The Anonymous Liberal

Time for a Blogging Sabbatical

noreply@blogger.com (A.L.) — Mon, 16 Nov 2009 04:11:00 +0000

As you've undoubtedly noticed if you've been coming to this site regularly, my posts have been getting fewer and farther between. Though I can always point to the demands of my real job as an excuse (it is a pretty demanding job, after all), the reality is that I haven't been any busier than normal lately. For whatever reason, though, I've been having more trouble finding the time to write here, and when I do sit down to write a post, much of the time I abandon it halfway through, usually because I'm not convinced it contributes anything useful or original to the discourse.

So I've made a decision. I'm taking a sabbatical from blogging. It's something I need to do. I'm not sure how long it will be. Maybe a few months. Maybe longer. We'll see. During that time I may post something once in a while, if I feel particularly motivated. In the meantime, I'll continue to post my thoughts on Twitter, so feel free to follow me there. If I post something here, I'll give you a heads up over there so you don't have to keep coming to the site.
For the record, I've very much enjoyed blogging here and I appreciate all of you who have read my posts over the years and especially those of you who have taken the time to comment or email me. I promise that I'll return to writing eventually. I hope you'll come back then.

Cheers.

Why the GOP has no health care plan

noreply@blogger.com (A.L.) — Tue, 27 Oct 2009 14:49:00 +0000

The Hill reports that there is currently a debate within the GOP caucus as to whether they should offer an alternative health care reform bill.

Some House Republicans are growing frustrated that their leaders have not yet introduced a health care reform alternative.

For months, the message from House GOP leaders on a healthcare bill has been similar to ads for yet-to-be-released movies: Coming soon.

According to several GOP lawmakers, the leadership is split over how to proceed in terms of unveiling an alternative to the final Democratic bill that Speaker Nancy Pelosi (D-Calif.) intends to unveil as soon as this week.

Rep. Tom Price (Ga.), chairman of the conservative Republican Study Committee (RSC), revealed the schism within his party late last week.

“There’s a difference of opinion over what ought to be the strategy from a political standpoint on this issue. I happen to believe we ought to have a bill. There are others who believe, as strongly, that the principles that would be outlined and would be adhered to in the Republican bill are what need to be discussed because everybody can embrace those principles,” Price said last week.

The problem the GOP faces is a very simple one: it is impossible to translate their "principles" into a functional plan. This is why they never lifted a finger to address the issue of health care reform during the entire time they controlled the White House and Congress. Indeed, the one health care related bill they passed (the Medicare prescription drug bill) was a massive new--and completely unfunded--government entitlement, something that would seemingly violate any possible list of GOP principles in profound ways.

In the current debate, if you ask a GOP politician what he/she would do to reform health care, you're likely to hear a lot of buzzwords, things like "portability" and "competition across state lines." This all sounds well and good. Competition is generally a good thing and most of us would prefer it if our health insurance wasn't tied to our employment. But when you try to reduce these ideas to policy, the result is a disaster.

There are two fundamental problems we face with our health care system. The first is the fact that tens of millions of people in this country are either uninsured or under-insured. The second is the fact that health care costs are rising rapidly. Any proposal to reform our health care system must address these problems.

The one idea that Republicans have offered to address these problems is relatively easy to understand. They want to allow private health insurers to sell policies across state lines. Thus, as long as an insurer complies with the regulations of its home state, it could sell insurance outside of the state. This would increase the amount of competition and thereby reduce premiums. The problem with this idea, of course, is that it would create an instant "race to the bottom." The insurance industry would lobby the states to relax their regulations and then would all set up shop in the state that was most willing to comply with their demands. The result would de facto deregulation of the industry. But, from the GOP perspective, this is a feature, not a bug. Without laws mandating what they have to cover, insurance companies would gravitate toward high-deductible, low-benefit policies that could be offered for reduced premiums. Businesses would start offering these kind of policies to their employees in order to cut costs and many individuals would choose such policies in order to save money on premiums. While this might reduce average premium prices (at least in the short term) and allow some people who currently can't afford insurance on the individual market to purchase it, the result would be a system in which just about everyone is under-insured.

But this is exactly what conservatives want. They believe (or at least claim to believe) that the reason health care costs are out of control is because people don't have enough personal stake in health care spending. The believe that if people have to pay a greater percentage of costs out-of-pocket, they will have an incentive not to "purchase" unnecessary care.

As anyone who has studied health care policy for more than ten seconds knows, however, treating health care like grocery shopping is a recipe for disaster. First, when it comes to health care, "consumers" simply don't have the expertise to be intelligent "shoppers." We're not doctors. We generally don't know what diagnostic test or procedure we need or when we need it. We don't know which doctor or hospital is the best "deal." We don't know which drug offers the most "bang for our buck." Most of us never will, either. That's why we have doctors. Moreover, when you make people pay for routine and preventative medical care out-of-pocket (as high deductible policies do), the inevitable result is that people don't get enough routine and preventative care. That results not only in worse health outcomes, but it drives up costs. It is much easier and cheaper to treat conditions if they are detected early.

On some level, I'm pretty sure that most Republican politicians know all of this. They know that their "principles" don't translate well into actual policies. They know that if they were to produce an actual bill, nearly every health care policy expert in the country would immediately point out its myriad flaws. And on some level they also know that the only way to effectively deal with the problem of the uninsured or to control costs is through greater (not lesser) government involvement in the health care system. Indeed, one of the final quotes in the article is very revealing on this score:

One House Republican who spoke on the condition of anonymity said, “The fact is, [GOP leaders] are very concerned with doing anything that the base would interpret as ‘Democrat-lite’ or ‘socialized-lite’ … which is forcing a little of paralysis.”

That paralysis is a consequence of the fact that, absent greater government involvement, there really is no way to deal with the uninsured or to reduce systemic costs. If the GOP were to produce a bill and submit it to CBO-like analysis, the results would undoubtedly show that it does almost nothing to address either problem. Indeed, it could very well be shown to make both problems worse. That's why there is no GOP health care plan.

The Politics of the Opt-Out

noreply@blogger.com (A.L.) — Mon, 26 Oct 2009 15:47:00 +0000

The rumor at the moment (which may well be disproved shortly) is that the health care bill Harry Reid will send to the Senate floor will include a national public insurance plan that individual states may choose to "opt out" of. I've previously written that I think the "opt-out" is by far the best of the various watered-down public option compromises that have been suggested. In fact, there are scenarios where I think the "opt-out" might actually be better than the full-fledged public option. But I want to expand upon that thinking a little bit, because it requires quite a bit of speculation.

Let's assume, for the moment, that the Senate bill includes an public option with an opt-out provision and that this version of the public option is the one that survives the House-Senate conference process and is eventually signed into law by the president. What happens then?

Well, assuming it's a true opt-out provision, the national plan will initially be available in every state. Undoubtedly there will be calls from conservatives (particularly Republican politicians who are considering presidential runs in 2012) for states to opt-out of the public plan. Minnesota Governor Tim Pawlenty has already stated that he will lead such a campaign in Minnesota. As we saw with the stimulus bill, however, there is often a stark difference in both priorities and opinions between state-level Republicans and Republicans with aspirations for national office. It is one thing to posture for the national media; it is quite another to actually take steps to deprive citizens in your state from being eligible for a federal benefit. It would not surprise me at all if, when push comes to shove, many state-level Republican (even in very red states) balk at the idea of opting out of the national plan.

On the other hand, unlike the stimulus battle, it's not just ideologues who will have an interest in opting out. Insurance companies will not want the competition of a public plan and may well try to lobby hard at the state level to get states to opt-out. Republicans running for Congress in 2010 may also seize upon the opt-out as a campaign theme. They would have little to lose in the short term by demonizing the health care bill, especially when much of it will take time to go into effect.

These efforts will, of course, be counterbalanced by Democrats who, having voted for the plan, will be very invested in defending it. And, on the merits, the Democrats will have a winning argument. Their opponents will be trying to deny their citizens an option that their friends and family in other states will have. Moreover, I suspect that much of the business community will at least tacitly support the Democrats on this one. Having another insurance option can only help businesses who are struggling mightily with the costs of rising premiums.

The bottom line is that it is very difficult to predict exactly how this debate will play out in the short term and how many states will ultimately choose to opt-out. If I had to guess, I'd guess that no more than a handful would opt-out, but I could easily wrong. One thing I'm fairly certain of, however, is that a large number of states will not opt-out, including many of the most populous states, like California and New York. Therefore, whatever happens, there will be a national public plan of significant size.

Many people have suggested that this would create a perfect laboratory to test whether the public option does in fact work to control costs. I'm not so sure that's true. My guess is that, even if the public plan works to control costs, we won't see a significant disparity in premiums between opt-out states and public plan states. The reason for that is that private insurers will feel pressure to be competitive with the public plan even in states where the public plan is unavailable. After all, states can always opt back in, and if it becomes obvious that people in opt-out states are paying much more for insurance, politicians and businesses in those states will clamor to opt back in. Thus, the only real test of the public option will be whether it slows the rise of premiums nationally, and it will take time to make that assessment.

Indeed, it's possible (likely even) that Republicans will point to the lack of any significant premium disparity between opt-out states and public option states as evidence that the public option doesn't work (even if it is working on a national level to control prices). Fortunately, while this might score rhetoric points, it is very unlikely to lead any additional states to opt-out. Once the national public plan is up and running, state legislatures will be loathe to opt-out of it because such a move would necessarily deprive many of their citizens of their existing health insurance (which could be disastrous politically). Thus, it's a smart bet that the universe of opt-out states will only get smaller as the years go on, not bigger.

On a purely political level, this issue could pay dividends for Democrats for years to come. Democrats running for office in public option states would have a reliable, winning issue in every election ("the Republicans want to take away your health insurance"). And in opt-out states, Democrats would also have a strong message ("I will give you the same options that everyone else in the country has already"). That's an issue that could breath new life into the Democratic party in red states.

So to summarize, I think that a public option with a state opt-out will likely accomplish nearly everything a national public option would. And while the politics of the issue may be a wash in the short term, in the long term they overwhelmingly favor the Democrats. Indeed, from a purely political perspective, the opt-out may well prove to be far superior to the full-fledged public option, and without sacrificing much, if anything, on a policy level.

The Party of One Idea

noreply@blogger.com (A.L.) — Sat, 17 Oct 2009 16:52:00 +0000

Now that they are no longer controlling the reins of government, conservatives and Republicans are suddenly very concerned about the size of the federal budget deficit and the national debt. They never miss an opportunity to suggest that President Obama is primarily (if not exclusively) responsible for the size of both the deficit and the debt. And careless members of the mainstream media have shown a remarkable willingness to accept this premise. But as Steve Benen patiently explains (yet again), this is nonsense:

Specifically, 40% of the fiscal deterioration we're seeing -- the single largest contributing factor -- can be attributed to Bush policies. Another 12% comes from Bush's financial rescues, while 20% are the result of the economic crisis. What's President Obama's share? Just 16% of the total, most of which is the result of new spending that was necessary to prevent a depression. Indeed, blaming Obama is backwards: "[P]roperly accounted for, the deficit actually goes down when you compare Obama's budget proposals to current policy, not up."

And finally, let's also not forget that it only makes sense to run large deficits given the circumstances. We're dealing with an economic collapse and two wars, following eight years in which we were led by "the most fiscally irresponsible president in the history of the republic."

