Invitation to Appease. WaPo Editorial
Will the Obama administration talk to Iran while it persecutes Americans and libels Israel?Wapo, Wednesday, Apr 22, 2009
LAST WEEK, the Iranian regime brought American journalist Roxana Saberi before a closed court and in a one-hour trial convicted her of espionage -- a blatantly bogus charge. She was sentenced to eight years in prison. On Monday, Iranian President Mahmoud Ahmadinejad, who was last seen inaugurating a new facility for Iran's nuclear program, appeared at the U.N. conference on racism in Geneva to deliver a speech seemingly calculated to cause maximum outrage in the United States and other Western countries. They had, he said, "resorted to military aggression" in order to create Israel "on the pretext of Jewish sufferings and the ambiguous and dubious question of the Holocaust."
Thus has Iran answered President Obama's offer of dialogue and the decision by his administration to join talks on Tehran's nuclear program. To the consternation of some European officials, Washington has insisted on dropping a long-standing demand that Iran obey U.N. resolutions ordering it to suspend uranium enrichment before negotiations begin. Iran could have responded to this concession by releasing Ms. Saberi, who holds U.S. and Iranian citizenship, and ex-FBI agent Robert Levinson, as the administration asked it to do in a State Department letter last month. Instead the charges against Ms. Saberi were ramped up, from practicing journalism without a credential and buying wine, to espionage; the regime does not even admit that it is holding Mr. Levinson.
Then came Mr. Ahmadinejad's speech, which repeated the numerous anti-Israel and anti-Semitic libels that have made the Iranian president a pariah in the West. Western delegates walked out on the address, which the State Department rightly called "vile and hateful." Yet Mr. Ahmadinejad had accomplished his aim: advancing Iran's claim to represent radical Arab and Islamic opinion, along with his own campaign for reelection in June.
Iran watchers point out that Mr. Ahmadinejad has sent other messages recently. He said he would welcome direct talks with Washington, and over the weekend he dispatched a letter to Ms. Saberi's prosecutor urging that she be allowed to defend herself. These are not necessarily contradictions. What Iran is doing is inviting Mr. Obama to humiliate his new administration by launching talks with the regime even while it is conspicuously expanding its nuclear program, campaigning to delegitimize and destroy Israel and imprisoning innocent Americans. Mr. Ahmadinejad's unlikely concern for Ms. Saberi's defense, along with other regime statements suggesting her sentence could be reduced, sound like an offer to make her a bargaining chip -- to be exchanged, perhaps, for members of the Revolutionary Guard Corps who are in U.S. custody in Iraq.
Mr. Obama has always said that talks with Iran must be conducted under the right circumstances and in a way that advances U.S. interests. The administration won't meet that test if it allows negotiations to become a means of vindicating Mr. Ahmadinejad's radical agenda. It should postpone any contact until after the Iranian election in June -- and it should look for clear signs that Iran is acting in good faith before talks begin. The unconditional release of Ms. Saberi and Mr. Levinson would be one.
Wednesday, April 22, 2009
Firefighters, civil rights law and the politics of race collide at the Supreme Court - New Haven, Conn.
Trouble in the Firehouse. WaPo Editorial
Firefighters, civil rights law and the politics of race collide at the Supreme Court.
WaPo, Wednesday, April 22, 2009
THE CITY of New Haven, Conn., found itself in an untenable position in 2003. The city hired an outside firm to develop written and oral tests for some 130 firefighters vying for promotions to lieutenant and captain. The views of incumbent fire officials in the city and those of a high-ranking official from an out-of-state fire department were solicited to ensure that the test was fair. But when test scores were calculated, none of the 27 African American firefighters who took the test did well enough to be eligible for elevation.
The city called a timeout, saying it needed to determine why the test had produced such a racially lopsided result. Were the scores legitimate, a reflection that white firefighters studied harder or were better prepared for supervisory positions than their black counterparts? Or were the results a product of inadvertent yet unlawful discrimination against minority candidates? Black firefighters threatened to sue the city if it certified the results; white firefighters threatened to sue the city if it did not.
After holding several public hearings, New Haven decided to throw out the results, meaning that no one would be promoted on the basis of the test scores. The white firefighters sued, arguing in federal court that the city's actions violated Title VII of the Civil Rights Act of 1964 as well as the equal protection clause of the U.S. Constitution. The case is scheduled to be heard by the Supreme Court this morning.
Under Title VII, the city was obligated to investigate test results that appeared to have had a disparate impact on a particular group; what it is not permitted to do, however, is to rely solely on race to favor one group over another without a compelling government interest. New Haven did the right thing by putting the promotions on hold while it investigated. What is not clear is whether the city acted properly in ultimately refusing to certify the test results.
A federal district judge threw out the case, and an appeals court panel affirmed that decision in a one-paragraph, unsigned opinion, but these decisions were made without a trial and the kind of extensive fact-finding that often accompanies such a complex matter. The white firefighters assert that the city used civil rights laws as a pretext for a political decision. The city says that politics had nothing to do with its decision. There is not enough evidence in the record to judge.
Before the Supreme Court uses this case to set legal standards for the country and perhaps change how one of the most important civil rights laws is implemented, it should have a fully developed record available. The solicitor general's office offers sound advice: Vacate the appeals court decision and send the matter back to the trial court for it to gather information about what motivated the city's decision.
Firefighters, civil rights law and the politics of race collide at the Supreme Court.
WaPo, Wednesday, April 22, 2009
THE CITY of New Haven, Conn., found itself in an untenable position in 2003. The city hired an outside firm to develop written and oral tests for some 130 firefighters vying for promotions to lieutenant and captain. The views of incumbent fire officials in the city and those of a high-ranking official from an out-of-state fire department were solicited to ensure that the test was fair. But when test scores were calculated, none of the 27 African American firefighters who took the test did well enough to be eligible for elevation.
The city called a timeout, saying it needed to determine why the test had produced such a racially lopsided result. Were the scores legitimate, a reflection that white firefighters studied harder or were better prepared for supervisory positions than their black counterparts? Or were the results a product of inadvertent yet unlawful discrimination against minority candidates? Black firefighters threatened to sue the city if it certified the results; white firefighters threatened to sue the city if it did not.
After holding several public hearings, New Haven decided to throw out the results, meaning that no one would be promoted on the basis of the test scores. The white firefighters sued, arguing in federal court that the city's actions violated Title VII of the Civil Rights Act of 1964 as well as the equal protection clause of the U.S. Constitution. The case is scheduled to be heard by the Supreme Court this morning.
Under Title VII, the city was obligated to investigate test results that appeared to have had a disparate impact on a particular group; what it is not permitted to do, however, is to rely solely on race to favor one group over another without a compelling government interest. New Haven did the right thing by putting the promotions on hold while it investigated. What is not clear is whether the city acted properly in ultimately refusing to certify the test results.
A federal district judge threw out the case, and an appeals court panel affirmed that decision in a one-paragraph, unsigned opinion, but these decisions were made without a trial and the kind of extensive fact-finding that often accompanies such a complex matter. The white firefighters assert that the city used civil rights laws as a pretext for a political decision. The city says that politics had nothing to do with its decision. There is not enough evidence in the record to judge.
Before the Supreme Court uses this case to set legal standards for the country and perhaps change how one of the most important civil rights laws is implemented, it should have a fully developed record available. The solicitor general's office offers sound advice: Vacate the appeals court decision and send the matter back to the trial court for it to gather information about what motivated the city's decision.
Libertarian views: Obama and the CIA
Obama and the CIA. WSJ Editorial
WSJ, Apr 22, 2009
Excerpts:
President Obama on Monday paid his first formal visit to CIA headquarters, in order, as he put it, to "underscore the importance" of the agency and let its staff "know that you've got my full support." Assuming he means it, the President should immediately declassify all memos concerning what intelligence was gleaned, and what plots foiled, by the interrogations of high-level al Qaeda detainees in the wake of September 11.
This suggestion was first made by former Vice President Dick Cheney, who said he found it "a little bit disturbing" that the Obama Administration had decided to release four Justice Department memos detailing the CIA's interrogation practices while not giving the full picture of what the interrogations yielded in actionable intelligence. Yes, it really is disturbing, especially given the bogus media narrative that has now developed around those memos.
Thus, contrary to the claim that the memos detail "brutal" techniques used by the CIA in its interrogation of detainees (including 9/11 mastermind Khalid Sheikh Mohammed), what they mainly show is the lengths to which the Justice Department went not to cross the line into torture. "Torture is abhorrent both to American law and values and to international norms," wrote then Principal Deputy Assistant Attorney General Steven Bradbury on the very first page of his May 10, 2005 memo. Regarding waterboarding, an August 2002 memo from then Assistant Attorney General (now federal Judge) Jay Bybee stresses that the CIA had informed him that "the procedures will be stopped if deemed medically necessary to prevent severe mental or physical harm."
The memos also give the lie to a leaked 2007 report from the International Committee of the Red Cross (ICRC), based exclusively on the say-so of KSM and other "high-value" detainees, that "an improvised thick collar . . . was placed around their necks and used by their interrogators to slam them against the walls."
As the Bybee memo notes, the "wall" was a "flexible false wall . . . constructed to create a loud sound"; that "it is the individual's shoulder blades that hit the wall"; and that the purpose of the collar was "to help prevent whiplash." If this is torture, the word has lost all meaning.
Meanwhile, this is the third time an ICRC report about U.S. treatment of the detainees has been leaked, in violation of its own longstanding policies and of the agreement by which its representatives are allowed to visit prisoners. The Red Cross appears to have made little or no attempt to investigate whether KSM's claims were exaggerated. The episode shows again that the ICRC has become as much a political, as humanitarian, operation.
Also instructive is the context in which the interrogations took place -- less than a year after the 9/11 attacks. Writing about Abu Zubaydeh, whom the CIA believed "is one of the highest ranking members" of al Qaeda, Mr. Bybee wrote that "the interrogation team is certain that he has additional information that he refuses to divulge. Specifically, he is withholding information regarding terrorist networks in the United States or in Saudi Arabia and information regarding plans to conduct attacks within the United States or against our interests overseas. Zubaydeh has become accustomed to a certain level of treatment and displays no signs of willingness to disclose further information."
In other words, CIA interrogators wanted to use these techniques in 2002 to break a terrorist they believed had information that could potentially save American lives. Rest assured that if the CIA hadn't taken these steps and the U.S. had been hit again, the same people denouncing these memos now would have been demanding another 9/11 Commission to deplore their inaction.
The memos give considerable indication both of the sheer quantity, as well as some of the specifics, of the intelligence gathered through the interrogations. "You have informed us," wrote Mr. Bradbury in the May 30, 2005 memo, "that the interrogation of KSM -- once enhanced techniques were employed -- led to the discovery of a KSM plot, the 'Second Wave,' 'to use East Asian operatives to crash a hijacked airliner into' a building in Los Angeles. You have informed us that information obtained from KSM also led to the capture of . . . Hambali, and the discovery of the Guraba Cell . . . tasked with the execution of the 'Second Wave.'"
All in all, Mr. Bybee added, "the intelligence derived from CIA detainees has resulted in more than 6,000 intelligence reports and, in 2004, accounted for approximately half of CTC's [the CIA's Counterterrorist Center] reporting on al Qaeda."
In a saner world (or at least one that accurately reported on original documents), all of this would be a point of pride for the CIA. It would serve as evidence of the Bush Administration's scrupulousness regarding the life and health of the detainees, and demonstrate how wrong are the claims that harsh interrogations yielded no useful intelligence.
Instead, the release of the memos has unleashed the liberal mob, with renewed calls in Congress for a "truth commission" and even, perhaps, Judge Bybee's impeachment and prosecutions of the other authors. Mr. Obama has hinted that while his Administration won't prosecute CIA officials, it may try to sate the mob by going after Bush officials who wrote the memos.
One major concern here is what Mr. Obama's decision to release these memos says about his own political leadership. He claims that one of his goals as President is to restore more comity to our politics, especially concerning national security. He also knows he needs a CIA willing to take risks to keep the country safe. [...]. And while he is willing to release classified documents about interrogation techniques, Mr. Obama refuses to release documents that more fully discuss their results.
[...]. The risk-averse CIA that so grievously failed in the run-up to 9/11 was a product of a spy culture that still remembered the Church Committee of the 1970s and the Iran-Contra recriminations of the 1980s. Mr. Obama needs to stop this score-settling now, and he can start by promptly releasing the documents that reveal what the CIA learned from its interrogations.
WSJ, Apr 22, 2009
Excerpts:
President Obama on Monday paid his first formal visit to CIA headquarters, in order, as he put it, to "underscore the importance" of the agency and let its staff "know that you've got my full support." Assuming he means it, the President should immediately declassify all memos concerning what intelligence was gleaned, and what plots foiled, by the interrogations of high-level al Qaeda detainees in the wake of September 11.
This suggestion was first made by former Vice President Dick Cheney, who said he found it "a little bit disturbing" that the Obama Administration had decided to release four Justice Department memos detailing the CIA's interrogation practices while not giving the full picture of what the interrogations yielded in actionable intelligence. Yes, it really is disturbing, especially given the bogus media narrative that has now developed around those memos.
Thus, contrary to the claim that the memos detail "brutal" techniques used by the CIA in its interrogation of detainees (including 9/11 mastermind Khalid Sheikh Mohammed), what they mainly show is the lengths to which the Justice Department went not to cross the line into torture. "Torture is abhorrent both to American law and values and to international norms," wrote then Principal Deputy Assistant Attorney General Steven Bradbury on the very first page of his May 10, 2005 memo. Regarding waterboarding, an August 2002 memo from then Assistant Attorney General (now federal Judge) Jay Bybee stresses that the CIA had informed him that "the procedures will be stopped if deemed medically necessary to prevent severe mental or physical harm."
The memos also give the lie to a leaked 2007 report from the International Committee of the Red Cross (ICRC), based exclusively on the say-so of KSM and other "high-value" detainees, that "an improvised thick collar . . . was placed around their necks and used by their interrogators to slam them against the walls."
As the Bybee memo notes, the "wall" was a "flexible false wall . . . constructed to create a loud sound"; that "it is the individual's shoulder blades that hit the wall"; and that the purpose of the collar was "to help prevent whiplash." If this is torture, the word has lost all meaning.
Meanwhile, this is the third time an ICRC report about U.S. treatment of the detainees has been leaked, in violation of its own longstanding policies and of the agreement by which its representatives are allowed to visit prisoners. The Red Cross appears to have made little or no attempt to investigate whether KSM's claims were exaggerated. The episode shows again that the ICRC has become as much a political, as humanitarian, operation.
Also instructive is the context in which the interrogations took place -- less than a year after the 9/11 attacks. Writing about Abu Zubaydeh, whom the CIA believed "is one of the highest ranking members" of al Qaeda, Mr. Bybee wrote that "the interrogation team is certain that he has additional information that he refuses to divulge. Specifically, he is withholding information regarding terrorist networks in the United States or in Saudi Arabia and information regarding plans to conduct attacks within the United States or against our interests overseas. Zubaydeh has become accustomed to a certain level of treatment and displays no signs of willingness to disclose further information."
In other words, CIA interrogators wanted to use these techniques in 2002 to break a terrorist they believed had information that could potentially save American lives. Rest assured that if the CIA hadn't taken these steps and the U.S. had been hit again, the same people denouncing these memos now would have been demanding another 9/11 Commission to deplore their inaction.
The memos give considerable indication both of the sheer quantity, as well as some of the specifics, of the intelligence gathered through the interrogations. "You have informed us," wrote Mr. Bradbury in the May 30, 2005 memo, "that the interrogation of KSM -- once enhanced techniques were employed -- led to the discovery of a KSM plot, the 'Second Wave,' 'to use East Asian operatives to crash a hijacked airliner into' a building in Los Angeles. You have informed us that information obtained from KSM also led to the capture of . . . Hambali, and the discovery of the Guraba Cell . . . tasked with the execution of the 'Second Wave.'"
All in all, Mr. Bybee added, "the intelligence derived from CIA detainees has resulted in more than 6,000 intelligence reports and, in 2004, accounted for approximately half of CTC's [the CIA's Counterterrorist Center] reporting on al Qaeda."
In a saner world (or at least one that accurately reported on original documents), all of this would be a point of pride for the CIA. It would serve as evidence of the Bush Administration's scrupulousness regarding the life and health of the detainees, and demonstrate how wrong are the claims that harsh interrogations yielded no useful intelligence.
Instead, the release of the memos has unleashed the liberal mob, with renewed calls in Congress for a "truth commission" and even, perhaps, Judge Bybee's impeachment and prosecutions of the other authors. Mr. Obama has hinted that while his Administration won't prosecute CIA officials, it may try to sate the mob by going after Bush officials who wrote the memos.
One major concern here is what Mr. Obama's decision to release these memos says about his own political leadership. He claims that one of his goals as President is to restore more comity to our politics, especially concerning national security. He also knows he needs a CIA willing to take risks to keep the country safe. [...]. And while he is willing to release classified documents about interrogation techniques, Mr. Obama refuses to release documents that more fully discuss their results.
[...]. The risk-averse CIA that so grievously failed in the run-up to 9/11 was a product of a spy culture that still remembered the Church Committee of the 1970s and the Iran-Contra recriminations of the 1980s. Mr. Obama needs to stop this score-settling now, and he can start by promptly releasing the documents that reveal what the CIA learned from its interrogations.
Rebuttal re Erroneous Analysis on Transgenic Insecticidal Crops - Loevei, Lovei
Rebuttal re Erroneous Analysis on Transgenic Insecticidal Crops.
Crop Biotech Update/ISAAA, Apr 17, 2009
An article by Lövei et al. (Transgenic insecticidal crops and natural enemies: a detailed review of laboratory studies, Environmental Entomology 38(2): 293-306 (2009)) purports that insect-protected crops based on the Cry proteins of Bacillus thuringiensis may have substantial negative impacts on non-target organisms.
A group of experts in this area strongly disagreed with this April, 2009 publication and felt that a rapid response was required but, because of production schedules of this bi-monthly journal, it could not accommodate a rapid rebuttal. Thus, A. M. Shelton and 14 colleagues published their Letter to the Editor in Transgenic Research (Setting the Record Straight: A Rebuttal to an Erroneous Analysis on Transgenic Insecticidal Crops and Natural Enemies).
