Congratulations to my friend Vivek Wadhwa, who was just named an Outstanding American by Choice:
The Outstanding American by Choice initiative recognizes the outstanding achievements of naturalized U.S. citizens. Through civic participation, professional achievement, and responsible citizenship, recipients of this honor have demonstrated their commitment to this country and to the common civic values that unite us as Americans.
Vivek wrote about America’s other immigration crisis here.
In November, Mark Perry and I wrote about a forthcoming book by Hoover Institution scholar Peter Schweizer Throw Them All Out: How Politicians and Their Friends Get Rich Off Insider Stock Tips, Land Deals, and Cronyism That Would Send the Rest of Us to Prison, which detailed how members of Congress of both parties trade stock based on nonpublic information they have obtained through their positions as elected officials.
Among others, Schweizer exposed how, during the 2008 financial crisis, Representative Spencer Bachus (R-Alabama)—then the ranking Republican on the House Financial Services Committee—aggressively bought stock options based on apocalyptic briefings he had received the day before from Federal Reserve Chairman Ben Bernanke and Treasury Secretary Hank Paulson. Today, the Washington Post reports that Bachus is now the subject of an ethics investigation for the trades Schweizer uncovered:
The Office of Congressional Ethics is investigating the chairman of the House Financial Services Committee over possible violations of insider-trading laws, according to individuals familiar with the case.
Rep. Spencer Bachus (R-Ala.), who holds one of the most influential positions in the House, has been a frequent trader on Capitol Hill, buying stock options while overseeing the nation’s banking and financial services industries.
The Office of Congressional Ethics, an independent investigative agency, opened its probe late last year after focusing on numerous suspicious trades on Bachus’s annual financial disclosure forms, the individuals said. OCE investigators have notified Bachus that he is under investigation and that they have found probable cause to believe insider-trading violations have occurred.
The case is the first of its kind involving a member of Congress. It comes at a time of intense public scrutiny of congressional ethics, with the House passing legislation Thursday to tighten rules against insider trading by lawmakers. The impetus for the legislation, a version of which passed in the Senate a week earlier, came from a “60 Minutes” report and a book mentioning Bachus’s trades, “Throw Them All Out,” by Peter Schweizer….
OCE investigators are examining whether Bachus violated Securities and Exchange Commission laws that prohibit individuals from trading stocks and options based on “material, non-public” inside information, said the individuals, who spoke on the condition of anonymity because of the sensitivity of the matter. The office also is investigating whether Bachus violated congressional rules that prohibit members of Congress from using their public positions for private gain.
Schweizer’s book has also spurred bipartisan action on Capitol Hill. In his State of the Union address, President Obama called on Congress to pass legislation called the STOCK Act, which had been languishing for years on Capitol Hill. The act bans lawmakers and staff members from making financial trades based on non-public information they receive in their positions, and makes it easier for SEC officials to prosecute insider-trading cases against them.
The Senate passed a version of the STOCK Act last week, and the House passed a version a few days later. In light of the Bachus investigation, look for the two sides to come together quickly and for President Obama to sign it into law.
It’s quite an achievement for one book to have such an immediate and dramatic impact on Washington, DC. Schweizer has done the country a great service.
You can’t turn around these days without bumping into public resentment against Congress. The legislative branch’s approval rating is at an all-time low at 11 percent. Voter displeasure is not unfounded. Facing a divided government and vastly disparate visions for the country, Congress last year put on elaborate displays of dysfunctional behavior. The brinkmanship in August over the debt limit, the failure of the Super Committee, and the payroll tax debate are all recent examples. Recognizing the serious fiscal problems in our country, voters want lawmakers who will pursue and achieve meaningful reforms.
House conservatives, known collectively as the Republican Study Committee (RSC), are working to fill that void. “Cut, Cap, and Balance”—their bumper-sticker slogan from the debt limit debate—has evolved.
The original slogan embodied the Tea Party movement’s exacerbation with the size of the federal government. The goal was to cut the current federal budget substantially, impose enforceable limits (“caps”) on the allowable increase in spending in future years, and pass a Constitutional amendment mandating a balanced budget. Individually and collectively, these three pursuits seek to achieve a more limited government and fiscal balance.
While still committed to spending cuts, House conservatives have now also coalesced around a series of specific legislative proposals, big and small, intended to create economic growth. These proposals are encapsulated in the Jobs Through Growth Act (H.R. 3400).
Among other reforms, the RSC’s legislation would reduce the corporate tax rate to 25 percent, adopt a territorial tax system to make multinational corporations more competitive, and support the elimination of ineffective tax credits and deductions. The bill would repeal the estate tax and the Alternative Minimum Tax. It also includes a series of reforms to promote domestic energy production, as well as incorporating the REINS Act, which requires Congress to approve any major, costly regulatory reform proposed by the president.
The new emphasis on economic growth is not an abandonment of the commitment to a balanced budget. Faster economic growth means smaller fiscal deficits. The Office of Management and Budget estimates that a 1 percent boost in GDP for one year reduces the 10-year deficit by about $750 billion.
While the tax cuts alone would certainly and significantly increase the deficit, if they are pursued in conjunction with sufficient spending cuts and entitlement reforms, faster long-run growth can be achieved.
