Does Stimulus Stimulate? By Bruce Bartlett
Forbes, Jan 23, 2009, 12:01 AM ET
In a few weeks, Congress will likely enact the largest fiscal stimulus legislation in history. Surprisingly, the whole idea of such a stimulus is much more controversial among A-list economists than I would have expected, given the depth and breadth of the economic malaise. Although the debate is rather technical, it's important to try to understand it because much is at stake.
Eighty years ago, the conventional view among economists was that government had nothing to do with business cycles--it neither caused them nor was there anything it could do about them. They were like the weather; you just coped the best you could.
Eventually, economists came to understand that vast numbers of individuals and businesses throughout the economy don't make exactly the same mistakes simultaneously unless something has changed the rules of the game. Government isn't always responsible--bubbles can occur on their own, as they have over the centuries--but systemic errors usually result from government policy.
The Federal Reserve, our nation's central bank, is the institution mainly responsible for altering the terms of trade. That is because it has the power to change the value of the currency, which is the intermediary in every single economic transaction, and also to alter the terms of every intertemporal transaction--those between the present and future, such as saving today to consume tomorrow--by raising or lowering the interest rate.
No one today believes that the Great Depression just happened or dragged on as long as it did because the private sector kept making mistake after mistake after mistake. It only made them and continued to do so because government interfered with the normal operations of the market and prevented readjustment from taking place.
The Great Depression resulted from a confluence of governmental errors--the Fed was too easy for too long in the 1920s, tightened too much in 1928-29 and then failed to fix its mistake, thus bringing on a general deflation that was very difficult to arrest once downward momentum had set in. Herbert Hoover compounded the problem by signing into law the Smoot-Hawley Tariff and sharply raising taxes in 1932.
Unfortunately, Franklin D. Roosevelt misunderstood the nature of the economy's problem and tried to fix prices to keep them from falling--thus preventing the very readjustment that would have brought about recovery. (See this paper by UCLA economists Harold Cole and Lee Ohanian.) He doesn't seem to have ever understood the critical role of Fed policy and mistakenly thought that arbitrarily raising the price of gold would make money easier.
Then, in 1937, just as the economy was starting to build some upward momentum, Roosevelt decided to raise taxes and cut spending, and the Fed suddenly concluded that inflation, rather than deflation, was the main problem and tightened monetary policy. (Note: According to the National Bureau of Economic Research, the Great Depression was basically two severe recessions--one from August 1929 to March 1933, and another from May 1937 to June 1938--not a continuous downturn.)
The result was an economic setback that didn't really end until both monetary and fiscal policy became expansive with the onset of World War II. At that point, no one worried any more about budget deficits, and the Fed pegged interest rates to ensure that they stayed low, increasing the money supply as necessary to achieve this goal.
It was then and only then that the Great Depression truly ended. As a consequence, economists concluded that an expansive monetary and fiscal policy, which had been advocated by economist John Maynard Keynes throughout the 1930s, was the key to getting out of a depression.
Keynes was right, but many of his followers weren't. They thought that budget deficits would stimulate growth under all circumstances, not just those of a deflationary depression. When this medicine was applied inappropriately, as it was in the 1960s and 1970s, the result was inflation.
Economists then concluded that it was a mistake to pursue countercyclical fiscal policy, and the idea of "fine-tuning" became a derogatory term. Even those who continued to believe it was theoretically possible to counter recessions with public works or government jobs programs were eventually forced to concede that it was impossibly difficult to make them work in a timely manner.
In the 1980s and 1990s, economists came around to the view that only monetary policy could act quickly enough to reverse or moderate a recession. But they never really came to grips with the Fed's responsibility for causing recessions in the first place. It always tightened a little too much when inflation was the problem and eased too much when slow growth was the problem.
For a time, a cult grew up around Fed Chairman Alan Greenspan. Many who should have known better convinced themselves that the "Maestro," as journalist Bob Woodward called him, would fix everything. Investors began seriously talking about a "Greenspan put"--the idea that the Fed would always protect them from a severe decline in the market. Nitwits wrote and bought books predicting astronomical levels for the stock market because Greenspan had permanently reduced the level of risk.
As we have seen, the Fed could not prevent the greatest financial downturn the world has seen since 1929. This has revived the idea that fiscal policy must be the engine that pulls us out.
Somewhat surprisingly, there has been rather heated opposition to the very principle of fiscal stimulus--a return to pre-Keynesian economics. And among those expressing dissent are some of the leading lights of economic theory over the last 40 years.
To be sure, the idea that fiscal policy was impotent never entirely disappeared. In 1969, economist Milton Friedman argued strenuously that only monetary policy really matters and that fiscal policy has no meaningful effect. Said Friedman, "In my opinion, the state of the budget by itself has no significant effect on the course of nominal income, on inflation, on deflation or on cyclical fluctuations."
Yet at the same time, monetarists argued that monetary policy had no lasting effect on the same economic variables. In the long run, they said, monetary policy could only affect nominal incomes, not real incomes. Real incomes were a function of things like growth of the labor force and productivity per work hour.
This led to a renewed emphasis on fiscal policy, but on the tax side rather than the spending side, as Keynesians tend to focus. Supply-siders argued that certain changes in tax policy--lowering marginal tax rates, reducing taxes on entrepreneurial income--were especially powerful, economically. Keynesians think that just putting dollars in peoples' pockets in order to stimulate consumption is the key to growth.
We have now had several tests of the Keynesian idea--most recently with last year's $300 tax rebate, which was supposed to prevent a recession. According to a new paper by University of Michigan economists Matthew Shapiro and Joel Slemrod, only a third of the money was spent, thus providing very little "bang for the buck."
The failure of rebates has shifted the focus to public works and other direct spending measures as a means of stimulating aggregate spending. A study by Obama administration economists Christina Romer and Jared Bernstein predicts that the stimulus plan being debated in Congress will raise the gross domestic product by $1.57 for every $1 spent.
Such a multiplier effect has been heavily criticized by a number of top economists, including John Taylor of Stanford, Gary Becker and Eugene Fama of the University of Chicago and Greg Mankiw and Robert Barro of Harvard. The gist of their argument is that the government cannot expand the economy through deficit spending because it has to borrow the funds in the first place, thus displacing other economic activities. In the end, the government has simply moved around economic activity without increasing it in the aggregate.
Other reputable economists have criticized this position as being no different from the pre-Keynesian view that helped make the Great Depression so long and deep. Paul Krugman of Princeton, Brad DeLong of the University of California at Berkeley and Mark Thoma of the University of Oregon have been outspoken in their belief that theory and experience show that government spending can expand the economy under conditions such as we are experiencing today.
I think the critics of an activist fiscal policy are forgetting the essential role of monetary policy as it relates to fiscal policy. As Keynes was very clear about, the whole point of fiscal stimulus is to mobilize monetary policy and inject liquidity into the economy. This is necessary when nominal interest rates get very low, as they are now, because Fed policy becomes impotent. Keynes called this a liquidity trap, and I think there is strong evidence that we are in one right now.
The problem is that fiscal stimulus needs to be injected right now to counter the liquidity trap. If that were the case, I think we might well get a very high multiplier effect this year. But if much of the stimulus doesn't come online until next year, when we are likely to be past the worst of the slowdown, then crowding out will greatly diminish the effectiveness of the stimulus, just as the critics argue. According to the Congressional Budget Office, only a fraction of proposed infrastructure spending can be spent before October of next year; the bulk would come long after.
Thus the argument really boils down to a question of timing. In the short run, the case for stimulus is overwhelming. But in the longer run, we can't enrich ourselves by borrowing and printing money. That just causes inflation.
The trick is to front-load the stimulus as much as possible while putting in place policies that will tighten both fiscal and monetary policy next year. As terrible as our economic crisis is right now, we don't want to repeat the errors of the past and set off a new round of stagflation.
For this reason, I think there is a better case for stimulating the economy through tax policy than has been made. Congress can change incentives instantly by, for example, saying that new investments in machinery and equipment made after today would qualify for a 10% Investment Tax Credit, and this measure would be in effect only for investments largely completed this year. Businesses will start placing orders tomorrow. By contrast, it will take many months before spending on public works begins to flow through the economy, and it is very hard to stop it when the economy turns around.
Stimulus based on private investment also has the added virtue of establishing a foundation for future growth, whereas consumption spending does not. As economist Hal Varian of the University of California at Berkeley recently put it, "Private investment is what makes possible future increases in production and consumption. Investment tax credits or other subsidies for private sector investment are not as politically appealing as tax cuts for consumers or increases in government expenditure. But if private investment doesn't increase, where will the extra consumption come from in the future?"
Sunday, January 25, 2009
Saturday, January 24, 2009
Conservative views: The Laws of War Have Served Us Well
The Laws of War Have Served Us Well, by David B Rivkin Jr and Lee A Casey
Our armed forces shouldn't have to play catch and release.
WSJ, Jan 24, 2009
Excerpts:
This week, President Barack Obama signed an executive order to close the terrorist detention facilities at Guantanamo Bay within the year. It was a symbolic repudiation of the Bush administration's policies, but Gitmo is not the crucial issue. The real question is whether Mr. Obama will uphold the legal architecture necessary to continue the war against al Qaeda and its jihadist allies.
What Mr. Obama's national security team will quickly discover is that the civilian criminal-justice system is an inadequate tool to deal with terrorists. President Bush's policies -- particularly treating captured terrorists as unlawful enemy combatants and employing a military court system to try them -- were dictated by the very real need to defend American citizens, not by disdain for the rule of law.
The Bush administration chose the law-of-war paradigm because the international law of armed conflict gives the U.S. maximum flexibility to meet the jihadist threat, including the right to attack and destroy al Qaeda bases and fighters in foreign countries. The alternative legal framework, the civilian criminal-justice system, is unsuitable for several key reasons. Civilian criminal suspects quite obviously cannot be targeted for military attack. They can be subjected only to the minimum force necessary to effect an arrest. They cannot -- consistent with international law -- be pursued across national boundaries. And finally, they are entitled to a speedy trial in a public courtroom. These rules cannot be ignored or altered without constitutional amendment.
In addition, the type and quality of evidence necessary for convictions in civilian courts is simply unavailable for most captured terrorists. One federal district judge recently concluded that although the government's information on one detainee was sufficient for intelligence purposes -- that is, he presumably could have been targeted for deadly attack -- it was insufficient to hold him without trial.
Trying senior al Qaeda leaders for relatively minor offenses ancillary to their major war crimes (like Al Capone for tax evasion) also is not the answer. Even if convictions and punishments could be obtained in this way, the cause of justice and historic closure requires the perpetrators to be charged with their worst offenses. This view informed the Nuremberg prosecutions.
Many have advocated for the creation of a U.S.-based national security court. Such a court would certainly be subject to constitutional challenge, and likely could not handle the sheer number of detained enemy combatants. A few hundred detainees at Guantanamo is one thing, but U.S. forces have captured and processed thousands of prisoners in the war on terror, and still hold upward of a thousand al Qaeda fighters in Iraq and Afghanistan, with many more to come in the years ahead.
Some changes to the Bush policies are obviously inevitable. But what Mr. Obama must keep in mind is that the laws of war form a relatively seamless web. Different elements -- military detention and prosecution, and robust rules of engagement driven by combat necessities -- reinforce each other. So while he may grant detainees additional due process rights (the courts have already established a right to habeas corpus proceedings for those at Guantanamo), he must continue a system of military detention for most of the captured fighters.
That's because the law of war requires that enemies be "granted quarter" -- meaning prisoners must be taken if they surrender. But if these prisoners cannot be held until hostilities are concluded and must be released only to fight again, the military would be consigned to a deadly game of catch and release. Without a viable detention regime, the U.S. cannot fairly ask its soldiers to risk their lives in combat any more than we can send in troops with defective equipment.
Since routinely prosecuting captured terrorists in the civilian courts is unrealistic, some sort of military court system for the detainees must be retained, regardless of whether they are called military commissions or special courts martial. This reinvigorated military court system must be directed to begin prosecuting those captured enemy fighters that have committed war crimes against American troops or civilians. [...]
This system of detention and military trials must also apply here at home. We cannot limit the military legal paradigm to overseas operations. Al Qaeda has already successfully targeted American territory, and may do so again. Foreign fighters entering the U.S. to carry out attacks should not have rights superior to those on distant, more conventional battlefields. Not only does this double standard create exactly the wrong incentives for our enemies, but it is legally unsustainable. The Supreme Court has indicated a willingness to extend constitutional protections to detainees held where the United States exercises a sufficient level of control, and this ruling can easily be extended beyond Gitmo.
Finally, the new administration cannot behave as if the military justice system for detainees is shameful, like some crazy uncle in the attic. These are legitimate laws of war and should be treated as such.
Mr. Bush's opponents have denigrated this system for nearly eight years. Many of them have now assumed power, and with power comes responsibility -- especially when it comes to protecting Americans from their enemies.
Messrs. Rivkin and Casey are Washington, D.C., lawyers who served in the Justice Department under Presidents Reagan and George H.W. Bush.
Our armed forces shouldn't have to play catch and release.
WSJ, Jan 24, 2009
Excerpts:
This week, President Barack Obama signed an executive order to close the terrorist detention facilities at Guantanamo Bay within the year. It was a symbolic repudiation of the Bush administration's policies, but Gitmo is not the crucial issue. The real question is whether Mr. Obama will uphold the legal architecture necessary to continue the war against al Qaeda and its jihadist allies.
What Mr. Obama's national security team will quickly discover is that the civilian criminal-justice system is an inadequate tool to deal with terrorists. President Bush's policies -- particularly treating captured terrorists as unlawful enemy combatants and employing a military court system to try them -- were dictated by the very real need to defend American citizens, not by disdain for the rule of law.
The Bush administration chose the law-of-war paradigm because the international law of armed conflict gives the U.S. maximum flexibility to meet the jihadist threat, including the right to attack and destroy al Qaeda bases and fighters in foreign countries. The alternative legal framework, the civilian criminal-justice system, is unsuitable for several key reasons. Civilian criminal suspects quite obviously cannot be targeted for military attack. They can be subjected only to the minimum force necessary to effect an arrest. They cannot -- consistent with international law -- be pursued across national boundaries. And finally, they are entitled to a speedy trial in a public courtroom. These rules cannot be ignored or altered without constitutional amendment.
In addition, the type and quality of evidence necessary for convictions in civilian courts is simply unavailable for most captured terrorists. One federal district judge recently concluded that although the government's information on one detainee was sufficient for intelligence purposes -- that is, he presumably could have been targeted for deadly attack -- it was insufficient to hold him without trial.
Trying senior al Qaeda leaders for relatively minor offenses ancillary to their major war crimes (like Al Capone for tax evasion) also is not the answer. Even if convictions and punishments could be obtained in this way, the cause of justice and historic closure requires the perpetrators to be charged with their worst offenses. This view informed the Nuremberg prosecutions.
Many have advocated for the creation of a U.S.-based national security court. Such a court would certainly be subject to constitutional challenge, and likely could not handle the sheer number of detained enemy combatants. A few hundred detainees at Guantanamo is one thing, but U.S. forces have captured and processed thousands of prisoners in the war on terror, and still hold upward of a thousand al Qaeda fighters in Iraq and Afghanistan, with many more to come in the years ahead.
Some changes to the Bush policies are obviously inevitable. But what Mr. Obama must keep in mind is that the laws of war form a relatively seamless web. Different elements -- military detention and prosecution, and robust rules of engagement driven by combat necessities -- reinforce each other. So while he may grant detainees additional due process rights (the courts have already established a right to habeas corpus proceedings for those at Guantanamo), he must continue a system of military detention for most of the captured fighters.
That's because the law of war requires that enemies be "granted quarter" -- meaning prisoners must be taken if they surrender. But if these prisoners cannot be held until hostilities are concluded and must be released only to fight again, the military would be consigned to a deadly game of catch and release. Without a viable detention regime, the U.S. cannot fairly ask its soldiers to risk their lives in combat any more than we can send in troops with defective equipment.
Since routinely prosecuting captured terrorists in the civilian courts is unrealistic, some sort of military court system for the detainees must be retained, regardless of whether they are called military commissions or special courts martial. This reinvigorated military court system must be directed to begin prosecuting those captured enemy fighters that have committed war crimes against American troops or civilians. [...]
This system of detention and military trials must also apply here at home. We cannot limit the military legal paradigm to overseas operations. Al Qaeda has already successfully targeted American territory, and may do so again. Foreign fighters entering the U.S. to carry out attacks should not have rights superior to those on distant, more conventional battlefields. Not only does this double standard create exactly the wrong incentives for our enemies, but it is legally unsustainable. The Supreme Court has indicated a willingness to extend constitutional protections to detainees held where the United States exercises a sufficient level of control, and this ruling can easily be extended beyond Gitmo.
Finally, the new administration cannot behave as if the military justice system for detainees is shameful, like some crazy uncle in the attic. These are legitimate laws of war and should be treated as such.
Mr. Bush's opponents have denigrated this system for nearly eight years. Many of them have now assumed power, and with power comes responsibility -- especially when it comes to protecting Americans from their enemies.
Messrs. Rivkin and Casey are Washington, D.C., lawyers who served in the Justice Department under Presidents Reagan and George H.W. Bush.
Conservative Views On Lawful Detainment Framework for the Long War
Holding Terrorists Accountable: A Lawful Detainment Framework for the Long War, by Charles Stimson
Heritage, Legal Memorandum #35, January 23, 2009
During the recent presidential campaign, then-Senator Barack Obama promised to close the Guantanamo Bay detention center and stated that some Guantanamo detainees should be prosecuted or transferred to other countries and that others should be detained "in a manner consistent with the laws of war."[1] President Obama already, on his second full day in office, has taken the first steps in that direction by issuing an executive order calling for the closure of Guantanamo "as soon as practicable" and the prosecution, release, transfer, or continued detention of all detainees housed there following review of their statuses.[2]
This action is bold, comprehensive, yet cautious. In some respects, it represents a continuation, and at most an acceleration, of many of the policies of the Bush Administration. Prior to January 20, some detainees were being prosecuted,[3] and others were transferred to other countries: In fact, that latter group comprises nearly two-thirds of all those who have been held at Guantanamo.[4]
More important is what has not yet been addressed. While the Obama executive orders allude to continued detention of some Guantanamo detainees, they address only the current detainees at Guantanamo. President Obama's bigger decision--one where he is more likely to modify previous practice-- concerns future detainees, not the fate of those already captured and held at Guantanamo Bay.