Among the many concerns Shelton and colleagues describe in their rebuttal are the inappropriate and unsound methods for risk assessment that led Lövei et al. to reach conclusions that are in conflict with those of several comprehensive reviews and meta-analyses. Shelton summarized the concerns of the 15 authors by stating, "The Lövei et al. article advocates inappropriate summarization and statistical methods, a negatively biased and incorrect interpretation of the published data on non-target effects, and fails to place any putative effect into a meaningful ecological context." What was also troubling to this international group of 15 experts is the potential for the Lövei et al. article to be accepted at face value and impact some regulatory agencies.
Their rebuttal can be accessed using the following link: http://www.springerlink.com/content/q7hk642137241733/. The article is open access and freely available to all and is published as DOI: 10.1007/s11248-009-9260-5. It will be published in print form in the June issue of Transgenic Research.
Crop Biotech Update/ISAAA, Apr 17, 2009
An article by Lövei et al. (Transgenic insecticidal crops and natural enemies: a detailed review of laboratory studies, Environmental Entomology 38(2): 293-306 (2009)) purports that insect-protected crops based on the Cry proteins of Bacillus thuringiensis may have substantial negative impacts on non-target organisms.
A group of experts in this area strongly disagreed with this April, 2009 publication and felt that a rapid response was required but, because of production schedules of this bi-monthly journal, it could not accommodate a rapid rebuttal. Thus, A. M. Shelton and 14 colleagues published their Letter to the Editor in Transgenic Research (Setting the Record Straight: A Rebuttal to an Erroneous Analysis on Transgenic Insecticidal Crops and Natural Enemies).
Among the many concerns Shelton and colleagues describe in their rebuttal are the inappropriate and unsound methods for risk assessment that led Lövei et al. to reach conclusions that are in conflict with those of several comprehensive reviews and meta-analyses. Shelton summarized the concerns of the 15 authors by stating, "The Lövei et al. article advocates inappropriate summarization and statistical methods, a negatively biased and incorrect interpretation of the published data on non-target effects, and fails to place any putative effect into a meaningful ecological context." What was also troubling to this international group of 15 experts is the potential for the Lövei et al. article to be accepted at face value and impact some regulatory agencies.
Their rebuttal can be accessed using the following link: http://www.springerlink.com/content/q7hk642137241733/. The article is open access and freely available to all and is published as DOI: 10.1007/s11248-009-9260-5. It will be published in print form in the June issue of Transgenic Research.
GM Is Becoming a Royal Debacle
GM Is Becoming a Royal Debacle. By Holman W Jenkins, Jr
WSJ, Apr 22, 2009
It's good to be the king -- until you start tripping over your own robe.
So King Barack the Mild is finding as he tries to dictate the terms of what amounts to an out-of-court bankruptcy for Chrysler and GM. He wants Chrysler's secured lenders to give up their right to nearly full recovery in a bankruptcy in return for 15 cents on the dollar. They'd be crazy to do so, of course, except that these banks also happen to be beholden to the administration for TARP money.
Wasn't TARP supposed to be about restoring a healthy banking system? Isn't that a tad inconsistent with banks just voluntarily relinquishing valuable claims on borrowers? Don't ask.
Kingly prerogative also conflicts with kingly prerogative in the case of GM's unsecured creditors, who are the sticking point in agreeing to a turnaround plan by the drop-dead date of June 1. His retainer, Steven Rattner, has delivered word that the king's pleasure is that these unsecured creditors give up 100% of their claims in return for GM stock.
It may also be the king's pleasure, he advised, to convert at some point the government's own $13 billion in bailout loans into GM stock.
There's just one problem: Why on earth would GM's creditors -- who include not just bondholders but the UAW's health-care trust -- want any part of this deal?
They've already seen that the rights and privileges of shareholders are not worth diddly when the king is throwing his prerogatives around. He dispensed with the services of GM chief Rick Wagoner, though the king owned not a single share of GM stock at the time. His minions communicated the king's pleasure that GM consider discontinuing its GMC brand, maker of pickups and SUVs that offendeth the royal eye -- though these vehicles earn GM's fattest profit margins.
His minions haven't asked GM to give up the Chevy Volt, even after determining it will be a profitless black hole, because of the king's fondness for green.
No wonder the king's mediation of 40 years of stalemated labor and business issues in the auto sector isn't going so well. There's a reason royal discretion has long been outmoded as a way to run an economy: Things just work better if a realm's subjects are left to resolve their own disputes and interests through the impersonal mechanism of the markets and the law.
His current bailout strategy amounts to asking thousands of bondholders and GM retirees to buy stock in a GM that the king's own policies mean they'd be loony to buy. Add the fact that passenger cars and trucks in the U.S. are a trivial source of greenhouse gases in any case -- they could all become carbonless and it would be irrelevant in the face of China's and India's coal use. King Barack has only been on his throne for three months. His policies already have devolved into savage incoherence.
But let's face it, the king is also somewhat lacking in the lion-heartedness department.
He's on record saying that the only sensible way to reduce fossil-fuel dependence is to put a price on it, as with cap and trade. Then why not have the courage of his convictions and do away with the proven ineffectualness and perversity of trying to regulate automotive fuel mileage directly?
He could release GM, Chrysler and Ford to make those cars, and only those cars, consumers would reward with profits (including fuel-efficient cars they might suddenly find desirable if Mr. Obama moves ahead with plans to tax carbon emissions).
He wouldn't be foolishly trying to rewrite GM's labor contracts and splitting negotiating hairs with its lenders. GM -- along with Chrysler and Ford -- might not avoid a trip through the bankruptcy courts. But either way, they'd be better able to meet their obligations to creditors, including UAW retirees, if allowed to focus on making cars the public actually wants to buy.
King Barack could take a leaf from St. Jimmy the Simple, who faced a collapse of the railroad industry. He signed the Staggers deregulation law, returning power to the industry itself to decide what services to provide and which customers to chase. What had previously been an industrial basket case, halfway nationalized already, fixed itself almost overnight.
He might consult with the Sage of Omaha, who has become a fan of the rail business. What would make Sir Warren similarly enthused about investing in GM? The answer, we're guessing, is not more cars like the Chevy Volt. The banks get all the attention, but they have the power to earn their way out of trouble. Not GM, the way things are going. St. Warren could do the king a real service by warning him off a path with Detroit that could end up blighting all the years of his reign.
WSJ, Apr 22, 2009
It's good to be the king -- until you start tripping over your own robe.
So King Barack the Mild is finding as he tries to dictate the terms of what amounts to an out-of-court bankruptcy for Chrysler and GM. He wants Chrysler's secured lenders to give up their right to nearly full recovery in a bankruptcy in return for 15 cents on the dollar. They'd be crazy to do so, of course, except that these banks also happen to be beholden to the administration for TARP money.
Wasn't TARP supposed to be about restoring a healthy banking system? Isn't that a tad inconsistent with banks just voluntarily relinquishing valuable claims on borrowers? Don't ask.
Kingly prerogative also conflicts with kingly prerogative in the case of GM's unsecured creditors, who are the sticking point in agreeing to a turnaround plan by the drop-dead date of June 1. His retainer, Steven Rattner, has delivered word that the king's pleasure is that these unsecured creditors give up 100% of their claims in return for GM stock.
It may also be the king's pleasure, he advised, to convert at some point the government's own $13 billion in bailout loans into GM stock.
There's just one problem: Why on earth would GM's creditors -- who include not just bondholders but the UAW's health-care trust -- want any part of this deal?
They've already seen that the rights and privileges of shareholders are not worth diddly when the king is throwing his prerogatives around. He dispensed with the services of GM chief Rick Wagoner, though the king owned not a single share of GM stock at the time. His minions communicated the king's pleasure that GM consider discontinuing its GMC brand, maker of pickups and SUVs that offendeth the royal eye -- though these vehicles earn GM's fattest profit margins.
His minions haven't asked GM to give up the Chevy Volt, even after determining it will be a profitless black hole, because of the king's fondness for green.
No wonder the king's mediation of 40 years of stalemated labor and business issues in the auto sector isn't going so well. There's a reason royal discretion has long been outmoded as a way to run an economy: Things just work better if a realm's subjects are left to resolve their own disputes and interests through the impersonal mechanism of the markets and the law.
His current bailout strategy amounts to asking thousands of bondholders and GM retirees to buy stock in a GM that the king's own policies mean they'd be loony to buy. Add the fact that passenger cars and trucks in the U.S. are a trivial source of greenhouse gases in any case -- they could all become carbonless and it would be irrelevant in the face of China's and India's coal use. King Barack has only been on his throne for three months. His policies already have devolved into savage incoherence.
But let's face it, the king is also somewhat lacking in the lion-heartedness department.
He's on record saying that the only sensible way to reduce fossil-fuel dependence is to put a price on it, as with cap and trade. Then why not have the courage of his convictions and do away with the proven ineffectualness and perversity of trying to regulate automotive fuel mileage directly?
He could release GM, Chrysler and Ford to make those cars, and only those cars, consumers would reward with profits (including fuel-efficient cars they might suddenly find desirable if Mr. Obama moves ahead with plans to tax carbon emissions).
He wouldn't be foolishly trying to rewrite GM's labor contracts and splitting negotiating hairs with its lenders. GM -- along with Chrysler and Ford -- might not avoid a trip through the bankruptcy courts. But either way, they'd be better able to meet their obligations to creditors, including UAW retirees, if allowed to focus on making cars the public actually wants to buy.
King Barack could take a leaf from St. Jimmy the Simple, who faced a collapse of the railroad industry. He signed the Staggers deregulation law, returning power to the industry itself to decide what services to provide and which customers to chase. What had previously been an industrial basket case, halfway nationalized already, fixed itself almost overnight.
He might consult with the Sage of Omaha, who has become a fan of the rail business. What would make Sir Warren similarly enthused about investing in GM? The answer, we're guessing, is not more cars like the Chevy Volt. The banks get all the attention, but they have the power to earn their way out of trouble. Not GM, the way things are going. St. Warren could do the king a real service by warning him off a path with Detroit that could end up blighting all the years of his reign.
DLC Sows Sustenance for a Rejuvenated Party
Council Sows Sustenance for a Rejuvenated Party. By David Nather, CQ Staff
CQPolitics, April 11, 2009 – 1:07 p.m.
A year after their party got wiped out in the 1984 presidential election, an insurgent group of Southern and Western Democrats mounted a campaign for a centrist agenda to help the party win again. The goal of the Democratic Leadership Council, according to Sam Nunn, the Georgia senator who was one of the founding members, was to “lay a foundation” for a moderate Democrat to run for the White House in 1988 — and to “make it safe for candidates at the state and local level to run as Democrats.”
That’s far from the main order of business for today’s Democrats. After two “wave” elections in a row, the party controls the White House and Congress, and the GOP opposition finds itself in the political wilderness. As a result, the influential DLC is going through the first change in leadership in a quarter century, and with it will come a change in mission. The new goal — according to incoming Chief Executive Officer Bruce Reed, once the chief domestic policy adviser to President Bill Clinton — is to generate policy ideas to help the Democrats stay in power.
“The political mission of the DLC has been largely accomplished,” said Reed, who’s had the group’s No. 2 post since 2001. “Twenty-five years ago, the forgotten middle class had serious doubts about Democrats, and now Democrats are winning the middle class, suburban voters, moderates by handsome margins. Our next challenge is to deliver on that promise and earn those votes for years to come.”
It’s a familiar dilemma in Washington: How can an insurgent group that helped navigate a long-term path to power re-invent itself in a drastically different political landscape? To preserve its market viability, the DLC must now create the same sense of urgency for helping the governing party stay in power as it did for shaking up an ailing party that was losing its grip on power.
An Ideas Factory
When founder Al From announced his retirement last month, news reports almost doubled as obituary notices for the organization, with only the vaguest hints of what it might do in the future. Since then, it’s developed a two-page prospectus describing a “new Democratic Leadership Council” that plans to promote its ideas by publishing reports, proposing new policies and organizing forums.
“For the first time,” the new mission statement says, “our entire efforts in Washington will be devoted not to politics but to making ideas and reforms happen.” It promises to work on a wide range of domestic policies, from traditional Democratic interests such as education, health care, energy and retirement security to more centrist priorities such as free trade, national service, fiscal discipline and a “post-partisan” plan to rewrite the tax code.
Or, as Reed put it: “I think it’s fair to say that our goal is to push the envelope, get things done, and be both practical and, if necessary, wonky.”
Yet there are other think tanks that offer ideas to the Democrats these days — including the DLC’s own partner organization, the centrist Progressive Policy Institute, which was also launched by From. There’s the Center for American Progress (CAP), a more traditionally liberal think tank run by former Clinton Chief of Staff John D. Podesta that has been supplying ideas and aides to President Obama. Compared with Podesta’s outfit, the DLC is a bare-bones operation, with a budget of $6 million last year and fewer than two dozen staff members, including part-time employees and visiting fellows. CAP, by contrast, has a budget of more than $20 million and employs roughly 200 staff members and fellows.
If that wasn’t competition enough, there’s Third Way, created four years ago to provide policy and messaging advice to centrist Democrats. It started as a small shop as well, but it is expanding this year, aiming for a staff of 25 and a budget of $5 million. Third Way has seized on the DLC’s leadership turnover as a chance to dominate the market for Democratic centrist ideas.
Jonathan Cowan, the group’s president, calls From and Reed “brilliant innovators” who created a marketplace in Democratic politics that didn’t exist before. But “as in all movements, you see generational changes,” Cowan said. “Third Way is now emerging as the next generation of leadership for the progressive movement.”
The Emanuel Factor
The DLC’s trump card over the next few years, however, will be the close relationship Reed has with Rahm Emanuel , the White House chief of staff and a committed centrist with a policy wonk’s appetite for new ideas. The two worked together in the Clinton White House and in 2006 co-wrote “The Plan,” a book-length roster of policy suggestions for Democrats.
Their ideas — which included three months of national service for all young adults, expanded access to college and broader health coverage for children — are generally in line with the agenda Obama is pursuing now, such as the AmeriCorps expansion he is about to sign into law.
Emanuel and Reed still talk frequently, so it’s safe to assume that whatever ideas the DLC generates under Reed will have the White House’s ear. “Rahm and I wrote a whole book of ideas that we’re deeply committed to, and he still keeps asking for more,” Reed said.
Reed shows no interest in fighting with Third Way and other think tanks for dominance of the Democratic ideas field. “We’re not trying to be the biggest think tank in town,” he said. “We’re not interested in telling Democrats how to win elections. We’ll leave the debate about message to others. We want to roll up our sleeves and focus on ideas and how to help the new administration succeed in its top priorities.”
But occupying that role is a tricky balancing act: The DLC will have to rebrand itself as an ideas shop without simultaneously letting itself get overshadowed by the newer organizations staking out the same territory. Some policy insiders already are sounding skeptical about the prospects for the new approach. “I have a hard time envisioning what their comparative advantage might be,” said Thomas Mann of the Brookings Institution — though he said he respects Reed and hasn’t seen his plans for the group. Others, though, say there’s no such thing as too many ideas factories for the Democrats. “My feeling on this is sort of, ‘Let a thousand flowers bloom,’ “ said Democratic strategist Peter Fenn.
Reed’s own career and policy interests offer some clues to how he’ll navigate the group through the challenges ahead. As director of the Domestic Policy Council, he oversaw a small shop of policy experts who helped design Clinton’s approach to welfare, crime, education and other domestic issues. The new DLC also aspires to be a small policy shop generating ideas to help the White House govern — but, this time, from the outside.
A Bluer Shade of Purple
Although the DLC, as a nonprofit, can’t endorse candidates, Obama was never the Democratic presidential candidate who seemed closest to the organization. That honor belonged to Hillary Rodham Clinton — Obama’s former rival and now secretary of State — who chaired the DLC’s “American Dream Initiative,” which developed a 2006 agenda to improve the middle-class safety net and cut wasteful spending. The role was hardly surprising, given both Clintons’ longtime relationship with the DLC: Bill Clinton chaired the organization before his 1992 election as president, and the group supplied him with many of the centrist ideas he brought into the White House.
Reed said he’s pinning some of his hopes for the group’s future on Obama’s promise to break through the constraints of partisan politics. The notion that Obama might be receptive to the DLC’s ideas gained strength recently after the president told members of the House’s New Democrat Coalition that he considered himself one of them. “He said, ‘Listen, I feel comfortable with you guys because I consider myself a New Democrat,’” said Ron Kind of Wisconsin, one of the lawmakers at the meeting.
The new DLC has already struck a distinctly bipartisan note with a report Reed co-authored with John Bridgeland, who headed President George W. Bush ’s Domestic Policy Council, on the economic downturn’s impact on nonprofits and how to help them weather the crisis. The organization is already planning to reach into state and local politics by expanding a DLC fellows program that identifies promising state legislators, mayors and county officials and brings them to Washington for policy retreats.
On a broader level, though, the group will face the same tension affecting the entire party: the sense among liberals that “their ship has come in,” as Kind puts it — and that, as a result, the need for moderation and compromise in Democratic politics has passed. But Democrats only have that majority because they’re holding on to seats that could easily return to Republican hands. In the House, for example, 49 districts that elected Democrats were carried by Republican John McCain at the top of the presidential ticket in 2008.
So if Democrats want to stay in power, Reed said, there is a vital need for think tanks that can help the party generate ideas and make sure they work. “Nobody who comes from a purple state or a purple district thinks we’ve locked those up for time immemorial,” Reed said. “And most Democrats understand that we won in part because the other side’s ideas didn’t work. So it’s that much more important for Democrats to learn that lesson and make sure our ideas do.” Now, the DLC just has to convince Democrats that the new mission is as urgent as the old one.
CQPolitics, April 11, 2009 – 1:07 p.m.
A year after their party got wiped out in the 1984 presidential election, an insurgent group of Southern and Western Democrats mounted a campaign for a centrist agenda to help the party win again. The goal of the Democratic Leadership Council, according to Sam Nunn, the Georgia senator who was one of the founding members, was to “lay a foundation” for a moderate Democrat to run for the White House in 1988 — and to “make it safe for candidates at the state and local level to run as Democrats.”
