Whatever one thinks of David Brooks, I think his column today on Barack Obama pretty much describes the reality of his governing style. And while it is frustrating to liberals who want a little more fight out of Mr. Obama, there is something noble about the president's unflappability in the face of a political system that is in many ways a sick joke. Certainly, having good intentions is insufficient. But compared to its cynical alternative, it's maybe the only thing in Washington that doesn't appear on the verge of collapse.
If Republican leaders are perhaps tipping their hand by "warning" Democrats that passing health care reform will hurt them in November, then conservatives like Rich Lowry are overestimating their influence by writing silly columns that suggest a Republican Congress would be a good thing for President Obama. Lowry doesn't actually have an argument for why a Republican Congress is good for Democratic presidents, he just extrapolates from an observation that "[Clinton] learned a bitter lesson in the perils of trying to govern a center-right country in league with a left-wing Congress." But this is what conservative public intellectuals like Lowry do: offer superficially high-minded or contrarian arguments that maximize the desirability of Republican governance.
It's true, as Brendan Nyhansuggests, that much of the conservative movement is engaged in a postmodern effort to whittle away the truth, but the real question is why this relativism is tolerated, even encouraged, by ostensibly "objective" news organizations. Howell Raines takes a first crack at this in a forthcoming Washington Postcolumn that asks why journalists don't challenge Roger Ailes and Fox News for their blatant Republican cheerleading. Well, that would be nice, but the problem isn't Fox News, it's that the importance of Fox News and the other cable news networks is overblown by Beltway journalists. No one would care about Glenn Beck (outside of good-natured WTF reporting) if there weren't reporters who hang onto his every word.
Remainders: Obama postpones overseas trip to see health-care reform cross the finish line; the tea partiers are rubbing the Christian right the wrong way; waterboarding is something every American should be proud of; conservatives are looking to rehabilitateJoseph McCarthy; I don't expect magazines devoted to the fetishization of wealth to start criticizing billionaires, but it is a symptom of what ails America; and who reads Mickey Kaus, and why?
The Union of Concerned Scientists, growing impatient, criticizes the Obama administration for taking too long on needed reforms. The director from the group's scientific integrity program, Francesca Grifo, notes that President Obama promised as a candidate to end political interference with science. But, more than a year after his inauguration, the scientific reasons for particular policies still aren't made clear to the public, and scientists still aren't necessarily allowed to talk about their research results.
Grifo points to progress at some agencies, but says Obama hasn't designed an overarching policy:
A report released last week by George Washington University found that scientists face difficulties in disseminating their work, are not always able to speak freely with the public and press, and are blocked from sharing data with colleagues at other agencies. The report documents that federal scientists have seen little systemic change since the Obama administration took office.
New Scientist quotes an administration official saying a plan should be coming soon. But that raises a bigger question about progress in the Obama administration in general. Obama gets a lot of points for undoing the worst of Bush's policies, but others continue on autopilot because they're not priorities. At what point has the progressive public waited long enough?
So Karl Rove is "proud" of waterboarding, which means he's proud of the fact that his administration disgraced the United States with torture. I'm not sure what else he was supposed to say -- the only possible justification he has is that some good might have come out of his administration breaking the law. Matthew Yglesias has noted this inconsistency with torture defenders -- what does it matter if waterboarding was torture if it was indeed so effective and saved so many lives?
Whatever is left of Rove's conscience tugs at him and provokes him to insist that it wasn't torture because military personnel who go through Survival, Evasion, Resistance, Escape training (SERE) are waterboarded in a limited context. Of course, SERE training is given to military personnel so that if captured, they might be able to resist being, you know, tortured. As Matt Corley notes, even the Bush administration's own lawyers conceded that soldiers being waterboarded "are obviously in a very different situation from detainees undergoing interrogation." The CIA Inspector General's report noted an interrogator's conclusion that the difference between waterboarding in interrogation and waterboarding in SERE training is that the former "is for real."
There's also the fact that the case that waterboarding isn't torture is based on legal work that the Justice Department concluded was terrible. As David Colenotes:
The one thing practically everyone interviewed by the OPR agreed about was that Yoo’s legal work on the torture memos was atrocious. Bush’s Attorney General Michael Mukasey called it “slovenly.” Jack Goldsmith, another Republican who headed the Office of Legal Counsel from 2003 to 2004, said that Yoo’s August 2002 memo justifying torture by the CIA was “riddled with error” and a “one-sided effort to eliminate any hurdles posed by the torture law.”
There hasn't been a definitive ruling from the courts that waterboarding is torture. But the legal arguments conservatives have been relying on to argue that waterboarding is not torture are "slovenly" and "riddled with error." Conservatives can stand by that if they want, but all that does is reinforce the underlying illegitimacy of the legal case for waterboarding.
This is a masquerade, a game they play to assuage the conscience of the atrocities they have twisted it into accepting.
-- A. Serwer
Are we finally in a recovery? Who’s “we,” Ke-mo sah-bee? Big global companies, Wall Street, and high-income Americans who hold their savings in financial instruments are clearly doing better. As to the rest of us – small businesses along Main Streets, and middle and lower-income Americans – forget it.
Business cheerleaders naturally want to emphasize the positive. They assume the economy runs on optimism and that if average consumers think the economy is getting better, they’ll empty their wallets more readily and – presto! – the economy will get better. The cheerleaders fail to understand that regardless of how people feel, they won’t spend if they don’t have the money.
The U.S. economy grew at a 5.9 percent annual rate in the fourth quarter of 2009. That sounds good until you realize that GDP figures are badly distorted by structural changes in the economy. For example, part of the increase is due to rising health care costs. When WellPoint ratchets up premiums, that enlarges the GDP. But you’d have to be out of your mind to consider this evidence of a recovery.
Part of the perceived growth in GDP is due to rising government expenditures. But this is smoke and mirrors. The stimulus is reaching its peak and will be smaller in months to come. And a bigger federal debt eventually has to be repaid.
So when you hear some economists say the current recovery is following the traditional path, don’t believe a word. The path itself is being used to construct the GDP data.
Gallup has a new poll showing that Pakistanis like the Taliban even less than they used to. That's despite the Obama administration's copious use of drone strikes. The Federally Administrated Tribal Areas were not included in the poll.
That 10-point drop in approval mirrors a poll taken by Pew last July. Strong public disapproval further legitimizes Pakistani military operations against the Taliban, which is pretty important given how strong Pakistani disapproval of the U.S. and the Pakistani government is.
-- A. Serwer
Courtney Martin writes that this International Women's Day, we should look at gender inequality in our own communities. Each day this week on TAPPED we will run a profile of an organization doing exactly that.
In 2005, Gretchen Dyer organized a Tea Party, along with some of her University of North Texas students and local community members. They weren't railing against socialism's evils or demanding lower taxes. They certainly weren't calling for the impeachment of Obama, who at the time was just a freshman senator from Illinois. The goal of this Tea Party was to raise money for low-income women to pay for the abortions that they already decided they needed. Ever since, the Texas Equal Access Fund -- or TEA Fund -- has worked to make sure that all Texan women north of Waco are able to exercise their reproductive rights.
