these people don't understand." Shortly afterwards, these exchange occurs:

LIMBAUGH: I -- it's not possible, intellectually, to follow these people.

CALLER 2: No, it's not, and what's really funny is, they never talk to real soldiers. They like to pull these soldiers that come up out of the blue and talk to the media.

LIMBAUGH: The phony soldiers.

So it's not clear who "they" are, but it seems that soldiers who talk to the media against the Iraq war are "phony soldiers."

This comment was immediately attacked by a number of individuals and organizations, because there are many, many real soldiers who have been critical of the Bush administration's policies in Iraq and have called for the withdrawal of American troops. (See, for example, the coverage given to this remark by Media Matters for America.)

Okay, so Limbaugh has uttered another casual, baseless, smear. Nothing new there, and hardly newsworthy. Except that Limbaugh tries to deny that he said what he said.

In his September 28 broadcast, Limbaugh claims that the "phony soldiers" (plural) comment was not about "the anti-war movement generally," but only "about one soldier ... Jesse MacBeth." Limbaugh then claimed that Media Matters "selectively choose what they want to make their point" and then aired what he said was "the entire transcript, in context."

There are at least two problems with those statements:

1. The first mention of Jesse MacBeth (or any other person impersonating a veteran) came more than three minutes after the "phony soldiers" remark.

2. In broadcasting the "entire transcript, in context," Limbaugh committed the same sin that he charged to Media Matters, because (as Media Matters has documented) he edited out 1 minute and 35 seconds of talk between the "phone soldiers" comment and the first reference to Jess MacBeth, making them appear to be closer together in time than they really were and so distorting the context.

Now, it's entirely possible that Limbaugh was thinking about veteran-imposters when he made his "phony soldiers" remark. (Although are there "phony soldiers"--plural--who are critical of the war in Iraq? There have been recent news reports of several persons falsely claiming to be veterans, but they have acted mainly for personal gain. The case of Jesse MacBeth might be unique.) But if that were the case, why didn't he simply apologize? Taken in context, which is a discussion with a caller about "these people," Limbaugh's comment about "phony soldiers" is ambiguous at best. If he knows that there are real, dedicated, patriotic, sincere soldiers who oppose the war in Iraq, why not simply say so?

The answer can be seen in his later comments, on his October 2 broadcast. After a real soldier, with real combat service in Iraq, real wounds, and a real Purple Heart, speaks in an advertisement against Limbaugh and asks why Limbaugh won't call him a "phony" to his face, Limbaugh tries to smear him as well, saying that the people who made the ad (VoteVets.org) were "lying to him about what I said, then strapping those lies to his belt, sending him out via the media in a TV ad to walk into as many people as he can walk into." That's right, a decorated veteran is an easily manipulated idiot who has been tricked into becoming a mindless suicide bomber. When Limbaugh finally concedes that the decorated veteran might be able to read and write and form opinions of his own, Limbaugh's tone turns patronizing as he says that "it's just so unfortunate and sad when the truth of what I said is right out there to be learned." (A larger transcript is here, and the soldier's response to Limbaugh can be found here.)

These comments are "the answer" because Limbaugh continues to both evade and deny the real issue: Are there real, dedicated, patriotic, sincere soldiers who oppose the war in Iraq. Limbaugh refuses to answer that question, even while smearing a soldier who claims to be one.

And there you see the essence of the radical right. Smear broadly and, when challenged, smear your challengers. After all, you must be right, so everyone who disagrees with you is either evil or an idiot. Right?

Another Moral Idiot for Attorney General

2007-09-20T06:00:00.000-07:00

The appointee for the position of Attorney General of the United States, Michael B. Mukasey, might have a better memory than Alberto Gonzales, but there is no reason to believe that he is any better qualified in any other way to be Attorney General.

One of the key failings of Alberto Gonzales as Attorney General was that he was incompetent as a manager. His testimony before Congress demonstrated that he had little idea of what his subordinates were doing, and no idea at all of why they were doing what they were doing. Gonzales had served as a judge, and as a lawyer, but had never been an administrator and had never managed any organization, much less an organization as large as the United States Department of Justice.

Well Mukasey has been a judge, and has been a lawyer, but has never managed anything either, so there is no reason to believe that he is any better qualified to run the Department of Justice than Gonzales was.

The other key failing of Gonzales was his complete lack of any independent judgment. In his memorandum as White House counsel supporting the use of torture (by redefining the word "torture"), in his support for wire-tapping in violation of the Foreign Intelligence Surveillance Act, and in his support for administration policies on Guantanamo Bay and the indefinite detention of those merely suspected of terrorist plots, he showed more desire to carry out the wishes of the President than comply with the law. Mukasey might not be the lap-dog that Gonzales was, but there is no reason to believe that his judgment is any better.

While a federal judge, Mukasey ruled against Jose Padilla and held that "the President is authorized under the Constitution and by law to direct the military to detain enemy combatants in the circumstances present here, such that Padilla's detention is not per se unlawful." Jose Padilla v. Rumsfeld et al., No. 1:02-cv-04445-DAB (3/11/2003), rev'd 352 F.3d 695, (2d Cir. 2003), rev'd on other grounds, 542 U.S. 426 (2004). The "circumstances" present here were that Padilla was a United States citizen who was arrested in the United States on a material witness warrant and then transferred to a military brig, where the government intended to hold him indefinitely, without ever charging him with any crime. The government claimed that Padilla was an "enemy combatant" but the Second Circuit Court of Appeals properly concluded that, "absent [Congressional] authorization, the President does not have the power under Article II of the Constitution to detain as an enemy combatant an American citizen seized on American soil outside a zone of combat." 352 F.3d at 698.

Mukasey's belief that the President of the United States has the power to seize American citizens and hold them indefinitely, without proof of any crime, shows that he, like Gonzales, is a moral idiot. Gonzales and Mukasey may be able to determine what is legally correct, but they obviously have no clue about what is morally right.

Let's not make the same mistake again. Let's not confirm another Gonzales as Attorney General.

Quagmire

2007-09-11T06:27:00.000-07:00

In his testimony before Congress yesterday (9/10/2007), General David H. Petraeus said that The Surge has been so successful that we might soon be able to withdraw some troops, and that American troops could be back to pre-Surge levels by next summer.

In other words, we're making such wonderful progress in Iraq that, within a year, we'll be back to where we were a year ago.

Any more such "progress," and we will be undone.

Governing Competently

2007-09-01T07:07:00.000-07:00

Back in July, Republican Presidential candidate Mitt Romney, talking about Democratic proposals to provide better health care to the uninsured, said that "I don't want the guys who ran the Katrina cleanup running my health care system."

Let's take that idea one step further. Do we really want the guys who ran the Katrina cleanup to continue to run the Katrina cleanup?

In fact, given what we have seen of the Bush administration's non-response to Katrina, mis-administration of Iraq following the invasion, and mis-management of the Justice Department, do we really want Republicans running anything?

The Republican party has historically claimed competence as one of its virtues. Now it can't.

Historical Cost

2007-08-31T08:06:00.000-07:00

Here's a tough lesson in reality: Historical cost is irrelevant.