That’s far from the main order of business for today’s Democrats. After two “wave” elections in a row, the party controls the White House and Congress, and the GOP opposition finds itself in the political wilderness. As a result, the influential DLC is going through the first change in leadership in a quarter century, and with it will come a change in mission. The new goal — according to incoming Chief Executive Officer Bruce Reed, once the chief domestic policy adviser to President Bill Clinton — is to generate policy ideas to help the Democrats stay in power.
“The political mission of the DLC has been largely accomplished,” said Reed, who’s had the group’s No. 2 post since 2001. “Twenty-five years ago, the forgotten middle class had serious doubts about Democrats, and now Democrats are winning the middle class, suburban voters, moderates by handsome margins. Our next challenge is to deliver on that promise and earn those votes for years to come.”
It’s a familiar dilemma in Washington: How can an insurgent group that helped navigate a long-term path to power re-invent itself in a drastically different political landscape? To preserve its market viability, the DLC must now create the same sense of urgency for helping the governing party stay in power as it did for shaking up an ailing party that was losing its grip on power.
An Ideas Factory
When founder Al From announced his retirement last month, news reports almost doubled as obituary notices for the organization, with only the vaguest hints of what it might do in the future. Since then, it’s developed a two-page prospectus describing a “new Democratic Leadership Council” that plans to promote its ideas by publishing reports, proposing new policies and organizing forums.
“For the first time,” the new mission statement says, “our entire efforts in Washington will be devoted not to politics but to making ideas and reforms happen.” It promises to work on a wide range of domestic policies, from traditional Democratic interests such as education, health care, energy and retirement security to more centrist priorities such as free trade, national service, fiscal discipline and a “post-partisan” plan to rewrite the tax code.
Or, as Reed put it: “I think it’s fair to say that our goal is to push the envelope, get things done, and be both practical and, if necessary, wonky.”
Yet there are other think tanks that offer ideas to the Democrats these days — including the DLC’s own partner organization, the centrist Progressive Policy Institute, which was also launched by From. There’s the Center for American Progress (CAP), a more traditionally liberal think tank run by former Clinton Chief of Staff John D. Podesta that has been supplying ideas and aides to President Obama. Compared with Podesta’s outfit, the DLC is a bare-bones operation, with a budget of $6 million last year and fewer than two dozen staff members, including part-time employees and visiting fellows. CAP, by contrast, has a budget of more than $20 million and employs roughly 200 staff members and fellows.
If that wasn’t competition enough, there’s Third Way, created four years ago to provide policy and messaging advice to centrist Democrats. It started as a small shop as well, but it is expanding this year, aiming for a staff of 25 and a budget of $5 million. Third Way has seized on the DLC’s leadership turnover as a chance to dominate the market for Democratic centrist ideas.
Jonathan Cowan, the group’s president, calls From and Reed “brilliant innovators” who created a marketplace in Democratic politics that didn’t exist before. But “as in all movements, you see generational changes,” Cowan said. “Third Way is now emerging as the next generation of leadership for the progressive movement.”
The Emanuel Factor
The DLC’s trump card over the next few years, however, will be the close relationship Reed has with Rahm Emanuel , the White House chief of staff and a committed centrist with a policy wonk’s appetite for new ideas. The two worked together in the Clinton White House and in 2006 co-wrote “The Plan,” a book-length roster of policy suggestions for Democrats.
Their ideas — which included three months of national service for all young adults, expanded access to college and broader health coverage for children — are generally in line with the agenda Obama is pursuing now, such as the AmeriCorps expansion he is about to sign into law.
Emanuel and Reed still talk frequently, so it’s safe to assume that whatever ideas the DLC generates under Reed will have the White House’s ear. “Rahm and I wrote a whole book of ideas that we’re deeply committed to, and he still keeps asking for more,” Reed said.
Reed shows no interest in fighting with Third Way and other think tanks for dominance of the Democratic ideas field. “We’re not trying to be the biggest think tank in town,” he said. “We’re not interested in telling Democrats how to win elections. We’ll leave the debate about message to others. We want to roll up our sleeves and focus on ideas and how to help the new administration succeed in its top priorities.”
But occupying that role is a tricky balancing act: The DLC will have to rebrand itself as an ideas shop without simultaneously letting itself get overshadowed by the newer organizations staking out the same territory. Some policy insiders already are sounding skeptical about the prospects for the new approach. “I have a hard time envisioning what their comparative advantage might be,” said Thomas Mann of the Brookings Institution — though he said he respects Reed and hasn’t seen his plans for the group. Others, though, say there’s no such thing as too many ideas factories for the Democrats. “My feeling on this is sort of, ‘Let a thousand flowers bloom,’ “ said Democratic strategist Peter Fenn.
Reed’s own career and policy interests offer some clues to how he’ll navigate the group through the challenges ahead. As director of the Domestic Policy Council, he oversaw a small shop of policy experts who helped design Clinton’s approach to welfare, crime, education and other domestic issues. The new DLC also aspires to be a small policy shop generating ideas to help the White House govern — but, this time, from the outside.
A Bluer Shade of Purple
Although the DLC, as a nonprofit, can’t endorse candidates, Obama was never the Democratic presidential candidate who seemed closest to the organization. That honor belonged to Hillary Rodham Clinton — Obama’s former rival and now secretary of State — who chaired the DLC’s “American Dream Initiative,” which developed a 2006 agenda to improve the middle-class safety net and cut wasteful spending. The role was hardly surprising, given both Clintons’ longtime relationship with the DLC: Bill Clinton chaired the organization before his 1992 election as president, and the group supplied him with many of the centrist ideas he brought into the White House.
Reed said he’s pinning some of his hopes for the group’s future on Obama’s promise to break through the constraints of partisan politics. The notion that Obama might be receptive to the DLC’s ideas gained strength recently after the president told members of the House’s New Democrat Coalition that he considered himself one of them. “He said, ‘Listen, I feel comfortable with you guys because I consider myself a New Democrat,’” said Ron Kind of Wisconsin, one of the lawmakers at the meeting.
The new DLC has already struck a distinctly bipartisan note with a report Reed co-authored with John Bridgeland, who headed President George W. Bush ’s Domestic Policy Council, on the economic downturn’s impact on nonprofits and how to help them weather the crisis. The organization is already planning to reach into state and local politics by expanding a DLC fellows program that identifies promising state legislators, mayors and county officials and brings them to Washington for policy retreats.
On a broader level, though, the group will face the same tension affecting the entire party: the sense among liberals that “their ship has come in,” as Kind puts it — and that, as a result, the need for moderation and compromise in Democratic politics has passed. But Democrats only have that majority because they’re holding on to seats that could easily return to Republican hands. In the House, for example, 49 districts that elected Democrats were carried by Republican John McCain at the top of the presidential ticket in 2008.
So if Democrats want to stay in power, Reed said, there is a vital need for think tanks that can help the party generate ideas and make sure they work. “Nobody who comes from a purple state or a purple district thinks we’ve locked those up for time immemorial,” Reed said. “And most Democrats understand that we won in part because the other side’s ideas didn’t work. So it’s that much more important for Democrats to learn that lesson and make sure our ideas do.” Now, the DLC just has to convince Democrats that the new mission is as urgent as the old one.
Tuesday, April 21, 2009
Second Amendment extended - Ninth Circuit ruling
Second Amendment extended. By Lyle Denniston
SCOTUS blog, Monday, April 20th, 2009 3:21 pm
The Constitution’s protection of an individual right to have guns for personal use restricts the powers of state and local government as much as it does those of the federal government, the Ninth Circuit Court ruled Monday. The opinion by the three-judge panel can be found here. This is the first ruling by a federal appeals court to extend the Second Amendment to the state and local level. Several cases on the same issue are now awaiting a ruling by the Seventh Circuit Court.
Ruling on an issue that is certain to reach the Supreme Court, the Circuit Court concluded “that the right to keep and bear arms” as a personal right has become a part of the Constitution as it applies to the states through the Fourteenth Amendment’s due process clause.
That right, it said, “is ‘deeply rooted in this Nation’s history and tradition.’ Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right. It has long been regarded as the ‘true palladium of liberty.’
“Colonists relied on it to assert and to win their independence, and the victorious Union sought to prevent a recalcitrant South from abridging it less than a century later. The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited. We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.”
But, following the lead of the Supreme Court’s decision last June in District of Columbia v. Heller, finding a personal right in the Second Amendment for the first time, the Circuit Court concluded that the right as interpreted by the Justices is limited to “armed self-defense” in the home.
Thus, the Circuit Court refused to strike down an Alameda County ordinance that makes it a crime to bring onto county property a gun or ammunition, or to possess them on that property. A county supervisor who sponsored the ordinance cited “a rash of gun violence” in an apparent reference to the school shootings in the late 1990s, including the one at Columbine High School in Littleton, Colo.
The Alameda ordinance, the Circuit Court said, does not involve the kind of armed self-defense that the Supreme Court had in mind in Heller. “It regulates gun possession in public places that are County property,” it concluded.
The ordinance had been challenged by Russell and Sallie Nordye, who operate a business that promotes gun shows in California. They contended that the Alameda County ordinance burdens their Second Amendment right because it makes it more difficult to buy guns.
Before the gun ordinance was adopted, gun shows had been staged at the Alameda County fairgrounds, drawing up to 4,000 people. The Nordykes said that some county officials wanted to drive gunshows out of the county, and that is what led to the ordinance’s enactment.
The Circuit Court, however, said the ordinance “does not meaningfully impede the ability of individuals to defend themselves in their homes with usable firearms, the core of the right as Heller analyzed it. The ordinance falls on the lawful side of the division, familiar from other areas of substantive due process doctrine, between unconstitutional interference with individual rights and permissible government nonfacilitation of their exercise.”
Finally, it said, banning guns from municipal property “fits within the exception from the Second Amendment for ’sensitive places’ that Heller recognized,” the Circuit Court said.
The Court also rejected a First Amendment challenge to the ordinance, based on the Nordykes’ claim that the local law was designed to silence those who promote gun rights. “The language of the ordinance,” the Court said, “suggests that gun violence, not gun culture, motivated its passage.”
It also rejected a claim of discriminatory application of the law, because of some exceptions the county wrote into its ordinance.
The ruling was written by Circuit Judge Diarmuid F. O’Scannlain and joined by Circuit Judge Arthur L. Alarcon. Circuit Judge Ronald M. Gould joined the opinion, but also wrote separately to discuss the doctrine of incorporating rights selectively to apply to state and local government.
SCOTUS blog, Monday, April 20th, 2009 3:21 pm
The Constitution’s protection of an individual right to have guns for personal use restricts the powers of state and local government as much as it does those of the federal government, the Ninth Circuit Court ruled Monday. The opinion by the three-judge panel can be found here. This is the first ruling by a federal appeals court to extend the Second Amendment to the state and local level. Several cases on the same issue are now awaiting a ruling by the Seventh Circuit Court.
Ruling on an issue that is certain to reach the Supreme Court, the Circuit Court concluded “that the right to keep and bear arms” as a personal right has become a part of the Constitution as it applies to the states through the Fourteenth Amendment’s due process clause.
That right, it said, “is ‘deeply rooted in this Nation’s history and tradition.’ Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right. It has long been regarded as the ‘true palladium of liberty.’
“Colonists relied on it to assert and to win their independence, and the victorious Union sought to prevent a recalcitrant South from abridging it less than a century later. The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited. We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.”
But, following the lead of the Supreme Court’s decision last June in District of Columbia v. Heller, finding a personal right in the Second Amendment for the first time, the Circuit Court concluded that the right as interpreted by the Justices is limited to “armed self-defense” in the home.
Thus, the Circuit Court refused to strike down an Alameda County ordinance that makes it a crime to bring onto county property a gun or ammunition, or to possess them on that property. A county supervisor who sponsored the ordinance cited “a rash of gun violence” in an apparent reference to the school shootings in the late 1990s, including the one at Columbine High School in Littleton, Colo.
The Alameda ordinance, the Circuit Court said, does not involve the kind of armed self-defense that the Supreme Court had in mind in Heller. “It regulates gun possession in public places that are County property,” it concluded.
The ordinance had been challenged by Russell and Sallie Nordye, who operate a business that promotes gun shows in California. They contended that the Alameda County ordinance burdens their Second Amendment right because it makes it more difficult to buy guns.
Before the gun ordinance was adopted, gun shows had been staged at the Alameda County fairgrounds, drawing up to 4,000 people. The Nordykes said that some county officials wanted to drive gunshows out of the county, and that is what led to the ordinance’s enactment.
The Circuit Court, however, said the ordinance “does not meaningfully impede the ability of individuals to defend themselves in their homes with usable firearms, the core of the right as Heller analyzed it. The ordinance falls on the lawful side of the division, familiar from other areas of substantive due process doctrine, between unconstitutional interference with individual rights and permissible government nonfacilitation of their exercise.”
Finally, it said, banning guns from municipal property “fits within the exception from the Second Amendment for ’sensitive places’ that Heller recognized,” the Circuit Court said.
The Court also rejected a First Amendment challenge to the ordinance, based on the Nordykes’ claim that the local law was designed to silence those who promote gun rights. “The language of the ordinance,” the Court said, “suggests that gun violence, not gun culture, motivated its passage.”
It also rejected a claim of discriminatory application of the law, because of some exceptions the county wrote into its ordinance.
The ruling was written by Circuit Judge Diarmuid F. O’Scannlain and joined by Circuit Judge Arthur L. Alarcon. Circuit Judge Ronald M. Gould joined the opinion, but also wrote separately to discuss the doctrine of incorporating rights selectively to apply to state and local government.
Obama's Gitmo
Obama's Gitmo. By William McGurn
WSJ, Apr 21, 2009
Helen Thomas: Why is the president blocking habeas corpus from prisoners at Bagram? I thought he taught constitutional law. And these prisoners have been there . . .
Robert Gibbs: You're incorrect that he taught on constitutional law.
You know we live in interesting times when Helen Thomas is going after Barack Obama. Miss Thomas was asking the White House press secretary last week why detainees at Bagram Air Base in Afghanistan should not have the same right to challenge their detention in federal court that last year's Supreme Court ruling in Boumediene v. Bush gave to Guantanamo's detainees. All Mr. Gibbs could do was interrupt and correct the doyenne of the White House press corps about Mr. Obama's class as a law professor.
The precipitate cause of Miss Thomas's question was a ruling earlier this month by federal district Judge John Bates. Judge Bates says that last year's Supreme Court ruling on Gitmo does apply to Bagram. The administration has appealed, saying that giving detainees such rights could lead to protracted litigation, disclosure of intelligence secrets and harm to American security. The wonderful irony is that, at least on the logic, everyone is right.
Start with Judge Bates. The judge is surely correct when he says the detainees brought in to Bagram from outside the country are "virtually identical" to those held at Guantanamo. He's also correct in asserting that the Supreme Court ruled the way it did out of concern "that the Executive could move detainees physically beyond the reach of the Constitution and detain an individual" at Bagram.
But President Obama's appeal is also right. Though most headlines from the past few days have focused on the release of Justice Department memos on CIA interrogation, the president's embrace of the Bush position on Bagram is far more striking. Mr. Gibbs became tongue-tied while trying to explain that stand. But the Justice Department brief is absolutely correct in asserting that "there are many legitimate reasons, having nothing to do with the intent to evade judicial review, why the military might detain an individual in Bagram."
Finally, critics like Miss Thomas also have it right. In a long and thorough post called "Obama and habeas corpus -- then and now," Glenn Greenwald, a former constitutional law litigator who blogs at Salon.com, exposes the gaping contradiction between past Obama rhetoric on the inviolability of the right to habeas corpus and the new Obama reality. He also quotes Mr. Obama's reaction to Boumediene as a "rejection of the Bush administration's attempt to create a legal black hole at Guantanamo."
Manifestly, Mr. Greenwald believes that "black hole" is simply moving to Bagram. "I wish I could be writing paeans celebrating the restoration of the Constitution and the rule of law," he writes. "But these actions -- these contradictions between what he said and what he is doing, the embrace of the very powers that caused so much anger towards Bush/Cheney -- are so blatant, so transparent, so extreme, that the only way to avoid noticing them is to purposely shut your eyes as tightly as possible and resolve that you don't want to see it, or that you're so convinced of his intrinsic Goodness that you'll just believe that even when it seems like he's doing bad things, he must really be doing them for the Good."
How can all these people be right? The answer is that each is responding to a different contradiction raised by the president's Guantanamo policy. In an impassioned 2006 speech on the Senate floor on the right to habeas corpus, Mr. Obama declared, "I do not want to hear that this is a new world and we face a new kind of enemy." During the campaign, his language implied that all we needed to settle the detainee issue once and for all was to shut down Gitmo.
As president, he is finding out that this very much is a new world, that we do face a new enemy, and that the problems posed by Guantanamo have less to do with the place than the people we detain there.
Put simply, the U.S. needs the ability to detain people we know to be dangerous without the evidence that might stand up in a federal criminal court. Because we can't say when this war will end, moreover, we also need to be able to detain them indefinitely. This is what makes the war on terror different, and why our policies will never fit neatly into a legal approach that is either purely criminal or purely military.
The good news is that Mr. Obama is smart enough to know that the relative obscurity of Bagram, not to mention the approval he has received on Guantanamo, enables him to do the right thing here without, as Mr. Greenwald notes, worrying too much that he will be called to account for a substantive about-face.
The bad news is that we seem to have reached the point where our best hope for sensible war policy now depends largely on presidential cynicism.
WSJ, Apr 21, 2009
Helen Thomas: Why is the president blocking habeas corpus from prisoners at Bagram? I thought he taught constitutional law. And these prisoners have been there . . .
Robert Gibbs: You're incorrect that he taught on constitutional law.
You know we live in interesting times when Helen Thomas is going after Barack Obama. Miss Thomas was asking the White House press secretary last week why detainees at Bagram Air Base in Afghanistan should not have the same right to challenge their detention in federal court that last year's Supreme Court ruling in Boumediene v. Bush gave to Guantanamo's detainees. All Mr. Gibbs could do was interrupt and correct the doyenne of the White House press corps about Mr. Obama's class as a law professor.