This past Sunday, New York City’s Police Department arrested 27-year-old Jose Pimentel on state charges of plotting a bomb attack. According to the NYPD and the prosecuting Manhattan district attorney, Pimentel maintained a jihadist website, published materials on how to make bombs, tried to reach out to Anwar al-Awlaki (the American-Yemini terrorist leader whom the United States recently killed with a drone strike), talked about killing American marines and soldiers and bombing sites around New York, and was nearing completion of making at least three pipe bombs.
Over the past few days, a number of stories, from the Wall Street Journal to the New York Times to the New York Daily News, have run in the press “explaining” why federal prosecutors and the FBI declined to take over the case, including doubts about the NYPD’s use of a particular confidential informant and, according to one official, “The FBI also had doubts over whether Pimentel would be capable of carrying out a terror plot on his own, because they believed he had mental problems.”
I suppose it’s inevitable that the press would ask why the feds had not taken the case on given the high priority of countering terrorism these days. But that said, it seems to be extremely bad form for the Bureau to be dumping on the case after the arrest, especially since the FBI is always touting how state and local police have to be their eyes and ears on the streets. Plus, on its face, New York authorities had every reason to arrest Pimentel. The fact that he might have had mental problems or the confidential informant is not clean as a whistle would have been cold comfort if one of those pipe bombs had gone off in a crowded post office this holiday season.
Last week in my article for The American, “Does the Constitution Make You a Cash Cow?“, I found it “a bit depressing that nowhere in any of the cases on ObamaCare does there seem to be a serious argument that the individual mandate is an intolerable intrusion on economic liberty, imposed for the benefit of whichever interests capture the healthcare regulators.”
I erred. An amicus brief filed in the D.C. Circuit on behalf of the Association of American Physicians & Surgeons and the Alliance for Natural Health USA does indeed argue that ObamaCare is unconstitutional on both Equal Protection and Fifth Amendment Taking grounds.
So my compliments to Larry Joseph, the attorney for the AAPS and ANA.
This past Monday, the U.S. Supreme Court announced that it will hear extended oral argument on four separate questions pertaining to the Patient Protection and Affordable Care Act, aka ObamaCare: (1) whether Congress had power to legislate the act’s “individual mandate” provision, which requires individuals to purchase health insurance or else pay a penalty; (2) whether that mandate is “severable” (meaning that the rest of the statute would stand even if the mandate were found unconstitutional); (3) whether the Anti-Injunction Act (don’t ask) deprives the Court of jurisdiction over the case; and (4) whether the statute unduly “coerces” states into an expanded Medicaid program. Enough to make the layman’s head spin—and more than enough to pose a huge risk of strategic judicial voting.
Strategic judicial voting probably happened in some appellate ObamaCare decisions, and it has happened on the Supreme Court. For example, the chief or a senior justice may join a majority with which he disagrees so as to assign the opinion to himself and in that fashion to limit the damage. The risk increases when multiple issues provide an opportunity for de facto vote trades and where, as here, the political salience of the case invites strategic behavior.
In the ObamaCare case, the Court’s four liberal justices enjoy a far more straightforward calculus than the conservatives. They know, as everyone else knows, that they form a solid bloc in defense of the statutes on questions (1) and (4). Thus, they can deploy the jurisdictional issue (3) for purely strategic purposes. Let a single conservative justice think or say that the Court lacks jurisdiction: the liberals can produce a majority for that holding, or splinter the Court into three camps (pro-mandate, anti-mandate, no jurisdiction). Another, slightly more far-fetched but entirely possible scenario: let there be five conservative votes to declare the individual mandate unconstitutional and one or two of them deeming it non-severable. The liberal bloc can either “save” the remainder of the statute by voting for severability—or else, threaten to bring the entire statute down by voting the other way. Conservative justices who judiciously want to excise the mandate from the statute—this being an election year and all—would no longer have that option. They’d have to think long and hard.
And so on. Every curbstone game theorist knows that situations of this sort can produce almost any result. The order of votes and control over the agenda (whether in judicial conference or behind-the-scenes maneuvering) count for a lot. The eventual result may reflect no one’s authentic preferences—least of all those of voters who expect constitutional clarity and instruction.
Some of the Washington Redskins’ offensive woes appear to have rubbed off on the latest local team challenging the constitutionality of the Patient Protection and Affordable Care Act (PPACA) in court. Earlier today, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit posted a shutout in dismissing the latest significant case claiming that the law’s individual mandate is unconstitutional (the current won-lost record at the federal appellate level is either 1 and 2 or 1 and 4, depending on whether you score dismissals for lack of standing as a tie).
Initial hopes that an apparently favorable panel of two judicial “conservatives”—Judge Lawrence Silberman and Judge Brett Kavanaugh—would agree with an earlier anti-mandate ruling in the 11th circuit were dashed when Silberman and Judge Harry Edwards upheld the mandate as a constitutional exercise of the powers of Congress to regulate interstate commerce. Kavanaugh’s “dissenting” opinion did not reach the constitutional merits because he found that federal courts lacked jurisdiction over the issue at this time, concluding that they cannot enjoin the collection of mandate penalties by the Internal Revenue Service in advance of when they first are collected (in 2014).