Bush inherited the largest budget surplus in American history and turned it into the largest deficit in American history. Obama, in contrast, found a fiscal fiasco waiting on his desk on his first day on the job. Before anyone blasts the president for the mess, perhaps they ought to grab a mop.

Steve's right about all this, of course, but since most members of the media seem incapable of processing any argument involving numbers, I wonder if there isn't another way to make this same point.

Let's try this. Suppose that somehow, magically, the GOP found itself once again in control of Congress and the White House. Republicans could set the agenda and pursue whatever policies they saw fit. What would they do to bring the deficit under control?

Well, let's tick through the options. One idea that some Republicans have suggested (safe from their position in the minority) is to cancel the rest of the stimulus bill. The near universal consensus among economists, however, is that stimulus spending in the coming year will be crucial. Moreover, the states, including most red ones, are very much counting on this money. I find it hard to believe that the GOP--even with a larger majority--could garner anywhere near enough votes to cancel the stimulus bill. Moreover, doing so would only improve the deficit numbers for one year (after that, the stimulus spending is done). Even if it didn't harm the economy, it would do nothing whatsoever to improve the long term deficit numbers.

So what else? We can be pretty sure that there would be no tax increases. No Republican member of Congress has voted for a tax increase since the 80s and virtually all of them have taken oaths not to do so under any circumstances.

So what about spending cuts? Well, the largest source of potential spending cuts is in the defense budget, but the GOP has always been fiercely opposed to any cuts in defense spending, and it's hard to see that changing any time soon. Most of them also want to increase spending in Afghanistan, restart boondoggle missile defense projects, and waste money on fighter planes that don't work.

So that leaves us with entitlement spending. Would the GOP make major cuts to Medicare? It's possible, but they are currently opposing efforts to rein in wasteful Medicare spending and promising to protect seniors from any cuts whatsoever. It seems highly unlikely that the GOP would make any real effort to reduce spending on Medicare.

So what about Social Security? Well, for starters, Social Security is a much smaller program than Medicare, so even drastic cuts would not make much of a dent in the overall spending picture. Moreover, the last time the GOP tried to "reform" Social Security (by converting it into 401k-style individual accounts), their plan involved massive up front transition costs that were to be paid for by borrowing. In other words, if they passed Bush-style Social Security reform, it would massively inflate both the deficit and the debt, both in the short term and long term.

So what does that leave us with? Not much. Honestly, I have no idea what the GOP would do. As near as I can tell, they don't currently have a single idea, realistic or otherwise, for reducing the deficit in the long term. My guess is that if they suddenly found themselves back in power, they'd fumble around for a while and then, having thought of nothing else to do, try to pass some sort of tax cut. It wouldn't make any sense and it would make the budget situation worse, but they just don't have any other policy ideas. They are the Party of One Idea. And it doesn't matter that their one idea is the primary reason we are in such a bad budget situation in the first place.

This sounds like parody, but it's not. If journalists actually pressed Republicans to explain how they would reduce the deficit, I bet that the most common answer would be to cut taxes. Let's get them on the record.

Rush Was Not and Cannot Be Libeled

noreply@blogger.com (A.L.) — Fri, 16 Oct 2009 14:00:00 +0000

The lengths to which supposedly "serious" conservatives are willing to go to defend Rush Limbaugh are staggering. The National Review this morning has an entire editorial fluffing Limbaugh and attacking his critics. It ends with this gem:

Rush is a rich and powerful man and quite able to take care of himself, but the dishonest attacks on him are the template for equally dishonest attacks on private citizens in less exalted positions, from Tea Party organizers to town-hall critics. If Rush can be ruthlessly libeled by the Democrats and the media, so can they.

Actually, the template for such attacks is what Rush has been doing for a living every day for the last few decades, but I'll get back to that. There is so much insanity and projection embedded in this single paragraph that it's worth unpacking it a little bit first.

First, as a legal matter, Rush was not libeled, at least by the media. For something to be slander or libel (especially when it involves a public figure), you have to know that what you are saying or writing is false. What happened here was that someone circulated an email that purported to be the "Top Ten Racist Rush Limbaugh Quotes." Contrary to what the National Review and Rush's knee-jerk defenders claim, these quotes are not all fabricated. Most of them, in fact, are well-documented (his quote about Donovan McNabb, etc.). Several of them, however, are unverifiable. They come from secondary sources (books and magazine articles about Rush) and supposedly date back to very early in Limbaugh's career. It's not as if there are transcripts of everything Rush has said on air since the 70s, so who knows whether they're true.

Armed with the list of quotes, some people in the media (mainly bloggers) repeated these quotes without verifying them. That's no doubt sloppy reporting and whoever repeated those quotes--at least the ones that cannot be proven to be genuine--should issue a retraction. But it's not libel. No one said anything knowingly false. Indeed, the reason people were so willing to believe that all of these quotes were real was that many of them were, in fact, real. Limbaugh has said a number of very racist things over the years (many which didn't even make the Top Ten). Moreover, as far as I can tell, the most widely repeated quotes from the list (in the particular the McNabb quote) were the real ones, not the ones Rush claims were made up.

But let's go one step further. Suppose I were to repeat, right now, one of the quotes Rush claims was fabricated--let's use the slavery quote as an example--and attribute it to him. Would that be libel? The answer is almost certainly no. After all, I don't know that it's false. It comes from a book--101 People Who Are Really Screwing Up America--and I have no particular reason to trust Limbaugh more than the author of that book. And there's no independent way of verifying the truth; there's no comprehensive repository of all of Limbaugh's statements.

I, of course, wouldn't do that because I have higher standards, but guess who doesn't. That's right, Rush Limbaugh. Limbaugh has made a career out of exactly this sort of character assassination. When he isn't making stuff up himself, he is credulously repeating stuff made up by other people. Any right wing nutjob who writes a book gets invited onto to Limbaugh's show to pollute the airwaves with their outlandish claims, and Rush will then repeat it.

Was Vince Foster murdered in an apartment owned by Hillary Clinton? According to Rush he was. Was Michael J. Fox faking his Parkinson's disease symptoms? According to Rush he was.
Is Justice Sotomayor a "bigot" and "racist" comparable to David Duke? According to Rush she is. Indeed, just in the past week, Limbaugh repeated several times a false and rather despicable character attack against Obama Department of Education official Kevin Jennings. And these are just examples I came up with in 2 minutes of Googling. There are similar examples to be found in nearly every broadcast Limbaugh has ever done.

Limbaugh is a slander-merchant. That's what he does for a living. The notion that someone like him could ever be unfairly treated by the media is inherently ludicrous. To portray Rush as a victim of such tactics--as opposed to the world's biggest practitioner of them--is insulting to everyone's intelligence and a sign of the complete intellectual decay of magazines like the National Review.

Health Care and Legislative Strategy

noreply@blogger.com (A.L.) — Thu, 15 Oct 2009 14:20:00 +0000

For whatever reason, the Democratic Party is a risk-averse bunch. Right now, Senate Democratic leaders are discussing how to merge the various versions of the health care bill that have passed out of committee. Based on news reports (and having watched how Democrats operate for years now), my guess is that the discussion is largely centered around gaming out what kind of a bill can garner enough votes on the floor to survive cloture and pass. Driving this discussion will be the assumption that it would somehow be politically disastrous to miscalculate and advance to the floor a bill that doesn't have enough votes. As a result, the bill that finally emerges will likely be one that falls well short of what many of us would like to see.

This calculation might make some sense if there was some sort of rule preventing the Senate from considering more than one health care bill per term. But of course there's no such rule. The Democrats control the legislative agenda and can always scale back the bill and vote again. Indeed, they could keep doing this until something passed.

So why be so cautious on the first round? I strongly suspect that if the Democrats put a strong bill on the floor, one that included a robust public option, and then aggressively pushed all of their members to vote for at least cloture, at the end of the day, no one would join the Republicans in filibustering the bill and it would pass. Just call their bluff. They'll fold.

And if I'm wrong about that, well at least those of us who want a strong public option (a group that includes nearly all Democratic voters who are following the debate closely) will know exactly who to blame, i.e., the Democrat Senator(s) who joined with the Republicans to filibuster the most important piece of Democratic legislation in the last forty years. That would itself be very clarifying.

I understand that this would create a flurry of headlines declaring that Obama and the Democrats have suffered a legislative defeat, but those headlines would be short-lived, and wouldn't necessary hurt the Democrats (obstructing health care legislation has its own political downside). But more importantly, the Democrats could easily regroup, water-down the bill however much is necessary and pass it. Some kind of bill will surely pass. And it least then we'd know it is the best we could do under the circumstances.

I know that I'm being naive for even suggesting this, because it's just not how Democrats operate, but it is the way a less neurotic and cowardly political party would operate, so I thought I'd at least throw it out there.

The "Opt-Out" Compromise May Actually Be Better Than a Pure Public Option

noreply@blogger.com (A.L.) — Fri, 09 Oct 2009 02:06:00 +0000

There's been a lot of discussion in the last 24 hours about a potential public option compromise. The proposal is to have a national public insurance option but to allow individual states to opt-out if they don't want to be a part of it.

Among those who have been fighting the hardest for the inclusion of a public option (and doing a fantastic job, I should add), this proposal has been greeted with a lot of skepticism and even outright scorn.

With all due respect, though, I think these folks may be reflexively dismissing something that could turn out to be as good or better than a full public option.

First, as a purely political matter, this proposal is much more likely to pass than a pure public option. And if you assume that some sort of compromise will be necessary to get sufficient support in the Senate, this is definitely the compromise to make, because it gives up very little. Like Nate Silver, I suspect the vast majority of states would not opt-out. It's one thing for national Republican politicians to preen and posture about death panels and socialized medicine. But at the end the day, states--even very Republican ones--tend not to opt-out of federal programs that provide benefits to their citizens. How many red states have opted out of Medicaid? Or the stimulus bill? The GOP and the insurance companies may be good at scaring people about hypothetical reforms, but it's much harder to convince people that they shouldn't have access to something that their friends and family in the next state over do. State politicians would also be wary of putting businesses in their state at a competitive disadvantage. Any lobbying from the insurance industry in favor of opting out would be counterbalanced by lobbying from businesses who want to have more options for insuring their employees and more competition to keep premiums under control. Ultimately, I doubt all that many state-level Republicans would be clamoring to opt-out of the public option.

So under one very plausible scenario, no states would choose to opt-out (at least for very long) and we'd come away with a robust national public option that's available to everyone.

But suppose a number of the red states do opt out. Would that really be so bad? I don't think so, and here's why. First, it's not as if the citizens in those states would be completely deprived of the benefits of the bill. They would still be protected from denial of coverage for pre-existing conditions. They would still be eligible for the subsidies in the bill for purchasing insurance. And because the majority of states would choose not to opt-out, the citizens of opt-out states would still indirectly benefit from the competitive pressure provided by the national public option. Insurers in public option states would obviously have to offer rates competitive with the public plan or they would lose business. But insurers in opt-out states would also have to offer rates competitive with the public plan because if they didn't, every Democratic politician in the state (not to mention local and national journalists) would highlight the disparity in premiums, and, before long, political pressure would force state politicians to opt back in.

Either way, the public plan will serve its purpose. It will help to control costs.