The precipitate cause of Miss Thomas's question was a ruling earlier this month by federal district Judge John Bates. Judge Bates says that last year's Supreme Court ruling on Gitmo does apply to Bagram. The administration has appealed, saying that giving detainees such rights could lead to protracted litigation, disclosure of intelligence secrets and harm to American security. The wonderful irony is that, at least on the logic, everyone is right.
Start with Judge Bates. The judge is surely correct when he says the detainees brought in to Bagram from outside the country are "virtually identical" to those held at Guantanamo. He's also correct in asserting that the Supreme Court ruled the way it did out of concern "that the Executive could move detainees physically beyond the reach of the Constitution and detain an individual" at Bagram.
But President Obama's appeal is also right. Though most headlines from the past few days have focused on the release of Justice Department memos on CIA interrogation, the president's embrace of the Bush position on Bagram is far more striking. Mr. Gibbs became tongue-tied while trying to explain that stand. But the Justice Department brief is absolutely correct in asserting that "there are many legitimate reasons, having nothing to do with the intent to evade judicial review, why the military might detain an individual in Bagram."
Finally, critics like Miss Thomas also have it right. In a long and thorough post called "Obama and habeas corpus -- then and now," Glenn Greenwald, a former constitutional law litigator who blogs at Salon.com, exposes the gaping contradiction between past Obama rhetoric on the inviolability of the right to habeas corpus and the new Obama reality. He also quotes Mr. Obama's reaction to Boumediene as a "rejection of the Bush administration's attempt to create a legal black hole at Guantanamo."
Manifestly, Mr. Greenwald believes that "black hole" is simply moving to Bagram. "I wish I could be writing paeans celebrating the restoration of the Constitution and the rule of law," he writes. "But these actions -- these contradictions between what he said and what he is doing, the embrace of the very powers that caused so much anger towards Bush/Cheney -- are so blatant, so transparent, so extreme, that the only way to avoid noticing them is to purposely shut your eyes as tightly as possible and resolve that you don't want to see it, or that you're so convinced of his intrinsic Goodness that you'll just believe that even when it seems like he's doing bad things, he must really be doing them for the Good."
How can all these people be right? The answer is that each is responding to a different contradiction raised by the president's Guantanamo policy. In an impassioned 2006 speech on the Senate floor on the right to habeas corpus, Mr. Obama declared, "I do not want to hear that this is a new world and we face a new kind of enemy." During the campaign, his language implied that all we needed to settle the detainee issue once and for all was to shut down Gitmo.
As president, he is finding out that this very much is a new world, that we do face a new enemy, and that the problems posed by Guantanamo have less to do with the place than the people we detain there.
Put simply, the U.S. needs the ability to detain people we know to be dangerous without the evidence that might stand up in a federal criminal court. Because we can't say when this war will end, moreover, we also need to be able to detain them indefinitely. This is what makes the war on terror different, and why our policies will never fit neatly into a legal approach that is either purely criminal or purely military.
The good news is that Mr. Obama is smart enough to know that the relative obscurity of Bagram, not to mention the approval he has received on Guantanamo, enables him to do the right thing here without, as Mr. Greenwald notes, worrying too much that he will be called to account for a substantive about-face.
The bad news is that we seem to have reached the point where our best hope for sensible war policy now depends largely on presidential cynicism.
On Earth Day, environmentalists must not link arms with anti-immigrant forces
On Earth Day, environmentalists must not link arms with anti-immigrant forces. By Eric K. Ward
The Progressive, April 21, 2009
On Earth Day, the environmental movement in the United States must reject bigotry. It should not join hands with anti-immigrant groups.
These groups are trying to infiltrate the environmental movement and coopt its message.
Under innocuous sounding names such as the America’s Leadership Team for Long Range Population-Immigration-Resource Planning, anti-immigrant organizations, many with ties to political extremists, are running full-page ads in progressive magazines such as The Nation, Mother Jones and Harper’s and in newspapers such as the New York Times.
The goal of these anti-immigrant groups is to lure the environmental community into an America First-style immigration policy.
That won’t solve anything, and it denies the increasing economic and environmental interconnectivity of the planet.
Many recent immigrants have come to the United States because the free-market policies that Washington forced on Latin America have backfired. Subsistence farmers couldn’t compete against U.S. agribusiness, and millions had to abandon the countryside. U.S. manufacturers opened up shop and then just as quickly closed up shop, leaving millions more without jobs.
It’s unfair to blame immigrants who came to the United States because they couldn’t eke out a living at home due to Washington’s policies.
What’s more, climate change is going to cause more people to emigrate from southern countries and from low-lying coastal areas, which will become all but uninhabitable.
These immigrants aren’t the cause of the environmental crisis. They are merely an effect of it, and they should not be blamed.
On Earth Day of all days, the environmental movement can’t let anti-immigrant groups divert us into a narrow ideological cause that reflects neither realism nor inclusiveness.
And environmental organizations cannot afford to remain silent in the face of a few anti-immigrant leaders who attempt to speak on their behalf.
Instead, as environmentalists, on Earth Day and every day, we should uphold a vision of sustainability characterized by cooperation, opportunity and equity.
The Progressive, April 21, 2009
On Earth Day, the environmental movement in the United States must reject bigotry. It should not join hands with anti-immigrant groups.
These groups are trying to infiltrate the environmental movement and coopt its message.
Under innocuous sounding names such as the America’s Leadership Team for Long Range Population-Immigration-Resource Planning, anti-immigrant organizations, many with ties to political extremists, are running full-page ads in progressive magazines such as The Nation, Mother Jones and Harper’s and in newspapers such as the New York Times.
The goal of these anti-immigrant groups is to lure the environmental community into an America First-style immigration policy.
That won’t solve anything, and it denies the increasing economic and environmental interconnectivity of the planet.
Many recent immigrants have come to the United States because the free-market policies that Washington forced on Latin America have backfired. Subsistence farmers couldn’t compete against U.S. agribusiness, and millions had to abandon the countryside. U.S. manufacturers opened up shop and then just as quickly closed up shop, leaving millions more without jobs.
It’s unfair to blame immigrants who came to the United States because they couldn’t eke out a living at home due to Washington’s policies.
What’s more, climate change is going to cause more people to emigrate from southern countries and from low-lying coastal areas, which will become all but uninhabitable.
These immigrants aren’t the cause of the environmental crisis. They are merely an effect of it, and they should not be blamed.
On Earth Day of all days, the environmental movement can’t let anti-immigrant groups divert us into a narrow ideological cause that reflects neither realism nor inclusiveness.
And environmental organizations cannot afford to remain silent in the face of a few anti-immigrant leaders who attempt to speak on their behalf.
Instead, as environmentalists, on Earth Day and every day, we should uphold a vision of sustainability characterized by cooperation, opportunity and equity.
Will Global Warming Make Future Generations Worse Off?
Will Global Warming Make Future Generations Worse Off? (No, according to realistic analysis). By Indur Goklany
Master Resource, April 20, 2009
Some people argue that we are morally obliged to reduce greenhouse gases aggressively because otherwise the world’s current development path would be unsustainable, and our descendants will be worse off than we are.
But will a warmer world be unsustainable, and leave our descendants worse off?
I have examined these claims out to the year 2200, using the IPCC’s own assumptions regarding future economic development and results generated by the Stern Review on the economics of climate change. Note that both the IPCC and Stern are viewed quite favorably by proponents of drastic GHG reductions (see, e.g., here).
The first figure (see [here]) shows for both developing and industrialized countries, the GDP per capita — an approximate measure of welfare per capita — used in the IPCC’s emissions scenarios in the absence of any climate change in 1990 (the base year used to develop the IPCC’s emission scenarios) and 2100.
For 2100, the figure shows the GDP per capita assumed in each of four representative IPCC scenarios used in the Stern Review. These scenarios are arranged with the warmest (A1FI) scenario on the left and the coolest (B1) on the right. Below each set of bars, the figure indicates the IPCC’s designation for that scenario (A1FI, A2, B1 and B2) and the corresponding projected increase in average global temperature from 1990 to 2085 (which ranges from 2.1–4.0°C).
This figure shows that, per the IPCC, in the absence of climate change, GDP per capita would grow between 11- and 67-fold for developing countries, and between 3- and 8-fold for industrialized countries. [Some people have complained that these GDPs per capita are implausibly high. If that’s the case then the IPCC’s estimates of climate change are also implausibly high, since these GDPs per capita are used to drive the IPCC’s emissions and climate change scenarios.]
Although the IPCC did not provide any estimates for 2200, the Stern Review assumed an annual growth rate of 1.3 percent after 2100 (Stern Review, Box 6.3). In my calculations below I will assume a more modest growth rate. Specifically, I assume that GDP per capita would double between 2100 and 2200, which is equivalent to an annual increase of 0.7 percent. This is also conservative in light of historical experience: GDP per capita quintupled between 1900 and 2000 (per Maddison 2003).
But climate change might reduce future welfare per capita. Stern famously estimated that unmitigated climate change would reduce welfare by an amount equivalent to a reduction in consumption per capita of 5-20 percent “now and forever” if one accounts for market impacts, non-market (that is, health and environmental) impacts, and the risk of catastrophe. He also raised the spectre that under the warmest (A1FI) scenario, the 95th percentile of the welfare losses due to climate change could rise from 7.5 percent in 2100 to 35.2 percent in 2200.
For the sake of argument and extreme caution, I will assume that the loss in welfare due to uncontrolled climate change under the warmest scenario (A1FI) will indeed equal Stern’s 95th percentile estimate of 35.2 percent. I make this assumption despite the fact that one can’t be too skeptical of centuries-long projections based not only on uncertain climate models but equally uncertain socioeconomic and technological trends. To quote from a paper commissioned by the Stern Review: “changes in socioeconomic systems cannot be projected semi-realistically for more than 5–10 years at a time.” [Emphasis added.] Second, the Review itself emphasizes “strongly” that the numbers should not “be taken too literally.” No less important, many notable economists have even disputed the Stern Review’s more modest 5-20% estimate for losses as overblown (e.g., Yale’s William Nordhaus and Hamburg’s Richard Tol). [The IPCC itself uses 5 percent as the upper limit.]
[For details on the methodology used to estimate welfare losses for the other scenarios check out my paper, Discounting the Future, in the latest issue of Regulation magazine. ]
The figure [here] shows the net welfare per capita in 2100 and 2200 after adjusting GDP per capita in the absence of climate change downward to account for welfare losses due to uncontrolled climate change per the Stern Review’s 95th percentile estimate. To put the numbers in this figure into context, in 2006, GDP per capita for industrialized countries was $19,300; the United States, $30,100; and developing countries, $1,500.
Note that net welfare per capita in 2200 is underestimated for each scenario because the GDPs per capita in the absence of climate change were underestimated while welfare losses due to climate change were overestimated.
This figure shows that notwithstanding gross inflation of the adverse impacts of uncontrolled climate change:
· Under each scenario, for both developing and industrialized countries, net welfare increases from 1990 to 2100, and from 2100 to 2200. Thus Nobelist Robert Solow’s (1993) criterion for sustainable development — namely, that current generations should “endow [future generations] with whatever it takes to achieve a standard of living at least as good as our own” — should be easily met. In other words, if the world’s current developmental path is unsustainable, it won’t be because of climate change.
· Well-being in both 2100 and 2200 should, in the aggregate, be highest for the richest-but-warmest (A1FI) scenario and lowest for the poorest (A2) scenario, again regardless of climate change. That is the richest-but-warmest world is to be preferred over poorer-but-cooler worlds. Thus, if humanity could choose between the four IPCC scenarios, for the next several decades it should choose to realize the richest-but-warmest (A1FI) world. In other words, in order to improve net welfare, governments should be striving to push their countries on the path of higher wealth rather than lower carbon. So why are the world’s governments trying to negotiate a deal in Copenhagen later this year that would make their populations poorer and reduce their welfare?
· Net welfare per capita in both developing and industrialized countries should be much higher in 2100 than in 1990, and higher still in 2200, notwithstanding any climate change or which scenario one picks. That is, regardless of the circumstance, future generations, particularly in today’s developing countries, will be better off than current generations. Thus the premise underlying the argument that we are morally obliged to control emissions now to ensure that future generations won’t be worse off isn’t supported by the Stern Review’s own analysis.
Conclusion
In fact, the above raises the question whether it is moral to require today’s poorer generations to spend their scarce resource on anthropogenic GHG-induced global warming — a problem that may or may not be faced by future, far wealthier, and technologically better endowed generations — instead of the more urgent, real problems that plague current generations and will continue to plague future generations as well.
Master Resource, April 20, 2009
Some people argue that we are morally obliged to reduce greenhouse gases aggressively because otherwise the world’s current development path would be unsustainable, and our descendants will be worse off than we are.
But will a warmer world be unsustainable, and leave our descendants worse off?
I have examined these claims out to the year 2200, using the IPCC’s own assumptions regarding future economic development and results generated by the Stern Review on the economics of climate change. Note that both the IPCC and Stern are viewed quite favorably by proponents of drastic GHG reductions (see, e.g., here).
The first figure (see [here]) shows for both developing and industrialized countries, the GDP per capita — an approximate measure of welfare per capita — used in the IPCC’s emissions scenarios in the absence of any climate change in 1990 (the base year used to develop the IPCC’s emission scenarios) and 2100.
For 2100, the figure shows the GDP per capita assumed in each of four representative IPCC scenarios used in the Stern Review. These scenarios are arranged with the warmest (A1FI) scenario on the left and the coolest (B1) on the right. Below each set of bars, the figure indicates the IPCC’s designation for that scenario (A1FI, A2, B1 and B2) and the corresponding projected increase in average global temperature from 1990 to 2085 (which ranges from 2.1–4.0°C).
This figure shows that, per the IPCC, in the absence of climate change, GDP per capita would grow between 11- and 67-fold for developing countries, and between 3- and 8-fold for industrialized countries. [Some people have complained that these GDPs per capita are implausibly high. If that’s the case then the IPCC’s estimates of climate change are also implausibly high, since these GDPs per capita are used to drive the IPCC’s emissions and climate change scenarios.]
Although the IPCC did not provide any estimates for 2200, the Stern Review assumed an annual growth rate of 1.3 percent after 2100 (Stern Review, Box 6.3). In my calculations below I will assume a more modest growth rate. Specifically, I assume that GDP per capita would double between 2100 and 2200, which is equivalent to an annual increase of 0.7 percent. This is also conservative in light of historical experience: GDP per capita quintupled between 1900 and 2000 (per Maddison 2003).
But climate change might reduce future welfare per capita. Stern famously estimated that unmitigated climate change would reduce welfare by an amount equivalent to a reduction in consumption per capita of 5-20 percent “now and forever” if one accounts for market impacts, non-market (that is, health and environmental) impacts, and the risk of catastrophe. He also raised the spectre that under the warmest (A1FI) scenario, the 95th percentile of the welfare losses due to climate change could rise from 7.5 percent in 2100 to 35.2 percent in 2200.
For the sake of argument and extreme caution, I will assume that the loss in welfare due to uncontrolled climate change under the warmest scenario (A1FI) will indeed equal Stern’s 95th percentile estimate of 35.2 percent. I make this assumption despite the fact that one can’t be too skeptical of centuries-long projections based not only on uncertain climate models but equally uncertain socioeconomic and technological trends. To quote from a paper commissioned by the Stern Review: “changes in socioeconomic systems cannot be projected semi-realistically for more than 5–10 years at a time.” [Emphasis added.] Second, the Review itself emphasizes “strongly” that the numbers should not “be taken too literally.” No less important, many notable economists have even disputed the Stern Review’s more modest 5-20% estimate for losses as overblown (e.g., Yale’s William Nordhaus and Hamburg’s Richard Tol). [The IPCC itself uses 5 percent as the upper limit.]
[For details on the methodology used to estimate welfare losses for the other scenarios check out my paper, Discounting the Future, in the latest issue of Regulation magazine. ]
The figure [here] shows the net welfare per capita in 2100 and 2200 after adjusting GDP per capita in the absence of climate change downward to account for welfare losses due to uncontrolled climate change per the Stern Review’s 95th percentile estimate. To put the numbers in this figure into context, in 2006, GDP per capita for industrialized countries was $19,300; the United States, $30,100; and developing countries, $1,500.
Note that net welfare per capita in 2200 is underestimated for each scenario because the GDPs per capita in the absence of climate change were underestimated while welfare losses due to climate change were overestimated.
This figure shows that notwithstanding gross inflation of the adverse impacts of uncontrolled climate change:
· Under each scenario, for both developing and industrialized countries, net welfare increases from 1990 to 2100, and from 2100 to 2200. Thus Nobelist Robert Solow’s (1993) criterion for sustainable development — namely, that current generations should “endow [future generations] with whatever it takes to achieve a standard of living at least as good as our own” — should be easily met. In other words, if the world’s current developmental path is unsustainable, it won’t be because of climate change.
· Well-being in both 2100 and 2200 should, in the aggregate, be highest for the richest-but-warmest (A1FI) scenario and lowest for the poorest (A2) scenario, again regardless of climate change. That is the richest-but-warmest world is to be preferred over poorer-but-cooler worlds. Thus, if humanity could choose between the four IPCC scenarios, for the next several decades it should choose to realize the richest-but-warmest (A1FI) world. In other words, in order to improve net welfare, governments should be striving to push their countries on the path of higher wealth rather than lower carbon. So why are the world’s governments trying to negotiate a deal in Copenhagen later this year that would make their populations poorer and reduce their welfare?
· Net welfare per capita in both developing and industrialized countries should be much higher in 2100 than in 1990, and higher still in 2200, notwithstanding any climate change or which scenario one picks. That is, regardless of the circumstance, future generations, particularly in today’s developing countries, will be better off than current generations. Thus the premise underlying the argument that we are morally obliged to control emissions now to ensure that future generations won’t be worse off isn’t supported by the Stern Review’s own analysis.