The Obama Administration will not be ending the practice of military detention. Military detention[5] of some detainees is appropriate, consistent with long historical practice, and a necessary and lawful tool in the current conflict.[6] True, as General David Petraeus and Secretary of Defense Robert Gates have essentially said, we cannot kill or capture our way to victory in this conflict.[7] Yet military detention, properly calibrated and designed to complement our broader national security and counterterrorism policy, is necessary, not only for some detainees currently detained at Guantanamo but also for future captures of high-value detainees.
Indeed, candidate Obama also pledged to continue to build U.S. capacity and international partnerships to track down, capture, or kill terrorists around the world, and this presumably entails holding additional detainees.[8] That promise should assure the American people that President Obama intends to protect us from those terrorists who seek to kill us. But it also begs several key questions:
Defining the Issue
Winding down the detention operation at Guantanamo Bay in a responsible manner will be difficult, will take more than just a couple of months, and requires making difficult decisions and trade-offs.[9] Indeed, President-elect Obama acknowledged that ending the detention mission at Guantanamo Bay will be difficult and, more significantly, that he would consider it a failure if he did not close Guantanamo by the end of his first term.[10] It is a challenge because the process actually has less to do with Guantanamo Bay detainees than with the question of how we wage war in the modern era against non-state actors who are actively waging war against us.
Guantanamo Bay is just a place--a place that admittedly has harmed our country's reputation and whose benefits arguably have come to be outweighed by its costs. To be sure, the United States has gained valuable intelligence from some detainees at Guantanamo over the years and has kept those very same detainees from killing or injuring our soldiers or allies in our ongoing conflict. That intelligence has helped us to understand and fight this enemy more effectively, but its value has diminished over time. More important, that intelligence and security has strained diplomatic relations, undermined the moral authority of the United States in the eyes of some, and raised distracting domestic legal obstacles.
Simply ending the detention operations at Guantanamo addresses only one visible aspect of a broader post-9/11 detention legal framework for the incapacitation and lawful interrogation of terrorists. Closing Guantanamo or merely moving the detainees to the United States without addressing the serious underlying challenges and questions regarding detention policy in this ongoing conflict is essentially changing the ZIP code without confronting the broader challenges.
The new Administration has the opportunity, and an obligation, to build on the strategic rationale, legal and policy underpinnings, and entire framework regarding how to hold accountable and incapacitate terrorists.[11]
It is important to recall that a key recommendation from the 9/11 Commission Report was for the United States to engage our allies and develop a common approach to the detention and humane treatment of captured terrorists, drawing from Common Article 3 of the Geneva Conventions.[12] Much work has been done with respect to this key recommendation;[13] some remains.
Military detention of the enemy during armed conflict is authorized and legal. According to a legal adviser for the International Committee of the Red Cross (ICRC), such detention is an "exceptional measure of control that may be ordered for security reasons in armed conflict or for the purpose of protecting State security or public order in non-conflict situations, provided the requisite criteria have been met."[14] According to the author, "the exceptional nature of internment lies in the fact that it allows the detaining authority to deprive liberty of persons who are not subject to criminal processes but nevertheless represent a real threat to security in the present or in the future."[15]
It is also just common sense. When our military enters armed conflict, however that is defined, it has the legal authority to use lethal force when necessary. It stands to reason that the military must also be able to detain the enemy in a lawful manner, all the while upholding the rule of law, protecting human rights, and adhering to applicable provisions of the Geneva Conventions.[16]
Military detention is not a right-wing proposition; it is a time-honored, legal, proper national security tool during armed conflict. That fact is recognized across the political spectrum. On January 6, 2009, Senator Dianne Feinstein (D-CA), along with Senators John D. Rockefeller IV (D-WV), Ron Wyden (D-OR), and Sheldon Whitehouse (D-RI), introduced Senate Bill 147, the Lawful Interrogation and Detention Act. The act, directed specifically at the detainees currently at Guantanamo Bay, Cuba, specifically authorizes military detention for some detainees who cannot be prosecuted or transferred.[17]
Thus, despite what some have argued over the years, the United States is not required, by its international obligations or otherwise, to "try them or set them free." This false choice is dangerous, and it comes with real consequences. It is widely known that some detainees released from detention in Iraq, Afghanistan, and Guantanamo have taken up arms against Americans and our allies and no doubt have committed further combatant activity.[18] This risk of further combatant activity will always exist, and it is particularly acute in the current conflict.
Reducing that risk through lawful detainment is not always a controversial proposition. For years, the United States has captured, detained, and lawfully interrogated thousands of combatants within the political boundaries of Iraq and Afghanistan, and it will continue to do so for some time in Afghanistan.[19] Most detainees are detained to prevent further combatant activity against the U.S. or our forces--not tried in a criminal trial.
Beyond Guantanamo
With respect to terrorists captured in the future outside of Afghanistan, including by our allies or in a future conflict or other crisis, the detainment situation is more complicated. Neither the criminal law nor the law of armed conflict provides comprehensive and complete policy prescriptions in terms of how best to keep these combatants off of the battlefield and lawfully interrogate them while upholding the rule of law, protecting human rights, and safeguarding our country.
Prior to September 11, 2001, terrorism was treated as a matter of criminal law. The limits of and flaws in that approach have been detailed in numerous articles.[20] It is true that our anti-terrorism statutes have improved over the years and that our track record of trying terrorism in the courts is impressive, but despite the system's strength and flexibility, these improvements will carry us only so far.[21]
A recent report by Human Rights First, In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts, details over 100 terrorism cases successfully prosecuted in federal court since 9/11. The report covers many, but not all, of the important laws and legal and policy considerations regarding trying terrorism cases in federal district court. Yet it does not mention one case of a terrorist captured overseas on the battlefield after 9/11 and tried in the U.S. courts, nor does it seriously address the issue of the use of hearsay in federal trials for battlefield captures.
Most important, the Human Rights First report downplays the risks associated with the inadvertent disclosure of classified evidence, including valuable (and expensive) sources and methods of intelligence gathering. In every case involving such evidence--and this would include some cases involving terrorists captured overseas--there must be a careful, sophisticated cost-benefit analysis conducted by the highest officials in the government before deciding to disclose certain evidence in courtroom proceedings. Trying some terrorists in federal court should be an option, and it is an option the Bush Administration should have used more often;[22] but it should not be the exclusive weapon in our arsenal for combating al-Qaeda and other unprivileged belligerents.
To its credit, the Human Rights First report does acknowledge that some detainees may properly be held under "the law of war for the duration of active hostilities to prevent them from returning to the field of battle, and without any effort by the government to file charges or impose punishment."[23] In other words, military detention has a place in this conflict.[24]
For the most part, the Bush Administration and Congress, in its Authorization for the Use of Military Force, recognized the terrorist attacks of 9/11 as an act of war, and the law of armed conflict was the foundation for the legal framework surrounding detention. With respect to Guantanamo, the law-of-armed-conflict paradigm was challenged within weeks of detainees arriving in January 2002, and its limitations have become clearer during this long conflict.
Certainly, the law of armed conflict should and will provide the underpinnings for the detention framework in Afghanistan in the years to come, but it does not provide adequate answers to or procedural protections for detainees captured outside of Afghanistan and all of the issues that arise in a conflict of this nature.[25]
A legal regime can only set the boundaries of permissible policy; it is not a substitute for policy decisions to resolve lingering questions. In the future, when we capture a high-value al-Qaeda operative somewhere outside of Afghanistan who plots acts of terrorism or trains fellow terrorists but has not committed a domestic crime that can be prosecuted in federal district court, a court-martial, or even a new national security court, do we release him? If not, should we detain him, and under what legal framework? Where will he be detained? It is highly unlikely that the government of Afghanistan (or any other country) will allow him to be detained inside their country. Should we bring him to the United States? If so, what is his legal status, and what framework is he held under?
Further, in many of these cases, we will want to lawfully interrogate a captured operative to gain tactical or strategic intelligence. How do those lawful interrogations for intelligence reasons affect the potential for criminal prosecution? We may not be able to prosecute some of these individuals, and it may not be in our best interest as a country to try them because to do so might unreasonably risk exposing critical national security secrets.
A Future Framework
The answer, far beyond closing Guantanamo, is to solve the broader challenge of holding accountable and incapacitating terrorists in a detention framework that is lawful, durable, and internationally acceptable. As we capture future high-value terrorists outside of Afghanistan and conclude that some may not be prosecuted in our domestic courts, we will need a sustainable legal framework to detain them.[26]
Creating the right framework will be challenging, but it is necessary. As a former Administration official in charge of detainee matters observed, detention carries risks to both liberty and security.[27] Much thought needs to be given to the characteristics of persons subject to detention.[28] Conceptual criteria such as (among others) dangerousness, active or direct participation, membership in or support for an organization such as al-Qaeda, past acts, and future intentions must all be considered and weighed before drafting an appropriate definition of who may be detained.[29] However, we must remain ever mindful that our service members are facing the enemy on numerous battlefields every day: These questions are not, and should not be treated as, merely academic.
As for procedural protections for future captures, under the law of armed conflict, if there is a question as to a detainee's legal status (e.g., a prisoner of war, a civilian, or some other class), the detaining authority must hold a hearing, similar to an Article 5 hearing provided to prisoners of war under the Geneva Conventions, at or near the time of capture. If the "Article 5" hearing officer finds the terrorist detainable, then he may be detained. Alternatively, the hearing officer could make a finding that the captured person does not meet the proper criteria and order him released after the hearing.
If the person is deemed detainable by the hearing officer, after a defined period of lawful interrogation, the detainee should be given an Article 5- style "competent tribunal" hearing before a military judge where he should have assistance of military counsel.[30] If the military judge, after a full and fair hearing, decides that the detainee qualifies for further military detention, the detainee is thereafter detained pending periodic review.
There should be robust judicial appellate review, and the detainee should be afforded qualified free appellate counsel. The basis for his detention should be reviewed periodically.
Furthermore, military detention should be used only for those detainees who cannot be safely prosecuted.[31] This means, at the front end of the detention matrix, that there must be a robust system in place to determine which cases are prosecutable and which ones are not.
As a legal matter, there is support for the argument that the current Authorization for Use of Military Force (AUMF) authorizes the President to detain militarily a person captured in the United States.[32] However, as a policy matter, the proposed military detention framework should not apply to anyone captured in the United States, at least under current circumstances.[33]
Not even the Geneva Conventions or the principles underlying them answer every question. Once you give future captures an "Article 5" hearing and a "competent tribunal" determines that the detainee may be detained, then what? Does the case get transferred automatically to a federal district court judge for "independent review," perhaps under a newly created national security court? And how long do you detain the individual? How often do you review the basis of his detention? According to the Geneva Conventions, a person subject to detention must have the basis for his detention reviewed periodically, but is that an appropriate standard in this case? I believe it is warranted.
Would this system even be workable if, for example, the United States captured hundreds of detainees at a time? And what impact will these robust new rules and procedures have in the next war against a state actor who will receive fewer safeguards or rights as a prisoner of war?
All of this must be done as transparently as possible.
Finally, the United States must continue to allow the International Committee of the Red Cross[34] to perform its valuable function vis-à-vis detainees, and we must continue to work with and engage the ICRC in a substantive, confidential diplomatic dialogue.
Conclusion
Shuttering detention operations at Guantanamo Bay will be only a symbolic gesture--or perhaps not even that--if the Obama Administration does not also address the broader challenge of lawfully incapacitating terrorists who are intent on waging war against us. The incoming Administration has the duty to think through the strategic rationale of military detention in the broader context of its counterterrorism policies.
Some detainees may be appropriate candidates for criminal prosecution in federal district court, in terrorists' court-martials, or even in a newly created national security court--as long as there is not an unreasonable risk of exposure of critical national security information. Other detainees at Guantanamo Bay and those captured in the future will be appropriate candidates for military detention.
Achieving this new policy will take time. It will require the new Administration to use this "strategic pause" in military commissions, habeas corpus cases, and other ongoing matters to take stock of the best way forward.
We will see how Barack Obama responds to calls from some of his supporters to "try them or set them free." Will he make the case for a thoughtful military detainment policy, or will he give in to their dangerous demand? If Obama acknowledges that al-Qaeda members and others similarly situated are not common criminals and that military detention is a lawful and necessary tool in this ongoing conflict, we will know that our new President is serious about the threats aligned against us.
Charles D. "Cully" Stimson is Senior Legal Fellow in the Center for Legal and Judicial Studies at The Heritage Foundation. He also has served as Deputy Assistant Secretary of Defense for Detainee Affairs (2006-2007) and is a Commander in the United States Navy JAG Corps, reserve component.
Full article w/references here.
Heritage, Legal Memorandum #35, January 23, 2009
During the recent presidential campaign, then-Senator Barack Obama promised to close the Guantanamo Bay detention center and stated that some Guantanamo detainees should be prosecuted or transferred to other countries and that others should be detained "in a manner consistent with the laws of war."[1] President Obama already, on his second full day in office, has taken the first steps in that direction by issuing an executive order calling for the closure of Guantanamo "as soon as practicable" and the prosecution, release, transfer, or continued detention of all detainees housed there following review of their statuses.[2]
This action is bold, comprehensive, yet cautious. In some respects, it represents a continuation, and at most an acceleration, of many of the policies of the Bush Administration. Prior to January 20, some detainees were being prosecuted,[3] and others were transferred to other countries: In fact, that latter group comprises nearly two-thirds of all those who have been held at Guantanamo.[4]
More important is what has not yet been addressed. While the Obama executive orders allude to continued detention of some Guantanamo detainees, they address only the current detainees at Guantanamo. President Obama's bigger decision--one where he is more likely to modify previous practice-- concerns future detainees, not the fate of those already captured and held at Guantanamo Bay.
The Obama Administration will not be ending the practice of military detention. Military detention[5] of some detainees is appropriate, consistent with long historical practice, and a necessary and lawful tool in the current conflict.[6] True, as General David Petraeus and Secretary of Defense Robert Gates have essentially said, we cannot kill or capture our way to victory in this conflict.[7] Yet military detention, properly calibrated and designed to complement our broader national security and counterterrorism policy, is necessary, not only for some detainees currently detained at Guantanamo but also for future captures of high-value detainees.
Indeed, candidate Obama also pledged to continue to build U.S. capacity and international partnerships to track down, capture, or kill terrorists around the world, and this presumably entails holding additional detainees.[8] That promise should assure the American people that President Obama intends to protect us from those terrorists who seek to kill us. But it also begs several key questions:
- When the U.S. captures a high-value terrorist and, for whatever reason, cannot prosecute him, where will he be detained?
- Under what legal framework will he be detained?
- How will all this work given the shifting legal landscape since 9/11?
Defining the Issue
Winding down the detention operation at Guantanamo Bay in a responsible manner will be difficult, will take more than just a couple of months, and requires making difficult decisions and trade-offs.[9] Indeed, President-elect Obama acknowledged that ending the detention mission at Guantanamo Bay will be difficult and, more significantly, that he would consider it a failure if he did not close Guantanamo by the end of his first term.[10] It is a challenge because the process actually has less to do with Guantanamo Bay detainees than with the question of how we wage war in the modern era against non-state actors who are actively waging war against us.
Guantanamo Bay is just a place--a place that admittedly has harmed our country's reputation and whose benefits arguably have come to be outweighed by its costs. To be sure, the United States has gained valuable intelligence from some detainees at Guantanamo over the years and has kept those very same detainees from killing or injuring our soldiers or allies in our ongoing conflict. That intelligence has helped us to understand and fight this enemy more effectively, but its value has diminished over time. More important, that intelligence and security has strained diplomatic relations, undermined the moral authority of the United States in the eyes of some, and raised distracting domestic legal obstacles.
Simply ending the detention operations at Guantanamo addresses only one visible aspect of a broader post-9/11 detention legal framework for the incapacitation and lawful interrogation of terrorists. Closing Guantanamo or merely moving the detainees to the United States without addressing the serious underlying challenges and questions regarding detention policy in this ongoing conflict is essentially changing the ZIP code without confronting the broader challenges.
The new Administration has the opportunity, and an obligation, to build on the strategic rationale, legal and policy underpinnings, and entire framework regarding how to hold accountable and incapacitate terrorists.[11]
It is important to recall that a key recommendation from the 9/11 Commission Report was for the United States to engage our allies and develop a common approach to the detention and humane treatment of captured terrorists, drawing from Common Article 3 of the Geneva Conventions.[12] Much work has been done with respect to this key recommendation;[13] some remains.
Military detention of the enemy during armed conflict is authorized and legal. According to a legal adviser for the International Committee of the Red Cross (ICRC), such detention is an "exceptional measure of control that may be ordered for security reasons in armed conflict or for the purpose of protecting State security or public order in non-conflict situations, provided the requisite criteria have been met."[14] According to the author, "the exceptional nature of internment lies in the fact that it allows the detaining authority to deprive liberty of persons who are not subject to criminal processes but nevertheless represent a real threat to security in the present or in the future."[15]
It is also just common sense. When our military enters armed conflict, however that is defined, it has the legal authority to use lethal force when necessary. It stands to reason that the military must also be able to detain the enemy in a lawful manner, all the while upholding the rule of law, protecting human rights, and adhering to applicable provisions of the Geneva Conventions.[16]
Military detention is not a right-wing proposition; it is a time-honored, legal, proper national security tool during armed conflict. That fact is recognized across the political spectrum. On January 6, 2009, Senator Dianne Feinstein (D-CA), along with Senators John D. Rockefeller IV (D-WV), Ron Wyden (D-OR), and Sheldon Whitehouse (D-RI), introduced Senate Bill 147, the Lawful Interrogation and Detention Act. The act, directed specifically at the detainees currently at Guantanamo Bay, Cuba, specifically authorizes military detention for some detainees who cannot be prosecuted or transferred.[17]
Thus, despite what some have argued over the years, the United States is not required, by its international obligations or otherwise, to "try them or set them free." This false choice is dangerous, and it comes with real consequences. It is widely known that some detainees released from detention in Iraq, Afghanistan, and Guantanamo have taken up arms against Americans and our allies and no doubt have committed further combatant activity.[18] This risk of further combatant activity will always exist, and it is particularly acute in the current conflict.