Beyond showcasing the Senate's dysfunction and raising progressives' blood pressure, the debate over health-care reform has also highlighted just how unequal access to abortion really is. Texas Medicaid adheres to the Hyde Amendment and only covers abortion in cases of rape, incest, or life-threatening circumstances. Anything else -- even cases determined to be "medically necessary" -- must be paid for out of pocket.
Here's where the TEA Fund helps out. Since its founding, the Fund has provided over 2,000 grants that cover part of the cost of an abortion for women who have demonstrated need. Typically, women learn about the TEA Fund through clinics, social workers, or women's shelters. Over 70 percent of grant recipients are women of color, and 68 percent report that they have already had children. As one grant recipient wrote to the group:
I am a single mom to two wonderful girls. I cannot properly care for or afford another child at this time. As a single mom, all financial responsibility falls on me. I couldn't have paid to this without the help. Thank you.
If health care passes with the Stupak amendment, TEA Fund President Sulan Chang anticipates that the group will become even more vital to North Texas women. "There will be more need for our organization as access to abortion becomes more restrictive," says Chang. "But as this issue gets more attention, we should be able to build up the very strong pro-choice community that we already have."
While the TEA Fund does some educational and outreach work, the group's mission is an economic one. "This is about being able to access a choice," says Chang. "Having a child is life-changing, and there isn't gender equality if one group has to shoulder this burden because of economic barriers."
A few days ago, Dan Ariely of Duke University, was on NPR to discuss his research on the way doctors make decisions, which mirrors the troubling ways consumers make decisions. If a pizza menu starts with the pie with everything, then descends into options with fewer and fewer toppings, people will order more toppings than if they're looking at a menu that puts the plain pie at the top.
"If you go to the hospital these days," Ariely says, "you will see that they have these electronic order forms. ... And sometimes these order forms are empty, nothing is selected for them. The default is nothing, and they have to pick what they want to order. And sometimes some tests are preselected for them." When they did an experiment on how these two options affected the choices doctors made, "in the empty set, physicians chose an average five tests. And in the full set, they chose an average 13 tests. ... And the difference was about $1,300 per patient."
What does this have to do with the health-care reform that might just finally pass soon?
The health-care reform bill that passed the Senate includes dozens of pilot programs and initiatives designed to test new ways of cutting costs without compromising care (and maybe even improving it). While there may not be a physician pizza menu pilot, as Atul Gawande wrote in December, "there is a pilot program to increase payments for doctors who deliver high-quality care at lower cost, while reducing payments for those who deliver low-quality care at higher cost. There’s a program that would pay bonuses to hospitals that improve patient results after heart failure, pneumonia, and surgery. There’s a program that would impose financial penalties on institutions with high rates of infections transmitted by health-care workers. Still another would test a system of penalties and rewards scaled to the quality of home health and rehabilitation care."
And that only scratches the surface. There are demonstration projects for alternatives to litigation to resolve disputes over medical errors. There are projects to create and track quality measures in outcomes of particular diseases. There's a pilot program on "bundling," to explore a movement away from the fee-for-service system that is so expensive. There are programs meant to improve physician quality, and the efficiency of payment systems, and coordination of care (you can read about some of them here).
Individually, each of these programs cost only a little bit to implement -- a few million dollars here and there. And chances are that many if not most of them will turn out to have little impact. But there's also a good chance that among the pilots, a few will exceed expectations and produce real cost savings. We won't know until we start experimenting. It's one more thing to keep in mind when, once it passes, we start debating whether the reform glass is half full or half empty.
So Glenn Beck went on a tirade the other week against religions that pursue social and economic justice, urging his viewers in those churches to leave them. This became a problem because nearly every religion includes a commitment to these values. In fact, the brilliant philosopher of religion John Hick argues quite convincingly to even be considered a religion an ideology must include this kind of ethic, or, as he says, "a dispositional response to the modern sociologically conditioned consciousness to the Real." Mmmm, theology. In any case, Christian groups are organizing a boycott of Glenn's show.
Why Beck would make such a huge mistake reveals his superficial approach to faith -- he cares more about politics than an authentic religious experience. His dislike of social justice talk mimics that of some -- though certainly not all -- conservative Christian religious figures. It stems from a certain obsession with the "thou shall nots," simply because it's much easier for people with a political agenda to stress prohibitions, archaic and otherwise, rather than the pro-active approach mandated by many belief systems that asks you to change others' circumstances.
For example, liberal Catholics love to stress social justice, conservatives emphasize their hatred of homosexuality and abortion. Both strains can be found in an "authentic" Catholicism, and writing either off without a serious look at their foundations basically makes it clear that Beck is as serious about religion as he is about anything else: not at all.
That said, there's plenty of room for debating the centrality of any of these ideas to one's faith -- hey, Andrew Sullivan -- and perhaps more important to our purpose here, how these ideas should fit into the public sphere. It's pretty easy to tell when people are abusing religion for political purposes; hence, I like this quote from Archbishop Helder Camara, referenced in the Times article: "When I give food to the poor, they call me a saint. When I ask why the poor have no food, they call me a communist."
Justin Charitytalks with a group that advocates for increased transparency on foreign aid:
"Transparency" is the latest buzzword, but what does it mean, and what does transparency promise? Our own Mark Schmitt questions whether, when it comes to domestic spending, transparency for its own sake makes for good governance. "Much transparency … actually obscures important facts in a sea of data points," he writes.
The question of whether transparency in foreign aid poses the same problems or actually yields greater accountability is as important as ever, with money continuing to pour into Haiti after the January earthquake. TAP asked Karin Christiansen, director of Publish What You Fund and former policy manager for the ONE Campaign, about her group’s push for better transparency in foreign-aid spending.
Republicans are up in arms over the possibility of the Democrats using a "deeming resolution" to pass health care reform "without a vote." Now my knowledge of congressional procedure is very limited, but my understanding (with some help from Mark Schmitt) is that the Democrats would "deem" the health care bill to have been passed in the House for the purposes of the Senate reconciliation process, because it's not clear that reconciliation can be used to make adjustments to a law that doesn't exist yet. After the Senate makes those adjustments, then the health care bill would still have to be passed in the House before going to the president's desk. So what "deeming" would do is allow Democrats to get around the political hurdles they're facing in terms of passing the House bill before the Senate fixes, but they wouldn't actually be "passing health care without a vote." Deeming resolutions have been used several times in the past.
In any case, Republicans are really nervous health care is going to actually pass, so they've gotten a bit desperate. Matt Lewis and Michelle Malkin approvingly tweeted this post from David Freddosoquoting Georgia Congressman Tom Price, who says "We’re pretty sure there’s no verse about 'deeming' in Schoolhouse Rock."
Well here's the Schoolhouse Rock video.
It doesn't say anything about filibustering either. I guess the filibuster is unconstitutional. Or maybe you can't fit everything there is to know about congressional procedure in a three-minute cartoon video for kids.