Conclusion
In fact, the above raises the question whether it is moral to require today’s poorer generations to spend their scarce resource on anthropogenic GHG-induced global warming — a problem that may or may not be faced by future, far wealthier, and technologically better endowed generations — instead of the more urgent, real problems that plague current generations and will continue to plague future generations as well.
Conservative views: The Uighurs and the 'Torture' Memos
The Uighurs and the 'Torture' Memos, by Jed Babbin
Human Events, Apr 20, 2009
White House lawyers are refusing to accept the findings of an inter-agency committee that the Uighur Chinese Muslims held at Guantanamo Bay are too dangerous to release inside the U.S., according to Pentagon sources familiar with the action.
This action -- coupled with the release of previously top secret legal opinions on harsh interrogation methods -- demonstrates the Obama administration’s willingness to ignore reality.
President Obama’s decision to close the terrorist detention facility (known as “Gitmo” to the military) was made despite Bush administration determinations that there were no realistic alternatives to it.
Gitmo holds three classes of terrorist detainees: first, those that are held for prosecution of terrorist acts such as Khalid Sheik Muhammed; second, those who cannot be prosecuted and will be released or transferred to another country for trial or incarceration; and third, those who cannot be prosecuted (because the information against them is intelligence information inadmissible in court) but who pose such a danger that they cannot be released.
The last category encompasses a large number of the Gitmo detainees. The Supreme Court has held -- in the Hamdan decision -- that “administrative detention” is permissible in time of war.
After Obama’s promise to close Gitmo, the White House ordered an inter-agency review of the status of all the detainees, apparently believing that many of those held would be quickly determined releasable. The committee -- comprised of all the national security agencies -- was tasked to start with what the Obama administration believed to be the easiest case: that of the seventeen Uighurs, Chinese Muslims who were captured at an al-Queda training camp.
The Uighurs sued for release under the Supreme Court’s Boumediene decision, which gave Gitmo prisoners the Constitutional right to habeas corpus. Last October, a federal court ordered their release into the United States, but an appeals court overturned the decision, saying the right to make that determination rested entirely with the president. Since then, Attorney General Eric Holder has said that some of the Gitmo inmates may be released into the United States.
That, apparently, is what the White House plans for the Uighurs and others.
Reviewing the Uighurs detention, the inter-agency panel found that they weren’t the ignorant, innocent goatherds the White House believed them to be. The committee determined they were too dangerous to release because they were members of the ETIM terrorist group, the “East Turkistan Islamic Movement,” and because their presence at the al-Queda training camp was no accident. There is now no ETIM terrorist cell in the United States: there will be one if these Uighurs are released into the United States.
According to Defense Department sources, the White House legal office has told the inter-agency review group to re-do their findings to come up with the opposite answer.
The White House already came up with the opposite answer in declassifying and releasing the so-called “torture memos,” the previously top-secret legal opinions which found, under the law as it was written at the time, that interrogation techniques which ranged from the mildest to the toughest -- from open-fingered face slapping to waterboarding -- were permitted under the law.
The legal opinions were correct. Under the law in 2002, threats and mild physical abuse -- which were not likely to cause lasting psychological harm -- were legal. Waterboarding, the harshest technique which triggers the autonomic reaction of the sense of drowning, was deemed legal because of extensive experience in training pilots and special operations troops who didn’t experience lasting harm.
But now, having released the details of the techniques, the Obama administration -- through Director of National Intelligence Dennis Blair -- has said that none of these techniques will be used again. Coupled with the publication of the Army’s guide to interrogation of prisoners, al-Queda and all other terrorists now know what to expect if captured by Americans. And, as they have in the past, they can use this knowledge to train to resist the techniques we can use.
White House chief of staff Rahm Emanuel excused the release of the memos because, he said Sunday, that information about the techniques revealed was already public and that they have been banned. Which begs the question of how successful interrogations can ever again be performed.
The Obama administration’s action has given terrorists what may be a decisive advantage. If a detainee knows what to expect, his confidence cannot be shaken. He cannot be forced out of his comfort zone into doubt. And he can withhold information that may be critical to saving American lives.
President Obama and Attorney General Holder have embarked on a course that denies our intelligence agencies and military forces the ability to gather intelligence needed to interdict and prevent future terrorist attacks. Releasing the Uighurs into the United States as free men creates a specific terrorist threat within our borders.
The administration is now under pressure to constrain the NSA’s terrorist surveillance program -- what the media and liberal pressure groups insist on calling “warrentless wiretapping” -- because it allegedly gathered more information from more sources than it was supposed to do in the last few months.
The heated debate over the Foreign Intelligence Surveillance Act -- the law under which that program functions -- resulted in a new law that provides specific and effective protections of American civil liberties that are Constitutionally sufficient. If President Obama continues his current course, he will go farther in limiting how this program functions.
In his dissent in the Boumediene case, Justice Scalia said that it gave the power to detain enemy combatants to the branch of government that had the least expertise in national security, the courts. He added that the decision would probably cost American lives.Scalia was correct on the latter point, but the advent of the Obama administration makes the former at least questionable. How many more advantages is President Obama willing to grant our enemies?
Mr. Babbin is the editor of Human Events and HumanEvents.com. He served as a deputy undersecretary of defense in President George H.W. Bush's administration. He is the author of "In the Words of our Enemies"(Regnery,2007) and (with Edward Timperlake) of "Showdown: Why China Wants War with the United States" (Regnery, 2006) and "Inside the Asylum: Why the UN and Old Europe are Worse than You Think" (Regnery, 2004). E-mail him at jbabbin@eaglepub.com.
Human Events, Apr 20, 2009
White House lawyers are refusing to accept the findings of an inter-agency committee that the Uighur Chinese Muslims held at Guantanamo Bay are too dangerous to release inside the U.S., according to Pentagon sources familiar with the action.
This action -- coupled with the release of previously top secret legal opinions on harsh interrogation methods -- demonstrates the Obama administration’s willingness to ignore reality.
President Obama’s decision to close the terrorist detention facility (known as “Gitmo” to the military) was made despite Bush administration determinations that there were no realistic alternatives to it.
Gitmo holds three classes of terrorist detainees: first, those that are held for prosecution of terrorist acts such as Khalid Sheik Muhammed; second, those who cannot be prosecuted and will be released or transferred to another country for trial or incarceration; and third, those who cannot be prosecuted (because the information against them is intelligence information inadmissible in court) but who pose such a danger that they cannot be released.
The last category encompasses a large number of the Gitmo detainees. The Supreme Court has held -- in the Hamdan decision -- that “administrative detention” is permissible in time of war.
After Obama’s promise to close Gitmo, the White House ordered an inter-agency review of the status of all the detainees, apparently believing that many of those held would be quickly determined releasable. The committee -- comprised of all the national security agencies -- was tasked to start with what the Obama administration believed to be the easiest case: that of the seventeen Uighurs, Chinese Muslims who were captured at an al-Queda training camp.
The Uighurs sued for release under the Supreme Court’s Boumediene decision, which gave Gitmo prisoners the Constitutional right to habeas corpus. Last October, a federal court ordered their release into the United States, but an appeals court overturned the decision, saying the right to make that determination rested entirely with the president. Since then, Attorney General Eric Holder has said that some of the Gitmo inmates may be released into the United States.
That, apparently, is what the White House plans for the Uighurs and others.
Reviewing the Uighurs detention, the inter-agency panel found that they weren’t the ignorant, innocent goatherds the White House believed them to be. The committee determined they were too dangerous to release because they were members of the ETIM terrorist group, the “East Turkistan Islamic Movement,” and because their presence at the al-Queda training camp was no accident. There is now no ETIM terrorist cell in the United States: there will be one if these Uighurs are released into the United States.
According to Defense Department sources, the White House legal office has told the inter-agency review group to re-do their findings to come up with the opposite answer.
The White House already came up with the opposite answer in declassifying and releasing the so-called “torture memos,” the previously top-secret legal opinions which found, under the law as it was written at the time, that interrogation techniques which ranged from the mildest to the toughest -- from open-fingered face slapping to waterboarding -- were permitted under the law.
The legal opinions were correct. Under the law in 2002, threats and mild physical abuse -- which were not likely to cause lasting psychological harm -- were legal. Waterboarding, the harshest technique which triggers the autonomic reaction of the sense of drowning, was deemed legal because of extensive experience in training pilots and special operations troops who didn’t experience lasting harm.
But now, having released the details of the techniques, the Obama administration -- through Director of National Intelligence Dennis Blair -- has said that none of these techniques will be used again. Coupled with the publication of the Army’s guide to interrogation of prisoners, al-Queda and all other terrorists now know what to expect if captured by Americans. And, as they have in the past, they can use this knowledge to train to resist the techniques we can use.
White House chief of staff Rahm Emanuel excused the release of the memos because, he said Sunday, that information about the techniques revealed was already public and that they have been banned. Which begs the question of how successful interrogations can ever again be performed.
The Obama administration’s action has given terrorists what may be a decisive advantage. If a detainee knows what to expect, his confidence cannot be shaken. He cannot be forced out of his comfort zone into doubt. And he can withhold information that may be critical to saving American lives.
President Obama and Attorney General Holder have embarked on a course that denies our intelligence agencies and military forces the ability to gather intelligence needed to interdict and prevent future terrorist attacks. Releasing the Uighurs into the United States as free men creates a specific terrorist threat within our borders.
The administration is now under pressure to constrain the NSA’s terrorist surveillance program -- what the media and liberal pressure groups insist on calling “warrentless wiretapping” -- because it allegedly gathered more information from more sources than it was supposed to do in the last few months.
The heated debate over the Foreign Intelligence Surveillance Act -- the law under which that program functions -- resulted in a new law that provides specific and effective protections of American civil liberties that are Constitutionally sufficient. If President Obama continues his current course, he will go farther in limiting how this program functions.
In his dissent in the Boumediene case, Justice Scalia said that it gave the power to detain enemy combatants to the branch of government that had the least expertise in national security, the courts. He added that the decision would probably cost American lives.Scalia was correct on the latter point, but the advent of the Obama administration makes the former at least questionable. How many more advantages is President Obama willing to grant our enemies?
Mr. Babbin is the editor of Human Events and HumanEvents.com. He served as a deputy undersecretary of defense in President George H.W. Bush's administration. He is the author of "In the Words of our Enemies"(Regnery,2007) and (with Edward Timperlake) of "Showdown: Why China Wants War with the United States" (Regnery, 2006) and "Inside the Asylum: Why the UN and Old Europe are Worse than You Think" (Regnery, 2004). E-mail him at jbabbin@eaglepub.com.
Monday, April 20, 2009
Newsweek on Harold Koh
Newsweek on Harold Koh, by Ed Whelan
Bench Memos/NRO, Monday, April 20, 2009
In the new issue of Newsweek, Stuart Taylor Jr. and Evan Thomas have an article on Harold Koh’s nomination to be State Department legal adviser. As regular readers of Bench Memos know, Taylor is one of my favorite journalists—regularly intelligent, insightful, and fair, whether or not I agree with him in every respect. And there’s much to commend in this article, including its acknowledgment that I raise “legitimate questions” about Koh, its exposition of many of Koh’s views, and its conclusion that “conservatives have a point that Koh and the other ‘transnationalists’ are using their legal theories to advance a political agenda.” That said, I have a correction and a broader comment.
First, the correction: Taylor and Thomas assert that in his 2002 Senate testimony on CEDAW, “Koh stressed that [the CEDAW committee] reports are not binding law.” In fact, Koh did not even acknowledge the existence of the reports that undercut his testimony, much less try to explain what weight, if any, their interpretations bore. That’s why law professor Julian Ku, in marked understatement, said that Koh was “plainly in advocacy mode, not scholarship mode,” and called Koh’s testimony “not his best moment” and “sloppy.” And that inexplicable omission is part of what underlies my assessment, explained more fully here, that Koh deliberately chose not to be forthright with the Senate Foreign Relations Committee.
That correction feeds into a broader comment: I believe that Taylor and Thomas significantly understate how radical and threatening Koh’s views are. They write, for example, that if “taken to their logical extreme,” Koh’s views “could erode American democracy and sovereignty.” But one doesn’t have to make logical extrapolations from what Koh has written to discern that threat; it’s plain from his very words (as I spell out in my series of blog posts—available in outline form at the bottom of this post). The only question is whether he could and would implement his views as State Department legal adviser—and (as I explain in that same post), he would have ample opportunities to do so.
Taylor and Thomas conclude that the Senate should confirm Koh because he is not “off the wall.” I generally agree with Taylor and Thomas that a president is entitled to substantial deference in his executive-branch picks, but I think that a thorough examination of Koh’s views shows that they are far more extreme than anything that President Obama advertised when he ran for office. I started my series of posts not particularly interested in the specific question whether Koh should be confirmed (in part because, absent a great awakening, it’s a virtual certainty that he will be) and far more interested simply in exposing how radical his views are. But the more I explored, the more extreme Koh turned out to be.
In addition, while I’m sure that Koh has lots of admirable qualities, I believe that there are serious questions about his character. Several folks who have had dealings with Koh—including folks who are not conservatives or Republicans—have privately attested to me that they have witnessed in him the same sort of bullying and intellectual dishonesty that his CEDAW testimony reflects—testimony, not incidentally, before the same Senate committee that will conduct his confirmation hearing.
---
More by this author on Mr Koh here
Bench Memos/NRO, Monday, April 20, 2009
In the new issue of Newsweek, Stuart Taylor Jr. and Evan Thomas have an article on Harold Koh’s nomination to be State Department legal adviser. As regular readers of Bench Memos know, Taylor is one of my favorite journalists—regularly intelligent, insightful, and fair, whether or not I agree with him in every respect. And there’s much to commend in this article, including its acknowledgment that I raise “legitimate questions” about Koh, its exposition of many of Koh’s views, and its conclusion that “conservatives have a point that Koh and the other ‘transnationalists’ are using their legal theories to advance a political agenda.” That said, I have a correction and a broader comment.
First, the correction: Taylor and Thomas assert that in his 2002 Senate testimony on CEDAW, “Koh stressed that [the CEDAW committee] reports are not binding law.” In fact, Koh did not even acknowledge the existence of the reports that undercut his testimony, much less try to explain what weight, if any, their interpretations bore. That’s why law professor Julian Ku, in marked understatement, said that Koh was “plainly in advocacy mode, not scholarship mode,” and called Koh’s testimony “not his best moment” and “sloppy.” And that inexplicable omission is part of what underlies my assessment, explained more fully here, that Koh deliberately chose not to be forthright with the Senate Foreign Relations Committee.
That correction feeds into a broader comment: I believe that Taylor and Thomas significantly understate how radical and threatening Koh’s views are. They write, for example, that if “taken to their logical extreme,” Koh’s views “could erode American democracy and sovereignty.” But one doesn’t have to make logical extrapolations from what Koh has written to discern that threat; it’s plain from his very words (as I spell out in my series of blog posts—available in outline form at the bottom of this post). The only question is whether he could and would implement his views as State Department legal adviser—and (as I explain in that same post), he would have ample opportunities to do so.
Taylor and Thomas conclude that the Senate should confirm Koh because he is not “off the wall.” I generally agree with Taylor and Thomas that a president is entitled to substantial deference in his executive-branch picks, but I think that a thorough examination of Koh’s views shows that they are far more extreme than anything that President Obama advertised when he ran for office. I started my series of posts not particularly interested in the specific question whether Koh should be confirmed (in part because, absent a great awakening, it’s a virtual certainty that he will be) and far more interested simply in exposing how radical his views are. But the more I explored, the more extreme Koh turned out to be.
In addition, while I’m sure that Koh has lots of admirable qualities, I believe that there are serious questions about his character. Several folks who have had dealings with Koh—including folks who are not conservatives or Republicans—have privately attested to me that they have witnessed in him the same sort of bullying and intellectual dishonesty that his CEDAW testimony reflects—testimony, not incidentally, before the same Senate committee that will conduct his confirmation hearing.
---
More by this author on Mr Koh here
Libertarian Comments on Gun Control in Mexico
Cato Scholar Comments on Gun Control in Mexico. By David Rittgers
Cato, Friday, April 17, 2009
An unfortunate aspect of President Obama's trip to Mexico is the false—but virtually unopposed—assertion that the vast majority of weapons being used in the Mexican drug war come south from the U.S.
Yes, there is a major problem with drug-related gun violence along the border. No, U.S. gun laws are not the main culprit—and to lay all the rhetorical blame on them is to ignore serious weaknesses in numerous other policy areas.
The claim that that 90 percent of the guns involved in Mexico's drug war come from the United States has already been debunked. The reality is that out of 29,000 firearms picked up in Mexico, 5,114 of the 6,000 guns successfully traced came from the United States. While that is 90 percent of traced guns, it means that only 17 percent of recovered guns come from the U.S. civilian market.
Where did the rest come from? A number of places. To begin with, over 150,000 Mexican soldiers have deserted in the last six years for the better pay and benefits of cartel life, some taking their issued M-16 rifles with them.
What the Obama administration should look at is the Direct Commercial Sales, the legal export of military-grade weapons monitored by the State Department. The FY 2007 report shows a record number of investigations and a record number of fraudulent sales. Unsurprisingly, the majority of "unfavorable" findings in the Americas are in small arms and ammunition. Cutting down the number of military weapons sold through front companies to the cartels will do more to combat the violence than restricting the Second Amendment rights of all Americans.
And, of course, sadly absent from this debate is the issue of enriching and empowering violent black marketeers through the U.S.'s empirically failed prohibition on drugs.
Cato, Friday, April 17, 2009
An unfortunate aspect of President Obama's trip to Mexico is the false—but virtually unopposed—assertion that the vast majority of weapons being used in the Mexican drug war come south from the U.S.
Yes, there is a major problem with drug-related gun violence along the border. No, U.S. gun laws are not the main culprit—and to lay all the rhetorical blame on them is to ignore serious weaknesses in numerous other policy areas.
The claim that that 90 percent of the guns involved in Mexico's drug war come from the United States has already been debunked. The reality is that out of 29,000 firearms picked up in Mexico, 5,114 of the 6,000 guns successfully traced came from the United States. While that is 90 percent of traced guns, it means that only 17 percent of recovered guns come from the U.S. civilian market.