Reducing that risk through lawful detainment is not always a controversial proposition. For years, the United States has captured, detained, and lawfully interrogated thousands of combatants within the political boundaries of Iraq and Afghanistan, and it will continue to do so for some time in Afghanistan.[19] Most detainees are detained to prevent further combatant activity against the U.S. or our forces--not tried in a criminal trial.
Beyond Guantanamo
With respect to terrorists captured in the future outside of Afghanistan, including by our allies or in a future conflict or other crisis, the detainment situation is more complicated. Neither the criminal law nor the law of armed conflict provides comprehensive and complete policy prescriptions in terms of how best to keep these combatants off of the battlefield and lawfully interrogate them while upholding the rule of law, protecting human rights, and safeguarding our country.
Prior to September 11, 2001, terrorism was treated as a matter of criminal law. The limits of and flaws in that approach have been detailed in numerous articles.[20] It is true that our anti-terrorism statutes have improved over the years and that our track record of trying terrorism in the courts is impressive, but despite the system's strength and flexibility, these improvements will carry us only so far.[21]
A recent report by Human Rights First, In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts, details over 100 terrorism cases successfully prosecuted in federal court since 9/11. The report covers many, but not all, of the important laws and legal and policy considerations regarding trying terrorism cases in federal district court. Yet it does not mention one case of a terrorist captured overseas on the battlefield after 9/11 and tried in the U.S. courts, nor does it seriously address the issue of the use of hearsay in federal trials for battlefield captures.
Most important, the Human Rights First report downplays the risks associated with the inadvertent disclosure of classified evidence, including valuable (and expensive) sources and methods of intelligence gathering. In every case involving such evidence--and this would include some cases involving terrorists captured overseas--there must be a careful, sophisticated cost-benefit analysis conducted by the highest officials in the government before deciding to disclose certain evidence in courtroom proceedings. Trying some terrorists in federal court should be an option, and it is an option the Bush Administration should have used more often;[22] but it should not be the exclusive weapon in our arsenal for combating al-Qaeda and other unprivileged belligerents.
To its credit, the Human Rights First report does acknowledge that some detainees may properly be held under "the law of war for the duration of active hostilities to prevent them from returning to the field of battle, and without any effort by the government to file charges or impose punishment."[23] In other words, military detention has a place in this conflict.[24]
For the most part, the Bush Administration and Congress, in its Authorization for the Use of Military Force, recognized the terrorist attacks of 9/11 as an act of war, and the law of armed conflict was the foundation for the legal framework surrounding detention. With respect to Guantanamo, the law-of-armed-conflict paradigm was challenged within weeks of detainees arriving in January 2002, and its limitations have become clearer during this long conflict.
Certainly, the law of armed conflict should and will provide the underpinnings for the detention framework in Afghanistan in the years to come, but it does not provide adequate answers to or procedural protections for detainees captured outside of Afghanistan and all of the issues that arise in a conflict of this nature.[25]
A legal regime can only set the boundaries of permissible policy; it is not a substitute for policy decisions to resolve lingering questions. In the future, when we capture a high-value al-Qaeda operative somewhere outside of Afghanistan who plots acts of terrorism or trains fellow terrorists but has not committed a domestic crime that can be prosecuted in federal district court, a court-martial, or even a new national security court, do we release him? If not, should we detain him, and under what legal framework? Where will he be detained? It is highly unlikely that the government of Afghanistan (or any other country) will allow him to be detained inside their country. Should we bring him to the United States? If so, what is his legal status, and what framework is he held under?
Further, in many of these cases, we will want to lawfully interrogate a captured operative to gain tactical or strategic intelligence. How do those lawful interrogations for intelligence reasons affect the potential for criminal prosecution? We may not be able to prosecute some of these individuals, and it may not be in our best interest as a country to try them because to do so might unreasonably risk exposing critical national security secrets.
A Future Framework
The answer, far beyond closing Guantanamo, is to solve the broader challenge of holding accountable and incapacitating terrorists in a detention framework that is lawful, durable, and internationally acceptable. As we capture future high-value terrorists outside of Afghanistan and conclude that some may not be prosecuted in our domestic courts, we will need a sustainable legal framework to detain them.[26]
Creating the right framework will be challenging, but it is necessary. As a former Administration official in charge of detainee matters observed, detention carries risks to both liberty and security.[27] Much thought needs to be given to the characteristics of persons subject to detention.[28] Conceptual criteria such as (among others) dangerousness, active or direct participation, membership in or support for an organization such as al-Qaeda, past acts, and future intentions must all be considered and weighed before drafting an appropriate definition of who may be detained.[29] However, we must remain ever mindful that our service members are facing the enemy on numerous battlefields every day: These questions are not, and should not be treated as, merely academic.
As for procedural protections for future captures, under the law of armed conflict, if there is a question as to a detainee's legal status (e.g., a prisoner of war, a civilian, or some other class), the detaining authority must hold a hearing, similar to an Article 5 hearing provided to prisoners of war under the Geneva Conventions, at or near the time of capture. If the "Article 5" hearing officer finds the terrorist detainable, then he may be detained. Alternatively, the hearing officer could make a finding that the captured person does not meet the proper criteria and order him released after the hearing.
If the person is deemed detainable by the hearing officer, after a defined period of lawful interrogation, the detainee should be given an Article 5- style "competent tribunal" hearing before a military judge where he should have assistance of military counsel.[30] If the military judge, after a full and fair hearing, decides that the detainee qualifies for further military detention, the detainee is thereafter detained pending periodic review.
There should be robust judicial appellate review, and the detainee should be afforded qualified free appellate counsel. The basis for his detention should be reviewed periodically.
Furthermore, military detention should be used only for those detainees who cannot be safely prosecuted.[31] This means, at the front end of the detention matrix, that there must be a robust system in place to determine which cases are prosecutable and which ones are not.
As a legal matter, there is support for the argument that the current Authorization for Use of Military Force (AUMF) authorizes the President to detain militarily a person captured in the United States.[32] However, as a policy matter, the proposed military detention framework should not apply to anyone captured in the United States, at least under current circumstances.[33]
Not even the Geneva Conventions or the principles underlying them answer every question. Once you give future captures an "Article 5" hearing and a "competent tribunal" determines that the detainee may be detained, then what? Does the case get transferred automatically to a federal district court judge for "independent review," perhaps under a newly created national security court? And how long do you detain the individual? How often do you review the basis of his detention? According to the Geneva Conventions, a person subject to detention must have the basis for his detention reviewed periodically, but is that an appropriate standard in this case? I believe it is warranted.
Would this system even be workable if, for example, the United States captured hundreds of detainees at a time? And what impact will these robust new rules and procedures have in the next war against a state actor who will receive fewer safeguards or rights as a prisoner of war?
All of this must be done as transparently as possible.
Finally, the United States must continue to allow the International Committee of the Red Cross[34] to perform its valuable function vis-à-vis detainees, and we must continue to work with and engage the ICRC in a substantive, confidential diplomatic dialogue.
Conclusion
Shuttering detention operations at Guantanamo Bay will be only a symbolic gesture--or perhaps not even that--if the Obama Administration does not also address the broader challenge of lawfully incapacitating terrorists who are intent on waging war against us. The incoming Administration has the duty to think through the strategic rationale of military detention in the broader context of its counterterrorism policies.
Some detainees may be appropriate candidates for criminal prosecution in federal district court, in terrorists' court-martials, or even in a newly created national security court--as long as there is not an unreasonable risk of exposure of critical national security information. Other detainees at Guantanamo Bay and those captured in the future will be appropriate candidates for military detention.
Achieving this new policy will take time. It will require the new Administration to use this "strategic pause" in military commissions, habeas corpus cases, and other ongoing matters to take stock of the best way forward.
We will see how Barack Obama responds to calls from some of his supporters to "try them or set them free." Will he make the case for a thoughtful military detainment policy, or will he give in to their dangerous demand? If Obama acknowledges that al-Qaeda members and others similarly situated are not common criminals and that military detention is a lawful and necessary tool in this ongoing conflict, we will know that our new President is serious about the threats aligned against us.
Charles D. "Cully" Stimson is Senior Legal Fellow in the Center for Legal and Judicial Studies at The Heritage Foundation. He also has served as Deputy Assistant Secretary of Defense for Detainee Affairs (2006-2007) and is a Commander in the United States Navy JAG Corps, reserve component.
Full article w/references here.
New Partnership to Ensure South Asia's Food Security
New Partnership to Ensure South Asia's Food Security in the Face of Climate Change
Press release, USAID, January 23, 2009
The U.S. Agency for International Development is working with the Bill and Melinda Gates Foundation to support the Cereals Systems Initiative for South Asia (CSISA), a program that will help more than six million small farmers in South Asia achieve significant cereal yield increases over the next ten years.
The initiative will work through public and private sector partners in local hubs in South Asia to accelerate the development and uptake of new crop varieties and to make cereal systems more sustainable. By producing at least five million tons more grain annually as a result of CSISA, farmers will add economic value of more than $1.5 billion per year and will achieve substantial savings in production costs. It will reduce hunger and malnutrition and increase the incomes of small-holder farm families in South Asia.
The rising costs of energy and fertilizer and diminishing water availability are major constraints for farmers in South Asia. CSISA will develop and disseminate integrated cereal production packages - including new high-yielding, stress tolerant cereal varieties, better information technology and improved resource management practices. These interventions will help farmers grow more food in the face of climate change impacts while using less energy, water and fertilizer.
The initiative will be led by the International Rice Research Institute and three other Consultative Group for International Agriculture Research (CGIAR) Centers, CIMMYT, IFPRI and ILRI, along with partners in India, Pakistan, Bangladesh and Nepal. The combined funding for the first three years includes $15 million from USAID and almost $19.59 million from the Gates Foundation for CSISA and related projects.
Press release, USAID, January 23, 2009
The U.S. Agency for International Development is working with the Bill and Melinda Gates Foundation to support the Cereals Systems Initiative for South Asia (CSISA), a program that will help more than six million small farmers in South Asia achieve significant cereal yield increases over the next ten years.
The initiative will work through public and private sector partners in local hubs in South Asia to accelerate the development and uptake of new crop varieties and to make cereal systems more sustainable. By producing at least five million tons more grain annually as a result of CSISA, farmers will add economic value of more than $1.5 billion per year and will achieve substantial savings in production costs. It will reduce hunger and malnutrition and increase the incomes of small-holder farm families in South Asia.
The rising costs of energy and fertilizer and diminishing water availability are major constraints for farmers in South Asia. CSISA will develop and disseminate integrated cereal production packages - including new high-yielding, stress tolerant cereal varieties, better information technology and improved resource management practices. These interventions will help farmers grow more food in the face of climate change impacts while using less energy, water and fertilizer.
The initiative will be led by the International Rice Research Institute and three other Consultative Group for International Agriculture Research (CGIAR) Centers, CIMMYT, IFPRI and ILRI, along with partners in India, Pakistan, Bangladesh and Nepal. The combined funding for the first three years includes $15 million from USAID and almost $19.59 million from the Gates Foundation for CSISA and related projects.
Friday, January 23, 2009
US: Call for Return to Constitutional Order in Mauritania Press Statement
Press Releases: Call for Return to Constitutional Order in Mauritania. By Robert Wood, Acting Spokesman
US State Dept, Washington, DC, January 23, 2009, Fri, 23 Jan 2009 14:42:28 -0600
President Abdallahi’s first attempt to return to Nouakchott since his ostensible release from detention by the military junta in December was blocked by junta security forces on January 22. President Abdallahi was denied permission to enter Nouakchott to deliver a planned address outlining his proposal for resolving the political crisis in Mauritania.
This incident and previous junta-organized demonstrations against the return of President Abdallahi to the capital clearly show that he is still being denied basic rights of movement and association and that his personal security may be at risk. We call on the military junta to permit President Abdallahi's full participation in the political process, to assure his freedom of movement and association, and to assure his personal safety.
The junta’s announced plans to organize unconstitutional elections along with its attempts to silence President Abdallahi and his supporters violate democratic norms. We reiterate our call for the immediate return to constitutional order.
2009/074
US State Dept, Washington, DC, January 23, 2009, Fri, 23 Jan 2009 14:42:28 -0600
President Abdallahi’s first attempt to return to Nouakchott since his ostensible release from detention by the military junta in December was blocked by junta security forces on January 22. President Abdallahi was denied permission to enter Nouakchott to deliver a planned address outlining his proposal for resolving the political crisis in Mauritania.
This incident and previous junta-organized demonstrations against the return of President Abdallahi to the capital clearly show that he is still being denied basic rights of movement and association and that his personal security may be at risk. We call on the military junta to permit President Abdallahi's full participation in the political process, to assure his freedom of movement and association, and to assure his personal safety.
The junta’s announced plans to organize unconstitutional elections along with its attempts to silence President Abdallahi and his supporters violate democratic norms. We reiterate our call for the immediate return to constitutional order.
2009/074
Obama and Values-Based Messaging
Obama and Values-Based Messaging, by Ed Kilgore
The Democratic Strategist, January 22, 2009 10:06 AM
The one sure thing about Barack Obama's inaugural address is that it increased tensions within the progressive coalition about his taste for "bipartisanship" (or "post-partisanship," if you prefer). Despite passages in the speech that were a very direct repudiation of the Bush administration, and a few strikingly progressive flourishes (e.g., the shout-out to religious "unbelievers"), the overall tenor continued his long rhetorical preoccupation with embracing values usually considered conservative as well as liberal, and deriding the partisan fights in Washington (this time in the Pauline phrase "childish things").
As has almost always been the case with Obama, observers have reached very different conclusions when listening to him in the inaugural speech and in other recent utterances. Some conservatives profess themselves as pleased or even charmed by his invocation of "conservative" values like hard work, personal and mutual responsibility, sacrifice and discipline, even as they (typically) warn he may not really believe in them. Some progressives continue to be alarmed by his post-partisan talk, and even more (notably both Marie Coco and Michael Crowley in separate pieces today) suggest it's a habit that will soon expire in the partisan exigencies of Washington. A few have divined somewhat less conventional ideological leanings in Obama; both Alan Wolfe and E.J. Dionne have noted the communitarian vein that runs deep through Obama's rhetoric.
My own take is based on my ten-plus-years of facilitating a leadership training program for elected officials called "Values-Based Messaging" under the auspices of the Democratic Leadership Council. Unlike some of the other elements of the DLC's agenda over the years, this training was never controversial, and has been very popular with a wide array of state and local Democrats from across the ideological spectrum, often as a party unity exercise in state legislative caucuses. To make a long story short, its central insight is that progressives in politics and government can and should build the largest possible audience for our more partisan policy goals and individual programs by embracing broadly-shared values that we often take for granted, but don't articulate, making us vulnerable to the kinds of conservative stereotypes that have been so effective in the past.
This larger audience may begin to shrink once bold policy goals and detailed programs are advanced. But it definitely helps, and just as importantly, roots progressive programs in values and goals the public understands, while subtly undermining the invidious belief that Democrats represent government, rather than bending government to the popular will. It's a simple way to occupy the political high ground and expose the narrow values base of the Right.
Whatever you think of this or that speech, Barack Obama is clearly a master of values-based messaging. And the inaugural address did not simply embrace broadly shared values beyond those usually emphasized by progressives; he went out of his way to argue that values often placed in opposition to each other are both reconcilable and essential (e.g., liberty and security, and public-sector activism and "free" markets). This may sound dangerously like Third Wayism to many progressives, but if reflects the fact that big majorities of the American people do in fact embrace such "contradictory" values, and do not want to see them vanquished or ignored.
This is probably why the public gave very positive ratings to the inaugural address and the accompanying events, even as most pundits panned it. And more generally, it is why Obama's speechifying--so often criticized as "vague" or "abstract" by the punditocracy-- resonates well with the public. There's a time for ten-point platforms in political communications, but it's essential to open the door to listeners by convincing them you live in the same "vague" and "abstract" moral universe that they inhabit.
Obama's inaugural address, like all his speeches, did move into the territory of big policy goals as well as values, and on this front, he has some enormous advantages. Recent events have made reviving the economy an overriding policy goal for virtually all Americans, which is why Obama's "ideas" for a stimulus package are gaining such strong popular support even as the details remain hazy to most people. But the inevitable drop-off of public support for those details will likely be smaller than would otherwise be the case thanks to Obama's determination to set the table so carefully with communications about values and big goals.
Moreover, Obama's second-order policy goals--such as achieving universal health coverage and radically changing the energy system--are very popular with the public across party lines, and the fact that many, and probably a majority, of Republican politicians and conservative gabbers don't support those goals creates a tremendous partisan opportunity for Obama and Democrats moving forward. Indeed, the past Democratic tendency to talk about, say, health care, in terms of specific proposals like a Patient's Bill of Rights and a prescription drug benefit has long enabled Republicans to blur partisan differences and disguise their own reactionary radicalism on health care.
Even the big policy goal that Obama occasionally mentions to the consternation of many progressives--"entitlement reform"--has, at the abstract level--a lot of public support. And the common assumption that Obama is playing on conservative turf by mentioning the subject probably sells him short, and reflects the age-old Democratic habit of conceding whole areas of public policy to the opposition. If, say, he can make Social Security more progressive, while folding Medicare into a universal health system, he will have taken away a common conservtive talking point without conceding anything.
This is why I've argued that Obama's meta-political strategy, and the underpinning of his rhetoric about partisanship, represents "grassroots bipartisanship"--an effort to build public support for a progressive agenda beyond the current ranks of the Democratic rank-and-file, crafted as a thoroughgoing reform of Washington, not simply as a expulsion of the hated GOP. You can call it "pragmatism" or "centrism" or "post-partisanship" if you like, but it mainly represents a sensible approach to the preeminently appropriate task of tearing down the old partisan paradigm and rebuilding a new one that can command an enduring majority in support of a progressive agenda. It should at least be given a fighting chance.
The Democratic Strategist, January 22, 2009 10:06 AM
The one sure thing about Barack Obama's inaugural address is that it increased tensions within the progressive coalition about his taste for "bipartisanship" (or "post-partisanship," if you prefer). Despite passages in the speech that were a very direct repudiation of the Bush administration, and a few strikingly progressive flourishes (e.g., the shout-out to religious "unbelievers"), the overall tenor continued his long rhetorical preoccupation with embracing values usually considered conservative as well as liberal, and deriding the partisan fights in Washington (this time in the Pauline phrase "childish things").