Today's Washington Post features a piece by two Democratic pollsters, Pat Caddell and Doug Schoen, advising Democrats to jettison health-care reform, because "the battle for public opinion has been lost. Comprehensive health care has been lost. If it fails, as appears possible, Democrats will face the brunt of the electorate's reaction. If it passes, however, Democrats will face a far greater calamitous reaction at the polls."
Caddell and Schoen have each spent much of their time in recent years occupying a Lieberman-esque niche in our discourse, that of the person who is brought on TV or into the newspaper to criticize his party and its goals in terms that sound identical to those used by the other party -- all while still claiming that he is not switching to the other side but is offering this advice only out of love (read more here). Let's take Caddell: Though as far as I know he hasn't done any actual polling in a decade or two, producers and editors believe that because he once worked for Jimmy Carter, it's much more interesting to hear him make an argument like this than to hear it coming from Mitch McConnell or John Boehner, who say exactly the same thing:
For Democrats to begin turning around their political fortunes there has to be a frank acknowledgement that the comprehensive health-care initiative is a failure, regardless of whether it passes. There are enough Republican and Democratic proposals -- such as purchasing insurance across state lines, malpractice reform, incrementally increasing coverage, initiatives to hold down costs, covering preexisting conditions and ensuring portability -- that can win bipartisan support.
Those are actually Republican proposals, not "Republican and Democratic proposals," but never mind. Let's accept that Caddell and Schoen are arguing in good faith. Their problem is one that afflicts many (though not all) pollsters and political consultants: the inability to understand that policies and rhetoric have different effects on the public. There's a reason why Republicans have success when they try to do things like scare people about "death panels," but far less success when they try to do things like cut Medicare or privatize Social Security. Those are programs -- actual existing programs with which people interact. People come to a very different understanding of programs once they're implemented than they had when the program was a confusing hypothetical future. That's what will happen with health care. Once it passes, it will be a program, not a proposal, and people will judge it based on their own experience with it.
When your understanding of politics revolves around campaigns, existing policies -- as opposed to potential policies -- tend to be relevant only insofar as they become hypothetical. Should we change this, or drop that? Ask those questions, and you can get into the hypothetical arguments that can be used to frighten or assure people again. It's not that once this bill passes we'll stop debating health care. But the debate will become much smaller than it is now. We won't be arguing about all the terrible things Obamacare might do, because it will already exist. We may argue about how to improve it, but we won't be talking about all the things Republicans have used to make people afraid of it, because all those are fictional stories about the future. You can tell people a hypothetical future might be nightmarish, but you can't tell them their present is worse than they see with their own eyes.
Finally, when Caddell and Schoen write that "the comprehensive health-care initiative is a failure, even if it passes," they turn themselves into a caricature of the cynical political consultant. If reform passes, there will be millions of people who didn't have health insurance but will now get it. There will be millions who get help to afford it. There will be millions who will no longer be abused by insurance companies. Our system will be more humane and less expensive. If you think that's a failure, you need to get your moral compass examined.
The New York City Council has finally decided to look into the police department's policy of saving personal information gathered during a stop-and-frisk, the Daily Newsreports. The department had been storing information from people who were stopped but not charged or accused of any wrongdoing in a database that could be searched by law enforcement officials.
(Christine) Quinn and (Peter) Vallone, who is chairman of the Council's Public Safety Committee and whose father is former Speaker Peter Vallone, asked Kelly to explain when cops are allowed to search the database. They also asked for specific examples of when information from the database was helpful in cracking a case.
"They make some interesting points that Commissioner Kelly is considering," NYPD spokesman Paul Browne said in an e-mail.
Saving the information only assumes it will be useful in future investigations, which assumes a level of criminality among people who've done nothing suspicious. That's particularly heinous given that 87 percent of those stopped in 2009 were black and Hispanic. And stops and frisks themselves already involve an initial assumption of criminality; it's a crime-prevention technique. Whom the police stop shows who they assume might be concealing something criminal. When they start stopping and frisking teenagers in Riverdale or the Upper East Side, then we can call it fair.
Looks like my favorite pick for Fed chair is getting the runner-up job: San Francisco Fed President Janet Yellen will replace retiring Vice Chair Donald Kohn. It's good news, since Yellen takes seriously the full employment part of the Fed's mandate, which is what we need in a time when inflation is currently, um, pretty much nonexistent. Brad DeLong is pleased but recognizes that little will change on the committee that sets monetary policy, since Yellen is already a member.
Apparently, nominees for the two other open seats on the Fed's board have also been picked, but it's unclear who they are; some reports say Sarah Raskin, Maryland's top banking regulator, is a contender for the spot. I met Raskin a few weeks ago at the New America Foundation and found her to be very consumer-oriented. She's also a realist about the banking industry, which could be a huge asset if the Fed continues to play a large role in financial regulation, as expected.
For who should be picked, this Mark Thomapost does a good job laying out what's needed. Basically, liberal economists who will question the dominance of a doctrinaire belief in the free market that still, somehow, lingers on from the days of Alan Greenspan.
Even the Defense Department has chimed in, sending a letter to the Treasury Department urging oversight of auto lenders because of a pattern of abusive lending to military personnel.
"We believe the intervention of the [Consumer Financial Protection Agency] in overseeing auto financing and sales for service members will help protect them and will assist us in reducing the concerns they have over their financial well-being," Defense Undersecretary Clifford Stanley wrote in a letter dated Feb. 26.
The military is obviously one of the most highly regarded institutions in American life, and when it weighs in on behalf of service members, people tend to listen. If the Department of Defense believes that the Consumer Financial Protection Agency should cover auto lenders, among other non-bank lenders that some reform opponents want to exempt from regulation, that could go a long way toward convincing reluctant senators to support robust consumer protection.
Andy McCarthy is still desperately trying to justify his smears of Justice Department lawyers who did work on behalf of accused terror detainees in the face of a conservative backlash:
It is absurd for critics of Keep America Safe to proclaim an American legal tradition of representing alien enemy combatants. There is none. To mask this inconvenient fact, critics speak in gobbledygook about representing "pariahs" or "the unpopular." Our actual tradition is to represent accused defendants, no matter how unsavory. The al-Qaeda detainees at issue are not accused defendants. They are plaintiffs filing offensive lawsuits (habeas corpus claims) against the American people during wartime. Unpopular American inmates must represent themselves in such suits because there is no right to counsel.
The relevant American tradition is that victory in war is our highest national imperative. Therefore, all citizens — including lawyers — are obliged to help defeat the enemy, not aid the enemy. And there is no doubt that these enemy lawsuits harm the war effort.
This is an Orwellian argument. McCarthy argues that because the U.S. has not accused people it is holding on suspicion of being terrorists of crimes, it can hold them forever. There is a historical precedent for people captured in theaters of war being held until the end of hostilities, but this isn't the same kind of thing. Al-Qaeda terrorists don't wear uniforms, and membership in the organization isn't always easy to define -- so, determining who is and is not an enemy combatant is paramount to the war effort. In this sense, the attorneys who represent detainees in habeas cases are assisting in that process. In fact, given that the vast majority of the people at Guantanamo have been released without charge, it's fair to say that most of the people we've captured aren't "enemy combatants" at all, but we'll come back to why McCarthy thinks otherwise.