In the battle between quick-kick punts (Silberman—hardly devoting ten pages to the main constitutional law argument in the lead opinion) and overheated waffles (Kavanaugh—firing up the iron at the International House of Judicial Pancakes), no one stepped up to the need to overturn 70 years of chronically bad Supreme Court precedent, which centers on the New Deal era case of Wickard v. Filburn (1942).
Today’s forecast from this legal meteorologist predicts that the eventual Supreme Court decision next June will come down to how Justice Anthony Kennedy (not Chief Justice John Roberts) lines up. If the anti-mandate legal team’s targeted appeal to Kennedy’s past embrace of structural federalism as a bulwark of constitutional liberty doesn’t work, the chief justice is most likely to resist staying in the minority (four justices appointed by Democratic presidents are “in the bank” to uphold the PPACA with few questions asked) and instead join Kennedy in a 6-3 vote to keep the PPACA alive (before it dies of other, politically self-inflicted wounds?).
But if Kennedy stays in line with some of his past opinions (and doesn’t read the NY Times the day before voting in conference), Roberts would be “inspired” to join a 5-4 decision to strike down just the individual mandate, and perhaps a few related health insurance regulatory provisions—in order to shape the scope of such a ruling more narrowly. And, if you don’t like today’s prediction, just wait. There undoubtedly will be other ones forthcoming as the constitutional arguments and surrounding political atmospherics swing back and forth in the months ahead.
What those of us who fondly remember a previous vintage of the U.S. Constitution (the one with enumerated powers that limited the scope and scale of the federal government) actually need are justices willing to be less deferential to bad court precedents and more willing to take some public heat. That’s how the Warren Court created such a long line of periodically outrageous, new constitutional “law.” Reversing it, and rolling back similar extensions of the federal government’s powers, cannot be expected to look very pretty. But getting legally cute and finding new exceptions to past contortions (activity vs. inactivity, economic vs. non-economic, penalty vs. tax) is just as hard (although more tempting; hence the many indecipherable 5-4 decisions authored by former Justice O’Connor and other judicial weathervanes in the past).
Elections have consequences, too, and there’s a particularly ugly one coming up next year. Instead of hitting the pause button while wishing that five Supreme Court justices will deliver fleeting relief from the pain of ObamaCare, it looks like it’s time to diversify the investment portfolio and think about a return to regular politics by more transparent means. Repeal, replace, revise, rewind. Any of the above might be better than none of the above.
DARPA (the Defense Advanced Research Projects Agency) has come up with a simple and ingenious scheme to defeat WikiLeaks: seeding U.S. government computer systems with fake “classified” documents. Wired magazine’s Danger Room reports:
DARPA-funded researchers are building a program for “generating and distributing believable misinformation.” The ultimate goal is to plant auto-generated, bogus documents in classified networks and program them to track down intruders’ movements, a military research abstract reveals. “We want to flood adversaries with information that’s bogus, but looks real,” says Salvatore Stolfo, the Columbia University computer science professor leading the project. “This will confound and misdirect them.”
There are a number of advantages to this strategy:
1. DETECTION. The fake classified documents can be embedded with code that allows intelligence agencies to take a digital snapshot of the IP address of whoever has opened the file—alerting them to the breach, and allowing them follow the “digital breadcrumbs” as the documents are shared, so they can identify anyone involved in the conspiracy.
2. DETERRENCE. The existence of the fake documents would serve as a deterrent to future leakers, who cannot know if the documents they are handling are the real thing, or simply decoys designed to identify them and their accomplices. This could deter would-be leakers from opening or sharing such documents in the first place.
3. DENIABILITY. Perhaps most important, the existence of the fake documents creates plausible deniability the next time WikiLeaks publishes what it claims are classified documents. Even if the leaked documents are real, the U.S. government can claim they are not—and the leaking organization would be hard-pressed to prove otherwise. Foreign partners of the United States whose confidential conversations and information is exposed can similarly deny the accuracy of the information, mitigating the damage of any future leaks.
Moreover, journalists will be less likely to trust the information WikiLeaks provides them, thus undermining the organization’s effectiveness. Mainstream news organizations would be hesitant to publish information only to learn that they have reported as fact what was really a ruse. WikiLeaks would have to assume a “burden of proof” and expend resources to determine the veracity of the information the documents contain—something that could be nearly impossible.
In short, this simple strategy—combined with the financial embargo that is drying WikiLeaks of the resources it needs to operate—could be the death blow to Julian Assange’s criminal conspiracy.
Last month, I attended WikiLeaks Founder Julian Assange’s satellite address at the Sydney Opera House’s Festival of Dangerous Ideas (where I was also a speaker). Assange was at his megalomaniacal best, comparing his experience under arrest in London to that of the main character in Aleksandr Solzhenitsyn’s novel, Cancer Ward, and declaring that WikiLeaks had “not gone far enough.”
But the best part of his lecture was his description of WikiLeaks as an organization under siege and near collapse. “At the moment,” he said, “WikiLeaks is a rather big boat with a lot of torpedo holes in it that has taken water in and is drifting along and we’re doing our best to keep it afloat.” Apparently the effort is not going so well. The Associated Press reports this morning:
WikiLeaks said in a statement Monday that it would stop publishing in order to focus on making money—explaining that the blockade imposed by financial companies including Visa, MasterCard, Western Union, and PayPal left it with no choice.