I've seen people trying to make business decisions who can't accept that reality. You tell them that, if they scrap their old equipment and buy a new piece of equipment for $2 million, they will make more money. If their response is "But I paid $1.5 million for that old equipment just two years ago," then they don't get it. The money they spent two years ago is gone. The only question now is how to make more money, and there are only two choices: (a) Continue to use the old equipment, or (b) Spend money to buy new equipment. Choice (a) costs nothing except a loss of productivity. Choice (b) requires you to spend money out of pocket, but increases productivity and future profits. If the benefits of choice (b) exceed the costs of choice (b), then choice (b) is the right decision, regardless of what the old equipment cost. Why? Because historical cost is irrelevant.

I've also seen people trying to make investment decisions who can't accept that reality. You tell them that they can make more by selling investment A (which they bought for $X and now is worth $Y less) and putting money into investment B. If their response is "But I paid $X for Investment A and if I sell it I have a $Y loss," then they don't get it. They already have a loss of $Y. Their only choice is when they are going to realize it. (I'm using the word "realize" in both the tax sense and the cognitive sense.)

It is very therefore very disturbing to see the same mistake applied to our continuing military presence in Iraq. The human lives that have been lost or damaged in Iraq, which is part of the price of "blood and treasure" that we have paid for our military adventure in Iraq, is being promoted as a reason to stay in Iraq.

For example, in one of the pro-war ads that have been running on television from "Freedom's Watch" a soldier who has lost both legs in Iraq says "I know what I lost. And I also know that if we pull out [of Iraq] now, everything that I have given and sacrificed will be mean nothing."

And President Bush has stated that "under his watch" he will "never allow our youngsters to die in vain" in Iraq. (4/13/2004) After the U.S. military death toll reached 3,000 in Iraq, the White House announced that President Bush "will ensure their sacrifice was not made in vain." (CNN 1/3/2007) At Fort Benning, the President declared that "it is important for us to succeed [in Iraq] so that comrades would not have died in vain." (1/11/2007)

A Google search of "Iraq vain site:www.whitehouse.gov" turns up about 93 hits, so these are not isolated slips of the tongue, but part of a deliberate public relations effort that relies on emotion and not reason or results.

The plea to leave more soldiers in harm's way, ensuring that more will be killed or injuried, merely because others have already been killed or injured, is a failure to recognize that historical cost is irrelevant. In deciding whether to send people into battle, the only relevant question is whether risking more lives is justified by the possible future benefit. The number of lives that have been spent in the past is, in the hard calculus of reality, unimportant.

Am I equating human lives with financial costs? Yes. Money spent is money gone. And dead is dead. Someone doesn't become less dead (or less maimed) just by spending more lives.

The President owes a debt to the living to spend their lives wisely, not a debt to the dead to justify their deaths.

Novak Keeps a Secret

2007-08-31T07:19:00.000-07:00

Robert Novak, who publicly disclosed that Ambassador Joseph Wilson's wife, Valerie Pflame, was a CIA agent, and so helped the Bush Administration's efforts to undermine Wilson's criticism of the rationales for the invasion of Iraq, can keep a secret it seems. In his column in the August 30 Washington Post, Novak wrote:

I first met Gonzales in 2001 when, along with other conservative journalists, I went to the White House for a background briefing by presidential counsel Gonzales on the new president's judicial nominations. I was stunned by the incoherence of the briefer. When I checked with several Republican senators, I received the same verdict. Their judgment was that Gonzales was not qualified to hold a senior governmental position.

And he tells us this after more than six years?

So the identity of a CIA agent gets disclosed immediately, but the incompetence of the man serving as White House Counsel to the President, and later Attorney General of the United States, should be kept a secret?

Perhaps this is something that Novak should have mentioned when those "several Republican Senators" were about to confirm Gonzales as Attorney General.

All the President's Enablers

2007-08-28T08:02:00.000-07:00

With Alberto Gonzales now gone, Karl Rove gone, and most of the others who came to Washington with Bush also gone (e.g., Harriet Myers, Donald Rumsfeld, Daniel Bartlett, and Andrew Card, to name a few), who is going to continue to tell President Bush what he wants to hear?

Both in his public speeches and in published accounts of more private conversations (such as are recounted in Woodward's State of Denial), the President consistently presents himself as locked into his view of reality, indifferent to facts contradicting those views, and unappreciative of those who wish to present those adverse facts and alternate views.

George W. Bush has spent most of his career cultivating a dependable stable of sycophants and replacing them now may be difficult because, believe it or not, a successful career in politics and government service usually requires having some independent judgment. So, finding people who are (a) qualified, (b) willing to mindlessly support the President's tunnel visions, (c) likely to be confirmed by the Senate, is not going to be easy.

So Bush is going to have to begin dealing with bad news and conflicting views from new appointees within his administration. Either that, or he will further isolate himself from real political issues and make himself even more irrelevant than the usual lame duck President.

My guess is that it will be the latter, and I simply hope he doesn't hurt more people (such as American troops in Iraq) than he really needs to while he remains fixated in his righteousness.

Chimera Cheney

2007-07-20T13:52:00.000-07:00

Everyone has already made fun of Vice President Cheney's claim that he is not part of the executive branch of the government, and so not subject to any oversight in how his office deals with classified information, even while claiming "executive privilege" in refusing to provide documents subpoenaed by Congress. (My favorite comment was that Cheney had taken refuge in an undisclosed location of the Constitution.)

One further point: If Cheney is not part of the executive branch, what was he doing with classified documents belonging to the executive branch? Perhaps he should return them. (And as soon as possible.)

Why "Plan" is a Four-Letter Word

2007-07-16T05:36:00.000-07:00

To the Bush administration, "plan" is a four-letter word.

Appearing on Sunday morning talk shows yesterday, national security advisor Stephen J. Hadley, said the following about a proposal by two leading Republican Senators to require President Bush to prepare and submit a plan to begin limiting the role of American forces in Iraq.

"They’ve done a useful service in indicating the kinds of things that we should be thinking about, but the time to begin that process is September."

That's right, we should not even think about what we should do after "the surge" until the surge is more than half over.

The surge will be more than half over in September because, according to recent news reports, the American forces will face another crisis next April when they will either have to (a) start withdrawing troops and reducing troop levels or (b) further extend already-extended tours of duty for the American soldiers in Iraq. The surge began last February and will end next April, so once we are allowed to start thinking in September, we have less than six months to come up with a plan before reality starts making plans for us.

It is no coincidence that it was an incompetent lack of planning that resulted in the mess that is now Iraq, because we invaded Iraq without a clear plan for how to govern the country once we toppled Saddam Hussein. And there has been an appalling lack of planning in the recent "surge" in Iraq. The claim was that, with additional troops, we could "clear and hold" neighborhoods in Bagdhad. But then what? American troops had cleared cities of insurgents before, turned the cities over to Iraqi forces, and then watched insurgents return. What was going to be different this time?