At any rate, the idea that the government should be able to imprison people forever on suspicion of a crime is anti-democratic on its face. It's also alarming the degree to which some conservatives accept it as long as it's applied to "those people."
McCarthy brings up another straw man:
The Supreme Court recognized as much in the 1950 Eisentrager case, involving Nazi enemy combatants captured overseas conducting offensive operations against the U.S. They sought to challenge their detention and trial by military commission. In rejecting their claim, the justices explained that "(i)t would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home."
The Supreme Court overruled this precedent in Rasul v. Bush. The Eisenstrager case revolved around whether or not the U.S. courts had jurisdiction over a foreign prison run by the U.S, but this was in the aftermath of a traditional war between uniformed state actors -- nothing like the one the U.S. is fighting now. The point is moot, and it's really irritating how often conservatives talk up the "uniqueness" of the fight against al-Qaeda while invoking legal precedents from traditional wars. One of the "unique" aspects of this war is the difficulty involved in determining who is actually the enemy, and if McCarthy had his way anyone merely accused of being a terrorist could simply be imprisoned forever, with no legal recourse. That's an indefensible position.
Yes, America's left-wing legal profession has convinced the liberal bloc of a sharply divided Supreme Court to permit such suits. That doesn't make them any less harmful, nor did it vest the detainees with a right to counsel.
Only McCarthy is disputing the right of Guantanamo detainees' right to counsel. The Supreme Court has affirmed this over and over and over. They have it if they're charged in civilian court. They have it if they're charged in military commissions. They have the right to counsel in order to challenge their detention.
The logical extension of McCarthy's argument here of course, is that the Supreme Court is "hurting the war effort" and that what he calls the "liberal bloc" of the court, which in Rasul actually included two Republican appointees (not counting David Souter), is working on behalf of the enemy. The fact that McCarthy has not yet accused these Justices of being traitors indicates that he may yet retain some small sense of shame.
The Justice Department lawyers who represented al-Qaeda were volunteers. Of all the causes to which they could have donated their services, they chose our enemies. They are no doubt sincere in claiming they sought to vindicate principles, not terrorists. But the other stubborn fact is that, since they took the helm at Justice, counterterrorism policy has become much more terrorist friendly.
Again, this rests on the Orwellian argument that anyone accused of being a terrorist is by definition guilty, and most of the people whom the U.S. imprisoned at Guantanamo Bay were released without charge. The point of the habeas process is to determine whether the government has caused to believe someone is an enemy. This process is no more "terrorist friendly" than trials in general are "criminal friendly" because they consider the actual question of guilt.
Beyond the question of whether detainees in question are actually terrorists, it's hard to see how one would describe counterterrorism policy as being more "terrorist friendly," and McCarthy offers no examples. Detainee policy in the Obama administration is almost indistinguishable from the policy of the Bush administration post-2006, with the exception of the use of torture and more effective review boards. The administration has increased the use of legally questionable drone strikes.
I said I'd get back to the question of McCarthy's definition of "enemy," and it's pretty simple. All or most Muslims are collectively guilty, all or most secretly desire to kill Americans. This is a fundamental "clash of civilizations" in which either Islam or the West will emerge victorious, and the other will be destroyed. Consider this from a post McCarthy wrote about Afghanistan in October:
This reflects a central truth about Islam: the unity of the umma, the global Muslim Nation, takes precedence over all. A U.S. strategy built on the premise that mainstream Muslims will be won over to our side against their fellow Muslims in an Islamic country is built on wishful thinking. It's not a question of whether Muslims reject the takfiris' extremism. Muslims constantly fight amongst themselves, often with deadly force. The question is whether such infighting means they will prefer us. They won't — certainly not on a mass scale.
[...]
There was bitter condemnation of al Qaeda in the Islamic world in 1998 after the U.S. embassy bombings in Kenya and Tanzania. Yet, after 9/11, there was dancing in the streets. The explanation is simple: Over 90 percent of those killed in the embassy bombings were Muslims; by contrast, almost all of the nearly 3,000 killed on 9/11 were Americans, and the devastated city was New York, not Nairobi. Muslims have lots of complaints about Muslim terrorists, but the thought that this means they'll be coming over to our side is a fantasy.
Understand, this is why McCarthy refuses to acknowledge the reality that most of the people we have captured on suspicion of terrorism are not actually America's enemies. Because most Muslims are enemies by definition, the lines of war have been drawn by circumstances of birth and culture. So it doesn't matter whether an individual Muslim has attacked the United States -- their faith is their uniform, their adherence to it an act of war against the West. This is, of course, very similar to al-Qaeda's own view.
McCarthy's smears of Justice Department lawyers as terrorist sympathizers are merely a tribalist assault on the Constitution masquerading as patriotism.
-- A. Serwer
In the latest issue of Democracy, Time's Joe Klein suggests that the way to reinvigorate liberalism as an appealing political doctrine is to celebrate its comforting efficiencies, its unwavering competence, its you-can-leave-your-house-keys-with-me-ness:
Liberals are congenitally disposed to thinking grand thoughts, and that’s a good thing -- in the long run. In the short term, however, liberalism has to embrace -- and work to markedly improve -- the quotidian ceremonies of governance, the places where the public meets the government every day. Liberalism has to prove that it will be hard-headed in spending public money, that it will not go wobbly in defending the country’s security, that it stands for change that is humane and truly progressive rather than simply aggrandizing its traditional allies.
I am not pessimistic that this can happen, but it requires discipline and vigilance. It requires a steady accretion of benign interactions between the government and the public. A successful progressive vision involves not only eyes on the prize, but also on the Department of Motor Vehicles.
Now, I've got a technocratic streak that runs wide and deep. I've got an obsession with procedure that I'm not even ashamed of. But even I'm left wanting a next paragraph after "Department of Motor Vehicles." I do believe that progressives can make bones on a record of competence, but a zippy DMV experience still has to be the tangible embodiment of something somewhat more primal. The reining in of chaos through the inspired application of human knowledge? The perfecting of human experience that is only achievable when people's individual actions build on one another? Something.
Lots of people, myself included, have lamented the fact that for all America's dominance of the Internet, there are other countries, like South Korea, where they have better broadband service than we do. But when you look at the entire globe, it's obvious that the world is divided into Internet haves, and Internet have-nots. Play around with this interactive data visualization from Google:
The country with the highest proportion of Internet users? Greenland, at an admirable 91.6 per 100 (compared to 72.4 in the U.S.). I'll refrain from making a crack about the need for Internet access when you live in a bleak, windswept tundra. The lowest rate of access is that of Burma, which in 2007 (the last year of available data) had just one Internet user for every 1,000 citizens. There are also multiple countries in sub-Saharan Africa -- Mali, Niger, the Congo -- where access is at or below one per 100.
The Senate parliamentarian has reportedly told the Senate GOP leadership that in order for reconciliation to be applied to the health-care reform bill, the original bill must first be passed by the House and signed by the president. Will House Democrats go through with accepting legislation that might never be fixed? Recall that earlier in the day it was reported that Harry Reid wrote a stern letter to Mitch McConnell, condemning the GOP's deliberate efforts to derail health-care reform, their tireless obstructionism and abuse of Senate procedure, and their shameless resort to lies to scare the public. That letter also promised that Democrats will move forward with reconciliation, hypocritical Republican whining on the issue aside.