But there's another benefit to the opt-out proposal that I've yet to hear anyone mention, and it's this: an opt-out public option would--by its very nature--be demonstrably bipartisan. Even if every single Republican member of Congress voted against it (which would not surprise me at all), a number of states with either Republican governors or Republican-controlled legislators would undoubtedly choose not to opt out. The Obama administration and Congressional Democrats would therefore be able to point to these refusals to opt-out as evidence of the bipartisan nature of the bill and the ultra-partisanship of the national GOP. It's pretty hard to paint something as some sort of crazy liberal socialist death plan when GOP politicians all over the country are choosing not to opt out of it. This state-level bipartisanship would, to at least some extent, mute GOP criticism of the bill and make campaigning against it a little more difficult. It would also, I suspect, provide a winning political argument to state Democratic politicians for years to come ("they want to take away your public option; I won't let 'em do that")

I understand the reticence of those who have fought hard for a robust public option to accept anything that is offered as a "compromise" proposal. But I think it would behoove everyone to step back and really consider how this sort of a proposal would likely play out. It may be that, at the end of the day, this is actually a better proposal.

Has the Obama Administration Embraced Cheneyism?

noreply@blogger.com (A.L.) — Tue, 06 Oct 2009 15:37:00 +0000

(updated below with response from Glenn)

While I whole-heartedly concur with Glenn Greenwald's criticism of the methodology and sourcing of this Washington Post article, I do take issue with his view--which is now widely-shared in progressive circles--that "the Obama administration has aggressively defended, justified and embraced the overwhelming bulk of Bush/Cheney Terrorism policies -- the exact ones that caused liberals and Democrats to object so vehemently over the last eight years."

While I tend to agree with Glenn on most terrorism-related policy questions--and I believe progressives and those of us of who value civil liberties should continue to criticize and pressure the Obama administration on this front--I think that equating Obama's policies with those of the Bush administration fundamentally obscures the most dangerous and deplorable elements of the Bush/Cheney approach to terrorism policy.

The signature characteristic of Cheneyism was its disregard for existing legal restraints, best exemplified by the Bush administration's repeated willingness (via people John Yoo and David Addington) to embrace fringy (often patently frivolous) legal arguments to justify acting in ways that the law and the Constitution forbid.

It is easy to forget now, as we debate the policy merits of various provisions of the Patriot Act and FISA, that for years the Bush administration took the position (in secret) that it had the "inherent authority" to disregard those laws altogether, even as it was publicly pushing to have those laws passed or amended.

With respect to detainee policy, the Bush administration originally took the position that it could detain whomever it wanted (whether foreigner or U.S. citizen, at home or abroad) incommunicado for as long as it wanted. It took the position that these detainees were not subject to Geneva protections, were entitled to no process whatsoever, and could be interrogated through torture.

In a thoughtful post at Balkinzation, Deborah Pearlstein pushes back against the assertion--made with respect to detention authority--"that somehow in employing this authority President Obama is channeling Dick Cheney (or perhaps more specifically David Addington and John Yoo)." She writes:

So let’s just recall what their position on Gitmo detention actually was. First, the Bush Administration argued that the President could detain anyone as a matter of inherent authority under Article II of the Constitution. The Obama Administration rejected that position from the outset, and has relied squarely for its detention authority on congressional delegation. What’s the difference? Among other things (including even modest respect for the formal separation of powers), the acknowledgement that there are limits under law to the President’s power to detain. Second, the Bush Administration argued that the independent courts had no authority – none – to review the legality of the detentions at Guantanamo Bay. The Supreme Court – not once but effectively three times – rejected that view. One must credit the conservative-controlled Court and not the Obama Administration for that change. But there is no sense in which the review process available now at Guantanamo is related to the views of Dick Cheney. Third, the Bush Administration rejected the notion that international law, including the Geneva Conventions, could constrain its authority in any way. It invoked the Conventions when it thought them useful to enlarge executive authority. It otherwise elected to apply them only when it thought “consistent” with military “necessity.” Cheney did not believe in international law as law. At least so far, the Obama Administration does.

In adopting these positions, the Bush administration relied, all too often, on objectively indefensible legal arguments that ignored numerous criminal statutes, binding treaties, and controlling Supreme Court precedents.

While the Obama administration has adopted a number of policy positions I disagree with (some very strongly), to my knowledge it has not adopted any policies that lack a defensible legal foundation. And therein lies the core difference between Cheneyism and the approach of the current administration.

I think part of the confusion here stems from the reality that the law itself changed in numerous ways during Bush's eight years in office, sometimes for the worse and sometimes for the better. To go back to the example of detention policy, it's important to remember that while the Supreme Court rebuked the Bush administration on numerous occasions, in at least one significant case, the Bush administration won (at least partially). That was United States v. Hamdi in 2004, where the Court held that the 2001 Authorization for Use of Military Force (AUMF) implicitly granted the president the authority to detain a U.S. citizen (Hamdi), who was picked up in Afghanistan and later held in an U.S. brig, as an enemy combatant subject to the laws of war (i.e., indefinitely).

You can take issue with the Court's reasoning in that case (I certainly do), but it doesn't change the fact that Hamdi pretty clearly provides a legal basis to detain certain people indefinitely (or at least until the war in Afghanistan ends), regardless of whether they have committed any crimes. Relying on the Court's ruling in Hamdi to justify similar detentions can be criticized on a policy level, but it's certainly not an example of Cheneyism.

The same is true with respect to the State Secrets privilege. The Bush administration expanded the State Secrets privilege dramatically, turning it from an occasionally-invoked evidentiary rule to an oft-invoked justiciability rule. That move was rightly criticized, but the fact is that the Bush administration had considerable success in changing the state of the case law. Numerous cases were dismissed by federal courts on State Secrets grounds. Though this change did not come about via legislation, it is nevertheless true that the state of the law on this issue is much different now than it was in 2001. One is free to criticize the Obama administration for invoking a broad (by 2001 standards) interpretation of the State Secrets privilege, but that interpretation (sadly) now has some support in the case law. Whatever this is, it's not Cheneyism.

Similarly, for years the Bush administration operated in violation of FISA and the Patriot Act. FISA was eventually amended to legalize much of what had previously been done illegally. While I join others in calling for changes to those laws and believe the Obama administration deserves to be criticized for opposing such efforts, defending existing statutory authority is not remotely comparable to asserting a right to violate such statutes (and, in fact, repeatedly violating them).

It is certainly true that Obama is continuing many of the Bush administration's policies, but they're the policies from 2008, after the Bush administration's hand had been forced by the Courts or Congress had come to its rescue with legislation. In other words, Obama may not be going to great lengths to voluntarily impose constraints on existing executive authority, but I have not seen any evidence that he has embraced Cheneyism, i.e., that his administration is using highly dubious legal claims to expand executive power. To me, that is a fundamental difference. It is the difference between acting legally and illegally.

By all means, let's keep the pressure on Obama to do the right thing and support better policies, but in doing so, let's not lose sight of the fact that the primary criticism of the Bush administration was not that its terrorism policies were bad (though they were), but that they were illegal. Cheneyism, at its core, has little to do with policy and everything to do with process. It is exemplified by contempt for the rule of law and a willingness to disregard even clear legal constraints on executive power. So far at least, I have not seen evidence of that mentality in the Obama administration's approach to terrorism policy.

UPDATE: In the comments below, Glenn Greenwald writes:

A.L. - You're right that the Obama DOJ has not asserted Article II powers to violate the law. I said exactly that when writing about Obama's adoption of the Bush theory on indefinite detention 2 weeks ago: "It's true that the Obama administration, to its credit, is no longer relying on the theory that the President has 'inherent authority' to detain Terrorism suspects without charges, but that makes no practical difference since they claim the same exact power based on the AUMF."That's not insignificant. But it's not nearly as significant as you suggest, for three reasons:
(1) the Obama DOJ hasn't repudiated that position and can thus adopt it if they lose on their statutory claims;
(2) the effect on policy is zero -- the second-term of Bush/Cheney was marked by Congressional approval for most of the most radical policies (warrantless eavesdropping, denial of habeas corpus, military commissions). So while the legal theories have changed - and that's important to lawyers - the policies themselves haven't.
(3) You're way overstating the importance of process. Yes, claims of presidential omnipotence matters -- but so does the power to lock people up without trials, get lawsuits dismissed based on secrecy assertions, setting up legal black holes, rendering people to torturing countries with no due process, remaining opaque in national security areas, etc.
The policies themselves were every bit as much defining attributes of Bush/Cheney radicalism as the underlying legal claims. The fact that Obama found better legal arguments to justify the same policies is nice, but it's not much help to those caught up in -- victimized by -- all of that, and it's a huge stretch to say that the same exact policies in Obama's hands are fundamentally different all because the legal theories asserted by his DOJ are (at least for now) different.

I agree with virtually all of this, but as I responded in the comments, I think Glenn and I are, to some extent, talking past each other here. The point I was trying to make is more about the framing of the current debate than the substance of it.

My worry is that equating Obama with Bush/Cheney obscures the most troubling aspect of Cheneyism: its embrace of illegality. What we're having now is a policy debate (and a profoundly important one). But the debate we were having a few years ago was, at least in large part, a debate about the primacy of the rule of law. And I don't want people to come away with the impression that these are the same debates. They're not.

And it's not just because the DOJ's legal theories have changed. It's because the law itself has changed. What was once illegal is now legal. So what we're now debating are proposals to change or amend existing law to make it better. We're working within the democratic framework to try to effect policy change, which is how things are supposed to work. Three years ago we were debating whether the law even had to be followed.

Not so fast, Mickey

noreply@blogger.com (A.L.) — Tue, 29 Sep 2009 15:21:00 +0000

Mickey Kaus, ready as always to feed bogus talking points to wingnuts, asks the following purely rhetorical question:

Did ACORN chicanery elect Al Franken? That's the import of this tactfully phrased Minneapolis Star Tribune story. Franken won by 312 votes. ACORN claimed to have registered 48,000 new Minnesota voters. If just 1% were ineligible but cast ballots, or had ballots cast for them illegally, and survived the recount process ... that's 480 votes, almost certainly overwhelmingly cast for Franken. ... Maybe in pristine Minnesota even ACORN is clean. If so, the state would apparently be an outlier.

To be fair to Kaus, he is simply expounding upon an equally inane bit of commentary from a columnist at the Minneapolis Star Tribune (though, Mickey, it's an op-ed, not a "story").

What Kaus (and the Tribune columnist) are doing here is being willfully obtuse about the facts. GOP allegations of ACORN "voter fraud" are based on the fact that ACORN's voter registration efforts have historically produced a significant number of fraudulent registration forms (e.g. forms with fictitious names or the names of people already registered to vote or ineligible to vote). But what ACORN's critics never bother to explain is that there is a huge difference between collecting fraudulent forms and trying to pass them off as legitimate ones. Like any group trying to do a registration drive, ACORN will inevitably collect a number of fraudulent forms. Canvassers don't have the ability to independently verify the truth of what people are writing on their forms. And, of course, in any large registration effort, there will always be cases where the canvassers themselves turn in false or duplicative forms in order to boost their own numbers and make themselves look good.

Like all groups who engage in these efforts, ACORN tries to weed out any false or duplicative forms that are turned in by their canvassers. But in most states (including Minnesota, I believe), ACORN cannot simply disregard these bogus forms. They have to keep them and turn them in to the state. ACORN's critics simply ignore this fact and pretend as if all of these bogus registrations are being turned over to the state by ACORN in an attempt to pass them off as legitimate. They're not; the registration form for "Mickey Mouse" is being turned over because the law requires that it be turned over.