That is the most curious and bothersome part of the current surge. It's not that the President has no plan for what to do if the military surge fails, but that he has no plan for what to do if our military succeeds. According to the administration's own progress report on the 18 Iraqi "benchmarks," Iraq has provided three brigades to "support Baghdad operations" (we're not even going to pretend that the Iraqis can control their own capital city) but that "manning levels for the deployed Iraqi units continue to be of concern," probably because as many as half the Iraqi troops don't show up when they're supposed to. And that's one of the benchmarks in which the administration claims "satisfactory progress." Most of the important political benchmarks show no progress at all. So American troops are working (and dying) to turn over a secure Baghdad to a dysfunctional Iraqi army led by a dysfunctional Iraqi government.

The history of the conflict in Iraq has been a history of vague optimism. This administration not only doesn't need any plans, they don't even want to have plans, because if they had a specific plan and it didn't work, they might be held accountable. But if all they predict is "progress" without specifics, they can continue to claim that progress is being made, or that there is still a pontential for progress, without ever having to make an actual decision about what to do in Iraq.

Gen. Peter Pace (and others) have said that hope is not a plan. If they said that to the Commander-in-Chief, he either didn't hear it or didn't want to hear it.

Meanwhile, let's all stop thinking until at least September.

Shinseki Was Right

2007-06-23T13:34:00.000-07:00

Even as discussion continues over whether the "surge" of troops in Iraq will succeed, a central truth is overlooked: General Shinseki was right.

In 2003, before the invasion of Iraq, General Eric Shinseki testified before Congress and was asked about the troop levels needed to maintain order in Iraq after an invasion, and he replied that "several hundred thousand" troops would be needed.

This estimate was immediately ridiculed by (among others) Secretary of Defense Donald Rumsfeld and Deputy Secretary Paul Wolfowitz. But Shinseki's estimate was not based on the same kind of wishful thinking (or denial of reality) that dominated Rumsfeld's administration, but was based on military history. And, as it turned out, he was right. The troop levels planned for post-invasion Iraq were not sufficient.

And Shinseki is still right. Adding 20,000 troops in a "surge" does not produce the "several hundred thousand" needed to maintain security in Iraq. Talk about tactics and strategies can't overcome the fact that there simply aren't enough troops there, and there never have been and never will be.

Only when the Bush administration understands that reality will there be any hope for progress in Iraq.

Punishments Imposed

2007-06-05T18:44:00.000-07:00

Today, a federal judge imposed a sentence of 30 months in prison for Lewis "Scooter" Libby, former chief of staff for Vice President Dick Cheney, for lying to federal investigators and obstructing the investigation into leaks of the identity of a CIA agent, Valeria Pflame, whose husband published reports critical of the Bush administration's intelligence about Iraq's "weapons of mass destruction."

In related news, the American people were sentenced to 19 more months of the Bush administration.

Iraqi Exports

2007-06-02T05:09:00.000-07:00

The recent fighting between the Lebanese army and armed insurgents who had been trained and fought in Iraq demonstrates that Iraq is indeed exporting terrorists, exactly as predicted by last year's National Intelligence Estimate.

So what to do?

The easiest way for America to stop the violence in Iraq, and so stop the breeding of new terrorists, is for us to stop fighting.

That's right. We should give up and go home.

Without an enemy to fight, the insurgents will have no reason to make more bombs and no reason to train new fighters. And how will they recruit new fighters if there is no enemy to fight? No new terrorists means that there will be no terrorists to export. Problem solved.

But could Iraq then become another pre-9/11 Afghanistan, controlled by anti-American terrorists who use the country as a base of operations? Possible, but not likely.

Exactly who we're fighting in Iraq is not always clear, but the insurgents attacking U.S. troops seem to belong to a number of different groups that want the United States out of Iraq in particular and the middle east in general. One of those groups is Al Qaeda, but that doesn't mean that all insurgents are Al Qaeda. There are other groups just as opposed to the U.S. presence in Iraq who are also just as opposed to Al Qaeda, and would probably be working to oust Al Qaeda from Iraq if they didn't hate the U.S. even more.

So take the U.S. forces out of the picture, and what happens? Conventional "wisdom" (brought to us by the same people who have been wrong about everything in Iraq) is that, in the absence of the American military, the insurgents will begin using Iraq and a base for terrorism (which they are already doing). But it is also just as likely that, without a common enemy to fight, the differing goals of foreign (Al Qaeda/international) insurgents and native (nationalist) insurgents would rise to the surface, and the native insurgents would begin trying to drive the foreigners from their country.

Fanaticism is redoubling your efforts when you've forgotten your goal and, by that measure, the Bush administration is fanatical. If the goal is to defend the United States against global terrorism, then continuing military efforts in Iraq is exactly the wrong thing to do. By invading a middle eastern country, we gave Al Qaeda the kind of war it wanted. We created a jihad for them, because they are now defending a Muslim country against infidels. And we gave them a war they can win, because they can use guerrilla tactics against a conventional army. By continuing to fight in Iraq, we are strengthening Al Qaeda, not weakening it.

When continuing to fight simply makes things worse, you finally have to ask if the solution is not more troops but fewer troops. The real question is not "how can we win in Iraq" but "how can we win the war on global terror," and to the second question the answer is to begin withdrawing American forces from Iraq.

Moral Relativism

2007-05-20T05:58:00.000-07:00

This past week saw a strange juxtaposition of events.

Religious leader Jerry Falwell died on Tuesday. One of the early leaders of the so-called "Moral Majority," Falwell was mourned by (among others) Pat Robertson, who said that his "courage and strength of convictions will be sadly missed in this time of increasing moral relativism." In addressing the graduating class of Liberty University, which was founded by Falwell, former House Speaker (and possible Republican candidate) Newt Gingrich asked them to honor Falwell by confronting the "growing culture of radical secularism."

Meanwhile, the second Republican Presidential "debate" was held on Wednesday, and the 10 candidates were asked about a very theatrical (and highly unlikely) "24"-like scenario in which our nation is attacked by terrorists, more attacks are believed to be imminent, and some terrorists are captured. How "aggresively" should the captured terrorists be interrogated.

The first to answer was John McCain, himself a former prisoner of war who was interrogated "aggressively" during his years in captivity. He rejected the use of torture and gave the moral answer: "It's not about the terrorists, it's about us. It's about what kind of country we are." His answer was greeted by the audience with stony silence.

Taking their cue from the Republican base in the audience, the other nine candidates quickly advocated whatever was needed to get answers, and were rewarded with applause. Rudy Giuliani said that "I would tell the people who had to do the interrogation to use every method they could think of. Shouldn't be torture, but every method they can think of," specifically including waterboarding, which is universally regarded to be a form of torture. (In other words, Giuliani doesn't want to use torture, but gets to define the meaning of the word "torture.")

Mitt Romney expressed gratitude for the legal black hole that is Guantanamo. "I'm glad they're at Guantanamo. ... I want them in Guantanamo where they don't get the access to lawyers they get when they're on our soil. ... Some people have said we ought to close Guantanamo. My view is, we ought to double Guantanamo."

California Rep. Duncan Hunter: "Let me just say, this would take a one-minute conversation with the secretary of defense. I would call him up or call him in, I would say to SecDef, in terms of getting information that would save American lives even if it involves very high-pressure techniques, one sentence: 'Get the information.'"