In other reconciliation news, former Senate parliamentarian Robert Dove has toldGreg Sargent that during reconciliation Republicans can and will subject every amendment to the Byrd Rule, so Democrats had better have a "bulletproof" bill. And even though the vice president can overrule the parliamentarian, such a step would be "unprecedented" in Dove's opinion. The good news is that the public option will make an 11th-hour appearance courtesy of Bernie Sanders, subject to a majority vote (provided reconciliation still happens).
Reading a Washington Postprofile of Hillary Clinton's State Department one year in, Michael Cohenis disappointed that the Obama administration has staffed its foreign-policy ranks with competent, capable people ... who fail to espouse a strategic vision. Indeed, that lack of vision is what is so puzzling about the claims that Obama is taking American foreign policy in some sort of unprecedented or radical direction. The real criticism is that he hasn't done enough to change the basic foreign-policy pattern established by all of his postwar predecessors. Roger Cohen might worry himself that Obama lacks emotional attachment to the Allied invasion of Europe, but this hasn't dissuaded him to watch yet another Hollywood tribute to WWII with Tom Hanks and Steven Spielberg in the White House theater.
Speaking of media failure, I too am speechless at Massa coverage. The resulting freak show has enabled House Republicans to force a vote on investigating the matter, allowing them to downplay the significance of their own massive ethical problems that ultimately consumed them in the lead-up to the 2006 midterm elections.
Remainders: Full credit to the two Republican lawmakers who successfully pushed to ban misleading "census" mailers being used by their own party; credit too to VA Gov. Bob McDonnell for reversing a reinstatement of discriminatory state hiring practices; why is it so hard for people to understand that issuing decisions bound to piss people off is essentially why the Supreme Court exists; global warming is "generally exaggerated" according to an increasing number of Americans; I have no idea why National Review is highlighting a 30-year-old issue of their magazine featuring a cover story on detente; Reason magazine thinks the "ideas" in John "centrists save America" Avlon's book are worth a 10-minute interview; and irrespective of the quality (poor) of the other Democratic candidates, I agree that John Kerry was a terrible candidate for a job he would have filled well.
Earlier today it looked like student loan reform had run into some serious trouble, but following this afternoon's Democratic Caucus meeting, it seems that the important legislation to cut subsidies to student lenders and use the savings to fund Pell grants -- a major part of President Obama's higher-ed agenda -- is back on track.
A concentrated grass-roots lobbying effort, combined with personal discussions at this afternoon's meeting of the Senate Democratic Caucus, seems to have convinced Senate Budget Committee Chairman Kent Conrad that including the student loan bill in reconciliation wouldn't hinder health-care reform efforts, congressional aides told the Prospect. Conrad worried that the addition of the education legislation might present an obstacle to already delicate negotiations to modify the health-care bill so the House would pass it. However, discussions with his colleagues and the Senate's parliamentarian led him to tellThe Washington Post today that "we're leaning toward" including student loan reform in the reconciliation process. (The Senate voted to include the legislation in the reconciliation process last April.)
While Hill staff caution that nothing is done until it is done, the news that Conrad is back on board with reformers' original plan to pass the bill is much rosier than this morning's more ominous signs. Senate Leader Harry Reid's office declined to comment on the issue.
After I wrote a column supporting New York's latest effort to tax sugary drinks, I read RaceWire's column on how it's just another tax to hurt poor people. While, yes, sales taxes are regressive, decrying this tax as a social justice issue misses the point.
For starters, as I wrote in my piece, this sales tax hits producers who use concentrated syrups to add a lot of calories to their drinks. That might sound like a moot point, since the tax will be passed on to consumers as a higher-priced drink, but it's important to note that it also includes fruit juices with added sugar. In those instances, consumers can very easily shift their purchases to juices with more natural fruit that are slightly less sweet and have higher nutritional value per calorie.
(The science on how bad sugary drinks are for us is pretty clear, but for some
reason the RaceWire author, Michelle Chen, calls it uncertain. To support that, she links
to a newspaper article that notes scientific consensus but quotes the
beverage industry calling that into question.)
Second, assuming that the tax will disproportionately hit poor families assumes they won't shift their purchases elsewhere in response. The average price of milk is $3.50 a gallon, while the average price of a 2-liter bottle of Coke is $1.70. Two bottles of Coke, which would provide about the same amount of liquid as a gallon of milk, would still be 10 cents cheaper. Part of the reason it's so cheap is because sweeteners like corn syrup are cheap, and they're so cheap because of government subsidies. (The dairy industry is also, obviously, heavily subsidized, but making it even cheaper to compete with soda isn't the answer). It's fine to talk about personal choice, but you have to note that the government is already interfering in such a way that it encourages families to buy more soda than is healthy. It's possible, then, that families now are actually forgoing drinks like milk because soda's so much cheaper. We're subsidizing junk food, which to me is a more important social justice issue. The food we make most available to people who are watching their wallets is the food that will cost them most in the long run.
You could make an argument that ending subsidies would do that better, which Chen acknowledges, but that would still result in making soda more expensive. Moreover, it would require a national consensus. And lowering the price of healthier foods doesn't discourage purchasing soda, because subsidizing healthier foods just encourages spending more money on more calories overall. If public health is the goal, the better way to address it is to raise the price of soda to encourage families to spend money elsewhere. The tax would be used to close a budget gap in the Department of Health which, incidentally, provides medical care to the poor. So to me, this is akin to raising the gas tax and subsidizing public transportation. It might disproportionately hit poor people at the stands, but overall, it's a progressive policy.
So while Chen says Albany should be more worried about balanced diets than balanced budgets, it seems to me they're concerned with both. And she says she doesn't see a parallel effort to expand access to good food in all areas of New York, which is funny, because New York City isactuallydoing a pretty good job at that very thing. Chen links to a piece that notes some of the problems with the supermarket initiative, but the fact remains that bodegas often do not carry fruit and vegetables, though the Bloomberg administration tried that too. And, in the meantime, 1,000 fruit carts have been dispatched to under-served communities.
It's not as though there's a perfect food solution. But just because lower-income families spend a higher percentage of their income on soda and any tax attached to it, that doesn't mean middle-class and higher-income families aren't helping to foot the bill every time they buy soda, too. That's why Coca-Cola has it's eye on the worldwide emerging middle class. And though it's bad to entirely rely on sin taxes to close budget holes when there are better ways to raise revenues, this is more about making soda sensibly priced.
Citing declining enrollment and money issues, the Kansas City School Board plans to close 29 of its 61 schools. Kansas City's educational system has long been in decline, due to the hollowing out of the the city's urban core and the resulting re-segregation of area schools. Many scholars have cited Kansas City as a prime example of post-WWII white flight to the suburbs. Some blameBrown v. Board of Education for helping to spur it.