As has almost always been the case with Obama, observers have reached very different conclusions when listening to him in the inaugural speech and in other recent utterances. Some conservatives profess themselves as pleased or even charmed by his invocation of "conservative" values like hard work, personal and mutual responsibility, sacrifice and discipline, even as they (typically) warn he may not really believe in them. Some progressives continue to be alarmed by his post-partisan talk, and even more (notably both Marie Coco and Michael Crowley in separate pieces today) suggest it's a habit that will soon expire in the partisan exigencies of Washington. A few have divined somewhat less conventional ideological leanings in Obama; both Alan Wolfe and E.J. Dionne have noted the communitarian vein that runs deep through Obama's rhetoric.
My own take is based on my ten-plus-years of facilitating a leadership training program for elected officials called "Values-Based Messaging" under the auspices of the Democratic Leadership Council. Unlike some of the other elements of the DLC's agenda over the years, this training was never controversial, and has been very popular with a wide array of state and local Democrats from across the ideological spectrum, often as a party unity exercise in state legislative caucuses. To make a long story short, its central insight is that progressives in politics and government can and should build the largest possible audience for our more partisan policy goals and individual programs by embracing broadly-shared values that we often take for granted, but don't articulate, making us vulnerable to the kinds of conservative stereotypes that have been so effective in the past.
This larger audience may begin to shrink once bold policy goals and detailed programs are advanced. But it definitely helps, and just as importantly, roots progressive programs in values and goals the public understands, while subtly undermining the invidious belief that Democrats represent government, rather than bending government to the popular will. It's a simple way to occupy the political high ground and expose the narrow values base of the Right.
Whatever you think of this or that speech, Barack Obama is clearly a master of values-based messaging. And the inaugural address did not simply embrace broadly shared values beyond those usually emphasized by progressives; he went out of his way to argue that values often placed in opposition to each other are both reconcilable and essential (e.g., liberty and security, and public-sector activism and "free" markets). This may sound dangerously like Third Wayism to many progressives, but if reflects the fact that big majorities of the American people do in fact embrace such "contradictory" values, and do not want to see them vanquished or ignored.
This is probably why the public gave very positive ratings to the inaugural address and the accompanying events, even as most pundits panned it. And more generally, it is why Obama's speechifying--so often criticized as "vague" or "abstract" by the punditocracy-- resonates well with the public. There's a time for ten-point platforms in political communications, but it's essential to open the door to listeners by convincing them you live in the same "vague" and "abstract" moral universe that they inhabit.
Obama's inaugural address, like all his speeches, did move into the territory of big policy goals as well as values, and on this front, he has some enormous advantages. Recent events have made reviving the economy an overriding policy goal for virtually all Americans, which is why Obama's "ideas" for a stimulus package are gaining such strong popular support even as the details remain hazy to most people. But the inevitable drop-off of public support for those details will likely be smaller than would otherwise be the case thanks to Obama's determination to set the table so carefully with communications about values and big goals.
Moreover, Obama's second-order policy goals--such as achieving universal health coverage and radically changing the energy system--are very popular with the public across party lines, and the fact that many, and probably a majority, of Republican politicians and conservative gabbers don't support those goals creates a tremendous partisan opportunity for Obama and Democrats moving forward. Indeed, the past Democratic tendency to talk about, say, health care, in terms of specific proposals like a Patient's Bill of Rights and a prescription drug benefit has long enabled Republicans to blur partisan differences and disguise their own reactionary radicalism on health care.
Even the big policy goal that Obama occasionally mentions to the consternation of many progressives--"entitlement reform"--has, at the abstract level--a lot of public support. And the common assumption that Obama is playing on conservative turf by mentioning the subject probably sells him short, and reflects the age-old Democratic habit of conceding whole areas of public policy to the opposition. If, say, he can make Social Security more progressive, while folding Medicare into a universal health system, he will have taken away a common conservtive talking point without conceding anything.
This is why I've argued that Obama's meta-political strategy, and the underpinning of his rhetoric about partisanship, represents "grassroots bipartisanship"--an effort to build public support for a progressive agenda beyond the current ranks of the Democratic rank-and-file, crafted as a thoroughgoing reform of Washington, not simply as a expulsion of the hated GOP. You can call it "pragmatism" or "centrism" or "post-partisanship" if you like, but it mainly represents a sensible approach to the preeminently appropriate task of tearing down the old partisan paradigm and rebuilding a new one that can command an enduring majority in support of a progressive agenda. It should at least be given a fighting chance.
Thursday, January 22, 2009
Conservative views: A new report on Bush administration hiring practices at Justice
Revenge of the Liberal Bureaucrats, by Hans A. von Spakovsky
A new report on Bush administration hiring practices at Justice.
The Weekly Standard, Jan 23, 2009
JUSTICE DEPARTMENT INSPECTOR GENERAL Glenn Fine, himself a political appointee in the Clinton administration, has released his report on the supposed "illegal" political hiring at the Civil Rights Division of George W. Bush's Department of Justice. [Full disclosure: I served four years as a career lawyer in CRD during the Bush era -- apparently to little notice since the report barely mentions me in passing.] Fine issued the report just days before Attorney General nominee Eric Holder's confirmation hearing. That timing seemed aimed at providing maximum political benefit to Fine's fellow Democrats.
The political left, which never seems to tire of attacking the Bush Justice Department as corrupt, greeted the report with glee. But a dispassionate read can produce only sadness -- sadness that an official report can be so thickly laced with bias, inaccuracies, gross exaggerations, and deliberate misrepresentations of both facts and the law. It is also sad that the biases of those producing the report prevented them from highlighting the blatant examples of ideologically-driven hiring that occurred at Justice when Eric Holder was the Deputy Attorney General.
The report unintentionally demonstrates that what really upset Washington's Liberal Establishment was its temporary loss of power at the CRD. Activist special interests had exercised exclusive control over the Civil Rights Division for decades -- especially with respect to its hiring practices. When that rein was briefly interrupted by outsiders determined to enforce the laws as they are written, the old regime found the situation intolerable.
The Bias of the Report's Authors
The New York Times identifies Fine and Marshall Jarrett, the head of the Office of Professional Responsibility (OPR), which helped prepare the report, as "two veteran Justice Department watchdogs." Yet the OPR lawyer Jarrett assigned to conduct the investigation, Tamara Kessler, is a liberal former Civil Rights Division lawyer who actually worked alongside many of the leading critics identified in the report. Equally incredible, one of the Inspector General's lawyers assigned to probe the hiring practices of former Deputy Assistant Attorney General Brad Schlozman, was none other than Mark Masling, also a former Civil Rights Division attorney and self-proclaimed "proud Democrat." In other words, there was never even any pretense of neutrality, distance, or objectivity. One would think that two "veterans" like Fine and Jarrett would recognize the importance of avoiding personal bias and the basic conflict of interest in having liberal former CRD career lawyers investigating the hiring of CRD career lawyers. Yet both overlooked or deliberately ignored this obvious impropriety.
The bias exhibited by Fine and Jarrett should not surprise. Consider their history in investigating (or, more accurately, ignoring) misconduct by career Civil Rights Division attorneys. Every lawyer knows, for example, that one of the worst things you can do professionally is to reveal the confidences of your client and the legal advice you have provided. Yet when liberal career lawyers leaked internal, privileged memoranda to the media and the Congress on cases like the Texas congressional redistricting and the Georgia voter ID law, Fine and Jarrett exhibited no interest whatsoever in scrutinizing these offenses. (The leakers, of course, complained bitterly about ideological hiring, which is perfectly legal.) The same was true when a particularly strident liberal attorney in the Division -- while still employed there -- contacted the target of an investigation and offered to represent that jurisdiction following his departure! That is an absolute violation of the professional code of conduct. When "watchdogs" repeatedly reveal a history of applying what seems to be a politically oriented one-way ratchet, one cannot expect fairness in their report.
The Skewed Report
The report issued by Fine and Jarrett reads more like a work of fantasy than a sober investigation. For example, the report claims that Schlozman hired only two "Democrats or liberals" during his tenure in the Civil Rights Division. This is utter nonsense. As at least a few media outlets grudgingly acknowledged, Schlozman provided the Inspector General Special Agent on the case a list of more than 25 individuals that he, Schlozman, knew were ideologically liberal or committed Democrats and who he had hired into line attorney or supervisory positions during his tenure in the Division.
Yet Fine and Jarrett rebuffed Schlozman's request that they include this information in the report. Instead, they opted to libel him, apparently to stir up Democratic hostility and thereby pursue their transparently political ends. The Schlozman list squarely rebuts the report's allegation of a political litmus test in hiring. The fact that such critical information was omitted demonstrates emphatically that Fine and Jarrett knowingly and deliberately misrepresented the facts to bolster their false and pre-determined findings.
The report also faults Schlozman for hiring 63 lawyers who were "Republican or conservative." As a threshold matter, the unstated (but quite clear) implication of this point is that conservative attorneys are somehow less qualified than liberal attorneys to work in the Civil Rights Division. I have no doubt that many of the Department's employees genuinely believe this. Perhaps this is why the Division has such a well-deserved reputation as a refuge of the radical left and why a virtual "No Vacancy" sign has historically been posted for any conservative who dared seek employment there.
Of course, in a Division known for its zealous enforcement of racial preferences and general hostility to law enforcement, it is unlikely that many conservatives even wanted to work in the Division prior to the Bush administration. So the fact that a significant number of conservatives came on board only after 2000 shouldn't be a shock to anyone.
When I was hired as a career lawyer in 2001 (two years before Schlozman even arrived), I was greeted with unrelenting hostility by the career staff once they discovered that I had a conservative philosophy and had been active as a volunteer in the Republican party. I was one of just two conservatives in the entire Voting Section, which had more than 80 lawyers and support staff. It was made crystal clear to me that the attorneys and staff considered anyone with a conservative ideology to be unqualified to work as a career civil servant, and they were absolutely furious that, despite their usual screening efforts, I had been hired.
This attitude was prevalent throughout the entire Division of almost 750 people. I mention this because, even if the claim about the 63 lawyers is correct and even if all such individuals remained today (which they clearly do not), it would mean that about 8 percent of the employees in Civil Rights today are conservatives. Yet even that 8 percent gives liberals such angst that trumped up inquiries are necessary.
It is hardly a secret that, until Ralph Boyd, the first Bush Assistant Attorney General for Civil Rights, changed the hiring procedures in 2001, the liberal career managers (many of whom have complained the loudest) made sure that no conservative applicants for career positions were hired. Searching for a conservative in the Civil Rights Division prior to 2001 was like Diogenes searching for an honest man in ancient Greece. The Inspector General and Office of Professional Responsibility were provided evidence of this discrimination during their investigation, but they were not interested in examining the hiring practices of the pre-Bush era. The one-way political ratchet once again.
It's a shame that Fine and Jarrett refused to look at the past. Few may know, for example, that on December 12, 2000, when Eric Holder was the Acting Attorney General and the Supreme Court issued its decision in Bush v. Gore, the Clinton political appointees realized that Democrats would lose control of the Justice Department. At that time, there were more than two dozen open career lawyer positions in the Civil Rights Division. In a federal government that usually takes months to fill career positions, the Clinton appointees (spearheaded by Acting Assistant Attorney General Bill Yeomans, now chief counsel to Sen. Ted Kennedy) filled all of those positions before Inauguration Day!
Every one of those hires was a liberal or a Democrat and, based on Yeomans emails, was sure to be "loyal." Based on what I saw when I arrived in the Division, this same hiring pattern had clearly been practiced during all eight years of the Clinton administration. Indeed, I cannot identify a single conservative who had been hired during the Clinton years. Neither Fine nor Jarrett ever expressed any interest in investigating this blatant "political" hiring either.
Naturally, Fine and Jarrett relied heavily on these same liberal partisans/career attorneys in preparing their deceptive report. It's not like these "witnesses" are beyond reproach. In fact, one of the primary attorneys cited in the report is a defendant in a federal discrimination lawsuit. Her reputation for verbally abusing her staff is legendary (or infamous) in the Division and her exploits have been chronicled on the blog, "Above the Law." One of the Appellate Section attorneys who figured prominently in the report -- a Clinton political appointee who burrowed into the career civil service and then claimed she was victimized by the Bush political appointees -- was promoted to a policymaking counsel position in the Division's new front office on the very first day of the Obama Administration. This is a slot normally reserved for political appointees. You just can't make this stuff up.
Admittedly there were some insensitive comments in some of the emails cited in the report and some inappropriate humor, too. But the report blows them out of proportion. Schlozman was too brash at times and could have chosen his words more wisely. But it is obvious to anyone who knows him -- and it should be transparent to rational individuals who do not know him -- that Schlozman was simply engaging in the type of e-mail humor and rhetorical banter that many in Washington (and much of the country for that matter) participate on a daily basis. The poor jokes don't establish that hiring improprieties occurred, and seem to be offered more to poison the well.
Flawed Legal Analysis
The report is also simply wrong in its legal analysis. It wrongly conflates political affiliation with ideology. It mistakenly claims that hiring on the basis of "ideology" is illegal under the Civil Service Reform Act (CSRA). There is absolutely no case law to support such an interpretation, nor would it make sense for there to be.
What is illegal under the CSRA is hiring on the basis of "political affiliation," which is not at all the same as ideology. In fact, the single appellate opinion cited in the report emphasizes that only political affiliation is an illegal consideration. Of the more than 200,000 emails the report claims were reviewed, investigators reference not a single one that showed that any individual was hired or fired for a career attorney position because of his or her political affiliation as a Republican or a Democrat. The only emails highlighted in the report are emails in which comments were made regarding individuals' ideologically liberal or conservative views of the law.
This is not to say that all ideologies are acceptable. The Inspector General or Office of Professional Responsibility would certainly not find any wrongdoing if the Civil Rights Division refused to hire an otherwise qualified lawyer who was an avowed racist (or who refused to follow the Brown v. Board of Education decision). It would be eminently appropriate to discriminate against such an individual -- based on his ideology -- because he could not be trusted to properly enforce the panoply of anti-discrimination statutes falling with the Division's bailiwick. Such consideration is not only legal, but it is often quite necessary in a Division where the opportunity to abuse the federal government's enforcement authority is so significant and where the historical evidence of such abuse is so acute.
Political ideology can also have significant consequences in litigation policy. When liberal career lawyers had free rein during the Clinton administration, the Division was penalized over $4.1 million in costs and attorneys' fees for pursuing frivolous, vexatious, and unwarranted litigation. That's $4.1 million of your taxpayer dollars. This figure is not the least bit surprising based on my experience. I found that many of the career lawyers in the Civil Rights Division gave grossly flawed legal positions in which they sought to expand the statutes within the Division's jurisdiction far beyond their lawful reach. Too many of these attorneys allowed their political views to permeate their legal judgment and to override their professionalism. The conduct of some may have been unintentional, but others were simply partisan advocates masquerading as career civil servants.
I shook my head in agreement -- as did many others I know -- when I read an email cited in the report where Schlozman lamented about certain Criminal Section prosecutors who were "big libs [who] would enforce certain of our statutes only with great reluctance." Schlozman was almost certainly referring to the fact that the Division had problems with career lawyers in its Criminal Section who resented the Division's dedication of substantial resources towards human trafficking cases over police misconduct cases, or who refused to pursue death penalty cases based on their personal opposition to capital punishment. The bottom line is this: lawyers are tasked with zealously representing their clients and pursuing cases -- within the limits of the law -- whether or not the lawyers like their clients or agree with their positions.
Too many of the liberal career staff simply refused to follow those precepts. When the Voting Section commenced its first case against black officials in Noxubee, Mississippi, for discriminating against white voters, some liberal career lawyers weren't just reluctant to work on the case, they refused to work -- despite evidence of blatant and intentional discrimination. In fact, the career section chief sought to suppress the lawsuit recommendation and would have been successful but for a diligent line attorney who advised the front office of the chief's duplicity. The Section won its discrimination case, but the line attorney was ostracized by other career lawyers.
During my time in the Division I saw more than one memorandum where liberal lawyers would leave out key facts, misrepresent applicable case law, and otherwise manipulate their legal opinions to match their political views -- all because they did not agree with the Division's priorities. For example, they did not believe in enforcing a section of the National Voter Registration Act that requires election officials to regularly clean up or "purge" their voter rolls of ineligible voters who have died or moved away. Six liberal career lawyers were so upset when the first NVRA enforcement case was filed, they tried to use my involvement in that litigation to block my nomination to the FEC. They just could not tolerate that we had dared to override their refusal to enforce this federal legal requirement.
It was those kinds of attitudes and those kinds of actions that no doubt led Brad Schlozman to seek to hire individuals who, regardless of their own personal politics, would actually enforce the law according to the policy determined by the administration. Why would he want left-wing ideologues who would try to stop or sabotage such enforcement efforts?
The painfully partisan IG report gives the liberal career lawyers who overwhelmingly populate the Civil Rights Division their revenge against the Bush administration. Now they can go back to running things the way they always have -- at the beck and call of the Democratic party and radical left-wing civil rights organizations.
And for all of the Inspector General's railings against so-called "political hiring," don't bother applying to the Civil Rights Division if you have anything in your background that indicates you are a conservative. You haven't got a chance of being hired by these guys.
Hans A. von Spakovsky is a visiting legal scholar at the Heritage Foundation and a former commissioner on the Federal Election Commission. He was also a career Counsel to the Assistant Attorney General for Civil Rights at the Department of Justice where he worked for all three of the assistant attorney generals who served in the Bush administration.
A new report on Bush administration hiring practices at Justice.
The Weekly Standard, Jan 23, 2009
JUSTICE DEPARTMENT INSPECTOR GENERAL Glenn Fine, himself a political appointee in the Clinton administration, has released his report on the supposed "illegal" political hiring at the Civil Rights Division of George W. Bush's Department of Justice. [Full disclosure: I served four years as a career lawyer in CRD during the Bush era -- apparently to little notice since the report barely mentions me in passing.] Fine issued the report just days before Attorney General nominee Eric Holder's confirmation hearing. That timing seemed aimed at providing maximum political benefit to Fine's fellow Democrats.