Of course, some duplicative or fraudulent forms will inevitably slip through the cracks and be turned over with the legitimate group, but it's a much smaller number. And even then, each state does its own screening of voter registrations, weeding out the duplicative and illegitimate ones. If state officials do a poor job on this screening process, then some false or duplicative registrations may sneak through, but again we are winnowing down the potential universe of fraudulent voters significantly.

Finally, in order for voter fraud to occur, the voters whose fraudulent registrations managed to get through the various screening processes (or people impersonating them) need to actually show up on election day and commit a felony by voting fraudulently. There's never been any evidence presented by anyone that this actually happens in non-negligible numbers.

So no, Mickey, it is not at all likely that fraudulent voting accounted for Al Franken's margin of victory, nor do you have any evidence or logical basis to believe that is the case. But thanks for giving wingnuts a new talking point. Mission accomplished.

UPDATE: It's probably also worth pointing out the rather obvious fact that the Minnesota recount was a drawn out, heavily-scrutinized process. If there was any evidence at all of fraudulent or duplicative voting, it likely would have turned up in the recount process. There were, after all, literally dozens of high-priced lawyers scouring the earth for any data point that might possibly help Norm Coleman. So either Mickey Kaus, in the 10 seconds of thought he devoted to this post, stumbled upon something this team of lawyers did not, or he doesn't know what he's talking about. You make the call.

Why The ACORN "Stings" Really Bother Me

noreply@blogger.com (A.L.) — Fri, 25 Sep 2009 13:45:00 +0000

The conservative media has spent the better part of the last few weeks heaping praise upon James O'Keefe and Hannah Giles--the two conservative activists who secretly recorded various ACORN employees and then posted the videos on the website of fellow conservative activist Andrew Breitbart--and treating them as if they are the modern incarnation of Woodward and Bernstein. Even the mainstream media has, to some extent, given positive coverage to their endeavors and indulged in the fantasy that they exposed some sort of significant criminal activity.

I suppose that's to be expected when the storyline is driven by footage of people saying very questionable things. Just play the video and move on. But there's something very problematic about how all this went down. Consider for a moment the premise of these "stings." O'Keefe and Giles, who look like they just walked out of a Young Republicans chapter meeting, walk into various ACORN offices dressed up as a pimp and prostitute (or at least as they imagine such people might look). They then ask a bunch of totally off-the-wall questions to unsuspecting (or in some cases suspecting) low-level ACORN employees and record the responses. As Jack Schafer correctly notes in his otherwise far-too-credulous piece at Slate, this is not a sting; it's the equivalent of a Sasha Baron Cohen sketch.

In a real undercover investigation, you catch people engaged in activity that, based on the circumstances, you can be confident they are inclined to commit on their own volition. In a prostitution sting, for example, an officer poses as a prostitute and arrests those who go out of their way to solicit her. In an undercover drug sting, you pose as a buyer or dealer and arrest those who take the initiative to engage in an illegal transaction with you. In both cases you can be fairly confident that the person you arrested would have attempted to buy sex or drugs from someone else if the police hadn't been there.

But you can't entrap people. You can't present them with unrealistic situations or go out of your way to get someone to do something that they might not otherwise do. You can't, for example, leave a $100 dollar bill on the ground and arrest people who, in a momentary lapse of judgment, take the money.

What O'Keefe and Giles are doing isn't quite entrapment, but it isn't remotely the equivalent of a sting either, unless you assume that ACORN employees are routinely confronted with fake-looking pimp and prostitute duos who come into the office asking for advice on how to set up a prostitution business. I'm going to go out on a limb and guess that real pimps and prostitutes don't usually wander into the offices of community services organizations and explicitly ask for help in setting up their illegal businesses. It's a safe bet that none of the employees filmed surreptitiously in these videos have ever encountered a situation like this before. So all these videos really show are people's instant reactions to a situation far removed from their everyday experience and training.

That's why the comparison to Sasha Baron Cohen is so apt. When confronted by very unusual behavior or unusual situations, people have a tendency to be agreeable and to play along. Most people don't like confrontation and will instinctively go to great lengths to avoid it. If you doubt this, go watch Borat or Bruno or any episode of the Ali G Show. It is this same human tendency that serves as the basis for all of Cohen's comedy. He specializes in getting people (often famous people) to say things that they would not normally say.

What you say on the spot, when confronted with an unusual request, is a very poor indicator of your overall judgment. It's just your instant reaction, and it is usually driven, more than anything else, by a desire to avoid an awkward situation or a confrontation. This is especially true when you are confronted with possible criminal activity; many people are understandably reluctant to confront criminals about their criminal activity to their face, especially when you are alone with them. Better to placate them and then figure out what to do after they are they are gone.

The people caught in these videos were not engaged in deliberative activity, they were merely reacting to unusual provocation. The real test of their judgment was not what they said on the fly but what they did afterward, when the filmmakers had left the premises and they finally had a moment to process the encounter. Unfortunately, that moment is not on the tapes. We do know, however, that at least one of the employees captured on the video reported the duo to the police after they left the office (he was fired anyway). In another instance, the two were actually asked to leave and a police report was filed. Others undoubtedly concluded that it was a prank, either during the encounter or after having the chance to think about it for a while, and therefore shrugged it off and took no further action.

During my time as a prosecutor, I had several unusual encounters with witnessess or a defendant's family members, encounters that made me very uncomfortable and to which I typically responded by trying to avoid confrontration and end the conversation as soon as possible. In one instance, a defendant called me up pretending to be a witness. As the conversation went on, it began to dawn on me that I was likely talking to the defendant, not a witness, which is very problematic (not only is it illegal to lie to a prosecutor, it is improper for a prosecutor to speak directly with a defendant who is represented by counsel). Not knowing quite what to do, I played along for a while and tried to end the conversation as quickly as possible. Once I hung up the phone, and had a chance to process what had just happened, I immediatley reported the encounter to my supervisor and we took appropriate action. I honestly don't remember exactly how the phone conversation went, but I'd bet that if it was played back without any context (such as without explaining what I did after the call), it could make me look bad. That's what's so problematic about judging people, much less an entire organization, based on such encounters.

The other point that is not being made, but should be, is that these ACORN workers had absolutely nothing to gain from helping out this pimp and prostitute duo. In a typical sting, the subject of the sting has some plausible motive for committing wrongdoing; they want drugs or sex or money, etc. In a sting directed at an company or organization, the goal is typically to catch employees engaged in illegal behavior that benefits that company or organization (such as bribing public officials or deceiving customers). That's not the case here. No conservative has bothered to even offer a theory as to why it would be in ACORN's interest to assist people in setting up prostitution rings. How would ACORN benefit from such activity? How would these individual employees benefit? What's in it for them?

ACORN employees are trained to help poor people (the vast majority of whom are not criminals) deal with common problems. So, at worst, what you have here are examples of employees who, eager to help whomever comes through the door, offered to help people whom they should not have (and without a promise of anything in return). There's no quid pro quo even alleged. And again, what's captured on film are not final decisions, but instant reactions.

But based on these "stings" a number of employees lost their jobs and an entire community service organization has been vilified to the point where its future as an organization is severely threatened. Everyone should find that troubling, because it could happen to any organization or company.

With disguises and hidden cameras, it's really not hard to get people to say embarrassing things or capture them acting in ways that--when edited and removed from all context--look really bad. It's not as if O'Keefe and Giles have demonstrated some amazing ability to ferret out the truth. Their videos are horribly amateur and their stings ham-handed in execution and conception. Any two schmucks with a camera could do the same thing.

And given the success of this endeavor at tarnishing an entire organization, it's just a matter of time before the very same techniques are applied to different targets. O'Keefe and Giles (and various copycats) are undoubtedly already planning and executing their next "sting."

And until the press realizes that this technique can be used to slime just about any organization or company, and starts ignoring it or exposing it for the nonsense that it is, they'll continue to do it, destroying people's lives and reputations in the process.

The Party Without Answers

noreply@blogger.com (A.L.) — Thu, 24 Sep 2009 02:33:00 +0000

This exchange between House Minority Whip Eric Cantor and one of his constituents beautifully encapsulates the callousness and incoherence of the GOP approach to health care policy.

For those of you who can't watch the video, here's the transcript of the exchange (via Alan Colmes):

CONSTITUENT: I have a very close relative, a woman in her early forties, who did have a wonderful, high-paying job, owns her own home and is a real contributing member of society. She lost her job. Just a couple of weeks ago, she found out that she has tumors in her belly and that she needs an operation. Her doctors told her that they are growing and that she needs to get this operation quickly. She has no insurance.

[...]

CANTOR: First of all I guess I would ask what the situation is in terms of income eligibility and the existing programs that are out there. Because if we look at the uninsured that are out there right now, there is probably 23, 24% of the uninsured that is already eligible for an existing government program [...] Beyond that, I know that there are programs, there are charitable organizations, there are hospitals here who do provide charity care if there’s an instance of indigency and the individual is not eligible for existing programs that there can be some cooperative effort. No one in this country, given who we are, should be sitting without an option to be addressed.

What does that even mean? No one should be sitting without an option to be addressed?

The situation this constituent describes is, sadly, all too common in this country. You can be fine one minute, but then you lose your job, and with it your insurance. If you're then unfortunate enough to get sick, you're flat out screwed. Your options are to go bankrupt or to go without care. That doesn't happen in any other industrialized country.

Faced with this all too common scenario, Cantor has nothing to offer. The suggestions he eventually comes up with are profoundly unhelpful and deeply hypocritical. This outspoken opponent of government-run health care suggests, feebly, that perhaps the woman might qualify for an existing government program. This, of course, is highly unlikely given that she owns her home and just recently lost her job. He then suggests that there might be charities that are willing to help. This too is very unlikely. And the thought of having to grovel for charity, while you're sick, is a prospect that would be deeply humiliating to most people.

The reality is that, in order to get the operation she needs, this woman will most likely have to sell her home and deplete her savings, very likely to the point of bankruptcy. Medical bills are the leading cause of personal bankruptcy in this country.

Cantor knows this. He also knows that he opposes any reforms that might actually help this woman in some way. But he can't say that. That would sound heartless. So instead he pretends as if this woman has options available her, knowing full well that she doesn't and that if he has his way, she won't. What a weasel.

Our Democracy in Microcosm

noreply@blogger.com (A.L.) — Wed, 23 Sep 2009 02:18:00 +0000

Earlier today, Glenn Greenwald linked to this story on his Twitter feed and commented: "If we had a real media, this would be a huge story: sums up everything, and therefore will be ignored."

The story really is a perfect encapsulation of the current state of American politics:

The congressional legislation intended to defund ACORN, passed with broad bipartisan support, is written so broadly that it applies to "any organization" that has been charged with breaking federal or state election laws, lobbying disclosure laws, campaign finance laws or filing fraudulent paperwork with any federal or state agency. It also applies to any of the employees, contractors or other folks affiliated with a group charged with any of those things.

In other words, the bill could plausibly defund the entire military-industrial complex. Whoops.

Rep. Alan Grayson (D-Fla.) picked up on the legislative overreach and asked the Project on Government Oversight (POGO) to sift through its database to find which contractors might be caught in the ACORN net.