As the table shows, the city's white population has remained relatively stable, but this masks the overall population increase in the metro area -- and as author Joshua Dunnnotes, younger, middle-class whites fled to the suburbs while the remaining white population aged. With fewer school-age white children in Kansas City, enrollment dropped and racial composition changed dramatically. In 1959, 6.6 percent of Paseo High School students were African American. Twenty years later, that number jumped to 97.8 percent.
Supporters of "vouchers" and charter schools should take heed. The district's long-standing policy of allowing students to transfer from one school to another so long as there's space only undermined desegregation efforts and helped spur flight to the suburbs. In Kansas City, as across the country, the "competition" and mobility touted by conservatives has meant re-segregation, declining enrollment and funds, and ultimately, job losses and school closures in the middle of a recession.
A terrible synergy of special interests has jeopardized a key student loan reform that would eliminate billions of dollars in subsidies to private lenders. The legislation would cut out private lenders who currently act as middlemen when the government makes loans to students -- it would expand the Federal Direct Lending program and plow the savings into Pell grants for students.
The problem, though, is that this legislation is opposed by moderate Democrats who have received donations from the industry or represent states where the student lenders are based. (Republican opposition, of course, remains constant across the board.) This wouldn't have been a big deal, since the provision is slated to go through the budget reconciliation process, which allows the bill to pass on a simple majority vote. But now that the passage of health-care reform legislation requires it to go through the same reconciliation process, reform opponents are threatening both bills, forcing leadership to choose between them -- and health care is likely to come out on top. The House, of course, passed both bills last year.
What's next? If the Obama administration and Senate leaders can't corral enough votes for both measures, it's likely that health-care reform will be the top priority, leaving student-loan improvements by the wayside. After that, there is a lender-supported compromise bill that still retains unnecessary subsidies or the possibility of giving the legislation another shot in a few months, an idea floated by Senate Budget Committee Chair Kent Conrad. Reformers worry that delay could kill the bill. That would be a huge loss for both college students and responsible public policy.
“College students are graduating with deep student loan debt and borrowers are increasingly defaulting on their loans. We must make college more affordable and accessible now. In order to lower student loan debt, we need to increase grant aid—money for college that students don’t have to repay," Rich Williams of the U.S. Public Interest Research Group, one of many groups organizing support for the legislation, said today. "If student aid reform is cut from the final reconciliation package, then large banks and lenders will prevail over struggling students and their families."
Earlier this morning, Sen. Dick Durbin announced that he and Sen. Jeff Sessions had reached a "compromise" in the Senate gym over Durbin's bill, which would have eliminated the 100 to 1 sentencing disparity for crack vs. powder cocaine.
"If you ever wonder if anything good ever happens there, it appears something good might have happened there," Durbin said, which may or may not have been an oblique reference to former Congressman Eric Massa's tale about being lobbied by Rahm Emanuel in the House gym. "Senator [Orrin] Hatch was there to witness it."
The compromise was that Durbin would accept Sessions' amendment to change the disparity from 100 to 1 to 20 to 1. In return, Sessions offered to withdraw his amendments that would have narrowed the circumstances under which a judge could reduce penalties for offenders who acted with "fear, impulse or affection," and would have imposed a 10-year mandatory maximum for simple possession rather than eliminating the five-year mandatory minimum for simple possession entirely.
"My position is for one to one, equity and equality in sentencing, but in order to get things done you have to be prepared to make mutual concessions," Durbin said. "That's what we have done."
In a statement, the ACLU Legislative Counsel Jennifer Bellamy urged Congress to eliminate the disparity entirely, saying, "We finally have the political will and momentum to end this unconstitutional disparity. We should not miss this opportunity to effect real change and ensure fair sentencing for all Americans."
The Judiciary Committee passed the bill, which will go to the full Senate for a floor vote. Instead of eliminating the crack/powder disparity, which practically everyone in the committee acknowledged disproportionately affects black Americans, the senators opted to make the law one-fifth as racist as it used to be.
The senators on the committee spent the rest of the markup complimenting each other on all they had achieved with their bipartisanship.
There's one thing on which nearly everyone can agree: The overconsumption of soda and sugar-sweetened drinks is harmful to our health, especially for kids. That's why New York state's budget measure to tax those drinks is a win for public health.
Gov. David Paterson of New York dropped a similar proposal last year after the bill garnered little support among lawmakers and received a lot of pushback from the beverage industry. This year, a new and improved effort that is part of Paterson's upcoming budget has a better shot. Still, many state senators, and some unions, oppose the tax. They say that touting it as a measure to curb obesity is just an excuse to tax. "This year, my rule is I'm not voting for any new taxes. None at all, at any time," state Sen. Joseph Robach told News 10 in New York.
Progressives surely understand by now that Barack Obama has no intention of making the rhetorical case for progressivism a theme of his presidency. This is a continuing disappointment; if he spent as much time attacking conservatism as, say, Ronald Reagan did attacking liberalism, we might actually be able to change our national conversation on the role of government. And unfortunately, what ought to be the most powerful tool in that effort -- strong policy -- may have only limited effect. Republicans today decry the potential horror of government health insurance while simultaneously posing as valiant defenders of Medicare; tomorrow they will likely celebrate the health insurance exchanges the current reform establishes, while they mount a rearguard action against a public option.
Given that Democrats have control of government for the moment, perhaps it would be a good time to come up with some creative ideas to shift the public's perceptions about government -- not in a propagandist way, but in a way that actually enhances understanding. Writing in Democracy, Ethan Porter has one such idea: "Let's offer individual taxpayers a clear breakdown of what they're getting in return for their taxes. The IRS should provide individual taxpayers with a receipt." It would lay out, in broad terms, where your tax money went: This many of your dollars went to defense, this many of your dollars went to transportation programs, this many went to education, and so on.
It would be hard for conservatives to argue that there is something sinister about letting Americans know what the government does with their taxes. Yet such an effort would, in fact, advance progressive goals. The reason is that the public is massively misinformed about what tax money goes toward, and in a particular way: They tend to overestimate the amount of money spent on programs they don't like. For instance, lots of people believe that much of the federal budget goes for welfare or for foreign aid (neither very popular), when the actual amount spent on each of those items is less than 1 percent of the budget. And when you give them the opportunity to say how they'd like their tax money spent, they give very progressive answers: Cut defense spending, but increase spending on education, medical research, and renewable energy.
Congress could enact Porter's idea -- a yearly mailing to every household following tax day -- at relatively low cost. It would be a boon to public understanding about government, which would increase the likelihood that the next major debate could be a little more grounded in reality. Why not?
Courtney Martin writes that this International Women's Day, we should look at gender inequality in our own communities. Each day this week on TAPPED we will run a profile of an organization doing exactly that.
COLOR, the Colorado Organization for Latina Opportunity and Reproductive Rights, is barely a decade old but is already breaking new ground in Colorado. Their success in the 2008 election was a testament to their innovation, when they helped defeat a slate of ballot initiatives that would have meant setbacks in reproductive rights, worker’s rights, and minority achievement.
At first, COLOR was against Amendment 46, which would have defined an unborn child as a person, which was being challenged by a coalition of traditional reproductive-rights groups. At the same time, COLOR was also concentrated on other amendments that were up for consideration that year—including amendment 48, which would have banned affirmative action in Colorado.