The political left, which never seems to tire of attacking the Bush Justice Department as corrupt, greeted the report with glee. But a dispassionate read can produce only sadness -- sadness that an official report can be so thickly laced with bias, inaccuracies, gross exaggerations, and deliberate misrepresentations of both facts and the law. It is also sad that the biases of those producing the report prevented them from highlighting the blatant examples of ideologically-driven hiring that occurred at Justice when Eric Holder was the Deputy Attorney General.
The report unintentionally demonstrates that what really upset Washington's Liberal Establishment was its temporary loss of power at the CRD. Activist special interests had exercised exclusive control over the Civil Rights Division for decades -- especially with respect to its hiring practices. When that rein was briefly interrupted by outsiders determined to enforce the laws as they are written, the old regime found the situation intolerable.
The Bias of the Report's Authors
The New York Times identifies Fine and Marshall Jarrett, the head of the Office of Professional Responsibility (OPR), which helped prepare the report, as "two veteran Justice Department watchdogs." Yet the OPR lawyer Jarrett assigned to conduct the investigation, Tamara Kessler, is a liberal former Civil Rights Division lawyer who actually worked alongside many of the leading critics identified in the report. Equally incredible, one of the Inspector General's lawyers assigned to probe the hiring practices of former Deputy Assistant Attorney General Brad Schlozman, was none other than Mark Masling, also a former Civil Rights Division attorney and self-proclaimed "proud Democrat." In other words, there was never even any pretense of neutrality, distance, or objectivity. One would think that two "veterans" like Fine and Jarrett would recognize the importance of avoiding personal bias and the basic conflict of interest in having liberal former CRD career lawyers investigating the hiring of CRD career lawyers. Yet both overlooked or deliberately ignored this obvious impropriety.
The bias exhibited by Fine and Jarrett should not surprise. Consider their history in investigating (or, more accurately, ignoring) misconduct by career Civil Rights Division attorneys. Every lawyer knows, for example, that one of the worst things you can do professionally is to reveal the confidences of your client and the legal advice you have provided. Yet when liberal career lawyers leaked internal, privileged memoranda to the media and the Congress on cases like the Texas congressional redistricting and the Georgia voter ID law, Fine and Jarrett exhibited no interest whatsoever in scrutinizing these offenses. (The leakers, of course, complained bitterly about ideological hiring, which is perfectly legal.) The same was true when a particularly strident liberal attorney in the Division -- while still employed there -- contacted the target of an investigation and offered to represent that jurisdiction following his departure! That is an absolute violation of the professional code of conduct. When "watchdogs" repeatedly reveal a history of applying what seems to be a politically oriented one-way ratchet, one cannot expect fairness in their report.
The Skewed Report
The report issued by Fine and Jarrett reads more like a work of fantasy than a sober investigation. For example, the report claims that Schlozman hired only two "Democrats or liberals" during his tenure in the Civil Rights Division. This is utter nonsense. As at least a few media outlets grudgingly acknowledged, Schlozman provided the Inspector General Special Agent on the case a list of more than 25 individuals that he, Schlozman, knew were ideologically liberal or committed Democrats and who he had hired into line attorney or supervisory positions during his tenure in the Division.
Yet Fine and Jarrett rebuffed Schlozman's request that they include this information in the report. Instead, they opted to libel him, apparently to stir up Democratic hostility and thereby pursue their transparently political ends. The Schlozman list squarely rebuts the report's allegation of a political litmus test in hiring. The fact that such critical information was omitted demonstrates emphatically that Fine and Jarrett knowingly and deliberately misrepresented the facts to bolster their false and pre-determined findings.
The report also faults Schlozman for hiring 63 lawyers who were "Republican or conservative." As a threshold matter, the unstated (but quite clear) implication of this point is that conservative attorneys are somehow less qualified than liberal attorneys to work in the Civil Rights Division. I have no doubt that many of the Department's employees genuinely believe this. Perhaps this is why the Division has such a well-deserved reputation as a refuge of the radical left and why a virtual "No Vacancy" sign has historically been posted for any conservative who dared seek employment there.
Of course, in a Division known for its zealous enforcement of racial preferences and general hostility to law enforcement, it is unlikely that many conservatives even wanted to work in the Division prior to the Bush administration. So the fact that a significant number of conservatives came on board only after 2000 shouldn't be a shock to anyone.
When I was hired as a career lawyer in 2001 (two years before Schlozman even arrived), I was greeted with unrelenting hostility by the career staff once they discovered that I had a conservative philosophy and had been active as a volunteer in the Republican party. I was one of just two conservatives in the entire Voting Section, which had more than 80 lawyers and support staff. It was made crystal clear to me that the attorneys and staff considered anyone with a conservative ideology to be unqualified to work as a career civil servant, and they were absolutely furious that, despite their usual screening efforts, I had been hired.
This attitude was prevalent throughout the entire Division of almost 750 people. I mention this because, even if the claim about the 63 lawyers is correct and even if all such individuals remained today (which they clearly do not), it would mean that about 8 percent of the employees in Civil Rights today are conservatives. Yet even that 8 percent gives liberals such angst that trumped up inquiries are necessary.
It is hardly a secret that, until Ralph Boyd, the first Bush Assistant Attorney General for Civil Rights, changed the hiring procedures in 2001, the liberal career managers (many of whom have complained the loudest) made sure that no conservative applicants for career positions were hired. Searching for a conservative in the Civil Rights Division prior to 2001 was like Diogenes searching for an honest man in ancient Greece. The Inspector General and Office of Professional Responsibility were provided evidence of this discrimination during their investigation, but they were not interested in examining the hiring practices of the pre-Bush era. The one-way political ratchet once again.
It's a shame that Fine and Jarrett refused to look at the past. Few may know, for example, that on December 12, 2000, when Eric Holder was the Acting Attorney General and the Supreme Court issued its decision in Bush v. Gore, the Clinton political appointees realized that Democrats would lose control of the Justice Department. At that time, there were more than two dozen open career lawyer positions in the Civil Rights Division. In a federal government that usually takes months to fill career positions, the Clinton appointees (spearheaded by Acting Assistant Attorney General Bill Yeomans, now chief counsel to Sen. Ted Kennedy) filled all of those positions before Inauguration Day!
Every one of those hires was a liberal or a Democrat and, based on Yeomans emails, was sure to be "loyal." Based on what I saw when I arrived in the Division, this same hiring pattern had clearly been practiced during all eight years of the Clinton administration. Indeed, I cannot identify a single conservative who had been hired during the Clinton years. Neither Fine nor Jarrett ever expressed any interest in investigating this blatant "political" hiring either.
Naturally, Fine and Jarrett relied heavily on these same liberal partisans/career attorneys in preparing their deceptive report. It's not like these "witnesses" are beyond reproach. In fact, one of the primary attorneys cited in the report is a defendant in a federal discrimination lawsuit. Her reputation for verbally abusing her staff is legendary (or infamous) in the Division and her exploits have been chronicled on the blog, "Above the Law." One of the Appellate Section attorneys who figured prominently in the report -- a Clinton political appointee who burrowed into the career civil service and then claimed she was victimized by the Bush political appointees -- was promoted to a policymaking counsel position in the Division's new front office on the very first day of the Obama Administration. This is a slot normally reserved for political appointees. You just can't make this stuff up.
Admittedly there were some insensitive comments in some of the emails cited in the report and some inappropriate humor, too. But the report blows them out of proportion. Schlozman was too brash at times and could have chosen his words more wisely. But it is obvious to anyone who knows him -- and it should be transparent to rational individuals who do not know him -- that Schlozman was simply engaging in the type of e-mail humor and rhetorical banter that many in Washington (and much of the country for that matter) participate on a daily basis. The poor jokes don't establish that hiring improprieties occurred, and seem to be offered more to poison the well.
Flawed Legal Analysis
The report is also simply wrong in its legal analysis. It wrongly conflates political affiliation with ideology. It mistakenly claims that hiring on the basis of "ideology" is illegal under the Civil Service Reform Act (CSRA). There is absolutely no case law to support such an interpretation, nor would it make sense for there to be.
What is illegal under the CSRA is hiring on the basis of "political affiliation," which is not at all the same as ideology. In fact, the single appellate opinion cited in the report emphasizes that only political affiliation is an illegal consideration. Of the more than 200,000 emails the report claims were reviewed, investigators reference not a single one that showed that any individual was hired or fired for a career attorney position because of his or her political affiliation as a Republican or a Democrat. The only emails highlighted in the report are emails in which comments were made regarding individuals' ideologically liberal or conservative views of the law.
This is not to say that all ideologies are acceptable. The Inspector General or Office of Professional Responsibility would certainly not find any wrongdoing if the Civil Rights Division refused to hire an otherwise qualified lawyer who was an avowed racist (or who refused to follow the Brown v. Board of Education decision). It would be eminently appropriate to discriminate against such an individual -- based on his ideology -- because he could not be trusted to properly enforce the panoply of anti-discrimination statutes falling with the Division's bailiwick. Such consideration is not only legal, but it is often quite necessary in a Division where the opportunity to abuse the federal government's enforcement authority is so significant and where the historical evidence of such abuse is so acute.
Political ideology can also have significant consequences in litigation policy. When liberal career lawyers had free rein during the Clinton administration, the Division was penalized over $4.1 million in costs and attorneys' fees for pursuing frivolous, vexatious, and unwarranted litigation. That's $4.1 million of your taxpayer dollars. This figure is not the least bit surprising based on my experience. I found that many of the career lawyers in the Civil Rights Division gave grossly flawed legal positions in which they sought to expand the statutes within the Division's jurisdiction far beyond their lawful reach. Too many of these attorneys allowed their political views to permeate their legal judgment and to override their professionalism. The conduct of some may have been unintentional, but others were simply partisan advocates masquerading as career civil servants.
I shook my head in agreement -- as did many others I know -- when I read an email cited in the report where Schlozman lamented about certain Criminal Section prosecutors who were "big libs [who] would enforce certain of our statutes only with great reluctance." Schlozman was almost certainly referring to the fact that the Division had problems with career lawyers in its Criminal Section who resented the Division's dedication of substantial resources towards human trafficking cases over police misconduct cases, or who refused to pursue death penalty cases based on their personal opposition to capital punishment. The bottom line is this: lawyers are tasked with zealously representing their clients and pursuing cases -- within the limits of the law -- whether or not the lawyers like their clients or agree with their positions.
Too many of the liberal career staff simply refused to follow those precepts. When the Voting Section commenced its first case against black officials in Noxubee, Mississippi, for discriminating against white voters, some liberal career lawyers weren't just reluctant to work on the case, they refused to work -- despite evidence of blatant and intentional discrimination. In fact, the career section chief sought to suppress the lawsuit recommendation and would have been successful but for a diligent line attorney who advised the front office of the chief's duplicity. The Section won its discrimination case, but the line attorney was ostracized by other career lawyers.
During my time in the Division I saw more than one memorandum where liberal lawyers would leave out key facts, misrepresent applicable case law, and otherwise manipulate their legal opinions to match their political views -- all because they did not agree with the Division's priorities. For example, they did not believe in enforcing a section of the National Voter Registration Act that requires election officials to regularly clean up or "purge" their voter rolls of ineligible voters who have died or moved away. Six liberal career lawyers were so upset when the first NVRA enforcement case was filed, they tried to use my involvement in that litigation to block my nomination to the FEC. They just could not tolerate that we had dared to override their refusal to enforce this federal legal requirement.
It was those kinds of attitudes and those kinds of actions that no doubt led Brad Schlozman to seek to hire individuals who, regardless of their own personal politics, would actually enforce the law according to the policy determined by the administration. Why would he want left-wing ideologues who would try to stop or sabotage such enforcement efforts?
The painfully partisan IG report gives the liberal career lawyers who overwhelmingly populate the Civil Rights Division their revenge against the Bush administration. Now they can go back to running things the way they always have -- at the beck and call of the Democratic party and radical left-wing civil rights organizations.
And for all of the Inspector General's railings against so-called "political hiring," don't bother applying to the Civil Rights Division if you have anything in your background that indicates you are a conservative. You haven't got a chance of being hired by these guys.
Hans A. von Spakovsky is a visiting legal scholar at the Heritage Foundation and a former commissioner on the Federal Election Commission. He was also a career Counsel to the Assistant Attorney General for Civil Rights at the Department of Justice where he worked for all three of the assistant attorney generals who served in the Bush administration.
Obama's Army of Lobbyists: A new twist on the permanent campaign
Obama's Army of Lobbyists, by Gary Andres
A new twist on the permanent campaign.
The Weekly Standard, Jan 22, 2009 @12:00:00 AM
President Barack Obama's presidential campaign set new standards for success in fundraising, voter mobilization, and Internet political savvy.
But this, of course, is old news.
What's less known is that he is creating one of the largest, most sophisticated lobbying organizations in history -- a new tool to help promote his agenda.
Most believe the transition from campaigning to governing ended on the West Front of the Capitol this week when the new president took the oath of office. Yet President Obama and his electoral architect, David Plouffe, expect to continue and build upon their mobilization efforts. The Bully Pulpit is about to get more crowded, as millions of grassroots voices join together to aid the new president by lobbying lawmakers.
In the months ahead, Obama's followers plan an unprecedented continuation of his electoral machine -- giving new meaning to the term "permanent campaign." Instead of moving his political apparatus into traditional structures, such as the Democratic National Committee or a White House Office of Political Affairs, Mr. Obama will transition many trusted operatives into a new organization hard to differentiate from the old presidential campaign.
Why ruin a good thing?
Last week Mr. Obama announced the formation of "Organizing for America" (insiders call it "Barack Obama 2.0") -- a way to harness the grassroots energy created by his candidacy and use that energy to support his legislative agenda. Plouffe recently told the Washington Post that the organization is something entirely new. And while not a "political campaign" in the traditional sense, they begin with 13 million email addresses, 4 million contributors, and 2 million active volunteers. Other published reports suggest the new entity could have an annual budget of $75 million or more. Not too shabby. Peter Wallsten wrote in the Los Angeles Times last week that it is " widely considered the country's most potent political machine."
Republican activists agree. "It's very impressive and very smart," a long-time Republican National Committee member told me. "It keeps your core constituency energized and informed; it helps with a governing agenda; and it creates a framework for the reelection campaign."
The idea of mobilizing public support for a presidential agenda is not new. Presidential scholar George Edwards writes in his book On Deaf Ears - The Limits of the Bully Pulpit that in 1976 pollster Pat Caddell wrote a memo to President-elect Carter arguing, " governing with public approval requires a continuing political campaign." Edwards also details how President Eisenhower's congressional liaison, Bryce Harlow, argued that opposing the president (due to his broad support) was unpopular and thus caused congressional opposition to melt.
But Barack Obama 2.0 is unprecedented in size and technological sophistication, and it differs structurally from anything tried before. "Normally both parties would use their national committees (DNC or RNC) to engage and mobilize activists to support the president's agenda after an election" the RNC member told me. Organizing it around a person, as opposed to a party, provides new flexibility. It burnishes Obama's post-partisan narrative and unshackles him from any negatives associated with the Democratic party brand among less partisan voters, independents and even Republicans.
Yet the strategy is not without risk. Wallsten also wrote, "The plan could prompt tensions with members of Congress, who are unlikely to welcome the idea of Obama's political network targeting them from within their own districts. Already, Democratic Party officials on the state level worry that it could become a competing political force that revolves around the president's ambitions while diminishing the needs of down-ballot Democrats."
Online media strategist Jon Henke believes the approach might also exacerbate the problems we already see with the "permanent campaign" mentality in American government. Henke told me this: "It is one thing for a politician to claim they are 'empowering' people. It is quite another to actually share policy-making power with them. If Obama genuinely modifies his policies based on their feedback, then he risks being captured by the most vocal, energetic fringe. If he does not genuinely listen and adjust, then he risks alienating the people who thought they'd been empowered."
President Obama faces institutional governing conditions ripe for success. Large majorities in the House and Senate and a solid electoral mandate all point in this direction. But public support for Obama is another key ingredient. And if past is prologue, permanent popularity is not guaranteed. Edwards quotes Lyndon Johnson as saying, "I keep hitting hard because I know this honeymoon won't last. Every day I lose a little more political capital."
But the new president's vision to build and sustain electoral capital earned last November includes a sardonic twist. Obama won in part by promising to end the power of lobbyists in Washington. So it's a little ironic that a candidate who prevailed by decrying the evils of the advocacy world hopes to bolster his presidency by deploying an army of his own lobbyists. And the president may quickly learn another Washington lesson: His legislative success may depend more on quiet negotiation, compromise, and building trust with Congress than mobilizing millions of noisy activists that try to arm-twist renegade lawmakers.
Gary Andres is vice chairman of research at Dutko Worldwide in Washington D.C. and is a regular contributor to THE WEEKLY STANDARD Online.
A new twist on the permanent campaign.
The Weekly Standard, Jan 22, 2009 @12:00:00 AM
President Barack Obama's presidential campaign set new standards for success in fundraising, voter mobilization, and Internet political savvy.
But this, of course, is old news.
What's less known is that he is creating one of the largest, most sophisticated lobbying organizations in history -- a new tool to help promote his agenda.
Most believe the transition from campaigning to governing ended on the West Front of the Capitol this week when the new president took the oath of office. Yet President Obama and his electoral architect, David Plouffe, expect to continue and build upon their mobilization efforts. The Bully Pulpit is about to get more crowded, as millions of grassroots voices join together to aid the new president by lobbying lawmakers.
In the months ahead, Obama's followers plan an unprecedented continuation of his electoral machine -- giving new meaning to the term "permanent campaign." Instead of moving his political apparatus into traditional structures, such as the Democratic National Committee or a White House Office of Political Affairs, Mr. Obama will transition many trusted operatives into a new organization hard to differentiate from the old presidential campaign.
Why ruin a good thing?
Last week Mr. Obama announced the formation of "Organizing for America" (insiders call it "Barack Obama 2.0") -- a way to harness the grassroots energy created by his candidacy and use that energy to support his legislative agenda. Plouffe recently told the Washington Post that the organization is something entirely new. And while not a "political campaign" in the traditional sense, they begin with 13 million email addresses, 4 million contributors, and 2 million active volunteers. Other published reports suggest the new entity could have an annual budget of $75 million or more. Not too shabby. Peter Wallsten wrote in the Los Angeles Times last week that it is " widely considered the country's most potent political machine."
Republican activists agree. "It's very impressive and very smart," a long-time Republican National Committee member told me. "It keeps your core constituency energized and informed; it helps with a governing agenda; and it creates a framework for the reelection campaign."