Lockheed Martin and Northrop Gumman both popped up quickly, with 20 fraud cases between them, and the longer list is a Who's Who of weapons manufacturers and defense contractors.

The language was written by the GOP and filed as a "motion to recommit" in the House, where it passed 345-75.

The reason the bill was crafted this way was because you can't just target a single person or organization. So instead, the Republican lawmakers who (hastily) drafted the bill chose to make it apply to groups whose employees have been charged with the kind of conduct some ACORN employees have. The problem, of course, is that most large organizations who interact regularly with the federal government, including any number of major defense contractors, have had employees charged with fraud against the government.

I can't think of a better way of illustrating the double standard at work here. Republicans have singled out a group to demonize based on the supposed bad acts of a few employees. Based on these incidents, we're supposed to conclude that the entire organization is corrupt and unworthy of continued existence. But when you apply that very same standard to defense contractors, they fair no better than ACORN.

The GOP's obsession with optics over substance is also on full display here. In their rush to capture headlines and grandstand, they didn't bother to consider what the law they were proposing would actually do. Everything is a game, including the lawmaking process.

And the Democrats didn't exactly bathe themselves in glory here either. Rather than reject a hastily thrown together and poorly thought out bill, most of them took the path of least resistance and voted for the bill. It was a perfect demonstration of the kind of fecklessness and political cowardice that pervades the Democratic caucus.

Every headache this bill ends up causing lawmakers is deeply, deeply deserved.

On Czars and Unicorns

noreply@blogger.com (A.L.) — Tue, 22 Sep 2009 01:24:00 +0000

Over the last few weeks, I've been fascinated (in a sick sort of way) by the GOP's escalating war on "czars." What began as an especially dumb (even by his standards) Glenn Beck crusade has now reached the point where GOP legislators are introducing anti-czar legislation and GOP presidential hopefuls like Mitt Romney feel the need to include the talking point in their speeches.

The reason this particular GOP meme has so fascinated me is that I thought I was beyond the capacity to be shocked by the dishonesty and stupidity of GOP talking points. After all, this is the same party that just recently decided to embrace Sarah Palin's "death panel" attack. But that attack, while despicable and deeply dishonest, was at least tied to reality in the slimmest of senses, i.e., it was a mischaracterization of an actual legislative provision. It also had the benefit of being intelligible. Though crazy, it was at least easy to follow. Creating a panel of bureaucrats charged with euthanizing old people and turning them into Soylent Green would indeed be a bad idea.

The "czar" attack, though, is fundamentally different. It is not only dishonest and hypocritical but unintelligible and incoherent. Though certainly less significant in the grand scheme of things than other GOP attack memes, this one is, quite possibly, the stupidest, most intellectually embarassing political attack in the history of politics. If there is a theoretical level of Absolute Stupid in politics, a point at which our political discourse freezes because it cannot possibly get any dumber, this "czars" meme is getting perilously close to it.

For starters, it's not clear to me that those leveling this attack even understand what they are saying. Take for example Mitt Romney's comment:

When government is trying to take over health care, buying car companies, bailing out banks, and giving half the White House staff the title of czar – we have every good reason to be alarmed and to speak our mind!

Let's put aside for the moment the fact that Romney supported the bailouts and that the health care reforms being proposed are patterned after the bill he negotiated and signed in Massachusetts (this is Mitt Romney after all; you expect consistency?). Romney's reference to Obama's use of czars is typical of the kind of attacks leveled by Republicans recently. He's clearly just ticking through a checklist of wingnut buzzwords, things that he believes will have some special meaning to his intended audience of Glenn Beck watching GOP primary voters. It's kind of like someone who makes an inside joke that he doesn't really get because he thinks others will think it's funny. The problem is, I think the whole GOP establishment is like this. I don't think any of them actually understand what the criticism of "czars" is really about. They just know that their base is worked up about "czars" and so they're dutifully repeating that word as often as possible.

And it's not hard to understand why they're confused. As near as I can tell, Glenn Beck seems to have become fixated on "czars" because the word is Russian-sounding and he needed to come up with a word that started with "c" to save face after railing against Obama's burgeoning "Oligarhy" on national television. I kid, of course, but the truth is really not any less stupid.

As anyone who knows anything about Washington knows, the term "czar" is not an actual title, but a shorthand term used (primarily by the media) to describe various advisory positions with long bureaucratic sounding official titles. The term has been in use for decades and has been used just as much by Republicans and Republican presidents as by the current administration. As others have already pointed out repeatedly, the Bush administration was quite fond of such positions, appointing a record number of them (more than the Obama administration has). Moreover, these positions carry with them far less power than the name implies; they are generally just advisory positions, positions with much less power than your average cabinet secretary or deputy cabinet secretary. The notion that there is anything undemocratic or troubling about the use of such advisers is bizarre and clearly of very recent vintage.

But because the word "czar" is of Russian origin, Glenn Beck has apparently made it his mission in life to save America from them. Like a lobotomized Joe McCarthy, Beck rants about "communists" and "czars" in the same breath, something that no doubt makes both Lenin and the Romanovs spin in their tombs (I wonder if Beck realizes that Lenin himself was the original czar-hater?).

I also wonder what Beck will do when he realizes that President Obama is protected by a Gestapo-like cadre of plain-clothed agents known as the "Secret Service" (or shall we call them the "SS" for short?) I mean, what is this, Nazi Germany? Let me give you five words: Mustard (on hamburgers?!?), Empathy, NEA, ACORN, Secret Service. What's that spell? That's right, folks; it spells MENASS, as in MENASS to society. That's what Obama is, folks...

What's sad is that Beck and the GOP make parody hard. As dumb as the preceding paragraph is, it's really not any dumber than what Beck and the GOP are actually saying. This is what our political discourse has become.

The NEA "Scandal": That's It?

noreply@blogger.com (A.L.) — Mon, 21 Sep 2009 17:23:00 +0000

Right wing bloggers are all hyperventilating today over a supposed "scandal" involving the National Endowment of the Arts. The basis of the hysteria is this post over at Andrew Breitbart's Big Hollywood site (the same outfit that posted the ACORN "sting" videos).

The site has posted a recording and transcript of a conference call that it describes as "explosive." The call is actually old news at this point, having already been hyped by Glenn Beck an others weeks ago, so I'm not sure what all the excitement is about.

Though I have better things to do, I actually read through the transcript of the call just now to see if there was really anything "explosive" inside. There wasn't.

The post claims, as Beck did previously, that this call proves that the Obama administration is using the NEA for partisan political purposes, and strongly implies (without actually saying so) that NEA money is somehow being funneled to progressives causes.

But the call is actually far more benign. It appears to have been organized by a group of progressive artists who want to, through their art, raise public awareness about various issues they care about. Invited to participate on the call were a low-level staffer from the White House Office of Public Engagement and the former Communications Director at the NEA (he was apparently transferred to another position at the NEA after this story broke).

When asked to speak, the White House staffer gives some boilerplate talking points about how the art community can really make a difference politically if they put their minds to it. The NEA communications guy is then given a similar chance to talk and says much of the same things, indicating how happy he is to be working at the NEA and encouraging the artists on the call to get involved.

In terms of optics, it was certainly not a good idea for the NEA communications director to participate in such a call (which is probably why he is not the communications director anymore). That organization is not supposed to be involved in political advocacy.

But unless Breitbart's got a lot more, this is the political equivalent of jaywalking. Neither the NEA nor the White House organized this call and the staffers on the call basically gave boilerplate cheerleading remarks. There is nothing in the call that suggests that NEA money or grants were being funneled to progressive artists or anything of the sort. And the White House is of course free to participate on calls with supporters and encourage them to be pro-active. That's what the Office of Public Engagement does.

What's ironic (though not at all surprising) is that the very kind of allegation that is being leveled here was repeatedly proven to have occurred during the Bush administration, and in far more significant contexts. Monica Goodling was hiring and firing prosecutors, both U.S. Attorneys and DOJ line prosecutors, based on political criteria. Lurita Doan used the General Services Administration to "help" GOP candidates for office (and was eventually forced to resign). There were many other such examples, and the reaction to all of them by the Andrew Breitbarts of the world was a collective yawn.

If Breitbart can produce any actual evidence that NEA resources or money were being improperly used for political purposes, I'll join him in calling for an investigation and for accountability. But this recorded call is pretty weak tea, especially by Bush era standards.

Welcome to the Fact Free Zone

noreply@blogger.com (A.L.) — Thu, 17 Sep 2009 18:06:00 +0000

I'm constantly amazed by the complete and total absence of any editorial standards at the Wall Street Journal. It's not just that they publish crazy reactionary nonsense on a daily basis, it's that even within that nonsense, there is no attempt whatsoever to even get the relatively insignificant facts right. Does the paper even employ editors?

Orin Kerr points mockingly at this op-ed the other day from Fox News contributor Andrew Napolitano, and to this passage in particular:

The Supreme Court finally came to its senses when it invalidated a congressional ban on illegal guns within 1,000 feet of public schools. In United States v. Lopez (1995), the Court ruled that the Commerce Clause may only be used by Congress to regulate human activity that is truly commercial at its core and that has not traditionally been regulated by the states. The movement of illegal guns from one state to another, the Court ruled, was criminal and not commercial at its core, and school safety has historically been a state function.

Applying these principles to President Barack Obama's health-care proposal, it's clear that his plan is unconstitutional at its core. The practice of medicine consists of the delivery of intimate services to the human body. In almost all instances, the delivery of medical services occurs in one place and does not move across interstate lines. One goes to a physician not to engage in commercial activity, as the Framers of the Constitution understood, but to improve one's health. And the practice of medicine, much like public school safety, has been regulated by states for the past century.

As Kerr points out, nearly every sentence in these two paragraphs is demonstrably incorrect, both with respect to the big picture and the details. First, the details. The statute invalidated by the Court in Lopez did not ban "illegal" guns from school zones. That would be redundant. It banned guns. Period. Second, it banned guns with 1000 feet of all schools, not just public ones. Third, it had nothing to do with the "movement of illegal guns from one state to another." If it had, it clearly would have been constitutional.

As for the legal assertions, the Court in Lopez did not reject Wickard v. Filburn, as Napolitano claims; it merely distinguished it. More importantly, though, Napolitano so badly misstates the holding of Lopez that I seriously question whether he's ever read it. He claims that "the Court ruled that the Commerce Clause may only be used by Congress to regulate human activity that is truly commercial at its core and that has not traditionally been regulated by the states."

Um . . . no. The Court actually held--as we lawyers have drilled into our heads in Constitutional Law--that, pursuant to the Commerce Clause, Congress may regulate any activity that "substantially affects interstate commerce."

And needless to say, this is a test that has traditionally been interpreted very broadly, including by this very same Supreme Court (see, e.g., Gonzales v. Raich (2005)). It is flat out false that an activity must be "commercial at its core" to be regulated by Congress. Napolitano just made that up. The same is true of his suggestion that Congress cannot regulate activity that has traditionally been regulated by the states. Just because Congress has not chosen to enter a particular field doesn't mean it lacks the power to do so.

Moreover, it is absurd as a factual matter to claim that health care is an area that has been traditionally left to the states. Has Napolitano ever heard of Medicare or Medicaid? How about the FDA or CDC or the VA system?