The statement says that in order to ensure survival, WikiLeaks must “aggressively fundraise in order to fight back against this blockade and its proponents.”
U.S.-based financial companies pulled the plug on WikiLeaks shortly after it began publishing some 250,000 U.S. State Department cables last year. The group says the restrictions starved it of nearly all its revenue.
In his Sydney speech, Assange railed against the ban on online donations. “The most serious counter attack, much more serious even than that by intelligence agencies, has been an extrajudicial financial blockade … set up by Visa, Mastercard, PayPal, Bank of America, and Western Union” to ban payments to Wikileaks. “That has wiped out 95 per cent of our revenue. Over $20 million has been destroyed as a result of that completely political blockade.”
He accused the financial providers of being “instruments of the shadow state,” and warned the audience, “In your wallet is an instrument of unstated U.S. foreign policy and it’s affecting your actions right now.” I’ve never been so proud to be a Visa cardholder. Now if only the Obama administration would indict Assange and demand his extradition to America, so he can face justice for the destruction he has caused.
Umar Farouk Abdulmutallab—the al Qaeda terrorist who nearly brought down a plane over Detroit on Christmas Day, 2009, with an underwear bomb—pleaded guilty yesterday to all eight charges he faced, including conspiracy to commit terrorism and attempted use of a weapon of mass destruction. No trial necessary.
Good thing Eric Holder ordered FBI agents to read him a Miranda warning after just 50 minutes of questioning—giving up the opportunity to collect intelligence on terrorist threats in order to preserve his statements as evidence in his criminal trial. Another great call by Obama’s hapless attorney general.
Steve Hayward writes at Powerline:
This week in my Ashland University political economy class we considered chapter 14 of The Constitution of Liberty, “The Safeguards of Individual Liberty,” where instead of listing specific barriers like the Bill of Rights, Hayek discusses how the rule of law, rightly understood, is a broad barrier to excessive government power. He has an excellent legal-philosophical discussion of one of the knottiest problems in American constitutionalism, namely, delegation of power to administrative agencies—the curse of the modern American administrative state as delegated power is so sorely abused (e.g. Obamacare, etc). Hayek doesn’t say we can’t have any delegation at all; he recognizes the practical problems of modern government require it to some extent. But Hayek could see that this was, quoting German legal scholar Hans Huber, the Trojan horse in constitutional, administrative law.” [emphasis added]
Steve’s post is timely. Peter Orszag writes in The New Republic this week:
To solve the serious problems facing our country, we need to minimize the harm from legislative inertia by relying more on automatic policies and depoliticized commissions for certain policy decisions. In other words, radical as it sounds, we need to counter the gridlock of our political institutions by making them a bit less democratic.
Hayek anticipated Orszag’s will to administrative power:
The trouble with the widespread use of delegation in modern times is not that the power of making general rules is delegated but that administrative authorities are, in effect, given power to wield coercion without a rule, as no general rules can be formulated which will unambiguously guide the exercise of such power.
UPDATE: Chris Conover notes:
Orszag’s view is merely an extension of Elena Kagan’s admiring view of President Clinton who “increasingly made the regulatory activity of the executive branch agencies into an extension of his own policy and political agenda.” http://www.harvardlawreview.org/issues/114/june01/Article_7038.php
“It’s time for us to get back to the Constitution,” said Rick Perry as he parried with Mitt Romney in Monday night’s CNN-Tea Party Express debate. We at AEI intend to do just that next week. On September 20, in celebration of Constitution Day, AEI will honor its great constitutional scholar Walter Berns. Supreme Court Justice Antonin Scalia will give opening remarks and a distinguished panel, including Leon R. Kass and Christopher DeMuth from AEI and Jeremy Rabkin from the George Mason School of Law, will discuss Walter Berns’s lasting contribution to constitutional studies.
When they raise their right hands to take the oath of office, incoming presidents swear to “preserve, protect, and defend” the Constitution of the United States. From his early days teaching political philosophy at Louisiana State University in the early 1950s, Walter Berns has dedicated his career to deepening our understanding of the Constitution and defending its principles. A 2006 AEI Press book, Democracy and the Constitution, contains some of his most memorable essays on the document as well as personal reflections about the constitutional scholar Herbert Storing, whom he met as a graduate student at the University of Chicago. There he also met the late AEI scholar Robert Goldwin, who co-edited AEI’s ten-volume series “A Decade of Study on the Constitution.” Goldwin and Berns anchored AEI’s work on the Constitution and with this discussion, AEI will continue its long immersion in the study of the document’s enduring principles.
The tenth anniversary of the 9/11 attacks is fast approaching, so it is a natural time to reflect on what has been done to keep the government up and running should another attack occur. Last week, members of the 9/11 Commission released a report evaluating the country’s adoption of the Commission’s recommendations. At a Bipartisan Policy Center event to discuss their conclusions, commission member John F. Lehman, secretary of the Navy under President Reagan, explained that good progress has been made: “Overall, the water glass is more full than empty. I’d say it was 60-40.”
Lehman is right that much has been done to make the country safer, but there is one area in which reforms have been all but non-existent: government continuity. To this day, there is still no plan in place for the reconstitution of Congress should an attack leave less than a quorum of members. If more than half of the members of Congress were killed or incapacitated in an attack, Congress would be paralyzed, unable to act.