Where did the rest come from? A number of places. To begin with, over 150,000 Mexican soldiers have deserted in the last six years for the better pay and benefits of cartel life, some taking their issued M-16 rifles with them.
What the Obama administration should look at is the Direct Commercial Sales, the legal export of military-grade weapons monitored by the State Department. The FY 2007 report shows a record number of investigations and a record number of fraudulent sales. Unsurprisingly, the majority of "unfavorable" findings in the Americas are in small arms and ammunition. Cutting down the number of military weapons sold through front companies to the cartels will do more to combat the violence than restricting the Second Amendment rights of all Americans.
And, of course, sadly absent from this debate is the issue of enriching and empowering violent black marketeers through the U.S.'s empirically failed prohibition on drugs.
Zuma: South Africa's likely next president is no Mandela-like godhead
Judging Zuma. By Mark Gevisser
South Africa's likely next president is no Mandela-like godhead.
WSJ, Apr 20. 2009
Campaigning in his kwaZulu-Natal heartland this past week, Jacob Zuma took aim at one of his sharpest critics, the Nobel laureate Archbishop Desmond Tutu. The cleric had "strayed" from his pastoral responsibilities by criticizing him, said Mr. Zuma, who has been fighting charges of fraud and racketeering for much of the past decade: "As far as I know, the role of priests is to pray for the souls of sinners, not condemn them."
The comment, coming from the man destined to be South Africa's next president, marks a watershed in the country's politics. For it is an admission by Mr. Zuma himself that South Africa's leaders are no longer the liberating godheads in the mold of Nelson Mandela. No: They are flawed and even errant human beings, "sinners" making do in an imperfect and often hostile world.
Mr. Zuma, the ruling African National Congress's candidate for president in Wednesday's general elections, was responding to comments by Mr. Tutu that he was unsuitable for the presidency. Like many other South Africans, Mr. Tutu believes the ANC leader is irrevocably compromised by the charges against him, even though they were dropped earlier this month amid findings that the chief investigator had abused the prosecutorial process.
Mr. Zuma insists that he was the victim of a political conspiracy masterminded by his predecessor and rival, former South African president Thabo Mbeki. But at the very least, Mr. Zuma was shown to have lived for a decade off the largesse of a benefactor who actually served time in jail for having solicited a bribe on his behalf.
The National Prosecuting Authority (NPA) insists that despite the "collusion" of the chief investigator with Mr. Zuma's political enemies, the "substantive merits" of the case remain. It would have been far preferable for the matter to have been tested in court rather than prejudged by the NPA, which now stands accused of having been manipulated politically by Mr. Zuma, just as it once was by Mr. Mbeki. What makes this accusation even stronger is that the evidence of prosecutorial abuse -- a series of covert recordings -- was submitted to the authorities by Mr. Zuma himself, who could have only acquired them from the intelligence services.
Many also believe that even though Mr. Zuma was acquitted of rape charges in 2006, he showed appalling judgment by admitting to having had unprotected sex with an HIV-positive woman who regarded him as a "father"; by claiming that he inoculated himself against infection with a postcoital shower; and by allowing a mob of misogynist supporters to wreak havoc outside the court.
With all of the above, not to mention the fact that his finances and personal life are in perpetual shambles (he is a polygamist with several wives and around 20 children) and that he has no formal education, Mr. Zuma would seem ill-suited to the presidency of Africa's most sophisticated state and its flagship democracy.
And yet the ANC leader is likely to win Wednesday's elections with a significant majority (probably more than 60%), and has become a figure of cult popularity, particularly among the poor.
His popularity rests on several foundations. First, the century-old ANC remains "home" to most black South Africans; moving away from it would be tantamount to abandoning one's family. Second, Mr. Zuma's flawed humanity appeals greatly to ordinary people. A man of humble rural origin, he has struggled through life, and many of his supporters identify with his appetites and indiscretions. He styles himself as the purveyor of common home truths rather than the high-minded intellectualisms of his aloof predecessor. Such homeboy populism offers the impression that he is accessible and responsive, in sharp contrast to Mr. Mbeki.
Despite a significant increase in service delivery in the 15 years since the ANC came to power, most South Africans remain desperately poor and feel excluded from the banquet of victory at which a small but ostentatious new black elite now sups. Mr. Zuma himself is perceived to have been ejected from this elite by Mr. Mbeki and his cronies, because he was not sophisticated, educated or slick enough. He is the first ANC leader who does not hail from the small black professional elite. Ordinary people identify with his seeming alienation from this elite and sense, in his extraordinary ascendancy, the possibilities for their own redemption. They relate most of all to his victimhood, and they admire his ability to overcome it.
Mr. Zuma has certainly proven himself a remarkably resilient politician, even if he has earned the reputation of being all things to all people, telling shopfloor audiences one thing and their bosses another, with little indication of a coherent vision. His candidacy was dependent on the active sponsorship of the left, particularly South Africa's powerful labor movement. It remains to be seen whether he will be able to steer the middle ground between his supporters' socialist agendas and the imperatives of the market.
But there are indications that while he will not tamper much with the economic orthodoxies established by his predecessor, he might provoke a return to conservative patriarchy at odds with the liberal democratic values of the Mandela-era ANC. He has often articulated a social conservatism about matters such as teen pregnancy and homosexuality and urged faith communities to challenge those interpretations of the constitution -- such as the right to abortion -- with which they are uncomfortable.
In crime-ridden South Africa he talks tough, but in a way that suggests the easy solutions of vigilantism: He once suggested that murder and rape suspects should forfeit their rights. Recently, he indicated that he would overlook the highly regarded deputy chief justice, Dikgang Moseneke, for a promotion, because Mr. Moseneke once made a statement that he owed his allegiance to the people rather than to the ANC.
Even if he is the victim of a conspiracy, there are troubling signs in the way Mr. Zuma has handled his legal travails and appears to have manipulated the organs of state to have the charges against him dropped. Under Mr. Mbeki and now Mr. Zuma, the ANC has confused party and state to such an extent that South Africa has become a de facto one-party state. The ruling party has become seduced by its own liberation mythologies and has developed an unduly proprietary sense of ownership over South Africa's destiny (Mr. Zuma likes to talk about how it will rule until the messiah's coming). Flowing out of this is a system of patronage and kickback politics that undermines the very "developmental state" it promises to establish. For this reason, many lifelong ANC supporters, myself included, will be voting for the opposition for the first time when we go to the polls on Wednesday.
Mr. Gevisser is Writer in Residence at the University of Pretoria and the author of "A Legacy of Liberation: Thabo Mbeki and the Future of the South African Dream," just out from Palgrave Macmillan.
South Africa's likely next president is no Mandela-like godhead.
WSJ, Apr 20. 2009
Campaigning in his kwaZulu-Natal heartland this past week, Jacob Zuma took aim at one of his sharpest critics, the Nobel laureate Archbishop Desmond Tutu. The cleric had "strayed" from his pastoral responsibilities by criticizing him, said Mr. Zuma, who has been fighting charges of fraud and racketeering for much of the past decade: "As far as I know, the role of priests is to pray for the souls of sinners, not condemn them."
The comment, coming from the man destined to be South Africa's next president, marks a watershed in the country's politics. For it is an admission by Mr. Zuma himself that South Africa's leaders are no longer the liberating godheads in the mold of Nelson Mandela. No: They are flawed and even errant human beings, "sinners" making do in an imperfect and often hostile world.
Mr. Zuma, the ruling African National Congress's candidate for president in Wednesday's general elections, was responding to comments by Mr. Tutu that he was unsuitable for the presidency. Like many other South Africans, Mr. Tutu believes the ANC leader is irrevocably compromised by the charges against him, even though they were dropped earlier this month amid findings that the chief investigator had abused the prosecutorial process.
Mr. Zuma insists that he was the victim of a political conspiracy masterminded by his predecessor and rival, former South African president Thabo Mbeki. But at the very least, Mr. Zuma was shown to have lived for a decade off the largesse of a benefactor who actually served time in jail for having solicited a bribe on his behalf.
The National Prosecuting Authority (NPA) insists that despite the "collusion" of the chief investigator with Mr. Zuma's political enemies, the "substantive merits" of the case remain. It would have been far preferable for the matter to have been tested in court rather than prejudged by the NPA, which now stands accused of having been manipulated politically by Mr. Zuma, just as it once was by Mr. Mbeki. What makes this accusation even stronger is that the evidence of prosecutorial abuse -- a series of covert recordings -- was submitted to the authorities by Mr. Zuma himself, who could have only acquired them from the intelligence services.
Many also believe that even though Mr. Zuma was acquitted of rape charges in 2006, he showed appalling judgment by admitting to having had unprotected sex with an HIV-positive woman who regarded him as a "father"; by claiming that he inoculated himself against infection with a postcoital shower; and by allowing a mob of misogynist supporters to wreak havoc outside the court.
With all of the above, not to mention the fact that his finances and personal life are in perpetual shambles (he is a polygamist with several wives and around 20 children) and that he has no formal education, Mr. Zuma would seem ill-suited to the presidency of Africa's most sophisticated state and its flagship democracy.
And yet the ANC leader is likely to win Wednesday's elections with a significant majority (probably more than 60%), and has become a figure of cult popularity, particularly among the poor.
His popularity rests on several foundations. First, the century-old ANC remains "home" to most black South Africans; moving away from it would be tantamount to abandoning one's family. Second, Mr. Zuma's flawed humanity appeals greatly to ordinary people. A man of humble rural origin, he has struggled through life, and many of his supporters identify with his appetites and indiscretions. He styles himself as the purveyor of common home truths rather than the high-minded intellectualisms of his aloof predecessor. Such homeboy populism offers the impression that he is accessible and responsive, in sharp contrast to Mr. Mbeki.
Despite a significant increase in service delivery in the 15 years since the ANC came to power, most South Africans remain desperately poor and feel excluded from the banquet of victory at which a small but ostentatious new black elite now sups. Mr. Zuma himself is perceived to have been ejected from this elite by Mr. Mbeki and his cronies, because he was not sophisticated, educated or slick enough. He is the first ANC leader who does not hail from the small black professional elite. Ordinary people identify with his seeming alienation from this elite and sense, in his extraordinary ascendancy, the possibilities for their own redemption. They relate most of all to his victimhood, and they admire his ability to overcome it.
Mr. Zuma has certainly proven himself a remarkably resilient politician, even if he has earned the reputation of being all things to all people, telling shopfloor audiences one thing and their bosses another, with little indication of a coherent vision. His candidacy was dependent on the active sponsorship of the left, particularly South Africa's powerful labor movement. It remains to be seen whether he will be able to steer the middle ground between his supporters' socialist agendas and the imperatives of the market.
But there are indications that while he will not tamper much with the economic orthodoxies established by his predecessor, he might provoke a return to conservative patriarchy at odds with the liberal democratic values of the Mandela-era ANC. He has often articulated a social conservatism about matters such as teen pregnancy and homosexuality and urged faith communities to challenge those interpretations of the constitution -- such as the right to abortion -- with which they are uncomfortable.
In crime-ridden South Africa he talks tough, but in a way that suggests the easy solutions of vigilantism: He once suggested that murder and rape suspects should forfeit their rights. Recently, he indicated that he would overlook the highly regarded deputy chief justice, Dikgang Moseneke, for a promotion, because Mr. Moseneke once made a statement that he owed his allegiance to the people rather than to the ANC.
Even if he is the victim of a conspiracy, there are troubling signs in the way Mr. Zuma has handled his legal travails and appears to have manipulated the organs of state to have the charges against him dropped. Under Mr. Mbeki and now Mr. Zuma, the ANC has confused party and state to such an extent that South Africa has become a de facto one-party state. The ruling party has become seduced by its own liberation mythologies and has developed an unduly proprietary sense of ownership over South Africa's destiny (Mr. Zuma likes to talk about how it will rule until the messiah's coming). Flowing out of this is a system of patronage and kickback politics that undermines the very "developmental state" it promises to establish. For this reason, many lifelong ANC supporters, myself included, will be voting for the opposition for the first time when we go to the polls on Wednesday.
Mr. Gevisser is Writer in Residence at the University of Pretoria and the author of "A Legacy of Liberation: Thabo Mbeki and the Future of the South African Dream," just out from Palgrave Macmillan.
Americas Summit: Missed Opportunity
Americas Summit: Missed Opportunity. By Mary Anastasia O'Grady
WSJ, Apr 20, 2009
If President Barack Obama's goal at the fifth Summit of the Americas in Trinidad and Tobago this weekend was to be better liked by the region's dictators and left-wing populists than his predecessor George W. Bush, the White House can chalk up a win.
If, on the other hand, the commander in chief sought to advance American ideals, things didn't go well. As the mainstream press reported, Mr. Obama seemed well received. But the freest country in the region took a beating from Venezuela's Hugo Chávez, Bolivia's Evo Morales, and Nicaragua's Danny Ortega.
Ever since Bill Clinton organized the first Summit of the Americas in 1994 in Miami, this regional gathering has been in decline. It seemed to hit its nadir in 2005 in Mar del Plata, Argentina, when President Nestór Kirchner allowed Mr. Chávez and his revolutionary allies from around the region to hold a massive, American-flag burning hate-fest in a nearby stadium with the goal of humiliating Mr. Bush. This year things got even worse with the region's bullies hogging the limelight and Mr. Obama passing up a priceless opportunity to defend freedom.
Mr. Obama had to know that the meeting is used by the region's politicians to rally the base back home by showing that they can put Uncle Sam in his place. Realizing this, the American president might have arrived at the Port of Spain prepared to return their volley. They have, after all, tolerated and even encouraged for decades one of the most repressive regimes of the 20th century. In recent years, that repression has spread from Cuba to Venezuela, and today millions of Latin Americans live under tyranny. As the leader of the free world, Mr. Obama had the duty to speak out for these voiceless souls. In this he failed.
The subject of Cuba was a softball that the American president could have hit out of the park. He knew well in advance that his counterparts would pressure him to end the U.S. embargo. He even prepared for that fact a few days ahead of the summit by unconditionally lifting U.S. restrictions on travel and remittances to the island, and offering to allow U.S. telecom companies to bring technology to the backward island.The Americas in the News
Think that helped cast the U.S. in a better light in the region? Fat chance. Raúl Castro responded on Friday from Venezuela with a long diatribe against the Yankee oppressor and a cool offer to negotiate on "equal" terms. In case you don't speak Cuban, I'll translate: The Castro brothers want credit from U.S. banks because they have defaulted on the rest of the world, and no one will lend to them anymore. They also want foreign aid from the World Bank.
Anyone who thinks that Raúl is ruminating over free elections is dreaming. Nevertheless, the Cuba suggestion to put "everything" on the table became the "news" of the summit. And while it is true that Mr. Obama mentioned political prisoners in his list of items that U.S. wants to negotiate, he could have done much more. Indeed, he could have called Raúl's bluff by putting the spotlight on the prisoners of conscience, by naming names. He could have talked about men like Afro-Cuban pacifist Oscar Elias Biscet, who has written eloquently about his admiration for Martin Luther King Jr., and today sits in jail for the crime of dissent.
The first black U.S. president could have named hundreds of others being held in inhumane conditions by the white dictator. He could have also asked Brazil's President Lula da Silva, Chile's President Michelle Bachelet and Mexico's Felipe Calderón where they stand on human rights for all Cubans. Imagine if Mr. Obama asked for a show of hands to find out who believes Cubans are less deserving of freedom than, say, the black majority in South Africa under apartheid or Chileans during the Pinochet dictatorship. Then again, that would be no way to win a popularity contest or to ingratiate yourself with American supporters who are lining up to do business in Cuba.
Instead the U.S. president simply floated down the summit river passively bouncing off whatever obstacles he encountered. The Chávez "gift" of the 1971 leftist revolutionary handbook "Open Veins of Latin America" followed by a suggestion of renewing ambassadorial relations was an insult to the American people. Granted, giving the Venezuelan attention would have been counterproductive. But Mr. Obama ought to have complained loudly about that country's aggression. It has supported Colombian terrorists, drug trafficking and Iran's nuclear ambitions. As former CIA director Michael Hayden told Fox News Sunday, "the behavior of President Chávez over the past years has been downright horrendous -- both internationally and with regard to what he's done internally inside Venezuela."
Too bad Mr. Obama didn't have a copy of the late 1990s bestseller "The Perfect Latin American Idiot" as a gift for Mr. Chávez. Another way Mr. Obama could have neutralized the left would have been to announce a White House push for ratification of the U.S.-Colombia Free Trade Agreement. That didn't happen either. He only promised to talk some more, a strategy that will offend no one and accomplish nothing. It is a strategy that sums up, to date, Mr. Obama's foreign policy for the region.
WSJ, Apr 20, 2009
If President Barack Obama's goal at the fifth Summit of the Americas in Trinidad and Tobago this weekend was to be better liked by the region's dictators and left-wing populists than his predecessor George W. Bush, the White House can chalk up a win.
If, on the other hand, the commander in chief sought to advance American ideals, things didn't go well. As the mainstream press reported, Mr. Obama seemed well received. But the freest country in the region took a beating from Venezuela's Hugo Chávez, Bolivia's Evo Morales, and Nicaragua's Danny Ortega.
Ever since Bill Clinton organized the first Summit of the Americas in 1994 in Miami, this regional gathering has been in decline. It seemed to hit its nadir in 2005 in Mar del Plata, Argentina, when President Nestór Kirchner allowed Mr. Chávez and his revolutionary allies from around the region to hold a massive, American-flag burning hate-fest in a nearby stadium with the goal of humiliating Mr. Bush. This year things got even worse with the region's bullies hogging the limelight and Mr. Obama passing up a priceless opportunity to defend freedom.
Mr. Obama had to know that the meeting is used by the region's politicians to rally the base back home by showing that they can put Uncle Sam in his place. Realizing this, the American president might have arrived at the Port of Spain prepared to return their volley. They have, after all, tolerated and even encouraged for decades one of the most repressive regimes of the 20th century. In recent years, that repression has spread from Cuba to Venezuela, and today millions of Latin Americans live under tyranny. As the leader of the free world, Mr. Obama had the duty to speak out for these voiceless souls. In this he failed.