And on what planet is the delivery of health services (and sale of insurance!) not commercial in character? How many non-commercial activities fund armies of Washington lobbyists and spend billions on ad campaigns? Napolitano writes that "the delivery of medical services occurs in one place and does not move across state lines." I suppose that's true in some sense (at least most of the time). But the same is true of buying groceries or guns or just about anything else. And all of these things are clearly within the reach of the Commerce Clause.

It's one thing to argue for a crackpot interpretation of the Constitution. Everyone is free to do that. But you can't just blatantly misrepresent what the current state of the law is. You can't just assert that Roe v. Wade means the opposite of what it actually means. The reality is that if Napolitano's interpretation of Lopez was correct, virtually the entire post World War II regulatory state would be unconstitutional. If he was correct, Medicare and Medicaid would be unconstitutional. Needless to say, the Supreme Court never intended to suggest anything of the sort in Lopez.

The suggestion that the health care reforms currently being considered are unconstitutional is laughable. Maybe in some parallel universe that might be true. But not in this one.

UPDATE: To be clear, I realize that the editorial page is distinct from the news division at the Wall Street Journal. I'm sure the news division actually employs editors and fact-checkers. But still, the anything-goes contempt for facts on display daily on the editorial page diminishes the entire brand.

You Can Tell a Lot About People By Who They Choose to Demonize

noreply@blogger.com (A.L.) — Wed, 16 Sep 2009 02:30:00 +0000

The current conservative-generated hysteria over ACORN is a perfect example of everything that is wrong with both of our major political parties and the general state of our political discourse. Let's put aside for a moment the Glenn Beck-hyped "sting" videos of ACORN employees supposedly engaged in nefarious behavior (I'll get back to that in minute).

First, let's take a step back and consider just what ACORN is. It is a non-profit organization whose mission is to empower and improve the lives of poor people. As with many other organizations, ACORN has a number of legally distinct parts, each of which has different sources of funding and engages in different kinds of activities (ACORN's conservative enemies routinely conflate these various parts to imply that ACORN is using federal money for improper political purposes). Since its founding the 70s, ACORN and its employees and volunteers have fought successfully to, among other things, increase minimum wages across the country, increase the quality of public education in poor areas, and protect people from predatory lending practices. In the aftermath of Hurricane Katrina, ACORN helped rebuild thousands of homes and assisted victims in relocating and finding housing outside of New Orleans. The ACORN activity that has drawn the most conservative ire is its voter registration efforts which, consistent with ACORN's mission, are primarily aimed at low-income voters (who tend to vote Democratic).

Republicans have made a lot of breathless claims about ACORN-related voter fraud, most of which do not hold up to investigation or scrutiny. Now Glenn Beck and his minions are hyping a series of "sting" videos taped by conservative activists posing as pimps and prostitutes. As an initial matter, it is worth noting that these videos were shot and edited by people with a clear political agenda. We'll see how this plays out, but having watched the videos, it would not surprise me if they have been edited so as to severely distort and misrepresent what actually happened. The videos do not show a dialogue; the film-makers intersperse their own representations as to what they said with the supposed responses of the ACORN workers. I suspect that they are edited in this way to remove necessary context and make these conversations look worse than they actually were. The ACORN office in California is claiming exactly that, that the employee captured on film was playing along with what she assumed was a joke (and having watched the video, that seems perfectly plausible). I suspect the unedited footage looks very different. Moreover, I virtually guarantee that for every one of these videos aired, there were numerous attempted "stings" in which employees acted appropriately and therefore didn't provide any good footage.

But even if you take these film-makers at face value and assume the worst, the reality is that ACORN has thousands of employees and the vast majority of them spend their days trying to help poor people through perfectly legal means (and receive very little compensation for doing so). Even before yesterday's Senate vote, the amount of federal money that went to ACORN was very small. This is a relatively insignificant organization in the grand scheme of things, but it's an organization that has unquestionably fought over the years to improve the lives of the less fortunate in this country.

That the GOP and its conservative supporters would single out this particular organization for such intense demonization is telling. In September of last year, the entire world came perilously close to complete financial catastrophe. We're still not out of the woods and we're deep within one of the worst recessions in U.S. history. This situation was brought about by the recklessness and greed of our banks and financial institutions, most of which had to be bailed out at enormous cost to the American taxpayer (exponentially more than all of the tax dollars given to ACORN over the years). The people who brought about this near catastrophe, for the most, profited immensely from it. These very same institutions, propped up by the American taxpayer, are once again raking in large profits.

But rather than focus their anger on these folks, conservatives choose to go after an organization composed almost entirely of low-paid community organizers, an organization that could never hope to have even a small fraction of the clout or the ability to affect the overall direction of the country that Wall Street bankers have. ACORN's relative lack of political influence was on full display yesterday, when the U.S. Senate (in which Democrats have a supermajority) not only entertained a vote to defund ACORN, but approved it by a huge margin (with only seven Democrats opposing).

Meanwhile, with a Democratic President elected on a mandate to reform health care and large Democratic majorities in both chambers of Congress, the prospect of meaningful health care reform passing remains doubtful. Why? Because such reform is opposed by very influential lobbies, groups that--unlike ACORN--have the money and the clout to actually affect the lives of average Americans in significant ways.

But thanks to the Glenn Becks of the world, ACORN has now been so demonized that its future as an organization is in doubt. Never fear, though, I'm sure Beck will find some other obscure powerless group to demonize soon.

The Law and Pop Culture Morality

noreply@blogger.com (A.L.) — Tue, 25 Aug 2009 19:14:00 +0000

Over at the National Review, Jonah Goldberg offers some typically superficial analysis of the recently released IG report detailing numerous acts of torture by U.S. officials against detainees.

I haven't read the IG report yet, I've just seen a few write ups and excerpts around here and other places. Without getting into the substance of the controversy, I'm doubting that there will be a lot of popular outrage over any of the allegations of abuse. Right or wrong, I think the average American assumes that some rough stuff goes on behind the scenes and that's okay. One reason for that assumption is that Hollywood tells us so every day.

I've long been fascinated with the disconnect between what pundits, politicians and various activist groups complain about and the status of interrogation techniques in the popular culture (here's a column I did on the subject in 2005). In countless films and TV shows the good guys — not the bad guys — do things to get important information that makes all of the harsh methods and allegedly criminal techniques in the IG report seem like an extra scoop of ice cream and a Swedish massage. In NYPD Blue, The Wire, The Unit, 24 and on and on, suspects are beaten, threatened, terrified. In some instances they are simply straight-up tortured. In movies, too, this stuff is commonplace. In Patriot Games, Harrison Ford shot a man in the kneecap to get the information he needed in a timely manner. In Rules of Engagement, Samuel L. Jackson shot a POW in the head to get another man to talk. In Guarding Tess, Nick Cage blows off a wimpy little man's toes until he talks. In The Untouchables Sean Connery conducts a mock execution.

Now, I know I will get a lot of "it's just a movie" or "TV shows aren't real" email from people. At least I have every other time I've made this point. So let me concede a point I've never disputed while making one these folks don't seem to grasp. If such practices, in the contexts depicted, were as obviously and clearly evil as many on the left claim, Hollywood could never get away with having the good guys employ them. Harrison Ford in the Tom Clancy movies would never torture wholly innocent and underserving victims for the same reasons he wouldn't beat his kids or hurl racial epithets at black people. But given sufficient time to lay out the context and inform the viewers of the stakes, as well as Ford's motives, the audience not only understands but applauds his actions. Of course it's just a movie. But the movie is tapping into and reflecting the popular moral sentiments. Think of these scenes as elaborate hypothetical situations in the debate about torture and interrogation that are acted out and played before focus groups of normal Americans.

It is disturbing how often acts of torture are presented in pop culture as morally justifiable. But the fact that they are says a lot less about prevailing moral attitudes than Goldberg seems to think. Movies and television shows, like clever hypothetical questions, are carefully designed to lead viewers to specific moral conclusions. When you are shown unequivocally that the person being tortured is an evil mass murderer and that the person doing the torturing is a pure-hearted hero -- and you are then shown that the torture in fact leads to the disclosure of information that saves a bunch of childrens' lives -- it is no wonder that viewers are prepared to morally absolve the torturer. That moral conclusion is being spoon-fed to them in the form of a highly-stacked utilitarian calculus. The thumb is pressing down quite hard on the scale.

If, on the other hand, you were to tell a different story, say one involving a detainee of questionable guilt being brutally beaten to death with a flashlight (as described in the IG report), you would likely elicit a very different emotional response.

All that popular fiction like 24 really proves is that under a very elaborate set of moral pre-conditions (ones that never obtain in real life), many people are willing to excuse otherwise inexcusable conduct (at least when it is immediately shown to save lives). That's completely unsurprising.

More importantly, though, it is completely beside the point. This is simply not how we determine what kind of conduct is right or wrong, legal or illegal. Audiences may cheer when Dirty Harry blows away bad guys or secretely root for Dexter as he chooses his next deserving victim, but that doesn't mean it's okay for cops to execute people or to freelance as serial killers. We don't make the laws based on television morality, nor do we excuse law-breaking because it is possible to imagine some hypothetical scenario in which breaking the law seems morally excusable. I can't go around town attacking various low-lifes and point to Americans' love of Batman as my defense.

The IG report describes numerous acts of torture that are clearly illegal under any number of laws and treaties. That's all that really matters.

That said, I have much more confidence than Jonah does that if Americans are presented with the actual facts of these cases (as opposed to the fictional scenarios of 24), they'll be far less willing to excuse the conduct of the torturers.

That pretty much sums it up

noreply@blogger.com (A.L.) — Fri, 21 Aug 2009 02:52:00 +0000

Joe Klein asks:

How can you sustain a democracy if one of the two major political parties has been overrun by nihilists? And another question: How can you maintain the illusion of journalistic impartiality when one of the political parties has jumped the shark?

Indeed.

Put This One in the Time Capsule

noreply@blogger.com (A.L.) — Wed, 19 Aug 2009 02:58:00 +0000

We don't yet know what the outcome will be of the current push to reform our health care system, but if we want to give future generations an idea of just how ridiculous the accompanying debate was, we should just save this "op-ed" from the Wall Street Journal and put it in a time capsule. Entitled "The Panel," it is a fictional account (written in the second person style of a choose-your-own-adventure novel) of a hearing before a government "death panel." It even includes a picture of three obnoxious-looking bureaucrats presiding over the fictional proceeding. I'm not making this up. You really have to read it yourself to appreciate the level of craziness on display, but here's a sampling:

"But without this procedure, I'll be dead before Christmas."

You try to keep the anger out of your voice. The last thing you want to do is offend them. But the politicians promised you—they promised everyone—there would never be panels like this. They made fun of anyone who said there would. "What do they think we're going to do? Pull the plug on grandma?" they chuckled. The media ran news stories calling all rumors of such things "false" or "misleading." But of course by then the media had become apologists for the state rather than watchdogs for the people.

In fact, the logic of this moment was inevitable. Once government got its fingers on the health-care system, it was only a matter of time before it took it over completely. Now there's one limited pool of dollars while the costs are endless.