In other words, forget the teachings of Jesus, the "Golden Rule," and "turning the other cheek." Apply physical and mental pain if you need to in order to get what you think you need. If that isn't "moral relativism" and "radical secularism," what is?

The first task of the graduates of Liberty University should be to confront the hypocrisy of the Republican Party.

The Power of Darkness

2007-04-26T05:53:00.000-07:00

In an earlier posting ("Guantanamo and Legal Ethics"), I commented on the efforts of a Pentagon official, Charles D. Stimson, to limit the legal representation of the prisoners at Guantamo Bay by attempting to intimidate their lawyers. (I only recently learned that, as a result of the uproar over Stimnson's remarks, he resigned on February 2. And, according to an Associated Press story on the same day, the Bar Association of San Francisco asked the California State Bar to investigate whether Stimson violated legal ethics in his remarks.)

Now, the Bush administration is making a more direct assault on the lawyers, but seeking a court order limiting their access to their clients, both in their meetings with their clients and in their written communications with their clients (which will be read and censored).

This action appears to be the result of the wave of appeals now being filed in the DC Circuit by detainees. So far this year, there have been 14 appeals filed from "Combatant Status Review Tribunals," all of which have been filed since mid-March. There have also been 8 habeas corpus petitions filed, all since the beginning of February.

According to a story in today's New York Times, the filings by the administration include an affidavit from a Navy lawyer at Guantanamo, Cmdr. Patrick M. McCarthy, who alleged that lawyers for the detainees have been providing the detainees with information about events outside of the Guantánamo Bay military base, such as a speech at an Amnesty International conference and information about more recent terrorist attacks. The affidavit states that "Such information threatens the security of the camp, as it could incite violence among the detainees."

Exactly why or how such information could "incite violence" is not explained, but the obvious explanation is that the information gives the detainees hope.

Hope is what leads people to rebel. If you can hope to be free, then you can continue to struggle against your captors. But if you have no hope of ever being free, or ever being allowed to communicate with your family again, and there is no possible life other than eating and sleeping in isolation in a concrete cell, then there is no hope, and perhaps no reason to live.

And that is the goal of the Bush administration. They don't want merely to imprison the bodies of the detainees; they want to crush their spirits, and the way to crush their spirits is to keep them in darkness.

The "Passive Exonerative"

2007-03-14T11:45:00.000-07:00

An article in today's New York Times repeats Attorney General Alberto Gonzales's statement that "mistakes were made" in the recent firings of several U.S. Attorneys, and refers to the statement as a "mea culpa."

A "mea culpa" in the passive voice?

Sorry, but "mea culpa" means "my fault" and you can't have admitted it was your fault when you haven't yet admitted that it was you that made those mistakes. Until someone moves from the passive voice and into the active voice, those mistakes are going to hang in the air without any fault attaching to any person.

Gonzales's biggest "mistake" might be that he forgot to tell his subordinates that they would be reporting to him and taking their orders from him, and not Karl Rove. Or perhaps Gonzales himself didn't know that? In any case, the man who is supposed to be in charge of the Department of Justice cannot provide any consistent, coherent explanation for major personnel changes, and my suspicion is that his ignorance and confusion are not an act.

Criminal Conduct as a "State Secret"

2007-03-03T06:30:00.000-08:00

The recent decision of the 4th Circuit Court of Appeals in El-Masri v. Tenet, ___ F.3rd ___, No. 06-1667 (4th Cir. 3/2/2007) is definitely disturbing in its implications, if not its explications.

Briefly, Khaled El-Masri is a German citizen who was allegedly seized in Macedonia, delivered into the custody of the U.S. Central Intelligence Agency, imprisoned by the CIA in Afghanistan, beaten and abused, and finally released in Albania. He was apparently a victim of the U.S. program of secret prisons and "extraordinary rendition" that has been widely reported by the press and finally acknowledged publicly by several top government officials. The essential elements of El-Masri's own account of his abduction and imprisonment have been confirmed by the Council of Europe, and arrest warrants for persons suspected of involvement (who have not been publicly identified) have been issued by a German court.

El-Masri also filed a civil suit in the United States against then-Director of the CIA George Tenet, other named CIA officials, and other unnamed persons responsible for his abduction and mistreatment. El-Masri v. Tenet et al., No. 1:05-cv-01417 (U.S.D.C. E.D. Va.). (Selected court documents can be found through the ACLU.) The United States government immediately intervened and asserted the "state secrets" privilege, which prevents a court from considering a case if state secrets would necessarily be involved. The District Court dismissed the case on those grounds, and now the 4th Circuit Court of Appeals has affirmed.

In his assertion of the state secrets privilege, then-Director of the CIA Porter Goss stated that the civil complaint alleges that the CIA conducted a "clandestine foreign intelligence activity," and that the United States can neither confirm nor deny those allegations without disclosing classified intelligence source and methods. Goss further stated that, because of the allegations of CIA involvement, "parties in this case have a special incentive to probe the CIA's foreign intelligence interests, authorities, and methods generally, and seek information and evidence to establish or refute claims and defenses." The nature of the interests, authorities, methods, or defenses that might be exposed by the litigation is not disclosed in the record, but were described in a "classified declaration" reviewed only by the judge in the District Court, and by the three judges who heard the appeal in the 4th Circuit.

What is disturbing about the claim of Director Goss, and the opinion of the 4th Circuit, is that the legality or criminality of the activities of the CIA have nothing to do with whether the state secrets privilege should apply. The 4th Circuit acknowledged that El-Masri challenged whether the state secrets doctrine should apply in cases of "egregious executive misconduct," and it's response is very unsatisfying. The court rejected the concept that the judiciary "possess a roving writ to ferret out and strike down executive excess," and explained that the courts have a "more modest role," which is to "simply decide cases and controversies." According to the 4th Circuit, the courts can impose liability against an executive officer "in a properly conducted judicial proceeding," but "we would be guilty of excess in our own right if we were to disregard settled legal principles in order to reach the merits on an executive act that would not otherwise be before us." This is circular, internally inconsistent, and evasive.

It is circular because the El-Masri was not asking the court to do anything but decide the case in front of it, and the court's response says little more than that the court has to dismiss the case because the court has to dismiss the case.

It is internally inconsistent, because the court claims to "simply decide cases" and implicitly rejects the idea that it should take into account broader public policy considerations even while dismissing the case under a doctrine that is based on broader public policy considerations.

Finally, the court is being evasive because it fails to address the actual issue raised by El-Masri, which is whether the application of the state secrets privilege to activities which appear to be unlawful on their face is a "settled legal principle." All of the precedents cited by the court seem to involve cases in which the alleged actions of the government might or might not have been legal, but are there any possible defenses to what is alleged to have occurred?

The heart of the complaint against George Tenet is that, as Director of the CIA, he approved a program of extra-legal seizures, transportations, and detentions of persons in violation of the laws of the United States and international law. The 4th Circuit claimed that, in order to succeed in that claim, El-Masri "would be obliged to show in detail how the head of the CIA participates in such [sensitive intelligence] operations, and how information concerning their progress is relayed to him." But is that true? That would be true if the question were whether Tenet was negligent in some way, or whether he was aware of El-Masri's circumstances in particular, but in this case the question is whether Tenet approved a particular program, the existence of which is already public knowledge, and it should be relatively simple to either or confirm deny that fact. And if Tenet approved an unlawful program, then he would be legally responsible for the results of that program whether or not he knew anything about El-Masri individually.