The idea of mobilizing public support for a presidential agenda is not new. Presidential scholar George Edwards writes in his book On Deaf Ears - The Limits of the Bully Pulpit that in 1976 pollster Pat Caddell wrote a memo to President-elect Carter arguing, " governing with public approval requires a continuing political campaign." Edwards also details how President Eisenhower's congressional liaison, Bryce Harlow, argued that opposing the president (due to his broad support) was unpopular and thus caused congressional opposition to melt.
But Barack Obama 2.0 is unprecedented in size and technological sophistication, and it differs structurally from anything tried before. "Normally both parties would use their national committees (DNC or RNC) to engage and mobilize activists to support the president's agenda after an election" the RNC member told me. Organizing it around a person, as opposed to a party, provides new flexibility. It burnishes Obama's post-partisan narrative and unshackles him from any negatives associated with the Democratic party brand among less partisan voters, independents and even Republicans.
Yet the strategy is not without risk. Wallsten also wrote, "The plan could prompt tensions with members of Congress, who are unlikely to welcome the idea of Obama's political network targeting them from within their own districts. Already, Democratic Party officials on the state level worry that it could become a competing political force that revolves around the president's ambitions while diminishing the needs of down-ballot Democrats."
Online media strategist Jon Henke believes the approach might also exacerbate the problems we already see with the "permanent campaign" mentality in American government. Henke told me this: "It is one thing for a politician to claim they are 'empowering' people. It is quite another to actually share policy-making power with them. If Obama genuinely modifies his policies based on their feedback, then he risks being captured by the most vocal, energetic fringe. If he does not genuinely listen and adjust, then he risks alienating the people who thought they'd been empowered."
President Obama faces institutional governing conditions ripe for success. Large majorities in the House and Senate and a solid electoral mandate all point in this direction. But public support for Obama is another key ingredient. And if past is prologue, permanent popularity is not guaranteed. Edwards quotes Lyndon Johnson as saying, "I keep hitting hard because I know this honeymoon won't last. Every day I lose a little more political capital."
But the new president's vision to build and sustain electoral capital earned last November includes a sardonic twist. Obama won in part by promising to end the power of lobbyists in Washington. So it's a little ironic that a candidate who prevailed by decrying the evils of the advocacy world hopes to bolster his presidency by deploying an army of his own lobbyists. And the president may quickly learn another Washington lesson: His legislative success may depend more on quiet negotiation, compromise, and building trust with Congress than mobilizing millions of noisy activists that try to arm-twist renegade lawmakers.
Gary Andres is vice chairman of research at Dutko Worldwide in Washington D.C. and is a regular contributor to THE WEEKLY STANDARD Online.
Consistent With Chronicles, Antarctic Edition
Consistent With Chronicles, Antarctic Edition. By Roger Pielke, Jr
Prometheus, January 21st, 2009
Excerpts:
An new paper is out in Nature that argues that the Antarctic continent has been warming. In an AP news story, two of its authors (one is Michael Mann from the Real Climate blog) argue that this refutes the skeptics and is “consistent with” greenhouse warming:
“Contrarians have sometime grabbed on to this idea that the entire continent of Antarctica is cooling, so how could we be talking about global warming,” said study co-author Michael Mann, director of the Earth System Science Center at Penn State University. “Now we can say: no, it’s not true … It is not bucking the trend.”
The study does not point to man-made climate change as the cause of the Antarctic warming — doing so is a highly intricate scientific process — but a different and smaller study out late last year did make that connection.
“We can’t pin it down, but it certainly is consistent with the influence of greenhouse gases,” said NASA scientist Drew Shindell, another study co-author. Some of the effects also could be natural variability, he said.
Of course, not long ago we learned from Real Climate that a cooling Antarctica was “consistent with” greenhouse warming and thus the skeptics were wrong:
. . . we often hear people remarking that parts of Antarctica are getting colder, and indeed the ice pack in the Southern Ocean around Antarctica has actually been getting bigger. Doesn’t this contradict the calculations that greenhouse gases are warming the globe? Not at all, because a cold Antarctica is just what calculations predict… and have predicted for the past quarter century. . .
. . . computer models have improved by orders of magnitude, but they continue to show that Antarctica cannot be expected to warm up very significantly until long after the rest of the world’s climate is radically changed.
Bottom line: A cold Antarctica and Southern Ocean do not contradict our models of global warming. For a long time the models have predicted just that.
So a warming Antarctica and a cooling Antarctica are both “consistent with” model projections of global warming. [...]
Prometheus, January 21st, 2009
Excerpts:
An new paper is out in Nature that argues that the Antarctic continent has been warming. In an AP news story, two of its authors (one is Michael Mann from the Real Climate blog) argue that this refutes the skeptics and is “consistent with” greenhouse warming:
“Contrarians have sometime grabbed on to this idea that the entire continent of Antarctica is cooling, so how could we be talking about global warming,” said study co-author Michael Mann, director of the Earth System Science Center at Penn State University. “Now we can say: no, it’s not true … It is not bucking the trend.”
The study does not point to man-made climate change as the cause of the Antarctic warming — doing so is a highly intricate scientific process — but a different and smaller study out late last year did make that connection.
“We can’t pin it down, but it certainly is consistent with the influence of greenhouse gases,” said NASA scientist Drew Shindell, another study co-author. Some of the effects also could be natural variability, he said.
Of course, not long ago we learned from Real Climate that a cooling Antarctica was “consistent with” greenhouse warming and thus the skeptics were wrong:
. . . we often hear people remarking that parts of Antarctica are getting colder, and indeed the ice pack in the Southern Ocean around Antarctica has actually been getting bigger. Doesn’t this contradict the calculations that greenhouse gases are warming the globe? Not at all, because a cold Antarctica is just what calculations predict… and have predicted for the past quarter century. . .
. . . computer models have improved by orders of magnitude, but they continue to show that Antarctica cannot be expected to warm up very significantly until long after the rest of the world’s climate is radically changed.
Bottom line: A cold Antarctica and Southern Ocean do not contradict our models of global warming. For a long time the models have predicted just that.
So a warming Antarctica and a cooling Antarctica are both “consistent with” model projections of global warming. [...]
Media reactions the day after inauguration
Media reactions the day after inauguration:
1 Kids Around the World on ABC: Obama Means 'Peace' & 'Yes We Can!'
ABC's World News on Wednesday night used limited news time to feature a silly piece with soundbites from naive kids around the world sputtering beauty pageant-like simplicities about how President Barack Obama will bring "world peace" and inspires them to say "yes, we can!" Reporter Jim Sciutto touted how "we heard children around the world expressing hope and fascination with the new American President." Viewers heard a boy in Russia yearn for "peace, democracy and friendship" and a girl in the United Arab Emirates assert "he's interested in giving peace to the world and stopping wars," all before a boy from Indonesia promised: "He's going to change the world and make world peace." From Gaza, a kid hoped Obama will "prevent Israel from attacking us." From Pakistan, Sciutto relayed, "hope for an American President with a Muslim father." A boy then wished "he can make the citizens of the U.S. recognize that we, not all Muslims are terrorists and not all terrorists are Muslims." And what story on foreign reaction would be complete without input from France? A French girl: "I think that he may stop the war in Iraq. At least I hope he will."
2 ABC's GMA Touts Kids to Obama: Stop the Wars! Save the Earth!
Good Morning America on Wednesday featured video messages from young children to Barack Obama. GMA news anchor Chris Cuomo asserted that the kids, ranging in age from seven to 17, had "strong opinion[s]." Yet, every single one of these youths spouted the type of liberal propaganda usually reserved for people like Keith Olbermann and not one conservative voice was featured. One young boy sputtered: "Stop the wars. And because more people die. And it's just, they don't want to die. They just die. But they don't want to die." Another child, who couldn't have been older than seven, bizarrely informed: "All this time, I've been alive, I've been having white presidents. And I think now, it's, this is my chance to have a black president." One boy incorrectly wondered: "And how come people who earn millions of dollars pay less taxes than us middle-class people?" A regulation-minded girl pleaded: "I want you to make people stop littering because our Earth is dying." Of course, this pleased liberal weatherman Sam Champion, who sat next to Cuomo. After the segment, he approved: "You heard global warming and trees and recycling. That's great. That's great."
3 CBS's Harry Smith: Obama Inauguration a 'Sacred Event'
At the end of Wednesday's CBS Early Show, co-host Harry Smith reflected on Barack Obama's inauguration: "Politics, and patriotism, and the presidency. It is the place where the secular and the religious merge. And one of the sacraments of our national religion is the inauguration...So it was that as many as 2 million pilgrims made their way to Washington and the Mall to witness this most sacred event." Smith continued to use religious language throughout the report: "As the oath was recited, as the speech was delivered...emotions were laid bear. Tears were shed...An inauguration is a renewal of faith...A confirmation that the republic, and our belief in it, endures."
4 Lee Cowan: Obama Inaugural Like Being in a 'Political Cathedral'
On Monday's inauguration edition of the NBC Nightly News, well known Obama fan Lee Cowan made no effort to restrain his fawning over the new President, likening the experience of watching the Democrat's speech to being in a "political cathedral." After featuring clips of people viewing the address all over the country, Cowan cooed: "In the end, though, it really didn't matter where you were as long as you weren't alone." He added: "Just ordinary street corners like this one here in Chicago fell silent, almost becoming a political cathedral of sorts."
5 CNN's John Roberts Dubs Inaugural Crowds 'Barack-Sstock'
During a short segment on Wednesday's American Morning, CNN anchor John Roberts responded to the excited demeanor of the crowds attending President Barack Obama's inauguration by labeling the festivity "Barack-stock." Earlier in the segment, correspondent Carol Costello dubbed it "a gigantic love fest" after she stated there were no serious incidents or arrests involving the approximately 1.5 million people in attendance for the inauguration. The three-minute segment, which began 20 minutes into the 7 am Eastern hour of the CNN program, focused on the reactions of those in attendance on the National Mall for the swearing-in of President Obama. After giving her "gigantic love fest" label, Costello gave a gushing account about what it was like to be in the middle of the crowd there: "Suddenly, someone would just come up and hug you. It was just amazing. It was -- it was like you were standing in the middle of these strangers, and all of a sudden, you had a million friends around you. That's what it felt like yesterday."
6 George Stephanopoulos Recites Dem Talking Points on Economy
This Week host George Stephanopoulos appeared on Wednesday's Good Morning America to claim that the stock market's 330 point drop on Inauguration Day was not an indictment of Obama but indicated the need for a swift confirmation of Timothy Geithner as Treasury Secretary. Stephanopoulos, a former top Democratic aide, asserted: "The reason they want to get Geithner confirmed and in place so quickly, they want to have a complete overhaul of this financial rescue package within days." According to Stephanopoulos, Geithner, who faces questions for not paying $34,000 in taxes since 2001, has "run into a little bit of trouble" on the topic. GMA co-host Diane Sawyer prompted the ABC anchor to tout more Democratic spin when she asked, "But every president wants his first day to have a sentence, a headline. What is the sentence beneath the meetings [Obama is having on Wednesday]?" Stephanopoulos helpfully retorted, "Help is on the way, I think is the sentence."
7 Chris Matthews: 'Does Rush Limbaugh Hate This Country?'
On Wednesday's Hardball, Chris Matthews questioned Rush Limbaugh's patriotism, as the MSNBC host wondered how the radio talk show host could dare to oppose Barack Obama as he exclaimed to his viewers: "Does Rush Limbaugh hate this country?" Matthews jumped on a quote from Limbaugh saying of Obama: "I hope he fails," apparently not understanding the concept that Limbaugh opposes any and all who would promote liberal policies precisely because he believes they will be harmful to the country. Matthews slammed Limbaugh in the following tease before going to a commercial break: "Up next, does Rush Limbaugh hate this country? Wait till you hear what he said about the new president. He wants him to fail. What an amazing-, I've never heard anybody say they wanted a new president to fail. Usually you want the new president to succeed and then later on you argue the politics of what he or she does. But to want them to fail at the outset? What's that about?"
8 NBC's Roker Jabs Matthews and Olbermann for Obama Infatuation
During Tuesday's inauguration coverage on MSNBC, the Today show's Al Roker poked fun at co-anchors Chris Matthews and Keith Olbermann as the NBC weather man, on location at the inaugural parade site, appeared with the MSNBC duo and joked that Matthews "got that tingle down his leg" because Obama looks good without a shirt. Discussing the admiration that so many young people feel for Obama, Roker declared: "It doesn't hurt...that he's a good-looking guy!...This is a guy, this is a President who can take his shirt off, you know. I mean, if I take my shirt off, people are running and screaming. You know, that's, so I think it's just an exciting, exciting time. And I know that's why Chris got that tingle down his leg!" After Matthews tried to go along with Roker's jovial mood by quipping that "we tingle up the leg, okay? It is a big freakin' difference. And don't you forget about it, buddy," Olbermann set himself up to receive a jab as well, as he joked that "it's left to me to be the referee." Roker, presumably referring to Olbermann's penchant for delivering outlandish tirades on his Countdown show, shot back: "And what does that say, if Keith Olbermann is the referee, Keith Olbermann is the voice of reason?"
9 Wash Post Emphasizes Critics In Obit of 'Media Elite' Co-Author
Tuesday's Washington Post obituary for Linda Lichter, co-author of the groundbreaking 1986 book documenting the liberal tilt of the mainstream media, The Media Elite, pettily devoted more paragraphs to critics assailing Lichter's work than explaining what she and her husband documented and its lasting importance -- affirming the old saying, "Never pick a fight with people who buy ink by the barrel." Reporter Adam Bernstein: "The book became widely cited but was harshly criticized by media leaders."
1 Kids Around the World on ABC: Obama Means 'Peace' & 'Yes We Can!'
ABC's World News on Wednesday night used limited news time to feature a silly piece with soundbites from naive kids around the world sputtering beauty pageant-like simplicities about how President Barack Obama will bring "world peace" and inspires them to say "yes, we can!" Reporter Jim Sciutto touted how "we heard children around the world expressing hope and fascination with the new American President." Viewers heard a boy in Russia yearn for "peace, democracy and friendship" and a girl in the United Arab Emirates assert "he's interested in giving peace to the world and stopping wars," all before a boy from Indonesia promised: "He's going to change the world and make world peace." From Gaza, a kid hoped Obama will "prevent Israel from attacking us." From Pakistan, Sciutto relayed, "hope for an American President with a Muslim father." A boy then wished "he can make the citizens of the U.S. recognize that we, not all Muslims are terrorists and not all terrorists are Muslims." And what story on foreign reaction would be complete without input from France? A French girl: "I think that he may stop the war in Iraq. At least I hope he will."
2 ABC's GMA Touts Kids to Obama: Stop the Wars! Save the Earth!
Good Morning America on Wednesday featured video messages from young children to Barack Obama. GMA news anchor Chris Cuomo asserted that the kids, ranging in age from seven to 17, had "strong opinion[s]." Yet, every single one of these youths spouted the type of liberal propaganda usually reserved for people like Keith Olbermann and not one conservative voice was featured. One young boy sputtered: "Stop the wars. And because more people die. And it's just, they don't want to die. They just die. But they don't want to die." Another child, who couldn't have been older than seven, bizarrely informed: "All this time, I've been alive, I've been having white presidents. And I think now, it's, this is my chance to have a black president." One boy incorrectly wondered: "And how come people who earn millions of dollars pay less taxes than us middle-class people?" A regulation-minded girl pleaded: "I want you to make people stop littering because our Earth is dying." Of course, this pleased liberal weatherman Sam Champion, who sat next to Cuomo. After the segment, he approved: "You heard global warming and trees and recycling. That's great. That's great."
3 CBS's Harry Smith: Obama Inauguration a 'Sacred Event'
At the end of Wednesday's CBS Early Show, co-host Harry Smith reflected on Barack Obama's inauguration: "Politics, and patriotism, and the presidency. It is the place where the secular and the religious merge. And one of the sacraments of our national religion is the inauguration...So it was that as many as 2 million pilgrims made their way to Washington and the Mall to witness this most sacred event." Smith continued to use religious language throughout the report: "As the oath was recited, as the speech was delivered...emotions were laid bear. Tears were shed...An inauguration is a renewal of faith...A confirmation that the republic, and our belief in it, endures."
4 Lee Cowan: Obama Inaugural Like Being in a 'Political Cathedral'
On Monday's inauguration edition of the NBC Nightly News, well known Obama fan Lee Cowan made no effort to restrain his fawning over the new President, likening the experience of watching the Democrat's speech to being in a "political cathedral." After featuring clips of people viewing the address all over the country, Cowan cooed: "In the end, though, it really didn't matter where you were as long as you weren't alone." He added: "Just ordinary street corners like this one here in Chicago fell silent, almost becoming a political cathedral of sorts."
5 CNN's John Roberts Dubs Inaugural Crowds 'Barack-Sstock'
During a short segment on Wednesday's American Morning, CNN anchor John Roberts responded to the excited demeanor of the crowds attending President Barack Obama's inauguration by labeling the festivity "Barack-stock." Earlier in the segment, correspondent Carol Costello dubbed it "a gigantic love fest" after she stated there were no serious incidents or arrests involving the approximately 1.5 million people in attendance for the inauguration. The three-minute segment, which began 20 minutes into the 7 am Eastern hour of the CNN program, focused on the reactions of those in attendance on the National Mall for the swearing-in of President Obama. After giving her "gigantic love fest" label, Costello gave a gushing account about what it was like to be in the middle of the crowd there: "Suddenly, someone would just come up and hug you. It was just amazing. It was -- it was like you were standing in the middle of these strangers, and all of a sudden, you had a million friends around you. That's what it felt like yesterday."
6 George Stephanopoulos Recites Dem Talking Points on Economy
This Week host George Stephanopoulos appeared on Wednesday's Good Morning America to claim that the stock market's 330 point drop on Inauguration Day was not an indictment of Obama but indicated the need for a swift confirmation of Timothy Geithner as Treasury Secretary. Stephanopoulos, a former top Democratic aide, asserted: "The reason they want to get Geithner confirmed and in place so quickly, they want to have a complete overhaul of this financial rescue package within days." According to Stephanopoulos, Geithner, who faces questions for not paying $34,000 in taxes since 2001, has "run into a little bit of trouble" on the topic. GMA co-host Diane Sawyer prompted the ABC anchor to tout more Democratic spin when she asked, "But every president wants his first day to have a sentence, a headline. What is the sentence beneath the meetings [Obama is having on Wednesday]?" Stephanopoulos helpfully retorted, "Help is on the way, I think is the sentence."