The story is not much better at the White House. While there is at least a plan for presidential succession, every person on that list is based in Washington, D.C. So if a terrorist attack wiped out the nation’s capital, it is possible that no member of the list would be able to serve. These are truly frightening prospects, since having a functional Congress and presidency is crucial when there are important national security decisions to be made and time is of the essence.
Lehman also noted at yesterday’s event that the biggest hurdle to better implementation of the 9/11 Commission’s recommendations is Congress itself: Congress’s oversight of implementations has “gotten worse, and nobody is pushing to make them better.” Not exactly true: the AEI-Brookings Continuity of Government Commission has done yeoman’s work to try to gain congressional support for its plans to strengthen the congressional continuity and presidential succession systems. (Additionally, our commission will release a report on Supreme Court continuity this fall.) Only a handful of members of Congress have been willing to expend much time or effort on government continuity.
Though much work has been done to make America safer in the decade since 9/11, the possibility of an attack has not been eliminated. In an instant, our government could become unable to function, with no plans in place to make it operational again. As Lehman pointed out yesterday, Congress needs to step up on government continuity issues, since America’s safety hinges upon having a government that can make decisions in the midst of chaos.
The alerts issued last night of a possible terrorist plot to coincide with the 10th anniversary of the September 11 terrorist attacks should serve as a stark reminder that we are commemorating much more than a terrible historical moment this Sunday. The attacks of 9/11 were a deadly engagement in an ongoing war. We have delivered many blows to the terrorists who attacked us that day, but our enemies remain dangerous and determined to strike our country again.
What lessons have we learned in this first decade of the war on terror? The Enterprise Blog has asked individuals with vastly differing views to reflect on this question—they include AEI scholars, public officials, the lawyer who drafted the legal memoranda that authorized enhanced interrogation, and the lawyer who represents the first terrorist to undergo those interrogation techniques. We thank them for participating in this discussion. See these links for contributions by Tom Donnelly, John Yoo, Joe Margulies, Michael Ratner, Senators Rob Portman and John Cornyn, Karlyn Bowman, and Andrew Rugg.
Looking back over the last decade, we can see three important legal developments that prevented further attacks on the United States. President Bush chose to treat the 9/11 attacks as an act of war, not crime. Our national security agencies began to share intelligence and our military developed quick-strike capabilities to exploit it. Our separation of powers worked and civil liberties remain robust.
Critics commonly assert that the president went too far in the war on terror and individual liberties have suffered. But the Framers intended the Constitution to create a system where the branches of government would struggle over national security policy, and that is what we’ve seen the last 10 years. Also during that time, political speech and activity has exploded, thanks to the Internet, social media, and radio and cable talk shows. All that political debate has produced several changes in party control of the presidency and Congress, the real check on any abuses of power.
I appreciate the opportunity to participate in AEI’s anniversary symposium. I have been involved in post-9/11 work since November 2001 and have been asked to reflect on why I believe my work is important. I was counsel of record in two of the detention cases, Rasul v. Bush (2004) and Munaf v. Geren (2008), and currently represent Abu Zubaydah. But I do not know whether my work is important and leave that assessment to others. All I can relate is why I do it.
My work has always been animated by two elementary convictions. First, the truth is worth pursuing. Second, the statements of people with a stake in the outcome should be tested. These convictions led me initially to Rasul, about habeas for prisoners at Guantanamo, and then to Munaf, involving habeas for American citizens held in Iraq. It seemed to me we should not simply accept the assertion—as though it were gospel—that a man is the demon his jailer represents him to be. If the truth is worth pursuing, and if the statements of people with a stake in the outcome should be tested, then Rasul and Munaf were easy cases. This leads me to Zubaydah. Few have been so demonized, none so misjudged. Even the U.S. government no longer believes what it once said about Zubaydah.
My work has led me to a third conviction. People of good will can disagree, but disagreement is neither proof of venality nor cause for incivility. I do not understand the coarseness that passes for dialogue nowadays. I do not understand why serious issues cannot be given serious thought without resort to vitriol. I do not understand why the debate has become so cheap. It is no answer that much is at stake; that is precisely why it should be otherwise.
Today, nearly ten years since President Bush first sent detainees to Guantanamo Bay and 19 months after President Obama promised the infamous prison camp would be closed, it remains open. One hundred seventy-one men remain imprisoned there, of which 89 have been cleared for release, but with no release in sight.
My organization, New York City’s Center for Constitutional Rights (CCR), was the first—and for a long time, the only—human rights organization willing to represent the detainees. We leapt into action after President Bush issued Military Order #1 in November 2001. It authorized the president to direct the capture of any non-citizen anywhere in the world allegedly involved in international terrorism, and to detain that person indefinitely without access to the remedy of habeas corpus. And when Bush took such an action, CCR stepped in to defend the first detainees.
Yes, we debated whether to become involved. Defense Secretary Donald Rumsfeld swore these detainees were the “worst of the worst.” But we could not stand back and watch the law stripped of a key protection against executive deprivations of liberty, reaching back to 1215 and the Magna Carta.