The only imaginable way that an investigation into Tenet's liability might be invasive, and so risk state secrets, is if the program he approved were legal or the harm to El-Masri were not foreseeable, in which case it would be necessary to disclose the details of the program in order to judge whether or not Tenet should be responsible for what happened to El-Masri. Is such a defense really possible? Is it really possible that our government can officially, regularly, and secretly seize people without any arrest or other judicial approval, imprison them, and abuse them without violating any law?

Unfortunately, we don't know what issues were raised in the classified declaration, and the 4th Circuit admits that is "no doubt frustrating" that the exact reasons for the court's opinion are classified. It is even more frustrating to learn that the CIA has been imprisoning and abusing people and there has been, and will be, no judicial restraint, no oversight, and no legal consequences.

Two final notes:

Whether or not the government has the raw extra-legal power to do what it did and get away with it, there is still the moral issue of whether or not the government should compensate El-Masri for his sufferings at our hands. There is no reason to believe that the Bush administration has ever considered, or will ever consider, this issue, despite its claims of Christianity and morality.

There are a number of differences defenses that the Bush administration could have asserted to the El-Masri complaint, including whether or not the complaint even states a cause of action against the government even if what the complaint alleges is true. (It is not clear to me whether a court would assert civil liability against a government official for actions taken outside of the United States in the absence of clear legal authority, which I'm not sure exists.) The Bush administration chose to assert the defense that resulted in the most governmental secrecy and the most Presidential power, and this is consistent with most decisions of the Bush administration.

Trolling II

2007-02-02T05:50:00.000-08:00

According to an article in today's NY Times (2/2/2007), President Bush will be asking Congress to cut Medicare and Medicaid spending by $60 billion over the next five years. The article notes that Bush had sought $40 billion in cuts two years ago and Congress failed to enact most of his requests even though Republicans had a majority in both houses of Congress. So Bush thinks he can get larger cuts in two popular social welfare programs now that the Democrats have majorities?

Congressman Charles Rangel (D-NY), who is now the chair of the tax-writing House Ways and Means Committee, put it very succinctly: “There is a large area for potential compromise and agreement, but with these latest Medicare proposals, the president is just asking for controversy.”

"Just asking for controversy" defines a troll very well.

Is George Bush a Troll?

2007-01-23T06:12:00.000-08:00

In the Internet community, a "troll" is a person (or a message) that does nothing but annoy, disrupt, or provoke an online discussion. Trolls are not interested in sharing points of view, convincing others of their point of view, or even providing factual information, but simply want to send out messages that are deliberately annoying or insulting in order to provoke flame wars, disrupt conversations, or simply for the pleasure of seeing what kind of disruptions they can cause. Although the origin of the usage might lie in a way of catching fish, trolls are also like the hairy, ugly creatures of fairy tales because they are mischievous at best and malicious at worst.

In President Bush's most recent radio address (1/20/2007), and in the State of the Union Address he is expected to give tonight (1/23/2007), he has proposed (or is about to propose) to address the problem of health care in the United States through (a) income tax deductions for health insurance premiums and (b) imposing income taxes on "excessive" health insurance benefits. The first proposal is largely meaningless except as a tax break for the rich, but the second proposal is simply ridiculous and, taken together, the two proposals look like a troll.

The first proposal is largely meaningless because most of the people who now have no health insurance also pay no income tax because their incomes are within the standard deduction and personal exemptions. Giving them a tax incentive is buy health insurance shows a total disconnect from reality. So the only people helped by the proposal are the upper middle class who are already paying for health insurance and will benefit from the tax deduction.

The second proposal is ridiculous, because it is based on the idea that it is possible to have too much health insurance. One of the bizarre delusions of a handful of conservatives is that health care costs are rising in part because health insurance encourages people to use more of the health care system resources than they really need, and that there really are people who go to the hospital, or go to the doctor, just for fun and not because of any real illness or medical condition.

The worst thing about the second proposal is that it would probably not affect the wealthy, who don't really need health insurance because they can pay for health care needs out of their own funds, but union workers who have been able to negotiate generous health care benefits through collective bargaining. It is, therefore, not a tax increase for the wealthy, but a tax increase for the working class.

Given the present control of both houses of Congress by the Democratic Party, the odds of these proposals being enacted as law are only slightly more than zero. So why propose them? Because Bush is a troll.

The war in a Iraq is a continuing disaster for the United States, and Bush's approval ratings continue downward toward record lows. What better way to distract Congress and the American People than by trying to change the subject.

And an even better distraction is one that might help to inflame idealogical and party differences. If Bush can get Republicans and Democrats (or moderate and conservative Republicans, or moderate and liberal Democrats) fighting over a domestic issue, all the better.

If this were an isolated instance of what looks like a troll, I would agree that I might have become somewhat paranoid. But the Bush administration has often changed the subject, or made what seemed like antagonistic proposals, that seemed to serve no purpose other than creating disruptions. Why talk about a surge in troops in Iraq when the American people have voted to end the war? Why talk about sending a Democratic Congress re-nominations of federal judges who have already been blocked by a Democratic minority? Why talk about more tax cuts when Congress and the voters are expressing concern about enormous deficits?

There may be complicated political reasons for these actions, but it sure looks like plain and simple trolling.

Guantanamo and Legal Ethics

2007-01-13T13:54:00.000-08:00

Has the top Pentagon official in charge of the treatment of detainees at Guantanamo committed a breach of legal ethics in his comments on the lawyers representing the detainees?

On Jan. 11, Charles D. "Cully" Stimson, Deputy Assistant Secretary of Defense, Office of Detainee Affairs, was interviewed on "Federal News Radio," during which he made some remarkable statements:

I think the news story that you’re really going to start seeing in the next couple of weeks is this: As a result of a FOIA request through a major news organization, somebody asked, ‘Who are the lawyers around this country representing detainees down there?’ and you know what, it’s shocking.

Mr. Stimson then rattled off the names of some of the top law firms in the United States, concluding with:

I think, quite honestly, when corporate C.E.O.’s see that those firms are representing the very terrorists who hit their bottom line back in 2001, those C.E.O.’s are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. And we want to watch that play out.

"We want to watch that play out"? He wants to watch lawyers being pressured to withdraw from representing detainees? He wants to watch lawyers suffer financially for opposing his detention policies?

And it gets worse. He was then asked who might be paying these lawyers, and he replied:

It’s not clear, is it? Some will maintain that they are doing it out of the goodness of their heart, that they’re doing it pro bono, and I suspect they are; others are receiving moneys from who knows where, and I’d be curious to have them explain that.

The insinuation is that many of these lawyers are being funded by terrorists (or terrorist sympathizers) and are either hiding the source of their funding or lying about whether or not they are being paid.

But there is no reason whatsoever to believe that any of these high-priced lawyers have any motive to represent detainees other than their belief in the value of constitutional civil liberties and their professional obligations to the public.