7 Chris Matthews: 'Does Rush Limbaugh Hate This Country?'
On Wednesday's Hardball, Chris Matthews questioned Rush Limbaugh's patriotism, as the MSNBC host wondered how the radio talk show host could dare to oppose Barack Obama as he exclaimed to his viewers: "Does Rush Limbaugh hate this country?" Matthews jumped on a quote from Limbaugh saying of Obama: "I hope he fails," apparently not understanding the concept that Limbaugh opposes any and all who would promote liberal policies precisely because he believes they will be harmful to the country. Matthews slammed Limbaugh in the following tease before going to a commercial break: "Up next, does Rush Limbaugh hate this country? Wait till you hear what he said about the new president. He wants him to fail. What an amazing-, I've never heard anybody say they wanted a new president to fail. Usually you want the new president to succeed and then later on you argue the politics of what he or she does. But to want them to fail at the outset? What's that about?"
8 NBC's Roker Jabs Matthews and Olbermann for Obama Infatuation
During Tuesday's inauguration coverage on MSNBC, the Today show's Al Roker poked fun at co-anchors Chris Matthews and Keith Olbermann as the NBC weather man, on location at the inaugural parade site, appeared with the MSNBC duo and joked that Matthews "got that tingle down his leg" because Obama looks good without a shirt. Discussing the admiration that so many young people feel for Obama, Roker declared: "It doesn't hurt...that he's a good-looking guy!...This is a guy, this is a President who can take his shirt off, you know. I mean, if I take my shirt off, people are running and screaming. You know, that's, so I think it's just an exciting, exciting time. And I know that's why Chris got that tingle down his leg!" After Matthews tried to go along with Roker's jovial mood by quipping that "we tingle up the leg, okay? It is a big freakin' difference. And don't you forget about it, buddy," Olbermann set himself up to receive a jab as well, as he joked that "it's left to me to be the referee." Roker, presumably referring to Olbermann's penchant for delivering outlandish tirades on his Countdown show, shot back: "And what does that say, if Keith Olbermann is the referee, Keith Olbermann is the voice of reason?"
9 Wash Post Emphasizes Critics In Obit of 'Media Elite' Co-Author
Tuesday's Washington Post obituary for Linda Lichter, co-author of the groundbreaking 1986 book documenting the liberal tilt of the mainstream media, The Media Elite, pettily devoted more paragraphs to critics assailing Lichter's work than explaining what she and her husband documented and its lasting importance -- affirming the old saying, "Never pick a fight with people who buy ink by the barrel." Reporter Adam Bernstein: "The book became widely cited but was harshly criticized by media leaders."
AP Article By Seth Borenstein Entitled “Study: Antarctica Joins Rest Of Globe In Warming”
Follow Up On Today’s AP Article By Seth Borenstein Entitled “Study: Antarctica Joins Rest Of Globe In Warming”, by Roger Pielke Sr
Climate Science, Jan 21, 2009
An AP article was released today which reports on a Nature paper on a finding of warming over much of Antarctica. I was asked by Seth Borenstein to comment on the paper (which he sent to me). I have been critical of his reporting in the past, but except for the title of the article (which as I understand is created by others), he presented a balanced summary of the study.
My reply to Seth is given below.
I have read the paper and have the following comments/questions
1. The use of the passive infrared brightness temperatures from the AVHRR (a polar orbiting satellite) means that only time samples of the surface temperature are obtained. The surface observations, in contrast, provide maximum and minimum temperatures which are used to construct the surface mean temperature trend. The correlation between the two data sets, therefore, requires assumptions on the temporal variation of the brightness temperature at locations removed from the surface in-situ observations. What uncertainty (quantitatively) resulted from their interpolation procedure?
2. Since the authors use data from 42 occupied stations and 65 AWSs sites, they should provide photographs of the locations (e.g. as provided in http://gallery.surfacestations.org/main.php?g2_itemId=20) in order to ascertain how well they are sited. This photographs presumably exist. Do any of the surface observing sites produce a possible bias because they are poorly sited at locations with significant local human microclimate modifications?
3. How do the authors reconcile the conclusions in their paper with the cooler than average long term sea surface temperature anomalies off of the coast of Antarctica? [see http://www.osdpd.noaa.gov/PSB/EPS/SST/data/anomnight.1.15.2009.gif]. These cool anomalies have been there for at least several years. This cool region is also undoubtedly related to the above average Antarctic sea ice areal coverage that has been monitored over recent years; see http://arctic.atmos.uiuc.edu/cryosphere/IMAGES/current.anom.south.jpg].
4. In Figure 2 of their paper, much of their analyzed warming took place prior to 1980. For East Antarctica, the trend is essentially flat since 1980. The use of a linear fit for the entire period of the record produces a larger trend than has been seen in more recent years.
In terms of the significance of their paper, it overstates what they have obtained from their analysis. In the abstract they write, for example,
“West Antarctic warming exceeds 0.1C per decade over the past 50 years”.
However, even a cursory view of Figure 2 shows that since the late 1990s, the region has been cooling in their analysis in this region. The paper would be more balanced if they presented this result, even if they cannot explain why.
Please let me know if you would like more feedback. Thank you reaching out to include a broader perspective on these papers in your articles.
Regards
Roger
Climate Science, Jan 21, 2009
An AP article was released today which reports on a Nature paper on a finding of warming over much of Antarctica. I was asked by Seth Borenstein to comment on the paper (which he sent to me). I have been critical of his reporting in the past, but except for the title of the article (which as I understand is created by others), he presented a balanced summary of the study.
My reply to Seth is given below.
I have read the paper and have the following comments/questions
1. The use of the passive infrared brightness temperatures from the AVHRR (a polar orbiting satellite) means that only time samples of the surface temperature are obtained. The surface observations, in contrast, provide maximum and minimum temperatures which are used to construct the surface mean temperature trend. The correlation between the two data sets, therefore, requires assumptions on the temporal variation of the brightness temperature at locations removed from the surface in-situ observations. What uncertainty (quantitatively) resulted from their interpolation procedure?
2. Since the authors use data from 42 occupied stations and 65 AWSs sites, they should provide photographs of the locations (e.g. as provided in http://gallery.surfacestations.org/main.php?g2_itemId=20) in order to ascertain how well they are sited. This photographs presumably exist. Do any of the surface observing sites produce a possible bias because they are poorly sited at locations with significant local human microclimate modifications?
3. How do the authors reconcile the conclusions in their paper with the cooler than average long term sea surface temperature anomalies off of the coast of Antarctica? [see http://www.osdpd.noaa.gov/PSB/EPS/SST/data/anomnight.1.15.2009.gif]. These cool anomalies have been there for at least several years. This cool region is also undoubtedly related to the above average Antarctic sea ice areal coverage that has been monitored over recent years; see http://arctic.atmos.uiuc.edu/cryosphere/IMAGES/current.anom.south.jpg].
4. In Figure 2 of their paper, much of their analyzed warming took place prior to 1980. For East Antarctica, the trend is essentially flat since 1980. The use of a linear fit for the entire period of the record produces a larger trend than has been seen in more recent years.
In terms of the significance of their paper, it overstates what they have obtained from their analysis. In the abstract they write, for example,
“West Antarctic warming exceeds 0.1C per decade over the past 50 years”.
However, even a cursory view of Figure 2 shows that since the late 1990s, the region has been cooling in their analysis in this region. The paper would be more balanced if they presented this result, even if they cannot explain why.
Please let me know if you would like more feedback. Thank you reaching out to include a broader perspective on these papers in your articles.
Regards
Roger
Considerations on Herring v. United States and the exclusionary rule
"Majesty" or truth?, by Bill Otis
PowerLine Blog, January 21, 2009 at 10:09 PM
Last week, the Supreme Court, in the case of Herring v. United States, limited slightly the applicability of the exclusionary rule. The exclusionary rule is the doctrine under which evidence obtained in the absence of a proper search is excluded from criminal trials.
My friend Bill Otis, a former Justice Department lawyer and an occasional Power Line contributor, is an expert on the exclusionary rule. So I asked him to comment on Herring. Here is what Bill wrote:
In Herring, a policeman from one county arrested the defendant based on a warrant listed on a neighboring county's electronic database. In a search incident to that arrest, the police found methamphetamine and a pistol (which is a particularly dangerous mix, even when the arrestee is not a previously convicted felon and therefore categorically barred from possessing a firearm). In turned out, however, that there was no warrant, because it had been recalled five months earlier. It remained on the database because of a negligent failure on the part of the reporting county's police department to clear it.
Herring moved to suppress the gun and meth on the grounds that the search was illegal, lacking either a warrant or probable cause. The district court and the Eleventh Circuit refused suppression, however, on the grounds that, with no intentional police misconduct, the fruits of the search should be admitted under the rationale of the "good faith" exception to the exclusionary rule. That exception was adopted 25 years ago in US v. Leon, where the police acted in good faith reliance on a warrant that was later determined to have been issued without adequate grounding in probable cause. Since Leon, and based on its rationale, the Court had also refused to apply the exclusionary rule to evidence seized in good faith police reliance on a court's database showing that a (non-existent) warrant was outstanding. Viewed narrowly, the question in Herring was whether that holding should be extended to errors in police databases.
The Herring Court, with the Chief writing for himself and Scalia, Kennedy, Thomas and Alito, held that the exclusionary rule should apply only where its deterrent effect on police misbehavior outweighs the substantial cost it imposes in letting guilty and possibly dangerous defendants go free. The majority pointed out that in the cases that gave rise to the Fourth Amendment exclusionary rule (Weeks v. US, decided in 1914; and Mapp v. Ohio, decided in 1961 and extending the rule to the states) involved intentional and gross police misconduct, quite unlike what went on in the case at hand. It would be another matter, said the majority, if the police had been shown to be reckless in maintaining a warrant-tracking system, or had a history of making knowingly false entries to lay the groundwork for future arrests. But that was not this case. The overall rule, as announced by the majority, was that in order to justify its application, the exclusionary rule would have to efficacious in deterring misconduct, and that the benefits of deterrence must outweigh its costs. The foremost of these is that it may let guilty and dangerous defendants go free, something that "offends basic concepts of the criminal justice system."
The dissent saw it differently. While acknowledging that such emminent jurists as Judge Friendly and Justice Cardozo had considerable doubts about the exclusionary rule (including Cardozo's famous observation that it means the criminal should "go free because the constable has blundered," which to its credit the dissent was honest enough to quote), the dissenters said that they preferred a more "majestic" view of the rule. Under this version, the rationale of the rule would go beyond deterring the police. Instead, the rule would be employed to insure that the courts would not themselves become helpless instruments of unconstitutional behavior and a showplace for its fruits.
Some observations:
1. This was a missed opportunity for the majority -- but perhaps intentionally missed lest Justice Kennedy forsake the majority for the dissent.
The principal flaw in the exclusionary rule, from the perspective of disciplined constitutional interpretation, is that it does not exist in the Constitution's text. Not for nothing did it take well over 100 years to discover that the Fourth Amendment contains any such nostrum. The Fifth Amendment does, to be sure: It provides that no one shall be compelled to be a witness against himself. In other words, where the witness's decision to speak is a result of compulsion, the prosecution can't elicit his testimony on the stand; the testimony is, in effect, excluded. But the fact that the Fifth Amendment contains a rule of exclusion is scarcely a reason to read one into the Fourth Amendment. Indeed, the opposite is true: Since we know that the Framers knew how to write in an exclusionary rule when they wanted to, the case for allowing the courts to write one into the Constitution is ostentatiously lacking.
If legislatures want to devise such a rule and put it in the Code of Criminal Procedure, fine, let them try. If they do, my prediction is that we'll see a bunch of new legislators after the ensuing election.
2. One must wonder what the dissenters think is "majestic" about having yet more criminal trials in which the truth is concealed from the jury. The truth is already concealed plenty -- concealed and simply mangled, most often when the defendant's witnesses lie through their teeth, as they did time and again when I was a practicing litigator. They did this, moreover, almost always with impunity: For some reason, it was considered over the top to prosecute lying defense witnesses after the fact.
The dissenters, however, had virtually nothing to say about the costs to the integrity of the justice system by a rule that allows -- nay, requires -- judges to deep-six the truth. Since the principal mission of a criminal trial is to establish the truth, one must wonder what is so appealing, much less "majestic," about excluding it.
3. The dissenters questioned whether anything but an enthusiastic application of the exclusionary rule will have the desired deterrent effect. They noted, for example, that the police could become clever at disguising as negligence a "yes-there's-a-warrant" database where in fact no warrant exists.
One thing to notice about this is that is bespeaks a visceral distrust of the police that would seem less out of place in 1969, but that with 40 years of advancing professionalism must now be viewed as quaint. One other thing to notice is that the dissenters (i.e., the Court's reliable liberals) seem to view deterrence as a sure thing when applied to POLICE conduct (including the conduct in this case, which both courts below found to be negligent at worst, and thus not a particularly promising object for a punitive rule), but a dicey proposition at best when discussing punishment for convicted street criminals, who by definition must have been acting intentionally (mens rea and all that).
PowerLine Blog, January 21, 2009 at 10:09 PM
Last week, the Supreme Court, in the case of Herring v. United States, limited slightly the applicability of the exclusionary rule. The exclusionary rule is the doctrine under which evidence obtained in the absence of a proper search is excluded from criminal trials.
My friend Bill Otis, a former Justice Department lawyer and an occasional Power Line contributor, is an expert on the exclusionary rule. So I asked him to comment on Herring. Here is what Bill wrote:
In Herring, a policeman from one county arrested the defendant based on a warrant listed on a neighboring county's electronic database. In a search incident to that arrest, the police found methamphetamine and a pistol (which is a particularly dangerous mix, even when the arrestee is not a previously convicted felon and therefore categorically barred from possessing a firearm). In turned out, however, that there was no warrant, because it had been recalled five months earlier. It remained on the database because of a negligent failure on the part of the reporting county's police department to clear it.
Herring moved to suppress the gun and meth on the grounds that the search was illegal, lacking either a warrant or probable cause. The district court and the Eleventh Circuit refused suppression, however, on the grounds that, with no intentional police misconduct, the fruits of the search should be admitted under the rationale of the "good faith" exception to the exclusionary rule. That exception was adopted 25 years ago in US v. Leon, where the police acted in good faith reliance on a warrant that was later determined to have been issued without adequate grounding in probable cause. Since Leon, and based on its rationale, the Court had also refused to apply the exclusionary rule to evidence seized in good faith police reliance on a court's database showing that a (non-existent) warrant was outstanding. Viewed narrowly, the question in Herring was whether that holding should be extended to errors in police databases.
The Herring Court, with the Chief writing for himself and Scalia, Kennedy, Thomas and Alito, held that the exclusionary rule should apply only where its deterrent effect on police misbehavior outweighs the substantial cost it imposes in letting guilty and possibly dangerous defendants go free. The majority pointed out that in the cases that gave rise to the Fourth Amendment exclusionary rule (Weeks v. US, decided in 1914; and Mapp v. Ohio, decided in 1961 and extending the rule to the states) involved intentional and gross police misconduct, quite unlike what went on in the case at hand. It would be another matter, said the majority, if the police had been shown to be reckless in maintaining a warrant-tracking system, or had a history of making knowingly false entries to lay the groundwork for future arrests. But that was not this case. The overall rule, as announced by the majority, was that in order to justify its application, the exclusionary rule would have to efficacious in deterring misconduct, and that the benefits of deterrence must outweigh its costs. The foremost of these is that it may let guilty and dangerous defendants go free, something that "offends basic concepts of the criminal justice system."
The dissent saw it differently. While acknowledging that such emminent jurists as Judge Friendly and Justice Cardozo had considerable doubts about the exclusionary rule (including Cardozo's famous observation that it means the criminal should "go free because the constable has blundered," which to its credit the dissent was honest enough to quote), the dissenters said that they preferred a more "majestic" view of the rule. Under this version, the rationale of the rule would go beyond deterring the police. Instead, the rule would be employed to insure that the courts would not themselves become helpless instruments of unconstitutional behavior and a showplace for its fruits.
Some observations:
1. This was a missed opportunity for the majority -- but perhaps intentionally missed lest Justice Kennedy forsake the majority for the dissent.
The principal flaw in the exclusionary rule, from the perspective of disciplined constitutional interpretation, is that it does not exist in the Constitution's text. Not for nothing did it take well over 100 years to discover that the Fourth Amendment contains any such nostrum. The Fifth Amendment does, to be sure: It provides that no one shall be compelled to be a witness against himself. In other words, where the witness's decision to speak is a result of compulsion, the prosecution can't elicit his testimony on the stand; the testimony is, in effect, excluded. But the fact that the Fifth Amendment contains a rule of exclusion is scarcely a reason to read one into the Fourth Amendment. Indeed, the opposite is true: Since we know that the Framers knew how to write in an exclusionary rule when they wanted to, the case for allowing the courts to write one into the Constitution is ostentatiously lacking.
If legislatures want to devise such a rule and put it in the Code of Criminal Procedure, fine, let them try. If they do, my prediction is that we'll see a bunch of new legislators after the ensuing election.
2. One must wonder what the dissenters think is "majestic" about having yet more criminal trials in which the truth is concealed from the jury. The truth is already concealed plenty -- concealed and simply mangled, most often when the defendant's witnesses lie through their teeth, as they did time and again when I was a practicing litigator. They did this, moreover, almost always with impunity: For some reason, it was considered over the top to prosecute lying defense witnesses after the fact.
The dissenters, however, had virtually nothing to say about the costs to the integrity of the justice system by a rule that allows -- nay, requires -- judges to deep-six the truth. Since the principal mission of a criminal trial is to establish the truth, one must wonder what is so appealing, much less "majestic," about excluding it.
3. The dissenters questioned whether anything but an enthusiastic application of the exclusionary rule will have the desired deterrent effect. They noted, for example, that the police could become clever at disguising as negligence a "yes-there's-a-warrant" database where in fact no warrant exists.