The subject of Cuba was a softball that the American president could have hit out of the park. He knew well in advance that his counterparts would pressure him to end the U.S. embargo. He even prepared for that fact a few days ahead of the summit by unconditionally lifting U.S. restrictions on travel and remittances to the island, and offering to allow U.S. telecom companies to bring technology to the backward island.The Americas in the News
Think that helped cast the U.S. in a better light in the region? Fat chance. Raúl Castro responded on Friday from Venezuela with a long diatribe against the Yankee oppressor and a cool offer to negotiate on "equal" terms. In case you don't speak Cuban, I'll translate: The Castro brothers want credit from U.S. banks because they have defaulted on the rest of the world, and no one will lend to them anymore. They also want foreign aid from the World Bank.
Anyone who thinks that Raúl is ruminating over free elections is dreaming. Nevertheless, the Cuba suggestion to put "everything" on the table became the "news" of the summit. And while it is true that Mr. Obama mentioned political prisoners in his list of items that U.S. wants to negotiate, he could have done much more. Indeed, he could have called Raúl's bluff by putting the spotlight on the prisoners of conscience, by naming names. He could have talked about men like Afro-Cuban pacifist Oscar Elias Biscet, who has written eloquently about his admiration for Martin Luther King Jr., and today sits in jail for the crime of dissent.
The first black U.S. president could have named hundreds of others being held in inhumane conditions by the white dictator. He could have also asked Brazil's President Lula da Silva, Chile's President Michelle Bachelet and Mexico's Felipe Calderón where they stand on human rights for all Cubans. Imagine if Mr. Obama asked for a show of hands to find out who believes Cubans are less deserving of freedom than, say, the black majority in South Africa under apartheid or Chileans during the Pinochet dictatorship. Then again, that would be no way to win a popularity contest or to ingratiate yourself with American supporters who are lining up to do business in Cuba.
Instead the U.S. president simply floated down the summit river passively bouncing off whatever obstacles he encountered. The Chávez "gift" of the 1971 leftist revolutionary handbook "Open Veins of Latin America" followed by a suggestion of renewing ambassadorial relations was an insult to the American people. Granted, giving the Venezuelan attention would have been counterproductive. But Mr. Obama ought to have complained loudly about that country's aggression. It has supported Colombian terrorists, drug trafficking and Iran's nuclear ambitions. As former CIA director Michael Hayden told Fox News Sunday, "the behavior of President Chávez over the past years has been downright horrendous -- both internationally and with regard to what he's done internally inside Venezuela."
Too bad Mr. Obama didn't have a copy of the late 1990s bestseller "The Perfect Latin American Idiot" as a gift for Mr. Chávez. Another way Mr. Obama could have neutralized the left would have been to announce a White House push for ratification of the U.S.-Colombia Free Trade Agreement. That didn't happen either. He only promised to talk some more, a strategy that will offend no one and accomplish nothing. It is a strategy that sums up, to date, Mr. Obama's foreign policy for the region.
WSJ Editorial Page on the immigration bottom line: We need more legal avenues
Obama and the 'Amnesty' Trap. By Jason L Riley
The immigration bottom line: We need more legal avenues.
WSJ, Apr 20, 2009
When President Barack Obama turns his attention to immigration reform later this year, he will be pressured by advocacy groups and fellow Democrats to focus on a legalization program for the 12 million or so undocumented immigrants already living in the U.S. Obviously, the plight of this illegal population must be part of any policy discussion. But if Mr. Obama wants to be more successful than the previous administration when it tried to reform immigration, he should avoid getting bogged down in a debate over "amnesty."
Critics of comprehensive immigration reform, which ideally combines legalization with more visas and more enforcement measures, say that the last amnesty enacted -- the Immigration Reform and Control Act (IRCA) of 1986 -- didn't solve the illegal alien problem. This is true but misleading. After all, border enforcement enhancements over the past two decades haven't stanched the illegal flow, either, but that hasn't stopped immigration restrictionists from calling for still more security measures.
The reality is that the 1986 amnesty was never going to solve the problem, because it didn't address the root cause. Illegal immigration to the U.S. is primarily a function of too many foreigners chasing too few visas. Some 400,000 people enter the country illegally each year -- a direct consequence of the fact that our current policy is to make available only 5,000 visas annually for low-skilled workers. If policy makers want to reduce the number of illegal entries, the most sensible and humane course is to provide more legal ways for people to come.
This could be done by creating viable guest-worker programs or increasing green-card quotas or both. The means matter less than the end, which should be to give U.S. businesses legal access to foreign workers going forward. The 1986 amnesty legislation didn't do that, which is why it didn't solve the problem.
The three million illegal aliens who were brought into legal status under IRCA had already been absorbed by the U.S. labor market. The fundamental problem with the bill was that its architects ignored the future labor needs of U.S. employers. After the amnesty took effect, our economy continued to grow and attract more foreign workers. But since the legal channels available were not sufficiently expanded, migrants once again began coming illegally, which is how today's undocumented population grew to its current size. Another amnesty, by itself, will do no more to "solve" the problem in the long run than the first one did.
It's unfortunate that the "no amnesty" crowd has been able to suck up so much oxygen in this debate. Immigration hysterics on talk radio and cable news have used the term effectively to end conversations. And restrictionists in Congress have used it as a political slogan to block reform. But from a public-policy perspective, the fate of the 12 million illegals already here is largely a side issue, a problem that will solve itself over time if we get the other reforms right.
As in 1986, our economy and society have already absorbed most of these illegal workers. Many have married Americans, started families, bought homes, laid down roots. If their presence here is a problem, it is a self-correcting one. In time, they will grow old and pass on with the rest of us. The Obama administration would do better to focus less on whether to grant amnesty or to deport them and more on how to stop feeding their numbers going forward.
Unfortunately, the president will be pressed to do the opposite. The nation's two largest labor groups, the AFL-CIO and Change to Win, have already announced that they will oppose any new guest-worker initiatives and any significant expansion of temporary work programs already in place. Democrats and advocacy groups, who tend to see immigration as a humanitarian issue more than an economic one, will likely side with labor. But history suggests that such programs are effective in reducing illegal entries. Past experience shows that economic migrants have no desire to be here illegally. They will use the front door if it's available to them, which reduces pressure on the border and frees up homeland security resources to target drug dealers, gang members, potential terrorists, and other real threats.
Nearly seven decades ago, the U.S. faced labor shortages in agriculture stemming from World War II, and growers turned to the Roosevelt administration for help. The result was the Bracero program, which allowed hundreds of thousands of Mexican farm workers to enter the country legally as seasonal laborers. In place from 1942 to 1964, the program was jointly operated by the departments of Justice, State and Labor. As the program was expanded after World War II to meet the labor needs of a growing U.S. economy, illegal border crossings fell by 95%. A 1980 Congressional Research Service report concluded that, "without question," the program was "instrumental in ending the illegal alien problem of the mid-1940s and 1950s." Apparently, the law of supply and demand doesn't stop at the Rio Grande.
Beginning in 1960, the program was phased out after it faced opposition from labor unions. And since nothing comparable emerged to replace it, illegal entries began to rise again. The point isn't that we need to resurrect the Bracero program, or that guest-worker programs alone will stop illegal immigration from Mexico. But a Bracero-like program with the proper worker protections ought to be the template. And expanding legal immigration ought to be where the Obama administration channels its energies.
Granted, this will be a hard sell at a time when growing numbers of Americans are out of work. Even in good times, zero-sum thinking -- the notion that what is gained by some must be lost by others -- dominates discussions about immigrants and jobs. But the schooling and skills that the typical Mexican immigrant brings to the U.S. labor market differ markedly from the typical American's, which is why the two don't tend to compete with each other for employment. Labor economists like Richard Vedder have documented that, historically, higher levels of immigration to the U.S. are associated with lower levels of unemployment. Immigrants are catalysts for economic growth, not job-stealers.
There are plenty of ways and plenty of time to deal with the country's undocumented millions in a fair and humane manner. But we'd do better to focus first on not adding to their numbers. If the fate of this group instead drives the policy discussion, we're more likely to end up with the status quo or faux reforms like amnesty that dodge the real problem. By all means, Mr. Obama, lead the fight for immigration reform. But don't lead with your chin.
Mr. Riley, a member of The Wall Street Journal's editorial board, is the author of "Let Them In: The Case for Open Borders" (Gotham), which has just been released in paperback.
The immigration bottom line: We need more legal avenues.
WSJ, Apr 20, 2009
When President Barack Obama turns his attention to immigration reform later this year, he will be pressured by advocacy groups and fellow Democrats to focus on a legalization program for the 12 million or so undocumented immigrants already living in the U.S. Obviously, the plight of this illegal population must be part of any policy discussion. But if Mr. Obama wants to be more successful than the previous administration when it tried to reform immigration, he should avoid getting bogged down in a debate over "amnesty."
Critics of comprehensive immigration reform, which ideally combines legalization with more visas and more enforcement measures, say that the last amnesty enacted -- the Immigration Reform and Control Act (IRCA) of 1986 -- didn't solve the illegal alien problem. This is true but misleading. After all, border enforcement enhancements over the past two decades haven't stanched the illegal flow, either, but that hasn't stopped immigration restrictionists from calling for still more security measures.
The reality is that the 1986 amnesty was never going to solve the problem, because it didn't address the root cause. Illegal immigration to the U.S. is primarily a function of too many foreigners chasing too few visas. Some 400,000 people enter the country illegally each year -- a direct consequence of the fact that our current policy is to make available only 5,000 visas annually for low-skilled workers. If policy makers want to reduce the number of illegal entries, the most sensible and humane course is to provide more legal ways for people to come.
This could be done by creating viable guest-worker programs or increasing green-card quotas or both. The means matter less than the end, which should be to give U.S. businesses legal access to foreign workers going forward. The 1986 amnesty legislation didn't do that, which is why it didn't solve the problem.
The three million illegal aliens who were brought into legal status under IRCA had already been absorbed by the U.S. labor market. The fundamental problem with the bill was that its architects ignored the future labor needs of U.S. employers. After the amnesty took effect, our economy continued to grow and attract more foreign workers. But since the legal channels available were not sufficiently expanded, migrants once again began coming illegally, which is how today's undocumented population grew to its current size. Another amnesty, by itself, will do no more to "solve" the problem in the long run than the first one did.
It's unfortunate that the "no amnesty" crowd has been able to suck up so much oxygen in this debate. Immigration hysterics on talk radio and cable news have used the term effectively to end conversations. And restrictionists in Congress have used it as a political slogan to block reform. But from a public-policy perspective, the fate of the 12 million illegals already here is largely a side issue, a problem that will solve itself over time if we get the other reforms right.
As in 1986, our economy and society have already absorbed most of these illegal workers. Many have married Americans, started families, bought homes, laid down roots. If their presence here is a problem, it is a self-correcting one. In time, they will grow old and pass on with the rest of us. The Obama administration would do better to focus less on whether to grant amnesty or to deport them and more on how to stop feeding their numbers going forward.
Unfortunately, the president will be pressed to do the opposite. The nation's two largest labor groups, the AFL-CIO and Change to Win, have already announced that they will oppose any new guest-worker initiatives and any significant expansion of temporary work programs already in place. Democrats and advocacy groups, who tend to see immigration as a humanitarian issue more than an economic one, will likely side with labor. But history suggests that such programs are effective in reducing illegal entries. Past experience shows that economic migrants have no desire to be here illegally. They will use the front door if it's available to them, which reduces pressure on the border and frees up homeland security resources to target drug dealers, gang members, potential terrorists, and other real threats.
Nearly seven decades ago, the U.S. faced labor shortages in agriculture stemming from World War II, and growers turned to the Roosevelt administration for help. The result was the Bracero program, which allowed hundreds of thousands of Mexican farm workers to enter the country legally as seasonal laborers. In place from 1942 to 1964, the program was jointly operated by the departments of Justice, State and Labor. As the program was expanded after World War II to meet the labor needs of a growing U.S. economy, illegal border crossings fell by 95%. A 1980 Congressional Research Service report concluded that, "without question," the program was "instrumental in ending the illegal alien problem of the mid-1940s and 1950s." Apparently, the law of supply and demand doesn't stop at the Rio Grande.
Beginning in 1960, the program was phased out after it faced opposition from labor unions. And since nothing comparable emerged to replace it, illegal entries began to rise again. The point isn't that we need to resurrect the Bracero program, or that guest-worker programs alone will stop illegal immigration from Mexico. But a Bracero-like program with the proper worker protections ought to be the template. And expanding legal immigration ought to be where the Obama administration channels its energies.
Granted, this will be a hard sell at a time when growing numbers of Americans are out of work. Even in good times, zero-sum thinking -- the notion that what is gained by some must be lost by others -- dominates discussions about immigrants and jobs. But the schooling and skills that the typical Mexican immigrant brings to the U.S. labor market differ markedly from the typical American's, which is why the two don't tend to compete with each other for employment. Labor economists like Richard Vedder have documented that, historically, higher levels of immigration to the U.S. are associated with lower levels of unemployment. Immigrants are catalysts for economic growth, not job-stealers.
There are plenty of ways and plenty of time to deal with the country's undocumented millions in a fair and humane manner. But we'd do better to focus first on not adding to their numbers. If the fate of this group instead drives the policy discussion, we're more likely to end up with the status quo or faux reforms like amnesty that dodge the real problem. By all means, Mr. Obama, lead the fight for immigration reform. But don't lead with your chin.
Mr. Riley, a member of The Wall Street Journal's editorial board, is the author of "Let Them In: The Case for Open Borders" (Gotham), which has just been released in paperback.
WSJ Editorial Page: Susan Rice is confused about international law and North Korea
Spinning a U.N. Failure. WSJ Editorial
Susan Rice is confused about international law and North Korea.
WSJ, Apr 20, 2009
It's strange enough that the Obama Administration is hyping last week's toothless statement by the United Nations Security Council condemning North Korea's recent rocket launch. Even more amazing, it says the U.N. move is "legally binding" on member states.
Those were the words used by Susan Rice, U.S. ambassador to the U.N., and repeated by a State Department spokesman. Ms. Rice is badly misinformed. As she ought to know, a "presidential statement" issued by the Security Council is legally binding on no one.
A presidential statement is agreed to by all 15 members of the Security Council and issued by the rotating president. Invented in 1994, such statements aren't even mentioned in the Security Council's procedural rules and impose zero obligations on members. They are a last resort when the Security Council can't summon the will or agreement to pass a resolution.
That's what happened after North Korea's April 5 missile launch, when neither China nor Russia would agree to the U.S. wish for a resolution. Legal experts -- including the Permanent Five's attorneys in a 2005 memo -- agree that the only U.N. pronouncement that is legally binding is a Security Council resolution issued under Chapter VII of the U.N. Charter, which sets out the Council's powers to maintain peace. Such resolutions can be enforced with sanctions or military action. Resolution 1718, passed in 2006 after North Korea's nuclear and missile tests, falls in this category.
The distinction between "Chapter VII resolutions" and other U.N. utterances is important -- as the example of Israel illustrates. Since the Jewish state has never been subject to a Chapter VII resolution, no Israeli "violation" of a U.N. pronouncement can give rise to sanctions. Even the famous Resolution 242, issued at the end of the 1967 Yom Kippur War, was not issued under Chapter VII. If the Obama Administration considers even U.N. presidential statements "legally binding," it's an invitation to the U.N. to ramp up its attacks on Israel.
Last week's statement on North Korea is binding only in the sense that it calls on member states "to comply fully" with their obligations under Resolution 1718, which bans sales of weapons, weapons parts and luxury goods to North Korea. Resolution 1718 is legally binding, but it has never been enforced. This speaks volumes about the sincerity of promises made at the U.N., and about the failure of the Obama Administration to win Security Council support for a serious response to North Korea's missile launch.
Susan Rice is confused about international law and North Korea.
WSJ, Apr 20, 2009
It's strange enough that the Obama Administration is hyping last week's toothless statement by the United Nations Security Council condemning North Korea's recent rocket launch. Even more amazing, it says the U.N. move is "legally binding" on member states.
Those were the words used by Susan Rice, U.S. ambassador to the U.N., and repeated by a State Department spokesman. Ms. Rice is badly misinformed. As she ought to know, a "presidential statement" issued by the Security Council is legally binding on no one.
A presidential statement is agreed to by all 15 members of the Security Council and issued by the rotating president. Invented in 1994, such statements aren't even mentioned in the Security Council's procedural rules and impose zero obligations on members. They are a last resort when the Security Council can't summon the will or agreement to pass a resolution.
That's what happened after North Korea's April 5 missile launch, when neither China nor Russia would agree to the U.S. wish for a resolution. Legal experts -- including the Permanent Five's attorneys in a 2005 memo -- agree that the only U.N. pronouncement that is legally binding is a Security Council resolution issued under Chapter VII of the U.N. Charter, which sets out the Council's powers to maintain peace. Such resolutions can be enforced with sanctions or military action. Resolution 1718, passed in 2006 after North Korea's nuclear and missile tests, falls in this category.
The distinction between "Chapter VII resolutions" and other U.N. utterances is important -- as the example of Israel illustrates. Since the Jewish state has never been subject to a Chapter VII resolution, no Israeli "violation" of a U.N. pronouncement can give rise to sanctions. Even the famous Resolution 242, issued at the end of the 1967 Yom Kippur War, was not issued under Chapter VII. If the Obama Administration considers even U.N. presidential statements "legally binding," it's an invitation to the U.N. to ramp up its attacks on Israel.
Last week's statement on North Korea is binding only in the sense that it calls on member states "to comply fully" with their obligations under Resolution 1718, which bans sales of weapons, weapons parts and luxury goods to North Korea. Resolution 1718 is legally binding, but it has never been enforced. This speaks volumes about the sincerity of promises made at the U.N., and about the failure of the Obama Administration to win Security Council support for a serious response to North Korea's missile launch.
WSJ Editorial Page: Prostate Cancer and FDA Politics - Dendreon's Provenge
Prostate Cancer and FDA Politics. WSJ Editorial
Their first priority should be to save patients.