Stimson is a member of the Maryland bar, and the Maryland Rules of Professional Conduct for lawyers say that every lawyer has a "professional responsibility to render pro bono publico legal service." (Md. RPC Rule 6.1(a).) And "pro bono publico legal service" is defined to include the representation of "individuals, groups, or organizations seeking to secure or protect civil rights, civil liberties, or public rights." (Md. RPC Rule 6.1(b)(1)(C).) Similar provisions appear in the Model Rules of Professional Conduct of the American Bar Association and in the rules adopted by most states. In casting aspersions on the lawyers representing the detainees, Stimson was not only displaying any appalling lack of professional courtesy; he was also disparaging lawyers who were actually complying with the rules of professional ethics and adhering to some of the highest aspirations of the profession, which is to guarantee equal access to justice for all.

Was Stimson trying to embarrass or intimidate the lawyers who are opposing the government in court? If he was, then he may have committed a violation of professional ethics. Rule 4.4(a) of the Maryland Rules of Professional Conduct (which are, once again, similar to the ABA Model Rules) reads in relevant part as follows:

In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, ...

Stimson has therefore not only embarrassed himself and the Bush administration, but he has probably violated the rules of his profession as well. (There is a technical issue as to whether Stimson is "representing a client" in his employment by the federal government, and it would be ironic for him to avoid the application of an ethical rule by what amounts to a technicality.)

I hope that one of the lawyers for the detainees files an appropriate complaint with the Maryland Office of Lawyer Discipline. I would want to watch that play out.

(For more information on this story, see The New York Times.)

Staying the Course

2006-10-24T06:53:00.000-07:00

Faced with mounting violence and casualties in Iraq and increasing voter dissatisfaction with the entire mess, the Bush Administration has taken the logical first step from it's George Orwell playbook: Change the rhetoric and rewrite history.

"Stay the course" is an expression that has long been popular with Republicans. According to William Safire ("Safire's New Political Dictionary"), the phrase was popularized by Ronald Reagan during the 1980 Presidential campaign. It was also a favorite of Bush41, and Bush43 has used it repeatedly to try to drum up support for his ineffectively policies in Iraq.

Well, all that is going to change now. Not the war, of course, just the use of the phrase.

During an interview on "This Week with George Stephanopolous," in response to questions about Iraq, President Bush declared that "Well, listen, we've never been stay the course, George." (http://abcnews.go.com/ThisWeek/story?id=2594541&page=2) Yes, it's time for Bush to ignore what he's said and done in the past and rewrite history.

The new history of the Iraq war, which is somewhat different from the one you might remember, was more formally announced during a White House press conference on Monday, October 23, in which White House Press Secretary Tony Snow explained that the policy in Iraq was never "stay the course" but "a dynamic policy that is aimed at moving forward at all times on a number of fronts." (http://www.whitehouse.gov/news/releases/2006/10/20061023-2.html)

Snow was later asked "Has anybody told the President he should stop calling it 'stay the course' then?" He replied that the President has "stopped using it."

And then the question of responsibility. "Is the President responsible for the fact people think it's stay the course since he's, in fact, described it that way himself?" to which Snow responded "No."

So, there you have it. The policy of the United States in Iraq is not "stay the course," has never been "stay the course," and the President is not responsible for any misunderstandings that might have arisen from his repeated use of the phrase "stay the course."

And so the Bush Administration attempts to change course by staying on the same course it has always taken: Manage perceptions, deny any responsibility for the past, and ignore the reality of the present.

Terrorism: Things to Do and Not Do

2006-09-27T04:26:00.000-07:00

Most of the commentaries to date on the National Intelligence Estimate on terrorism, portions of which have been released by the President (http://www.nytimes.com/packages/html/politics/nie20060926.pdf) have focussed on questions such as whether we are "winning" or "losing" the war on terrorism, and whether the war in Iraq is creating more terrorists than it is killing, but there is a more important point made by the NIE that seems to have escaped notice.

The NIE concludes that the "jihadist movement" is spreading among muslims, and will continue to spread "for the duration of the timeframe of this Estimate" for the following reasons:

Four underlying factors are fueling the spread of the jihadist movement: (1) Entrenched grievances, such as corruption, injustice, and fear of Western domination, leading to anger, humiliation, and a sense of powerlessness; (2) the Iraq jihad; (3) the slow pace of real and sustained economic, social, and political reforms in many Muslim majority nations; and (4) pervasive anti-US sentiment among most Muslimsall of which jihadists exploit.

The current policies of the Bush administration actually add to those factors:

1. The U.S. currently supports some of the most corrupt and unjust muslim governments, such as Saudi Arabia and Kuwait, and continues to try to exert more and more military power in the mid-east, leading to greater fears of Western domination.

2. The U.S. allows the Iraq jihad to continue by maintaining troops and military operations there.

3. See #1. The U.S. does nothing to help reforms in Muslim nations, and actually hinders reforms through its support of oppressive governments and its attacks on progressive countries. For example, there is real economic and social progress in Iran, which the U.S. is threatening with military action over its nuclear program, and there was real progress in Lebanon until the U.S. allowed (if not supported) the Israeli bombing of southern Lebanon.

4. And why is there anti-U.S. sentiment among Muslims? See #s 1, 2, and 3 above.

The NIE then goes one to present the "vulnerabilites" of the jihadist movement that the U.S. could exploit:

Concomitant vulnerabilities in the jihadist movement have emerged that, if fully exposed and exploited, could begin to slow the spread of the movement. They include dependence on the continuation of Muslim-related conflicts, the limited appeal of the jihadists radical ideology, the emergence of respected voices of moderation, and criticism of the violent tactics employed against mostly Muslim citizens.

• The jihadists greatest vulnerability is that their ultimate political solution--an ultra-conservative interpretation of sharia-based governance spanning the Muslim world--is unpopular with the vast majority of Muslims. Exposing the religious and political straitjacket that is implied by the jihadists propaganda would help to divide them from the audiences they seek to persuade.

• Recent condemnations of violence and extremist religious interpretations by a few notable Muslim clerics signal a trend that could facilitate the growth of a constructive alternative to jihadist ideology: peaceful political activism. This also could lead to the consistent and dynamic participation of broader Muslim communities in rejecting violence, reducing the ability of radicals to capitalize on passive community support. In this way, the Muslim mainstream emerges as the most powerful weapon in the war on terror.

• Countering the spread of the jihadist movement will require coordinated multilateral efforts that go well beyond operations to capture or kill terrorist leaders.

(Emphasis added.)

All of the above "vulnerabilies" are political, not military, but the Bush administration's solution to every problem is more military force. And the reason that military action is the only solution is because its the only solution that they believe in, understand, and can unilaterally control.

And when all you have is a hammer, everything looks like a nail.

Which means that the chances of the Bush administration being able to exploit these vulnerabilities range between slim and none, while the chances of the Bush administration continuing the war in Iraq and the other policies in the mid-east that fuel the growth of the jihadist movement are a near certainty.