In 2008, after three appearances before the U.S. Supreme Court, habeas corpus was finally restored to the men at Guantanamo. But our presence and our litigation had its benefits even before Boumediene v. Bush. It’s much harder for any authority to abuse prisoners who have lawyer visits, and ours first gained access to Guantanamo as far back as 2004. At one point we were coordinating the efforts of more than 500 pro bono attorneys from firms nationwide. I believe it’s fair to say that our collective presence, and the threat of further litigation, acted as a deterrent to greater brutality and a larger prisoner population. Six hundred people have been freed from Guantanamo.
It’s discouraging that Guantanamo remains open. And that the D.C. Court of Appeals hollowed out the habeas remedy to the point where the Inter-American Commission on Human Rights called it “illusory.” Still, I believe that the decision of so many members of our community to defend the men there, and the key democratic principle of habeas, represents one of the American bar’s finest hours.
Michael Ratner is president emeritus of the Center for Constitutional Rights. His most recent book is “Hell No! Your Right to Dissent in Twenty–First Century America“
A sharp blow for ObamaCare today as the U.S. Appeals Court for the 11th Circuit in Atlanta ruled against the provision that mandates Americans to buy health insurance or face a penalty. Twenty-six states had challenged the constitutionality of the mandate, which is expected to go all the way to the Supreme Court. “This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives,” the majority said in its opinion. The two judges in the majority on the three-judge panel were appointed by Bill Clinton and George H.W. Bush.
Democrats fired back at the ruling. The White House predicted that the 11th Circuit judgment will not stand. House Minority Leader Nancy Pelosi (D-Calif.) tweeted, “Dems oppose efforts to put insurance companies back in charge & I’m confident Affordable Care Act will ultimately be upheld.” The law is supposed to go into effect in 2014, and the legal battle at the Supreme Court could come right smack in the middle of President Obama’s re-election campaign next summer.
AEI resident fellow Thomas P. Miller, who has helmed our think-tank’s “Beyond Repeal and Replace” project and co-authored “Why ObamaCare Is Wrong for America,” has written some good material for those wanting to delve deeper into the battle over the healthcare law. A sampling:
- “Taking the Individual Mandate Off Life Support,” The Weekly Standard: “Whether it is repealed by legislation or by the courts, the mandate needs to be replaced by something else that works better to address serious cost and coverage problems in health insurance.”
- “One Year In, Americans Want a Divorce from Obamacare,” Real Clear Markets: “Facing serious constitutional challenges and persistent political opposition to an individual mandate, the Obama administration has tried to defend it by concocting a mix of half-baked economic arguments and exaggerated factoids.”
- “‘Hoist with His Own Petard’ — The Individual Mandate Blows Up ObamaCare,” The Enterprise Blog: “An additional irony is that our current president and many of his Democratic Party allies in Congress and elsewhere have relied for many years on using the courts aggressively, as well as ambitiously extending regulatory interpretations beyond the original text of statutes, to achieve what they could not win through more transparent and accountable, but less malleable, political processes.”
AEI will be hosting a half-day conference on Sept. 15 to examine the various appellate decisions thus far. Confirmed speakers include Greg Katsas, successful counsel for the plaintiffs in the 11th circuit case decided today, Eric Klaeys of George Mason Law School, and Jim Blumstein of Vanderbilt Law. Stay tuned for more details.
The death penalty is not exactly a signature AEI issue. I suspect views on it around here (as at National Review, my other home) vary widely. My own position is straightforward, certain people deserve to die for their crimes. We can debate the merits of all that another day. Instead I thought it would be more fun to debate the merits—or lack thereof—of E.J. Dionne’s column on the execution of Humberto Leal, a Mexican national who lived in the United States from the age of two, and raped, murdered, and mutilated a teenage girl. Here’s how Dionne begins:
WASHINGTON—The unseemly love affair of some American politicians with the death penalty is bad for justice and bad for our country’s standing in the world. It inflicts a wholly unnecessary moral stain on a nation that rightly preaches the rule of law to everyone else.
Even more remarkable is the indifference that five justices of the Supreme Court have shown to such considerations.
And then there is Gov. Rick Perry of Texas, who insisted upon pushing ahead with the execution of Humberto Leal, a Mexican national convicted of the rape and killing of a teenager. Even former President George W. Bush—who presided over 152 executions as Perry’s predecessor—had qualms about the case. Bush hasn’t gone soft. He’s legitimately worried about the costs of the United States thumbing its nose at the government of Mexico and the world.
President Obama, the International Court of Justice and the Mexican government all wanted a stay of execution. But Perry’s press secretary was unapologetic. “Texas,” said Katherine Cesinger, “is not bound by a foreign court’s ruling.”
Imagine if an American life was at stake and a press secretary said that Iran—or Russia or Saudi Arabia or China—did not feel “bound by a foreign court’s ruling.”
Let’s be clear: This case involved a brutal crime, and Leal himself seemed to confess his guilt just before he died. “I take full blame for everything,” he said. “I am sorry for what I did.”
Many points could be made, but I’ll settle for two.
First, his opening sentence makes it sound like the death penalty itself—and not this case—undermines our ability to preach the rule of law. At minimum that is unproven.
But it was this sentence that really bugged me. “Imagine if an American life was at stake and a press secretary said that Iran—or Russia or Saudi Arabia or China—did not feel ‘bound by a foreign court’s ruling.’”
