Health Care Dichotomy

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

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"

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

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)

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

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

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

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

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

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

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?

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?

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

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?

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

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"?

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:

1. 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.
2. 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

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

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

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.