As noted above, the NIE concludes that the "jihadist movement" is spreading among muslims, and will continue to spread "for the duration of the timeframe of this Estimate." Cynic that I am, I immediately wondered if the authors of the NIE were making the subtle (and snide) suggestion that the jihadist movement would continue as long as Bush is President.

Clarification

2006-09-17T05:40:00.000-07:00

The President's proposal for trying the detainees previously held in secret CIA prisons contains several instances of unintentional (we hope) humor (if you like your humor on the dark and cynical side).

One of the most controversial parts of the proposal would "clarify" the meaning of what is known as "Common Article III" of the Geneva Conventions, which applies not only to prisoners of war but also to civilians detained by foreign governments in times of war, and prohibits "[o]utrages upon personal dignity, in particular, humiliating and degrading treatment." The concern of the Bush Administration is that this quoted phrase is "susceptible to uncertain and unpredictable application." See "Fact Sheet: The Administration's Legislation to Create Military Commissions," http://www.whitehouse.gov/news/releases/2006/09/20060906-6.html (9/6/2006).

The irony (and humor) here is that under the Bush Administration the Constitution of the United States, and most of the laws enacted by Congress, are of "uncertain and unpredictable application." Maybe the President will comply with them, and maybe he won't.

To clarify the meaning of the phrase "[o]utrages upon personal dignity, in particular, humiliating and degrading treatment," the administration wants Congress to declare that the standards for detainees should be the standards of the Detainee Treatment Act of 2005, which prohibits "cruel, inhuman, or degrading treatment or punishment." So a provision in the Geneva Conventions that prohibits "degrading treatment" would be clarified through a statute that prohibits "degrading treatment"?

And the Bush administration also claims that other practices prohibited by Common Article III, such as "violence to life," "murder," "mutilation," and "torture," are "universally condemned," and yet one of the practices that has been employed by CIA interrogators in the past (and which will presumably be employed in the future) is "waterboarding," which is generally considered a form of torture. (Television reporters frequently describe waterboarding as a technique which makes the detaineed think he is drowning. The reason the detainee "thinks" he is drowning is that (a) his face is covered by water and (b) he can't breathe. It's gentler than strangling the detainee, but the end result is the same.) If the Bush administration thinks that they can suffocate people to make them talk, why the concern with "degrading treatment"?

The answer might lie in the history of the Detainee Treatment Act of 2005, which is Title X of Public Law 109-148, 119 Stat. 2740, H.R. 2863 (12/30/2005). In the "signing statement" issued by the President for H.R. 2863, he stated:

"The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power...."

"President's Statement on Signing of H.R. 2863, the 'Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006'," http://www.whitehouse.gov/news/releases/2005/12/20051230-8.html (12/30/2005)

In other words, President Bush might not comply with the Detainee Treatment Act if he believes that he has the constitutional authority not to comply.

So the President wants Congress to define the rules for the treatment of detainees by reference to a statute that the President has announced that he doesn't necessarily need to comply with. Isn't that amusing?

Of course, the Supreme Court pretty much rejected the President's claims that he could ignore the Constitution, Congress, and the Geneva Conventions when it held that the President was bound by the Common Article III in its treatment detainees. Hamdan v. Rumsfeld, Hamdan v. Rumsfeld, 548 U.S. ___, 126 S.Ct. 2749 (2006). But that could be part of the plan. By getting Congress to define the application of Common Article III by reference to the Detainee Treatment Act, which the President publicly announced did not necessarily limit his authority, the President can then claim that Congress has agreed with him that he has the constitutional authority to ignore Common Article III.

If that sounds far-fetched and paranoid to you, it's only because you haven't been paying attention to the practices of the Bush administration.

Fall of Castro

2006-08-02T20:28:00.000-07:00

Ronald Reagan will go down in history as the President who happened to be serving as the Soviet Union collapsed and claimed credit for the coincidence (much as a rooster claims credit for the sun rising).

Now that Castro is reported to be ill, is there any doubt that Bush43 will claim credit for the "spread of democracy" in Cuba?

Remember, you read it here first.

What is Terrorism?

2006-07-31T20:01:00.000-07:00

The question "what is terrorism" might seem to be an exercise in semantics or philosophy, except that we are supposedly engaged in a "global war on terrorism" and it might be appropriate to decide what or who we are fighting, and why.

And it seems particularly appropriate to ask this question now that Israel and Hezbollah are trading munitions. Hezbollah is firing rockets into Israel and so they are "terrorists" according to Israel and the Bush Administration, while the Iraeli bombing of civilian targets in Lebanon, destroying homes, roads, infrastructure, and private industry, and killing civilians, is described as Israel's "right to defend itself."

This is a clear dichotomy. Hezbollah is practicing terrorism, while Israel is exercising its right to exist, while both are killing civilians and destroying homes and other private property of people having nothing to do with the conflict. How to explain the difference?

1. Cynically: "Terrorism" is the tactic of people we don't like. (I.e, we don't like Hezbollah and we like Israel.)

a. More gently: "War" is for something we support, while "terrorism" is for something we oppose.

b. More specifically: Israel has a right to exist and defend itself by killing people outside of its borders, while Hezbollah has no right to exist and is not allowed to kill any people at any time or any place.

2. Objectively: "Terrorism" is poorly-funded, while "war" is well-financed and better equipped (i.e., with uniforms).

3. Democratically: "Terrorism" is violence by a minority against a majority. There are more Israelis than members of Hezbollah, so Hezbollah is terrorist while Israel is not.

4. Some combination of the above.

How to differentiate "terrorism" from what would otherwise be described as war, civil war, revolution, or simple criminality?

At present, the very vagueness of "terrorism" works to the advantage of the Bush administration because it is a one-size-fits-all kind of label that can be applied to any real or perceived opponent that the Bush administration wishes to vilify.

The Commander-in-Chief

2006-01-20T05:59:00.000-08:00

The Department of Justice has released a new (longer) rationalization for the President's decision to ignore the warrant requirements of the Foreign Intelligence Surveillance Act (FISA), and it's simply more of the same old "inherent power of the President" song. But what about the explicit powers of Congress?

The Constitution makes the President the "Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States." (Article II, Section 2) The Constitution also says that the President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties..." (Also Article II, Section 2) From those two provisions come the general idea that the President is responsible for foreign relations, and the defense of the country, and has the inherent power to carry out those duties. Which, as a general proposition, makes sense.

But what about the powers of Congress? Even the power to make treaties requires the "Advice and Consent of the Senate," so Congress has a role in foreign affairs. More importantly, Article I, Section 8, clause 14, states that Congress shall have power "To make Rules for the Government and Regulation of the land and naval Forces."

In FISA, Congress expressed it's power by declaring that officers of the United States government shall not eavesdrop on the people of the United States except when certain procedures are followed. And FISA expressly recognizes the changed conditions that would apply in time of war, providing that the normal rules for search warrants would be suspended following a declaration of war, but only for 15 days. (See 50 USC section 1811) The President does not even seem to pretend that FISA does not apply, or that he is not in violation of FISA, but is arguing that he does not need to comply.