One thing to notice about this is that is bespeaks a visceral distrust of the police that would seem less out of place in 1969, but that with 40 years of advancing professionalism must now be viewed as quaint. One other thing to notice is that the dissenters (i.e., the Court's reliable liberals) seem to view deterrence as a sure thing when applied to POLICE conduct (including the conduct in this case, which both courts below found to be negligent at worst, and thus not a particularly promising object for a punitive rule), but a dicey proposition at best when discussing punishment for convicted street criminals, who by definition must have been acting intentionally (mens rea and all that).
TNYT on Geithner: Barring any new disclosures, we heard nothing disqualifying
For Treasury Secretary. TNYT Editorial
Timothy Geithner’s tax problems took up much of his confirmation hearing. Barring any new disclosures, we heard nothing disqualifying
TNYT, Jan 22, 2009
If ever there was a moment when the Senate should have used the confirmation process to delve into the big issues confronting the nation, it was at Wednesday’s hearing for Treasury Secretary-designate Timothy Geithner.
Unfortunately, Mr. Geithner’s self-inflicted tax problems made that hard. But even after the nominee admitted that his failure to pay tens of thousands of dollars in federal taxes had been “careless” but “unintentional” (he has since paid back taxes, plus interest) members of the Finance Committee were not terribly sharp in their questions about how Mr. Geithner will help President Obama face down the country’s desperate financial problems.
We were not impressed with Mr. Geithner’s excuses for his tax problems, but barring any new damaging disclosures, we heard nothing disqualifying. He is clearly an intelligent man and Mr. Obama is entitled to pick his own team.
Wall Street is also comfortable with the choice. That is an endorsement that cuts both ways — but one that could advance the cause of renewed regulation if Mr. Obama lives up to his promises and is a strong champion for regulatory reform.
We still don’t have a clear picture of Mr. Geithner’s role — as president of the Federal Reserve Bank of New York for the past five years — in the decisions to bail out Bear Stearns, the American International Group and Citigroup, or the decision to let Lehman Brothers go under.
The Finance Committee is expected to approve his nomination Thursday, but before the full Senate votes, we hope that we will hear more from Mr. Geithner and the president on their plans for unraveling the nation’s desperate financial mess.
At the hearing, Mr. Geithner was unchallenged when he said that the disastrous collapse of Lehman Brothers last September occurred because the government had no legal authority to intervene. That narrative surfaced weeks after the collapse and contradicts explanations given at the time.
It is certainly not the type of open, transparent, and fully accountable explanation that the new president is promising.
At the hearing, Mr. Geithner did give a good general outline of the administration’s plan to right the nation’s financial system, saying Mr. Obama would lay out, “we hope in the next few weeks,” a comprehensive plan to get the banks lending again, to address the foreclosure crisis and to directly address the lack of credit to small businesses and consumers.
Like most nominees, Mr. Geithner gave vague answers when asked more detailed questions. He promised new financial regulation, but also referred often to a new regulatory “framework.” It remains to be seen if the goal is to put in place robust new rules or — as the Bush team proposed last year — just rearrange agencies.
The entire Obama economic team earned their stripes — for good and more often ill — during the deregulatory and self-regulatory efforts of the 1990s and this decade. The nation needs more and better information and reassurance, about what they have learned from that past and how they will lead the nation in the vastly different direction that Mr. Obama has promised.
Timothy Geithner’s tax problems took up much of his confirmation hearing. Barring any new disclosures, we heard nothing disqualifying
TNYT, Jan 22, 2009
If ever there was a moment when the Senate should have used the confirmation process to delve into the big issues confronting the nation, it was at Wednesday’s hearing for Treasury Secretary-designate Timothy Geithner.
Unfortunately, Mr. Geithner’s self-inflicted tax problems made that hard. But even after the nominee admitted that his failure to pay tens of thousands of dollars in federal taxes had been “careless” but “unintentional” (he has since paid back taxes, plus interest) members of the Finance Committee were not terribly sharp in their questions about how Mr. Geithner will help President Obama face down the country’s desperate financial problems.
We were not impressed with Mr. Geithner’s excuses for his tax problems, but barring any new damaging disclosures, we heard nothing disqualifying. He is clearly an intelligent man and Mr. Obama is entitled to pick his own team.
Wall Street is also comfortable with the choice. That is an endorsement that cuts both ways — but one that could advance the cause of renewed regulation if Mr. Obama lives up to his promises and is a strong champion for regulatory reform.
We still don’t have a clear picture of Mr. Geithner’s role — as president of the Federal Reserve Bank of New York for the past five years — in the decisions to bail out Bear Stearns, the American International Group and Citigroup, or the decision to let Lehman Brothers go under.
The Finance Committee is expected to approve his nomination Thursday, but before the full Senate votes, we hope that we will hear more from Mr. Geithner and the president on their plans for unraveling the nation’s desperate financial mess.
At the hearing, Mr. Geithner was unchallenged when he said that the disastrous collapse of Lehman Brothers last September occurred because the government had no legal authority to intervene. That narrative surfaced weeks after the collapse and contradicts explanations given at the time.
It is certainly not the type of open, transparent, and fully accountable explanation that the new president is promising.
At the hearing, Mr. Geithner did give a good general outline of the administration’s plan to right the nation’s financial system, saying Mr. Obama would lay out, “we hope in the next few weeks,” a comprehensive plan to get the banks lending again, to address the foreclosure crisis and to directly address the lack of credit to small businesses and consumers.
Like most nominees, Mr. Geithner gave vague answers when asked more detailed questions. He promised new financial regulation, but also referred often to a new regulatory “framework.” It remains to be seen if the goal is to put in place robust new rules or — as the Bush team proposed last year — just rearrange agencies.
The entire Obama economic team earned their stripes — for good and more often ill — during the deregulatory and self-regulatory efforts of the 1990s and this decade. The nation needs more and better information and reassurance, about what they have learned from that past and how they will lead the nation in the vastly different direction that Mr. Obama has promised.
Redefining France’s Role in Afghanistan: Need for better Strategy
Redefining France’s Role in Afghanistan: Need for better Strategy, by Guillem Monsonis
IDSA, Jan 22, 2009
In a recent poll for the newspaper Le Parisien, 55 per cent of the French public expressed their disagreement with the presence of the French military in Afghanistan. A number of political and strategic mistakes contributed to this difficult situation being faced by Sarkozy’s government regarding the war in Afghanistan. The situation is also exacerbated by the fact that 10 soldiers of the 8th RPIMA lost their lives in the Uzbin sector in late August after a brilliantly orchestrated ambush by elements of Gulbuddin Hekmatyar’s Hezb-e-Islami which shocked the country.
France is involved in the Afghan theatre in both the US led Enduring Freedom operation and NATO’s International Security Assistance Force (ISAF) since 2002. Their main mission has been to secure and monitor the Kabul region and to train the Afghan National Army (ANA). However, very little is known about the missions performed by the Special Forces between 2003 and 2007 in the eastern region close to the Pakistan border. The French Navy led the operation Heracles with the Charles de Gaulle nuclear aircraft carrier battle group in which Super Etendard Modernises (SEM) aircraft performed strikes, intelligence gathering and show of force in support of the US troops on the ground.
Islamist strategists perfectly understand what the Achilles’ heel of democratic societies is and use a deadly efficient strategy using all the available non-conventional assets, especially the media, in their asymmetric war against western hi-tech armies. The pictures published by the weekly magazine Paris Match showing the Taliban holding several belongings of the killed French troops gave a severe blow to the already weak French popular support to the war. Recent wars in Iraq and Afghanistan have demonstrated that Western public opinion is now extremely reluctant to pay the price of blood for their government’s wars. The sequel to the idealistic theory of ‘zero dead war’, which was popularized during the Gulf War (1991) and NATO’s campaign in Kosovo (1999), seems to have survived in post-modern European countries’ perception of war. The sacrosanct ‘right to life’ promoted in developed democratic countries is hardly compatible with long term asymmetric wars against well trained and motivated fighters. In this respect, democracies suffer a relative disadvantage when fighting against fundamentalist militants or authoritarian regimes. In a recent interview, the French Chief of the Defense Staff, General Jean Louis Gergolin, complained that “war has deserted our minds". This apathy towards war is doubled by a negative perception of defence expenditures which is seen as a big waste of public money. But as the famous French writer Pierre Corneille wrote, to win without risk is to triumph without glory: France has to accept that the price for defeating international terrorism and stabilizing Afghanistan will be high, and will need a strong involvement on the ground. How should the French government solve the dilemma of rallying public opinion which is ‘proud of its army but worried for its children’?
Better communication may be the key. Hervé Morin, the controversial French Minister of Defence, refused to use the word ‘war’ to qualify Afghanistan’s operations during a debate in the National Assembly. The French government seems to be exactly reproducing the same mistakes made at the height of the storm in Algeria 40 years ago when the word ‘war’ was replaced by ‘events’. Therefore, Government’s communication on the role of Armed Forces used to emphasise mostly on their humanitarian and developmental duties. The concept of the ‘reconstruction of Afghanistan’ is often used to explain to the general public what the French troops are doing there. This overemphasis on non-combatant activities hides the ground realities the troops are facing in their everyday missions. It was predictable that with the decision to deploy troops in the eastern part of Afghanistan (before this, France was mostly operating in the Kabul region), the exposure of the troops to militant attacks would increase. The government must clearly explain the reasons for the war effort and insist on its long term benefits, as most of the French just don’t see any relation between France’s homeland security and the operations being conducted in Afghanistan, despite Sarkozy’s recent efforts to link both aspects. Explaining that the calm witnessed for a few years in France may not last, as demonstrated by the recent attempt by the terrorists to place an explosive device in a store in Paris, it needs to be emphasized that the success of the war may be crucial in securing the country and therefore it should be a priority.
In order to achieve this objective, France needs to face another harsh reality: the sustained reduction in French military capabilities. Means simply do not match ambitions. The recent publication of the White Book (Livre Blanc) on defence and national security generated a stormy debate on French military capabilities and objectives. The reduction of 54,000 positions in the armed forces and the resizing of the expeditionary force strength (from 50,000 to 30,000 troops) have been heavily criticized. The lack of intelligence gathering capabilities, especially helicopters and UAVs, is especially problematic in Afghan operations. Without the support of those means, the rigid and predictable convoys of APCs are especially vulnerable to heavily armed attacks by guerrillas with a good knowledge of the terrain. The lack of such capabilities was recently raised by the armed forces who complained about the poor political support Sarkozy has displayed towards the French military establishment. The White Book on defence tries to overcome those gaps and suggest the acquisition of a strong UAV and satellite force by doubling the expenditure in the space military sector.
While facing an economic slowdown generated by the global economic crisis, France would also need more aerial assets to support land forces. But Paris only deployed 3 multi-role fighter/bombers Rafale F2, 3 Mirage 2000D bombers and aerial tankers. If the deployment of the 4+ generation Rafale was good news in May 2007 (it can carry 6 GBU-12 bombs versus 2 for the Mirage 2000D), the latest French fighters need to be assisted by the Mirage for targeting because they are not suited with a Damocles laser targeting pod. This capability will be acquired in 2012, with the new standard F3. There is also a lack of transport helicopters deployed in the theatre of operations, and Paris is planning to deploy 3 additional helicopters (1 EC-725 Caracal, 2 Gazelles SA-342 and probably some Tiger combat helicopters). This capability gap contributed, along with poor co-ordination between the different units on the ground, to the disastrous patrol mission in Uzbin, where no reinforcements were available for more than one hour.
For France, the stakes are high. It is not only about defeating the nebula of international terrorism; it is also a question of international status. As a permanent member of the UN Security Council, France faces strong pressure from several European Members of Parliament who want to replace the French seat by a European one. Paris has to show its capability to deal with international issues like a great power and justify its political primacy in Europe. While France is close to reintegrating with NATO’s integrated command structure, its achievements in the Afghan theatre and the means Paris is able to mobilize will be a strong determinant of its future capacity for influence inside the alliance structures and will also determine the promotion of a still embryonic European defence. The results of this policy will not only be crucial for France’s Grandeur, but will also be indicative of the future role for middle sized powers in the post-cold war international system.
Guillem Monsonis, Researcher at the French Institute of Geopolitics, is currently a Visiting Fellow at the Institute for Defence Studies and Analyses, New Delhi.
IDSA, Jan 22, 2009
In a recent poll for the newspaper Le Parisien, 55 per cent of the French public expressed their disagreement with the presence of the French military in Afghanistan. A number of political and strategic mistakes contributed to this difficult situation being faced by Sarkozy’s government regarding the war in Afghanistan. The situation is also exacerbated by the fact that 10 soldiers of the 8th RPIMA lost their lives in the Uzbin sector in late August after a brilliantly orchestrated ambush by elements of Gulbuddin Hekmatyar’s Hezb-e-Islami which shocked the country.
France is involved in the Afghan theatre in both the US led Enduring Freedom operation and NATO’s International Security Assistance Force (ISAF) since 2002. Their main mission has been to secure and monitor the Kabul region and to train the Afghan National Army (ANA). However, very little is known about the missions performed by the Special Forces between 2003 and 2007 in the eastern region close to the Pakistan border. The French Navy led the operation Heracles with the Charles de Gaulle nuclear aircraft carrier battle group in which Super Etendard Modernises (SEM) aircraft performed strikes, intelligence gathering and show of force in support of the US troops on the ground.
Islamist strategists perfectly understand what the Achilles’ heel of democratic societies is and use a deadly efficient strategy using all the available non-conventional assets, especially the media, in their asymmetric war against western hi-tech armies. The pictures published by the weekly magazine Paris Match showing the Taliban holding several belongings of the killed French troops gave a severe blow to the already weak French popular support to the war. Recent wars in Iraq and Afghanistan have demonstrated that Western public opinion is now extremely reluctant to pay the price of blood for their government’s wars. The sequel to the idealistic theory of ‘zero dead war’, which was popularized during the Gulf War (1991) and NATO’s campaign in Kosovo (1999), seems to have survived in post-modern European countries’ perception of war. The sacrosanct ‘right to life’ promoted in developed democratic countries is hardly compatible with long term asymmetric wars against well trained and motivated fighters. In this respect, democracies suffer a relative disadvantage when fighting against fundamentalist militants or authoritarian regimes. In a recent interview, the French Chief of the Defense Staff, General Jean Louis Gergolin, complained that “war has deserted our minds". This apathy towards war is doubled by a negative perception of defence expenditures which is seen as a big waste of public money. But as the famous French writer Pierre Corneille wrote, to win without risk is to triumph without glory: France has to accept that the price for defeating international terrorism and stabilizing Afghanistan will be high, and will need a strong involvement on the ground. How should the French government solve the dilemma of rallying public opinion which is ‘proud of its army but worried for its children’?
Better communication may be the key. Hervé Morin, the controversial French Minister of Defence, refused to use the word ‘war’ to qualify Afghanistan’s operations during a debate in the National Assembly. The French government seems to be exactly reproducing the same mistakes made at the height of the storm in Algeria 40 years ago when the word ‘war’ was replaced by ‘events’. Therefore, Government’s communication on the role of Armed Forces used to emphasise mostly on their humanitarian and developmental duties. The concept of the ‘reconstruction of Afghanistan’ is often used to explain to the general public what the French troops are doing there. This overemphasis on non-combatant activities hides the ground realities the troops are facing in their everyday missions. It was predictable that with the decision to deploy troops in the eastern part of Afghanistan (before this, France was mostly operating in the Kabul region), the exposure of the troops to militant attacks would increase. The government must clearly explain the reasons for the war effort and insist on its long term benefits, as most of the French just don’t see any relation between France’s homeland security and the operations being conducted in Afghanistan, despite Sarkozy’s recent efforts to link both aspects. Explaining that the calm witnessed for a few years in France may not last, as demonstrated by the recent attempt by the terrorists to place an explosive device in a store in Paris, it needs to be emphasized that the success of the war may be crucial in securing the country and therefore it should be a priority.
In order to achieve this objective, France needs to face another harsh reality: the sustained reduction in French military capabilities. Means simply do not match ambitions. The recent publication of the White Book (Livre Blanc) on defence and national security generated a stormy debate on French military capabilities and objectives. The reduction of 54,000 positions in the armed forces and the resizing of the expeditionary force strength (from 50,000 to 30,000 troops) have been heavily criticized. The lack of intelligence gathering capabilities, especially helicopters and UAVs, is especially problematic in Afghan operations. Without the support of those means, the rigid and predictable convoys of APCs are especially vulnerable to heavily armed attacks by guerrillas with a good knowledge of the terrain. The lack of such capabilities was recently raised by the armed forces who complained about the poor political support Sarkozy has displayed towards the French military establishment. The White Book on defence tries to overcome those gaps and suggest the acquisition of a strong UAV and satellite force by doubling the expenditure in the space military sector.
While facing an economic slowdown generated by the global economic crisis, France would also need more aerial assets to support land forces. But Paris only deployed 3 multi-role fighter/bombers Rafale F2, 3 Mirage 2000D bombers and aerial tankers. If the deployment of the 4+ generation Rafale was good news in May 2007 (it can carry 6 GBU-12 bombs versus 2 for the Mirage 2000D), the latest French fighters need to be assisted by the Mirage for targeting because they are not suited with a Damocles laser targeting pod. This capability will be acquired in 2012, with the new standard F3. There is also a lack of transport helicopters deployed in the theatre of operations, and Paris is planning to deploy 3 additional helicopters (1 EC-725 Caracal, 2 Gazelles SA-342 and probably some Tiger combat helicopters). This capability gap contributed, along with poor co-ordination between the different units on the ground, to the disastrous patrol mission in Uzbin, where no reinforcements were available for more than one hour.
For France, the stakes are high. It is not only about defeating the nebula of international terrorism; it is also a question of international status. As a permanent member of the UN Security Council, France faces strong pressure from several European Members of Parliament who want to replace the French seat by a European one. Paris has to show its capability to deal with international issues like a great power and justify its political primacy in Europe. While France is close to reintegrating with NATO’s integrated command structure, its achievements in the Afghan theatre and the means Paris is able to mobilize will be a strong determinant of its future capacity for influence inside the alliance structures and will also determine the promotion of a still embryonic European defence. The results of this policy will not only be crucial for France’s Grandeur, but will also be indicative of the future role for middle sized powers in the post-cold war international system.
Guillem Monsonis, Researcher at the French Institute of Geopolitics, is currently a Visiting Fellow at the Institute for Defence Studies and Analyses, New Delhi.
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