Dionne is stealing a number of bases here. If an American raped and murdered a teenage girl in one of those countries, I don’t know that many people would put up that much of a fuss if the perpetrator were executed. After all, Leal, as Dionne grudgingly concedes, admitted to his guilt. What would enrage the American people is if one of those countries—or any country, including the United States—executed an American for a crime that he didn’t commit or that didn’t rise to the level of capital punishment. Dionne’s analogy blurs that distinction in an attempt to play upon sentiments not applicable or at issue.
This is a common technique among opponents of the death penalty. They compare the United States to countries that use the death penalty for abominable reasons and say, in effect, “Do we really want to be like them?”
The answer, of course, is that we don’t want to be like them and, more importantly, we are not like them. We don’t murder people for whistle-blowing on corruption in the government and we don’t murder them for converting to Christianity. We lawfully execute people for crimes like Leal’s. The man raped a teenager, mutilated her body with a stick, and crushed her head with a rock. That is not a “crime of conscience,” it is a crime that shocks the conscience. Blurring the distinction between the two is slanderous.
Last week’s decision by the U.S. Court of Appeals for the Sixth Circuit regarding the constitutionality of the new healthcare law was a disappointment. The decision in many ways passes the buck to the Supreme Court, declining to strike down the law’s requirement that individuals purchase health insurance or face a financial penalty based on the “presumption” that legislation is constitutional. The reliance on this presumption, however, is particularly inappropriate in the context of the new healthcare law. While the court noted that the presumption is based on the “deference due to deliberate judgment by constitutional majorities of the two Houses of Congress,” media accounts at the time make clear that few, if any, legislators actually reviewed the bill, much less engaged in “deliberate judgment” regarding its contents. Moreover, application of a presumption of constitutionality is questionable where, as here, “Congress has never directly addressed” the precise question at issue—i.e., “whether Congress may use its Commerce Clause power to regulate inactivity,” in this case the decision by individuals across the country to refrain from purchasing health insurance. On the bright side, however, the majority’s opinion is significant in that it recognizes that the new healthcare law is not merely seeking to regulate the market in health insurance, but also healthcare delivery. The court’s decision thus implicitly acknowledges that in seeking to require individuals to obtain health insurance, the legislation directly impacts an area—personal healthcare decisionmaking—that the Supreme Court has previously held is subject to special protection.
The Senate wants to do less, and in this case, that is a good thing. It wants to spend less of its time arguing about the confirmation of hundreds of lower-level political appointees.
Opponents of this proposal, like David Addington of the Heritage Foundation, complain that the Senate will give away power to the president. But in reality, the Senate will retain its constitutional powers of advise and consent, and the change would benefit the Senate, the executive branch, and the many presidential nominees who sit in a needlessly bureaucratic process of appointment and confirmation.
In our system, the president appoints thousands of people to political positions in government, and hundreds of them require Senate confirmation. In this respect, America is very different from most of the world. In most parliamentary systems, government is staffed almost exclusively by career bureaucrats, with only a political minister at the top of each department. America has a mix, a skilled group of civil servants, but political appointees at the top three or four levels of each department. The president, with the consent of the Senate, appoints more than 600 positions in the cabinet departments. In addition, there are hundreds of ambassadors and U.S. attorneys who serve outside D.C., but who also require Senate confirmation. Add to that a long list of unpaid appointees to part-time advisory boards, and you realize that the Senate spends too much of its time debating and confirming many low-level officials.
There are also many political appointees who do not require Senate confirmation: hundreds of staffers in the White House, chiefs-of-staff to political appointees, and many lower-level schedule C staffers who also come from a political background.
While this system of numerous political appointees is very different than much of the rest of the world, it has several great strengths. First, a new president can bring his or her people into government. Strong supporters, campaign workers, and other fans of the president can not only advocate for the president’s election, but can serve in public office to help further the president’s agenda. Second, a president can draw on expertise outside of government, from people with careers in academia, business, labor, Congress, and the nonprofit sector. Third, the system allows our Senate to have a say on whether higher-level presidential appointees get into office.
But despite its strengths, the system of the president appointing and the Senate confirming appointees is not working very well today. The system is clogged and bureaucratic and discourages many good people from serving in government. Fortunately, there is a modest effort moving forward in the Senate to improve this process.
The Senate is considering removing lower-level appointees from the Senate confirmation process altogether, providing for an expedited vote for appointees to part-time, unpaid commissions, and creating a commission to rationalize the mess of the financial disclosure and background check process.
The effect can only be positive. Senators will still be able to vote for, vote against, or hold up political appointees at the highest levels of every department of government. But it will spend less of its time in fruitless argument over the lowest level nominees. It will have no less leverage over the executive, but more time to legislate. It is not a gift to the executive branch, but a sensible measure to free up senate and executive branch resources and make modest improvements for nominees going through the presidential appointment process. Win, win.
John Fortier is an adjunct scholar at AEI.
David Brooks, writing for the New York Times, contrasts the political atmosphere in the United States with that of the United Kingdom, arguing that despite our shared heritage the Brits have turned out to be plain better at governing than we are. While our politicians debate through tweets, sound bites and, where necessary, from separate studios across cable news channels, in the more intimate atmosphere of Great Britain politicians debate face to face, whether in the House of Commons or on television, a structure that breeds a more informed, and also a more responsible, class of elected official.