If the President were taking extraordinary actions in response to an extraordinary crisis, such as the 9/11 attacks themselves, or Hurricane Katrina, or an outbreak of avian flu, then a great deal of latitude would be allowed, because one of the roles of the executive is to be able to act quickly, without the need for legislative deliberation. But it's been more than four years since the 9/11 attacks, and the President has had more than four years to consider the procedures required by FISA and, if they were no longer appropriate, he could have asked Congress to change them. In fact, Congress did amend FISA after 9/11 to improve surveillance procedures against suspected terrorists. But the President chose to ignore FISA rather than ask Congress to change the law.

This issue might be resolved by the courts, but it's not likely, for the simple reason that it will be difficult for any particular person to show that they were harmed by the President's failure to comply with FISA. Which may mean that it is up to Congress.

If the President is willfully disobeying a Congressional directive, Congress has a remedy, and that remedy is impeachment. If the President's illegal surveillance were a single instance of willful disobedience of the law, that would be a rather extreme step. But the President has shown a repeated inclination to ignore laws that he doesn't like. He has allowed the physical abuse, if not torture, of prisoners in US custody, contrary to the laws and treaties of the U.S. He has held American citizens in custody without trial, contrary to the Constitution. He has held foreign citizens in custody without allowing them any hearing to determine their status, contrary to the Geneva Conventions ratified by the U.S. Senate. And he has allowed the seizure and transportion of persons for interrogation (and possible torture) in foreign countries (the so-called "extraordinary renditions"), contrary to U.S. and international law.

Impeaching the President does not yet seem to be the "politically correct" thing to do. But eventually Congress will need to decide which is more important, the rule of law or politics.

Torture Redux

2005-03-27T19:14:00.000-08:00

When Alberto Gonzales was appointed to become the next attorney general of the United States, he pledged that, as the highest law enforcement official of the United States, he would not support the use of torture.

Very reassuring.

Now, the United States is reportedly revising the procedures to be used in trying terrorism suspects now held at Guantanamo Bay, and one the changes (according the New York Times) is that the commissions established by the government of the United States will be "barring confessions obtained by torture".

Is this really necessary?

Is it really necessary for the officers and government of the United States to promise that they don't intend to obtain and use "confessions" obtained by inflicting as much pain as is necessary for a prisoner to say whatever it is you want them to say?

I thought that that we settled that with the Revolutionary War, the rejection of the "Star Chamber", and the adoption of the 5th Amendment.

Did the present administration somehow skip the lecture on basic civics, humanity, and morality?

Schiavo v. Schindler: Round Two

2005-03-25T09:03:00.000-08:00

From the NY Times on 3/25/2005:

"If Ms. Schiavo dies, her parents, Roman Catholics, want her buried at a cemetery in Florida. But Mr. Felos [attorney for Michael Schiavo] said she would be cremated and her remains interred at her husband's family plot in the Philadelphia suburbs."

It's a relief to know that Ms. Schiavo's death will not end the disputes, and that her husband and parents will be able to continue to litigate even after her death.

Russian Oil/Freedom

2005-02-22T04:18:00.000-08:00

Yesterday (3/21/2005), in Brussels, President Bush urged European leaders to put more pressure on Russia to maintain democratic freedoms, saying:

We must always remind Russia, however, that our alliance stands for a free press, a vital opposition, the sharing of power, and the rule of law -- and the United States and all European countries should place democratic reform at the heart of their dialogue with Russia.

On the evening news, it was suggested that European countries are reluctant to take tough stands with Russia because many of those countries are heavily dependent on Russia oil.

It's good to see President Bush taking a tough stand, uncowed by the politics of oil.

But I wonder when he will apply the same toughness to his friends in the Saudi royal family?

What is Nader Thinking?

2004-10-14T08:38:00.000-07:00

With the decision of the Pennsylvania Commonwealth Court to bar Ralph Nader from the ballot in Pennsylvania, Nader's campaign for President has moved from the comical to the pathetic.

Supported by Republicans who hope that Nader will allow Bush to "win" with a bare plurality of the vote (or perhaps not even that), Nader employed a less-than-ethical group of people to collect signatures to put his name on the Pennsylvania ballot. The court reviewed each of the 51,273 signatures submitted, and found 32,455 of them (63.3%) to be invalid because of forgeries, fictitious addresses, and other reasons.

The court characterized the signature gathering process as "the most deceitful and fraudulent exercise ever perpetrated upon this court," and stated that the conduct of Nader and his running-mate "shocks the conscience of the Court."

(The full opinion can be found at http://www.aopc.org/OpPosting/CWealth/out/568MD04_10-13-04.pdf)

It's one thing to engage in a futile campaign for President. It's another thing to accept the aid of the Republicans and become their pawn. But to become a party to fraud and corruption of the ballot process itself?

Has Nader no shame whatsoever?

Kerry's Threat

2004-10-13T11:05:00.001-07:00

One of the bizarre claims by many right-wing Republicans is that Kerry as President could endanger or damage the country.

But what could he possibly do?

Could he:

1. Invade another country and get the US enmeshed in a war costing billions of dollars and thousands of American lives?

2. Ignore threats of a terrorist attack, resulting billions of dollars in damage and thousands of deaths?

3. Run up an enormous federal deficit through a combination of tax breaks for the wealthy and unchecked federal spending?

4. Increase the size of the federal government while both (a) reducing environmental controls and other regulations of businesses intended to protect the public and (b) increasing the intrusion of the government into state and local governments and the private lives of citizens?

Of course, George Bush has done all of those things already.

So the biggest threat posed by Kerry is that he *might* do the same things in the next four years that Bush *has* been doing in the last four.

That's some threat.

Kerry's Threat

2004-10-13T11:05:00.000-07:00

Showing Up

2004-09-16T21:00:00.000-07:00

I've heard that 80% of life is just showing up.

So some of the controversy about John Kerry's military service is a little hard to understand.

Most of the controversy seems to be whether or not he "deserves" the medals he got, and there are some people who were in Vietnam at around the same time (although not on John Kerry's boat) who seem to have some strong opinions about that.

But he was there, right? He showed up.

Can George Bush say the same?

Terrorism in Iraq

2004-09-16T20:46:00.000-07:00

The idea that there are terrorists in Iraq seems to have come as a great shock to the Bush Administration.

And the Bush Administration is now THE authority on terrorism. They know best how to protect us from terrorists.

And yet the idea that there might be terrorists in Iraq seems to have come as a surprise.

Let's see, we'll invade a mid-east country that is predominantly Muslim, and they'll greet us with flowers and happily do whatever we say to build a western-style democracy. Attacks on American soldiers? Attacks on the government installed by the United States? Anti-American terrorism by Muslims in the mid-east? Who would have thought such a thing? Who could have guessed?

Even weirder is that there are reports that the Israelis PLEADED with the Bush Administration to seal the Iraqi border after the fall of Saddam Hussein's government, saying that there were foreign activists pouring into the country. But we couldn't be bothered. After all, what harm could a few foreigners do?

Well, now we're beginning to find out. And the Iraqis are beginning to hate us for it.

President Bush keeps talking about the number of innocents that Hussein killed during his years in power. How many have we killed during our months in power?

Do we get to leave when we have killed more Iraqis than Saddam Hussein?