COLOR decided they needed a new strategy that would combine the opposition to the two amendments and would also reach the Latino community on the Amendment 46 issue better than traditional reproductive-rights groups could. Pre-election polling determined that pairing opposition to the two amendments in one campaign translated to an 8 percent jump in opposition, according to Daniel Gonzales, political and reproductive-justice advocacy coordinator with COLOR.
So began a campaign with a truly diverse message, and one that resonated within the group's target communities. Instead of rhetoric about “keeping the government off our bodies,” a typical reproductive-rights message used to defeat anti-abortion initiatives, COLOR named their campaign “Latino families for health and opportunity.” What resulted was a cross-movement coalition that brought together groups working in communities of color, labor unions, immigrant-rights organizations, and reproductive-rights groups, an unprecedented alliance.
In the last four days leading up to the election, they bundled opposition to even more amendments into the campaign—including three anti-worker amendments. They defeated four of the five amendments that year, and the one that passed was recently deemed unconstitutional. The framework for this campaign platform used by COLOR was reproductive justice—a theoretical underpinning that is defined as being more broadly about women's health than just the abortion issue. Gonzales explained:
[Reproductive justice is] about creating entry points for folks to participate in the work. We have to acknowledge all of a person’s identity and we have to work at the intersections to create long-term change. The reproductive justice framework is an amazing tool to help people get past their silos.
Reproductive justice is gaining popularity among reproductive-rights groups precisely because the ideology allows them to make connections to other issues their constituents care about.
When the staff at COLOR aren’t working on these amendment campaigns, they work on leadership development and sex education programs in Denver public schools. They've seen success in their youth program, Latinas of Vision, which recently campaigned to bring sex education issues into the school board election discussion. Reproductive justice allows COLOR to bring all these elements together into a cohesive but multi-issue strategy. COLOR isn’t the only group using this framework, but their experience in 2008 is a testament to its potential for success in the electoral arena. “It’s not only a more complete analysis; it’s also a winning strategy,” Gonzales said.
The last time Dodd and Schumer unveiled the regulatory reform bill.
Two exciting pieces of regulatory reform news today. One is that Senate Banking Committee Chair Chris Dodd is set to release a new version of legislation designed to overhaul financial regulations on Monday. The second is, though it will reflect his negotiations with Sen. Bob Corker, it may not be bipartisan:
Over the last few months, Banking Committee members have worked together to try and produce a consensus package. Together we have made significant progress and resolved a many of the items, but a few outstanding issues remain.
Sen. Chuck Schumer, smelling some leverage, jumped on the event, issuing a tough statement on the Consumer Financial Protection Agency that begins with a reference to "GOP POSSIBLY ABANDONING BIPARTISAN TALKS ON REG REFORM":
"The new consumer protection agency shouldn’t be designed to exempt payday lenders, it should be designed to put them out of business,” Schumer said. “It is unfathomable that we would leave some of the most disreputable actors in today’s marketplace free to continue ripping off innocent Americans. This is too big a sacrifice to make."
And proving that he's a man after my own heart, Schumer also says that letting Republicans weaken the bill in negotiations and then not vote for it isn't very smart:
This would be a bad policy even if it were bipartisan. But there’s even less reason to accept a watered-down watchdog agency if those who insisted on it are prepared to walk away from the negotiations.
The quality of the bill remains up in the air -- there's been a lot of different compromises on the table and it's unclear which will make it to the final version. But any progress toward the floor, and hope of improvement, is a better sign than unending negotiations in committee.
Adam Serwer argues for ending the sentencing disparity between crack and powder cocaine:
The sentencing disparity between crack and powder cocaine is a national disgrace. Both President Barack Obama and Attorney General Eric Holder have called for it to be ended, and prominent Republicans like Alabama Sen. Jeff Sessions and Oklahoma Sen. Tom Coburn have indicated they're sympathetic to the idea. Today, the Senate Judiciary Committee will consider the Fair Sentencing Act, Illinois Sen. Dick Durbin's proposal to eliminate the disparity entirely.
"It is plainly unjust to hand down wildly disparate prison sentences for materially similar crimes," Holder said at a D.C. Court of Appeals Judicial Conference last summer. "It is unjust to have a sentencing disparity that disproportionately and illogically affects some racial groups."
It's always amusing when conservatives try to portray increasing government revenue as fiscally irresponsible. But the ridiculousness reached its height in Carly Fiorina's Demon Sheep ad against her Senate opponent Tom Campbell, which portrayed his past support of tax increases to balance California's budget as such.
But of course, when lawmakers are actually faced with the real consequences of governing, tax increases are an important tool for maintaining important things, like schools. That's the choice facing Illinois lawmakers, who are considering Gov. Patrick Quinn's budget, which raises income taxes by 1 percentage point, from 3 percent to 4 percent.
A targeted increase for higher earners might be better, but it's a minor increase that would preserve the education budget at current levels. The article in The New York Times said Democrats in the state Legislature, which are the majority party, were so far noncommittal. But it's telling that the biggest criticism came from the Republican leaders from the outside, who hope to retake the state this year. The state party chair, Pat Brady called the budget irresponsible and portrayed the tax increase as a 33 percent raise, a true number but one that makes it sound bigger than it is.
But Quinn seems to be hoping a tax increase won't play that way on the campaign:
'That 1 percent will be enough to restore our education budget to current levels,' he said, 'and allow us to get caught up on some of the millions of dollars we owe to our public schools, to our community colleges, to our four-year universities. I believe this 1 percent for education makes sense, and I think the people of Illinois will understand.'
Yesterday we posted a ton of analysis of Rep. Paul Ryan's budget proposals, but I didn't have much sense of how it compared to the president's budget.
However, if you use the Tax Policy Center's data on revenues rather than the placeholder provided by Ryan's office (they still have not explained where they got their revenue projections, despite this strange response to TPC's findings), it turns out that Ryan's plan is actually less effective at balancing the budget than President Obama's. Check out my mash-up table below, which combines the Center on Budget and Policy Priorities' analysis and the latest Congressional Budget Office estimate [PDF] of the president's budget. All figures are in percent of gross domestic product:
It's interesting to see that Obama's plan is more fiscally responsible in the midterm, if you measure that in terms of lowering the deficit. And Obama's plan doesn't radically change the entire social-insurance system or create an incredibly regressive tax regime.
Conservatives have obsessively slammed the Classified Information Procedures Act, which regulates the disclosure of classified information in civilian courts proceedings, by claiming it would lead to terrorists getting top-secret information. This has never happened before. The only example conservatives regularly point to is the 1995 Sheik Omar Abdel Rahman case, in which the government simply failed to classify a list of un-indicted co-conspirators that made its way to Osama bin Laden -- who had declared war on the U.S. three years earlier anyway.
Again, the mythical disclosure of classified information in civilian court has never happened, over hundreds of terrorism cases.