Yes, the logic is inevitable. That's why we've had Medicare for 40 years and somehow managed to avoid the imposition of death panels. And it's so inevitable that despite the near universality of government-funded health care in the industrialized world, there aren't any examples of these death panels in other countries either. And while we're talking about "inevitable logic," are we really supposed to believe that a party that doesn't even have the cajones to defend a voluntary end-of-life counseling provision against blatantly false attacks--a party that immediately dropped a perfectly sensible provision when a crazy, discredited ex-governor screamed "death panels"--is really going to pass laws barring private insurance and private expenditure on health care and force people to defend their lives to before panels of government bureaucrats? Really? We're talking about a party that has a super-majority and still can't seem to pass even half-assed health care reform. The only "inevitable logic" when it comes to Democratic members of Congress is that they will find a way to cave, even in the face of broad public support.

The Mistake of Assuming the Existence of GOP Core Principles

noreply@blogger.com (A.L.) — Mon, 17 Aug 2009 16:52:00 +0000

In setting the stage for the current health care reform debate, the Obama administration made a significant (and in retrospect questionable) strategic decision; instead of following the typical Democratic playbook and framing the debate around covering the uninsured, they instead chose to frame the debate around the need to contain costs. At the time, this seemed like a brilliant idea. After all, it is universally acknowledged that the cost of health care is out of control and that something must be done to "bend the curve." By framing the debate in this way, you build momentum for change by emphasizing the unsustainability of the status quo. Moreover, containing the costs of programs like Medicare had long been a staple of GOP politics. By marrying health care reform to the goal of cutting costs, the Obama administration figured it could blunt many of the most likely criticisms from the GOP (e.g. that the Democrats were proposing some expensive new entitlement program).

But as the "death panel" discussion of the last few weeks has illustrated, the Obama administration appears to have committed the classic political error of underestimating the shamelessness of the GOP. The Obama administration assumed (incorrectly) that the GOP has core principles that it will not sacrifice for the sake of political expediency. They were wrong. The party that has spent the four decades attacking Medicare and trying to cut its expenditures is now openly accusing the Democrats of trying to kill senior citizens by taking away their Medicare coverage. Republican-affiliated groups are running ads warning seniors that the Democrats want to take away their health care and euthanize them. The party that has literally spent decades complaining about Medicare demagoguery on the part of Democrats is now itself engaged in Medicare demagoguery to a degree that would make even the most shameless Democratic politician feel uncomfortable.

There is a moral to this story. You can't outflank a party that doesn't feel tied to any particular policy position. The GOP will oppose the Democratic agenda using whatever means and whatever arguments it thinks will be effective, regardless of whether they contradict everything the party supposedly stands for. The sooner that Democrats understand this, the better able they'll be to deal with it.

UPDATE: To get a sense of the current state of our political discourse, check out this post at the National Review by Andy McCarthy (who, by the way, is now completely barking mad). McCarthy is angry at his own publication, the National Review, for publishing an editorial that ever so mildly admonishes Sarah Palin for her "death panel" remarks (while implicitly defending them). McCarthy writes:

I don't see any wisdom in taking a shot at Governor Palin at this moment when, finding themselves unable to defend the plan against her indictment, Democrats have backed down and withdrawn their "end-of-life counseling" boards. Palin did a tremendous service here. Opinion elites didn't like what the editors imply is the "hysteria" of her "death panels" charge. Many of those same elites didn't like Ronald Reagan's jarring "evil empire" rhetoric. But "death panels" caught on with the public just like "evil empire" did because, for all their "heat rather than light" tut-tutting, critics could never quite discredit it. ("BusHitler," by contrast, did not catch on with the public because it was so easily refuted.)

First, as is his wont, McCarthy lies pretty badly about what was actually being proposed. He characterizes a completely sensible and non-controversial provision (which was, until a few weeks ago, championed by key Republicans)--a provision that would have reimbursed doctors for voluntary counseling about living wills and health care directives--as creating "end-of-life counseling boards."

But then he goes truly off the deep end and compares this completely innocuous provision to an enemy state with thousands of nuclear missiles aimed at us. But that's not all, a little further down in the post he takes issue with the Editors grudging acknowledgment that Obama doesn't actually want to kill old people:

I happen to think that something like death panels is exactly what is desired by Obama — who is an abortion extremist, who supported a form of infanticide when he was an Illinois state legislator, and who has wondered aloud about the value of end-of-life care provided for his own grandmother.

He goes on to explain:

The whole point of health-care "reform" is to enable something other than the combination of individual liberty and market forces — namely, government bureaucrats — to do the inevitable rationing.

Of course, if we were to let "liberty and market forces" do the rationing when it comes to health care for the elderly, the result would be no health care for most elderly Americans. That's because elderly people consume a lot of health care and therefore it makes no economic sense for private insurers to cover them (at least at affordable rates). That's why we have Medicare in the first place. That's the problem Medicare was designed to solve. It is thanks to the "government bureaucrats" that grandma gets to go to the doctor at all.

So to sum up, McCarthy is livid about the (imaginary) evil death panels that Sarah Palin managed to save us from and believes that Obama wants to create such panels in order to cut off care for the elderly, thereby allowing them to "wither away prematurely" (which, apparently, Obama wanted to happen to his own grandmother). McCarthy, on the other hand, believes we should let "liberty and the market" take care of our elderly people, a suggestion that would demonstrably result in most elderly people not having access to health care.

This man--this lunatic--is writing for THE flagship conservative publication in this country.

Bringing Trig Palin into the Health Care Debate

noreply@blogger.com (A.L.) — Mon, 10 Aug 2009 13:22:00 +0000

The other day Sarah Palin made one of the more crazy and offensive claims yet by opponents of health care reform. She said:

The Democrats promise that a government health care system will reduce the cost of health care, but as the economist Thomas Sowell has pointed out, government health care will not reduce the cost; it will simply refuse to pay the cost. And who will suffer the most when they ration care? The sick, the elderly, and the disabled, of course. The America I know and love is not one in which my parents or my baby with Down Syndrome will have to stand in front of Obama's "death panel" so his bureaucrats can decide, based on a subjective judgment of their "level of productivity in society," whether they are worthy of health care. Such a system is downright evil.

There is so much crazy here that it's hard to know where to begin, but Publius hits the most obvious point:

Palin is sort of right on one point -- there are people who weigh whether children like Trig are worthy of insurance. They're called insurance companies, and they have decided that these children are not in fact worthy of coverage. That's because Down Syndrome is a "pre-existing condition."

He then links to a number of sources talking about how impossible it is to purchase insurance for children (or adults) with Down Syndrome. Indeed, one of the primary legislative goals of the National Down Syndrome Congress is health care reform. If you look at their website, you can see their policy goals track almost exactly with the kind of health care reform currently being proposed.

Palin warns that the people who "will suffer the most" when the government "rations care" are the "the sick, the elderly, and the disabled." The exact opposite is true. It is the private insurance industry, not the government, that excludes the sick, the elderly, and the disabled. Insurance companies are in the business of making money, and it makes no economic sense for them to cover people who are likely to incur enormous health care costs over their lifetimes. Good luck trying to purchase private health insurance if you're old, sick, or disabled.

Indeed, it is for exactly this reason that most every other country long ago gravitated toward a universal system. The alternative is a world in which people like Trig (and their parents) are punished because of their bad luck, a world in which the elderly are priced out of the system, and a world in which those who need insurance the most are unable to purchase it. Medicare wasn't just passed as some sort of grand social experiment. It was passed in response to a dire social need, i.e., a situation in which most elderly Americans could not afford to see a doctor.

The reality is that kids like Trig Palin make just about the most compelling case possible for health care reform. Through no fault of his own, Trig will likely have very large medical bills over his lifetime. He is lucky that he was born to a family of means who also happened to have good government insurance when he was born. But many other children with Down Syndrome are born into families without insurance or families who must, from that moment forward, worry constantly about what will happen to their child if they lose their insurance (because of a changed or lost job). In his post, Publius links to stories of mothers who want to quit their jobs to help take care of special needs children but know that if they do so, they won't be able to find insurance for them. That's heart-breaking. And it is the inevitable result of a system in which most people must rely on the private market and have no public insurance option. Nothing would do more to improve the lives of people with Down Syndrome and their families then to pass health care reform.

Conspiracies of the Trivial

noreply@blogger.com (A.L.) — Wed, 05 Aug 2009 14:24:00 +0000

Ezra Klein's take on the Birther phenomenon is similar to my own:

There's something I don't understand about the Birther movement. Something serious. Something fundamental.

Imagine Barack Obama was born in Kenya. So what?

This isn't like Bill Clinton murdering Vince Foster and running drugs through the Arkansas airport. It's not like George W. Bush having foreknowledge of 9/11. As I understand it, the argument here is that Barack Obama was born in Kenya, but that his mother said he was born in the United States and even had relatives lie to that effect. Presumably, she also told young Barack that he was born in Hawaii. The big reveal here is...what? That Barack Obama's American mother desperately wanted to be certain that her infant child had American citizenship?

It's about as lame a conspiracy as I can possibly imagine. This is like charging that his mother and father smoked pot and baby Barack got a contact high. It's a conspiracy theory for the sake of being a conspiracy theory. It has, in practice, precisely zero implications for the character or comportment of Obama. I guess the dream is that it would disqualify him from office, but it wouldn't even do that. And so long as we're going to run Obama out on a conspiracy, wouldn't you want something that would actually turn the rest of America against him?

Exactly. The Birthers are often compared to the 9/11 Truthers, but the latter group is at least obsessed with an important historical event. If the Truthers are right (and I don't for a second believe they are), then the official story of 9/11 is false. That revelation would have profound historical and political ramifications and would shake this country to the core.

But if the Birthers are right, then we have a democratically elected president who was raised from infancy in the United States by his American mother and grandparents but happened to be born while his mother was vacationing in Kenya. Shocking! That is a profoundly lame conspiracy. Moreover, as I pointed out yesterday, even if this is true, it is not at all clear that the Birther's legal arguments are sound. At worst, you would have a situation where someone who was democratically elected (and by a large margin) might--through some exceedingly trivial accident of history--be arguably ineligible to hold office. And even in that situation, it is utterly inconceivable that any judge would rule in favor of those seeking to disqualify him from office. Meanwhile, Congress would almost surely pass a bipartisan law or resolution (as they did with John McCain) clarifying that someone born to a vacationing U.S. citizen is a "natural born citizen" within the meaning of the Constitution.

I think the key to grading conspiracy theories is to imagine how entertaining a movie they would make if true. The Clintons kill Vince Foster and then fake his suicide? Entertaining. Bush and Cheney stage 9/11 in order to gin up public support for war? Very entertaining. A teenage mother from Hawaii gives birth while on vacation abroad and lies about it. Boring!

Almost all the questions directed at the Birthers focus on their dubious factual assertions, and that's understandable. But I'd like to see them asked why it matters whether Obama was born in Honolulu or on a brief overseas trip? How is the future of our republic affected by the truth of that matter? Should the significant majority of Americans who voted for Obama be denied their choice of president because of an utterly trivial matter of historical happenstance?

The Birthers: Missing the Forest for the Imaginary Trees

noreply@blogger.com (A.L.) — Mon, 03 Aug 2009 18:21:00 +0000

I haven't had the time over the last few weeks to follow the news as closely as I normally do, but it appears that the "Birther" movement has reached a whole new level of exposure while I was away.

The ever-morphing claims of the Birthers are hard to keep up with, but if I understand them correctly, there are two basic claims being asserted: 1) that Obama is not a "natural born citizen" within the meaning of the Constitution because he was (supposedly) born in Kenya, not within the U.S., and 2) that regardless of where he was born, Obama is not a "natural born citizen" because his father was not a U.S. citizen.