WSJ, Apr 20, 2009
Last week brought hopeful news for prostate cancer patients, with the biotech company Dendreon announcing that its cancer treatment Provenge improved survival and prolonged life in an important study. That may finally be enough for Provenge to win Food and Drug Administration approval, but the tragedy is that it wasn't approved years ago.
Provenge is an advanced cancer "vaccine," which stimulates the body's immune system to attack tumor cells and thereby fight off cancer on its own, instead of using chemotherapy or surgery. In an earlier placebo-controlled Phase III trial (the most rigorous kind), men with late-stage cancer who received Provenge lived a median of 25.9 months, compared with 21.4 months otherwise. After three years, 34% were alive, compared to only 11% for the control group. In March 2007, an FDA advisory panel voted 13 to 4 that there was "substantial evidence" the drug worked, and 17-0 that it was safe.
But later that year, the FDA delayed approval, ruling that the trial did not meet its criteria for statistical significance and that the patient sample was too small. So Dendreon agreed to complete another double-blind trial to FDA specifications, and Dendreon officials say the results have now met those benchmarks. The detailed results will be presented later this month.
The larger question is why Provenge wasn't made available sooner to the 30,000 American men who die each year from prostate cancer. The FDA regularly -- and pointlessly -- slow-walks potentially revolutionary therapies, relying on overly simplistic and unscientific statistical models that don't take into account the fact that some drugs may work better in certain subgroups than in others. Its regulatory blockade is especially cruel to terminally ill patients for whom drugs like Provenge may mean extra months or years of life.
These corroborating data should lead to a shift in the way the FDA evaluates innovative oncology medicines. But they almost surely won't, since the demands of bureaucratic politics to play it safe nearly always trump the needs of patients.
Their first priority should be to save patients.
WSJ, Apr 20, 2009
Last week brought hopeful news for prostate cancer patients, with the biotech company Dendreon announcing that its cancer treatment Provenge improved survival and prolonged life in an important study. That may finally be enough for Provenge to win Food and Drug Administration approval, but the tragedy is that it wasn't approved years ago.
Provenge is an advanced cancer "vaccine," which stimulates the body's immune system to attack tumor cells and thereby fight off cancer on its own, instead of using chemotherapy or surgery. In an earlier placebo-controlled Phase III trial (the most rigorous kind), men with late-stage cancer who received Provenge lived a median of 25.9 months, compared with 21.4 months otherwise. After three years, 34% were alive, compared to only 11% for the control group. In March 2007, an FDA advisory panel voted 13 to 4 that there was "substantial evidence" the drug worked, and 17-0 that it was safe.
But later that year, the FDA delayed approval, ruling that the trial did not meet its criteria for statistical significance and that the patient sample was too small. So Dendreon agreed to complete another double-blind trial to FDA specifications, and Dendreon officials say the results have now met those benchmarks. The detailed results will be presented later this month.
The larger question is why Provenge wasn't made available sooner to the 30,000 American men who die each year from prostate cancer. The FDA regularly -- and pointlessly -- slow-walks potentially revolutionary therapies, relying on overly simplistic and unscientific statistical models that don't take into account the fact that some drugs may work better in certain subgroups than in others. Its regulatory blockade is especially cruel to terminally ill patients for whom drugs like Provenge may mean extra months or years of life.
These corroborating data should lead to a shift in the way the FDA evaluates innovative oncology medicines. But they almost surely won't, since the demands of bureaucratic politics to play it safe nearly always trump the needs of patients.
The Red Cross was completely wrong about 'walling' - The Memos Prove We Didn't Torture
The Memos Prove We Didn't Torture. By David B Rivkin Jr and Lee A Casey
The Red Cross was completely wrong about 'walling.'
WSJ, Apr 20, 2009
The four memos on CIA interrogation released by the White House last week reveal a cautious and conservative Justice Department advising a CIA that cared deeply about staying within the law. Far from "green lighting" torture -- or cruel, inhuman or degrading treatment of detainees -- the memos detail the actual techniques used and the many measures taken to ensure that interrogations did not cause severe pain or degradation.
Interrogations were to be "continuously monitored" and "the interrogation team will stop the use of particular techniques or the interrogation altogether if the detainee's medical or psychological conditions indicates that the detainee might suffer significant physical or mental harm."
An Aug. 1, 2002, memo describes the practice of "walling" -- recently revealed in a report by the International Committee of the Red Cross, which suggested that detainees wore a "collar" used to "forcefully bang the head and body against the wall" before and during interrogation. In fact, detainees were placed with their backs to a "flexible false wall," designed to avoid inflicting painful injury. Their shoulder blades -- not head -- were the point of contact, and the "collar" was used not to give additional force to a blow, but further to protect the neck.
The memo says the point was to inflict psychological uncertainty, not physical pain: "the idea is to create a sound that will make the impact seem far worse than it is and that will be far worse than any injury that might result from the action."
Shackling and confinement in a small space (generally used to create discomfort and muscle fatigue) were also part of the CIA program, but they were subject to stringent time and manner limitations. Abu Zubaydah (a top bin Laden lieutenant) had a fear of insects. He was, therefore, to be put in a "cramped confinement box" and told a stinging insect would be put in the box with him. In fact, the CIA proposed to use a harmless caterpillar. Confinement was limited to two hours.
The memos are also revealing about the practice of "waterboarding," about which there has been so much speculative rage from the program's opponents. The practice, used on only three individuals, involved covering the nose and mouth with a cloth and pouring water over the cloth to create a drowning sensation.
This technique could be used for up to 40 seconds -- although the CIA orally informed Justice Department lawyers that it would likely not be used for more than 20 seconds at a time. Unlike the exaggerated claims of so many Bush critics, the memos make clear that water was not actually expected to enter the detainee's lungs, and that measures were put in place to prevent complications if this did happen and to ensure that the individual did not develop respiratory distress.
All of these interrogation methods have been adapted from the U.S. military's own Survival Evasion Resistance Escape (or SERE) training program, and have been used for years on thousands of American service members with the full knowledge of Congress. This has created a large body of information about the effect of these techniques, on which the CIA was able to draw in assessing the likely impact on the detainees and ensuring that no severe pain or long term psychological impact would result.
The actual intelligence benefits of the CIA program are also detailed in these memos. The CIA believed, evidently with good reason, that the enhanced interrogation program had indeed produced actionable intelligence about al Qaeda's plans. First among the resulting successes was the prevention of a "second wave" of al Qaeda attacks, to be carried out by an "east Asian" affiliate, which would have involved the crashing of another airplane into a building in Los Angeles.
The interrogation techniques described in these memos are indisputably harsh, but they fall well short of "torture." They were developed and deployed at a time of supreme peril, as a means of preventing future attacks on innocent civilians both in the U.S. and abroad.
The dedicated public servants at the CIA and Justice Department -- who even the Obama administration has concluded should not be prosecuted -- clearly cared intensely about staying within the law as well as protecting the American homeland. These memos suggest that they achieved both goals in a manner fully consistent with American values.
Messrs. Rivkin and Casey, who served in the Justice Department under George H.W. Bush, were U.S. delegates to the U.N. Subcommission on the Promotion and Protection of Human Rights.
The Red Cross was completely wrong about 'walling.'
WSJ, Apr 20, 2009
The four memos on CIA interrogation released by the White House last week reveal a cautious and conservative Justice Department advising a CIA that cared deeply about staying within the law. Far from "green lighting" torture -- or cruel, inhuman or degrading treatment of detainees -- the memos detail the actual techniques used and the many measures taken to ensure that interrogations did not cause severe pain or degradation.
Interrogations were to be "continuously monitored" and "the interrogation team will stop the use of particular techniques or the interrogation altogether if the detainee's medical or psychological conditions indicates that the detainee might suffer significant physical or mental harm."
An Aug. 1, 2002, memo describes the practice of "walling" -- recently revealed in a report by the International Committee of the Red Cross, which suggested that detainees wore a "collar" used to "forcefully bang the head and body against the wall" before and during interrogation. In fact, detainees were placed with their backs to a "flexible false wall," designed to avoid inflicting painful injury. Their shoulder blades -- not head -- were the point of contact, and the "collar" was used not to give additional force to a blow, but further to protect the neck.
The memo says the point was to inflict psychological uncertainty, not physical pain: "the idea is to create a sound that will make the impact seem far worse than it is and that will be far worse than any injury that might result from the action."
Shackling and confinement in a small space (generally used to create discomfort and muscle fatigue) were also part of the CIA program, but they were subject to stringent time and manner limitations. Abu Zubaydah (a top bin Laden lieutenant) had a fear of insects. He was, therefore, to be put in a "cramped confinement box" and told a stinging insect would be put in the box with him. In fact, the CIA proposed to use a harmless caterpillar. Confinement was limited to two hours.
The memos are also revealing about the practice of "waterboarding," about which there has been so much speculative rage from the program's opponents. The practice, used on only three individuals, involved covering the nose and mouth with a cloth and pouring water over the cloth to create a drowning sensation.
This technique could be used for up to 40 seconds -- although the CIA orally informed Justice Department lawyers that it would likely not be used for more than 20 seconds at a time. Unlike the exaggerated claims of so many Bush critics, the memos make clear that water was not actually expected to enter the detainee's lungs, and that measures were put in place to prevent complications if this did happen and to ensure that the individual did not develop respiratory distress.
All of these interrogation methods have been adapted from the U.S. military's own Survival Evasion Resistance Escape (or SERE) training program, and have been used for years on thousands of American service members with the full knowledge of Congress. This has created a large body of information about the effect of these techniques, on which the CIA was able to draw in assessing the likely impact on the detainees and ensuring that no severe pain or long term psychological impact would result.
The actual intelligence benefits of the CIA program are also detailed in these memos. The CIA believed, evidently with good reason, that the enhanced interrogation program had indeed produced actionable intelligence about al Qaeda's plans. First among the resulting successes was the prevention of a "second wave" of al Qaeda attacks, to be carried out by an "east Asian" affiliate, which would have involved the crashing of another airplane into a building in Los Angeles.
The interrogation techniques described in these memos are indisputably harsh, but they fall well short of "torture." They were developed and deployed at a time of supreme peril, as a means of preventing future attacks on innocent civilians both in the U.S. and abroad.
The dedicated public servants at the CIA and Justice Department -- who even the Obama administration has concluded should not be prosecuted -- clearly cared intensely about staying within the law as well as protecting the American homeland. These memos suggest that they achieved both goals in a manner fully consistent with American values.
Messrs. Rivkin and Casey, who served in the Justice Department under George H.W. Bush, were U.S. delegates to the U.N. Subcommission on the Promotion and Protection of Human Rights.
Executive nominees shouldn't be filibustered - Presidential Picks Deserve a Vote
Presidential Picks Deserve a Vote. By Walter Dellinger
Executive nominees shouldn't be filibustered.
WSJ, Apr 20, 2009
On the eve of George W. Bush's inauguration in 2001, I cautioned fellow Democrats against "delaying or denying confirmation of nominees to cabinet and subcabinet posts." I argued on these pages that blocking executive nominees would weaken the presidency and be counterproductive for the opposition: "If a president cannot promptly place his chosen people in key offices, he can hardly be held fully responsible for the missteps of the administration."
In the past few years, many Republican senators have agreed, saying that it is unacceptable to filibuster a nominee submitted to the Senate for its "advice and consent." Some Republicans have gone further than I would, asserting that filibusters of presidential nominations are unconstitutional.
I was therefore taken aback by recent speculation that Republicans might filibuster two of President Barack Obama's key nominees: Dawn Johnsen, to head the Justice Department's Office of Legal Counsel; and Harold Koh, to be legal adviser to the State Department.
In the past, Republican senators have publicly asserted that it is either "unacceptable" or "unconstitutional" to filibuster an up-or-down vote of a nominee submitted by the president for Senate "advice and consent." I cannot believe they would now abandon that principle.
Just last year, Sen. John Cornyn (Texas) made this point clearly: "Far too many judicial and executive nominees have been delayed. . . . Senators have a right to vote for or against any nominee -- but blocking votes on nominations is unacceptable." Other senatorial statements also are starkly unequivocal. Lamar Alexander (Tennessee) said, "I pledged, then and there, I would never filibuster any president's judicial nominee, period. I might vote against them, but I will always see they came to a vote."
Although the Senate is free to filibuster legislation, a number of senators argued that the Constitution requires it to vote on nominations. Thus Orrin Hatch (Utah) said, "The advice and consent clause is clearly an up-or-down vote -- a majority vote -- on the floor of the Senate." Bob Bennett (Utah) added, "In my view, the Founding Fathers clearly intended the Senate to consent to the president's choices on a majority vote." Kay Bailey Hutchinson of Texas said that "advice and consent as it is called in the Constitution . . . has always meant a majority vote."
For a time it appeared that Republicans might enact a "nuclear option" -- sustaining on a majority vote a ruling that filibusters of presidential nominations are unconstitutional. (The "gang of 14" compromise in 2005, confirming some judges and not others, ended that threat.)
Many Democrats have in the past defended filibustering executive-branch nominees. Democrats filibustered Mr. Bush's nomination of John Bolton to the United Nations post, and blocked his nominations of Eugene Scalia and Otto Reich by delaying votes. Some judicial candidates, like Miguel Estrada, were also subject to actual or threatened filibusters. Judicial candidates, however, present different considerations. Unlike judges, executive-branch nominees work for the president, and he should have greater discretion in deciding who serves in his administration.
I have disagreed with filibusters of executive-branch nominees whether done by Democrats or Republicans. But Democrats have at least been consistent in maintaining, under presidents of both parties, that filibusters were permissible. Those who would now filibuster the nominations of Mr. Koh and Ms. Johnsen would engage in activity that they recently condemned in stark terms.
The list of senators who have virtually ruled out advice-and-consent filibusters also includes Mitch McConnell (Kentucky), Kit Bond (Missouri), Sam Brownback and Pat Roberts (Kansas), Tom Coburn and James Inhofe (Oklahoma), Mike Crapo (Idaho), Lindsey Graham (South Carolina), Chuck Grassley (Iowa), Judd Gregg (New Hampshire), Jon Kyl (Arizona), Jeff Sessions (Alabama), Arlen Specter (Pennsylvania) and George Voinovich (Ohio).
Whether Republicans or Democrats are in office, the loyal opposition should not frustrate a president's ability to execute the powers of his office by denying an up-or-down vote to executive-branch nominees.
Mr. Dellinger was head of the Office of Legal Counsel from 1993 to 1996.
Executive nominees shouldn't be filibustered.
WSJ, Apr 20, 2009
On the eve of George W. Bush's inauguration in 2001, I cautioned fellow Democrats against "delaying or denying confirmation of nominees to cabinet and subcabinet posts." I argued on these pages that blocking executive nominees would weaken the presidency and be counterproductive for the opposition: "If a president cannot promptly place his chosen people in key offices, he can hardly be held fully responsible for the missteps of the administration."
In the past few years, many Republican senators have agreed, saying that it is unacceptable to filibuster a nominee submitted to the Senate for its "advice and consent." Some Republicans have gone further than I would, asserting that filibusters of presidential nominations are unconstitutional.
I was therefore taken aback by recent speculation that Republicans might filibuster two of President Barack Obama's key nominees: Dawn Johnsen, to head the Justice Department's Office of Legal Counsel; and Harold Koh, to be legal adviser to the State Department.
In the past, Republican senators have publicly asserted that it is either "unacceptable" or "unconstitutional" to filibuster an up-or-down vote of a nominee submitted by the president for Senate "advice and consent." I cannot believe they would now abandon that principle.
Just last year, Sen. John Cornyn (Texas) made this point clearly: "Far too many judicial and executive nominees have been delayed. . . . Senators have a right to vote for or against any nominee -- but blocking votes on nominations is unacceptable." Other senatorial statements also are starkly unequivocal. Lamar Alexander (Tennessee) said, "I pledged, then and there, I would never filibuster any president's judicial nominee, period. I might vote against them, but I will always see they came to a vote."
Although the Senate is free to filibuster legislation, a number of senators argued that the Constitution requires it to vote on nominations. Thus Orrin Hatch (Utah) said, "The advice and consent clause is clearly an up-or-down vote -- a majority vote -- on the floor of the Senate." Bob Bennett (Utah) added, "In my view, the Founding Fathers clearly intended the Senate to consent to the president's choices on a majority vote." Kay Bailey Hutchinson of Texas said that "advice and consent as it is called in the Constitution . . . has always meant a majority vote."
For a time it appeared that Republicans might enact a "nuclear option" -- sustaining on a majority vote a ruling that filibusters of presidential nominations are unconstitutional. (The "gang of 14" compromise in 2005, confirming some judges and not others, ended that threat.)
Many Democrats have in the past defended filibustering executive-branch nominees. Democrats filibustered Mr. Bush's nomination of John Bolton to the United Nations post, and blocked his nominations of Eugene Scalia and Otto Reich by delaying votes. Some judicial candidates, like Miguel Estrada, were also subject to actual or threatened filibusters. Judicial candidates, however, present different considerations. Unlike judges, executive-branch nominees work for the president, and he should have greater discretion in deciding who serves in his administration.
I have disagreed with filibusters of executive-branch nominees whether done by Democrats or Republicans. But Democrats have at least been consistent in maintaining, under presidents of both parties, that filibusters were permissible. Those who would now filibuster the nominations of Mr. Koh and Ms. Johnsen would engage in activity that they recently condemned in stark terms.
The list of senators who have virtually ruled out advice-and-consent filibusters also includes Mitch McConnell (Kentucky), Kit Bond (Missouri), Sam Brownback and Pat Roberts (Kansas), Tom Coburn and James Inhofe (Oklahoma), Mike Crapo (Idaho), Lindsey Graham (South Carolina), Chuck Grassley (Iowa), Judd Gregg (New Hampshire), Jon Kyl (Arizona), Jeff Sessions (Alabama), Arlen Specter (Pennsylvania) and George Voinovich (Ohio).
Whether Republicans or Democrats are in office, the loyal opposition should not frustrate a president's ability to execute the powers of his office by denying an up-or-down vote to executive-branch nominees.
Mr. Dellinger was head of the Office of Legal Counsel from 1993 to 1996.
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