This argument in favor of the military commissions for trying terrorists is flawed, but Spencer Ackermanreports today exactly how flawed it is:
But the military framework for handling classified information is almost exactly the civilian framework for handling it. The Military Commissions Act of 2009, which set procedure for the revised military commissions, explicitly instructs military judges to look to the civilian rules for protecting classified information, known as the Classified Information Procedures Act, or CIPA. Under the Act’s fifth subchapter governing the “construction of provisions” for the “protection of classified information,” the text says that “the judicial construction of the Classified Information Procedures Act (18 U.S.C. App.) shall be authoritative,” except in certain specific cases that Justice Department officials said are legally arcane.
It makes sense that military courts would take guidance from the civilian courts in such matters, because military courts aren't used to trying terrorism cases. Former State Department Legal Adviser John Bellinger IIIsaid months ago that the Bush administration was moving to shore up military lawyers with civilian lawyers from the Justice Department, precisely because they have more experience in such matters.
Military commissions are haphazard. They tend to give out lighter sentences. They don't appear to offer any real "advantages" in terms of protecting classified information. Virtually the only "positive" is that they tend to offer the government more certainty of conviction.
-- A. Serwer
Prior to becoming attorney general, Eric Holder held public views that were to the right of the ones he holds now. He believed that placing suspected terrorists in the criminal justice system might compromise intelligence gathering. He wrote as much in a brief submitted in the Rumsfeld v. Padilla case, in which he writes:
[We] recognize that these limitations might impede the investigation of a terrorist offense in some circumstances. It is conceivable that, in some hypothetical situation, despite the array of powers described above, the government might be unable to detain a dangerous terrorist or to interrogate him or her effectively. But this is an inherent consequence of the limitation of Executive power. No doubt many other steps could be taken that would increase our security, and could enable us to prevent terrorist attacks that might otherwise occur. But our Nation has always been prepared to accept some risk as the price of guaranteeing that the Executive does not have arbitrary power to imprison citizens.
Dana Perino and Bill Burck, who have spent the last couple of months fudging national-security questions over at National Review, have presented this as a kind of trump card proving that trying terrorists in the criminal-justice system is a bad idea. They don't have any harsh words for their boss, but this is of a piece with the larger conservative attempt to revise history and erase the more than 100 terrorist cases tried in civilian courts during the Bush administration from public memory. The deviation between the Bush administration post-2006 and the Obama administration is minimal.
At issue is the fact that Holder didn't disclose the above briefing during his confirmation hearing, which is an oversight worthy of criticism. However, Burck and Perino aren't happy merely making that argument -- they have to fudge the conclusions of U.S. courts in order to justify their belief that the government can hold anyone, anywhere, indefinitely, merely on suspicion of terrorism.
The briefs help to explain a great deal about Holder’s approach to KSM and Abdulmutallab, and detainee policy more broadly. The briefs provide insight into why Holder has refused to acknowledge that Abdulmutallab could have been lawfully detained as an enemy combatant. Holder has insisted for weeks that there is substantial legal doubt on this score because Abdulmutallab was caught in the U.S., not in a recognized battle zone. His position ignores the court-of-appeals ruling in the Padilla case, which held that a U.S. citizen captured on U.S. soil may be detained as an enemy combatant. That decision is still good law — but Holder appears to discount it; after all, he supported Padilla. He prefers the earlier ruling of a different court of appeals, which sided with Padilla, even though that ruling was vacated by the Supreme Court.
The Supreme Court dismissed Padilla's habeas petition -- it didn't rule in favor of the idea that the government can detain someone captured on U.S. soil indefinitely without trial. In fact, the Bush administration moved Padilla into the criminal-justice system precisely to avoid a confrontation with the Supreme Court on this point, which Burck and Perino misleadingly suggest is settled law. The Obama administration did the same thing with Ali Saleh al-Marri, a foreign citizen who was in the U.S. legally and was detained for nearly seven years in a military brig. They were justifiably afraid that they would get stomped in court, just like their predecessors. Civil-liberties advocates wanted this fight, and they were denied it.
So it really isn't clear that the U.S. could have held Abdulmutallab that way. In fact it likely would have set up the very same kind of epic constitutional confrontation that both Bush and Obama have desperately tried to avoid.
Not only that, but in terms of collecting intelligence, precedent suggests holding Abdulmutallab this way would have been a bad idea. Padilla gave the U.S. scratch zero in terms of intelligence while he was detained in military custody, and al-Marri didn't start talking until he was taken out of the brig. According to the Charleston Post and Courier:
A day after he took office, President Barack Obama reversed the Bush administration's enemy combatant stance and ordered al-Marri transferred from military custody to the courts. Before al-Marri agreed to plead guilty, al-Marri sat with investigators for hours, Savage said. In this less-threatening setting, al-Marri verified some of the government's accusations against him and steered the government away from errors in its intelligence.
Maybe Holder is being reckless. Or maybe, having considered the two examples in which the U.S. held someone captured on American soil as an enemy combatant and got nothing out of it, he simply changed his mind.
At any rate, as I've pointed out before, Holder's current view, that access to an attorney doesn't impede intelligence gathering, isn't that unusual. It was the view of former Attorney General Michael Mukasey when he was a federal judge ruling on the Padilla case. Mukasey said of Padilla's access to an attorney, “The interference with interrogation would be minimal or nonexistent.” Since then, Mukasey's changed his mind. But no Republicans -- certainly not Perino or Burck -- found this to be a dangerous view during Mukasey's confirmation several years ago. It's a credit to the GOP media operation that they managed to get Politico to write a whole article on this subject without mentioning that.
The more disturbing part of Burck's and Perino's reasoning is the aspersions they cast on Holder's notion that some level of risk of terrorist attack is acceptable in order to respect the law. The logical conclusion of their argument is that Perino and Burck think that some level of "absolute safety" can be achieved and would be a desirable state of affairs, if we just ignored the law all together. American public servants swear an oath to protect the Constitution and not the people of the United States in order to avoid the monstrous acts that would be otherwise justified in the name of "security."
Perino and Burck, like Obama, rhetorically reject the "false choice" between liberty and security. But only because they seem to believe that there's no contest -- they'd give up freedom for security in a heartbeat.
-- A. Serwer
American politics and American foreign policy partake heavily of certain pieties. At the intersection of the two one finds above all the piety that they should not intersect. Politics, as the saying goes, ought to stop at the water's edge. Except, as the historian Julian Zelizer demonstrates in his new book Arsenal of Democracy, things have never worked that way. Nor is it clear how they ever could if the United States is to remain both a democracy and a world power. Since the early decades of the 20th century, America has played an important role on the world stage. In order to do so, it has built a vast national-security apparatus -- including a far-flung military, global intelligence operations, and research into new weapons technologies -- whose extent and use are necessarily the subject of political controversy.
Indeed, Zelizer's account makes it clear that political motives were at the root of even the relatively brief period of bipartisan collaboration between President Harry Truman and congressional Republicans in the late 1940s that gave rise to the misleading cliché about politics stopping at the "water's edge." Combining anti-communism abroad with a progressive approach at home helped Truman hold the Democratic coalition together despite a growing divide between North and South within his party. At the same time, Republicans suffering politically from the taint of "isolationism" found it convenient to collaborate with Truman in order to rehabilitate themselves.
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