Now the first claim is obviously based on the highly dubious (and, as far as I can tell, completely groundless) factual assertion that Obama was born not in Hawaii, as all evidence suggests, but rather in a foreign country. The second claim is based on the undisputed fact that Obama's father was not a U.S. citizen.

What's interesting about both of these claims, however, is their reliance on very rigid interpretations of the phrase "natural born citizen." The phrase is not one that has an obvious correct meaning. It is not defined in the Constitution and is used only in the clause specifying presidential eligibility requirements. It has only rarely (and tangentially) been addressed by the Supreme Court. To the extent the Court has weighed in, its pronouncements do not support the Birther theory that both of your parents must be U.S. citizens in order for you to be a "natural born citizen." It's virtually inconceivable to me that any modern court, if faced with this question, would interpret the Constitution to require both of a presidential hopeful's parents to have been U.S. citizens. That interpretation just doesn't make any sense. What possible relevant difference is there between someone who has one citizen parent and someone who has two? What if, as is the case with Obama, the foreign-born parent was not a part of the child's life? What if a presidential hopeful was adopted or doesn't know the identity of one or both parents? Should someone who was clearly born and raised in the United States have to locate and verify the immigration status of his biological parents before running for office? Could the drafters of the Constitution have possibly intended that?

The same questions should be asked of the other Birther theory, that one who is born overseas, even to a U.S. citizen on vacation, is not a "natural born citizen." No one is contesting that Obama is the son of Ann Dunham, a U.S. citizen, and that he grew up from infancy in the United States (except for a few years spent in Indonesia later on). He is a U.S. citizen with a social security number and all the other rights and privileges of citizenship. No one denies this. The Birthers are merely claiming (without any basis) that Obama was born while his mother was vacationing in Kenya. But what logical reason is there to bar such a person from serving as president? Why should someone be ineligible to be president because his parents happened to be vacationing or on assignment overseas when he was born? Is there any reason to believe the drafters of the Constitution intended to exclude such people when they used the phrase "natural born citizen"? Isn't the most logical interpretation of that phrase that it is differentiating between those who have been U.S. citizens since birth and those who were naturalized later in life?

Remember, if you accept the Birther logic here, numerous past presidential candidates, including John McCain (born in Panama) and George Romney (born in Mexico) would not have been eligible to be president.

As an attorney and person with someone background in constitutional law, I'm fairly certain that if the Supreme Court were forced to interpret the phrase "natural born citizen" today, it would interpret it in a way that excludes the fewest number of people. It certainly would NOT interpret it in an overly rigid way that excludes the most recent Republican nominee for president and (according to the Birthers) the current president, both of whom were born to U.S. citizens and grew up in the United States.

So this whole conspiracy theory is myopic in the extreme. If you're going to waste everyone's time theorizing about vast conspiracy, at least make the object of the conspiracy something that matters. Even if the Birthers factual claims are correct (which there's no reason to believe), their legal theories are thoroughly unpersuasive. In other words, even if they're right on the facts, they're still wrong on the law. They can't see the forest for the imaginary trees.

John Yoo: Still Lying

noreply@blogger.com (A.L.) — Thu, 16 Jul 2009 13:10:00 +0000

In this morning's Wall Street Journal, John Yoo has an op-ed defending himself from the malpractice charges set forth in the recent Inspecter General's report. As with the opinions themselves, the op-ed is deeply disingenuous and misstates the law repeatedly.

Not surprisingly, Yoo begins the op-ed with a collosal straw man. He points out how important it is to intercept al Qaeda communications and writes: "Evidently, none of the inspectors general of the five leading national security agencies would approve." Of course, the issue is not whether intercepting communications is a good idea, but whether the program violated the law. Yoo was not a policy maker. He was a lawyer. His job was to state what the law was, not what it should be.

Yoo eventually gets around to addressing FISA, but quickly dismisses any notion that FISA might constrain the president:

It is absurd to think that a law like FISA should restrict live military operations against potential attacks on the United States. Congress enacted FISA during the waning days of the Cold War. As the 9/11 Commission found, FISA's wall between domestic law enforcement and foreign intelligence proved dysfunctional and contributed to our government's failure to prevent the 9/11 attacks. . . .

In FISA, President Bush and his advisers faced an obsolete law not written with live war with an international terrorist organization in mind.

It is difficult to overstate how absurdly dishonest this argument is. The "wall" Yoo is referring to was removed by the Patriot Act, which amended FISA. The Patriot Act was signed into law by President Bush on October 26, 2001, a full week before Yoo submitted his now infamous memo authorizing the NSA program. That day, when the President Bush signed the Patriot Act into law, he said:

Surveillance of communications is another essential tool to pursue and stop terrorists. The existing law [FISA] was written in the era of rotary telephones. This new law I sign today will allow surveillance of all communications used by terrorists, including e-mails, the Internet, and cell phones. As of today, we'll be able to better meet the technological challenges posed by this proliferation of communications technology.

But let's not take President Bush's word for it, here's what John Yoo himself wrote in 2003, in another op-ed in the Wall Street Journal:

Before the Patriot Act, FISA warrants were issued upon a showing that the "primary purpose" of the surveillance was to gather foreign intelligence information. Both the Department of Justice and the special FISA court that issued the warrants interpreted this language, for reasons known only to themselves, to mean that any such information gathered by counter-intelligence services could not be shared, except under rare circumstances, with law enforcement officials. This "wall" prevented law enforcement officials and counter-intelligence officials from pooling their information--a dangerous and stupid practice given that al Qaeda has demonstrated that terrorists can easily operate outside and inside the United States. The Patriot Act changed the warrant standard from "primary purpose" to "significant purpose" in order to eliminate the wall of separation between foreign threats and domestic crimes . . .

The argument that FISA was some obsolete relic of a law that no longer applied after 9/11 is ludicrous. At the Bush administration's behest, Congress amended FISA in numerous ways. That was the primary purpose of the Patriot Act.

In today's op-ed, Yoo writes:

Every federal appeals court to address the question has agreed that the president may gather electronic intelligence to protect against foreign threats. This includes the special FISA appeals court, which in a 2002 sealed case upholding the constitutionality of the Patriot Act held that "the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information." The court said it took the president's power "for granted," observing that "FISA could not encroach on the President's constitutional power."

Yoo is deliberately misleading his readers here. There's no question that the president has the power "to gather electronic intelligence to protect against foreign threats." The question is whether he can do so in a way that is prohibited by FISA, and NO court has ever held that he can. The 2002 sealed case that Yoo quotes did not make that claim. In fact, the court in Sealed Case actually upheld the constitutionality of FISA, a fact Yoo trumpeted back in 2003:

No court has ever found FISA to be unconstitutional, and just last year a special panel of federal appeals court judges reviewed the Patriot Act's central modification of FISA and unanimously found it constitutional.

Moreover, it's worth noting that Yoo's current position--that FISA cannot constrain the president in war time--has NEVER been the official position of even the Bush administration. Even Yoo's original memo was not that bold. It merely claimed that the issue of whether FISA could constrain the president's power was a difficult one and therefore should be avoided because Congress made no clear statement that it intended FISA to apply in wartime. As I've explained previously, this is a ridiculous argument. But it was framed this way precisely because even Yoo was not willing to argue that FISA was unconstitutional--especially as the administration was busy amending and re-affirming the statute publicly. And since 2003, even the Bush administration has disavowed Yoo's argument. So this is really fringe stuff.

In today's op-ed Yoo finally gets around to a subject that he didn't bother to mention in his original opinion, the relevance of the Youngstown case. In an almost childish bit of sophistry, Yoo asserts that "Youngstown correctly found that the Constitution gives Congress, not the president, the exclusive power to make law concerning labor disputes. It does not, however, address the scope of the president's power involving military strategy or tactics in war." Needless to say, this is an interpretation of Youngstown shared by precisely no one. Youngstown explicitly involved a conflict between the president's power to direct the Korean War and Congress. In every case since then, the Supreme Court has applied the Youngstown framework to presidential claims of Article II authority. In the recent Hamdan case, the Court relied on Youngstown in striking down the Bush administration's military commissions. Suggesting that Youngstown was about a "labor dispute" is like suggesting that Marbury v. Madison was about a judicial appointment. It entirely misses the point of the case. Yoo writes:

Moreover, earlier Justice Departments -- reaching across several administrations from both parties -- had likewise concluded that Youngstown did not limit the president's legitimate conduct of foreign affairs and national security policy.

This is just not true. There are undoubtedly some OLC opinions, particularly ones that address the War Powers Resolution, that conclude that some provisions of that Act go beyond even the broad Congressional authority recognized in Youngstown, but no administration (before the Bush administration) ever claimed that FISA was such a statute. And if you're going make that rather audacious argument, you at least have to discuss and distinguish Youngstown and its progeny, something Yoo did not even attempt to do in his opinion.

Yoo is not even trying to make honest arguments here. He would be laughed out of court if he ever made any of these claims before an actual judge. But for some reason he continues to be given valuable op-ed space (and a professorship at Berkeley!) to make these completely disingenuous and unsupportable claims.

About that Secret Program

noreply@blogger.com (A.L.) — Tue, 14 Jul 2009 03:35:00 +0000

Last week it was reported that CIA Director Leon Panetta briefed Congress about a secret CIA program that Vice President Dick Cheney had personally ordered the CIA not to disclose to Congress. Panetta himself apparently learned about the program for the first time on June 23 of this year and immediately ordered that it be terminated. These reports have, understandably, led to widespread speculation about what exactly this program was.

The New York Times now appears to have cleared up the mystery. Apparently the program, which never got past the planning stages, involved sending out Munich-style assassination teams to take out terrorist suspects around the world.

Some have expressed skepticism about this explanation, suggesting that it doesn't add up, that targeted assassinations aren't all that different--at least from a legal/political perspective--from the drone attacks that we've been carrying out since the Clinton administration. David Kurtz at TPM writes:

So regardless of how you might feel about targeted assassinations, it's not at all clear why this particular program would be so radioactive -- compared to what the U.S. was, and still is, doing more or less openly -- that (1) Cheney would demand the CIA not brief Congress about it for eight years; (2) Panetta would cancel it immediately upon learning of it; and (3) Democrats would howl quite so loudly when finally informed.

Respectfully, I think there's a quite a big difference between this sort of program and drone attacks. As Tim F. at Balloon Juice observes--quite correctly--"[t]he difference between, say, cratering a car outside of Kabul and sniping a shopkeeper in Jakarta is that one could at least argue that we are still fighting a war in Afghanistan."

If the New York Times is correct, this program was intended to take out people all over the world, presumably including places like Hamburg, Paris, and Jakarta. There's quite a big difference, both legally and diplomatically, between sending a missile into a training camp in Afghanistan and sending an assassination team into an apartment complex in Hamburg. Imagine how we would react if we learned that secret German military teams were assassinating people within the United States. Everyone would pretty much flip the hell out. Well, Europeans would have the exact same reaction. That is no doubt why Cheney was so secretive. Even he had sense enough to understand what a colossal diplomatic clusterf*ck would result from disclosure of such a program (though apparently not enough sense to conclude that the program was an incredibly bad idea).

Needless to say, Congress needs to investigate and find out what this program was and why it was not disclosed sooner.