I lived in the United Kingdom from 1988 through 1995 and was often struck by the same point: Britain’s elected officials simply seemed to know more than ours and to be better able to express what they know. Unlike congressional hearings, where members question witnesses by reading staff-written questions off of a 3-by-5 card, parliamentary debate demands the ability to think on your feet and both the courage and the responsibility to argue directly to your opponent’s face. The quality of discourse is simply much higher.
Brooks hits on a second point that’s also struck me in recent years: that our national failure to address pressing issues, such as entitlement reform, is as much a failure of political institutions as of political culture. In a recent meeting with a member of Parliament, I was asked why Americans find it so difficult to pass important legislation while the U.K.’s Conservative/Liberal Democrat coalition has passed far-reaching reform to address fiscal shortfalls—including, most recently, a pledge to erase the structural budget deficit in five years. While not easy, the British majority was able to explain the legislation to the public and get it passed. Here in the United States, it’s unlikely we’ll even be able to pass a budget governing day-to-day spending, much less fix our massive long-term fiscal gap.
The answer I gave was that political institutions play a large role in our failures. Our system of divided power, in which legislation must attain majority approval in the House, super-majority approval in the Senate, then be signed by the president, and then, in the case of healthcare reform at least, survive challenge in the courts, allows veto power by too many parties at too many steps of the way. The parliamentary system, by contrast, allows the party in power much greater ability to shape legislation, such that large changes are possible over a short period. At the same time, however, the majority party bears sole responsibility for the outcomes and, if defeated, the new majority can reverse prior plans.
Importantly, though, these reversals are less common than you would guess. While the minority Labour Party opposed most of the free-market reforms instituted under the Thatcher and Major governments, when Labour became the majority under Tony Blair it left most of those reforms in place. This structure allows needed reforms to be made and kept in place, even if one party’s official stance is opposed. Call it hypocrisy, but it works. In the United States, such an approach might, for instance, allow Republicans to increase the Social Security retirement age and for the Democrats to leave the increase in place once they regained power.
The fact that we can’t operate in this way means that we increasingly outsource policy making to unelected commissions, such as President Obama’s fiscal responsibility panel. However, even in this case the president was unable to support their recommendations. Similarly, in the 1990s we utilized the so-called BRAC commission to close redundant military bases, a commission necessitated only by Congress’s inability to do so itself. As I wrote here, our inability to manage the programs that make up the lion’s share of the federal budget means, simply put, that “the government can’t do what the government does.” That is, these aren’t ancillary functions of government that take up trivial shares of the federal budget; rather, as the federal government increasingly comes to resemble an insurance plan with an army, we increasingly acknowledge that our political institutions are able to effectively manage neither the insurance plan nor the army.
It sounds un-American to say it—ok, it probably is un-American to say it—but the system established by the Founding Fathers to organize a federal government that was defined more by what it couldn’t do than what it could isn’t well-suited for the federal government we have today, where almost nothing is taken to be off-limits. The best solution, of course, is to put many federal activities back off limits, to push them to the states, local governments, or individuals where the dysfunction is hopefully less severe or, in any event, less costly. But unless this happens in the near future, I’m pessimistic about our ability to manage our challenges, in particular our budgetary challenges, without some damaging trigger event pushing us to action. Unlike our cousins across the pond, neither our personnel nor our political structures seem up to the job.
Tom Donnelly eloquently explains why the appointment of General David Petraeus as director of the CIA is bad news for the Department of Defense. Here is why his appointment may be bad news for the CIA as well.
Petraeus is a hero to many for his bold leadership of the military surges in Iraq and Afghanistan—and I count myself among his most ardent admirers in this regard. He might well have been an outstanding chairman of the Joint Chiefs of Staff. But his outspoken public criticism of the men and women of the CIA, whose interrogation of high-value terrorist leaders helped stop a second wave of attacks on the United States, make him an unfortunate choice for the CIA job.
In an interview with Fox News in May 2009, Petraeus aligned himself squarely with critics of the CIA, who have accused top counterterrorism officials in the agency of violating the law and violating our values. He declared:
When we have taken steps that have violated the Geneva Conventions, we rightly have been criticized. So as we move forward, it is important to, again, live our values, to live the agreements we have made in the international justice arena, and to practice those.
You can see the video here:
In fact, as I make clear in my book Courting Disaster, the United States did not violate the Geneva Conventions. When Petraeus declares that CIA officials did so, he is effectively calling them war criminals. That is not encouraging to the men and women he may be about to lead.
Of course, his statements are in line with those made by Attorney General Eric Holder and President Obama, each of whom has leveled similar accusations. Current CIA director Leon Panetta was also a critic of CIA interrogations before taking the helm of the agency. But once he arrived at Langley, while not backing off his prior opposition to the program, Panetta became a strong defender of the agency’s interrogators—vigorously opposing the release of the Justice Department memos detailing the CIA’s interrogation techniques, and fighting Holder’s decision to re-open criminal investigations into their conduct, overriding the considered opinions of career prosecutors who declined to prosecute them. In light of Petraeus’s unfortunate comments, CIA officials have a right to wonder: will they have a similarly vigorous advocate in their new director?
Thanks to Obama the CIA is out of the interrogation business, so there is no immediate impact on U.S. interrogation policy (or lack thereof). But that is also the problem. Appointing a CIA director with such restrictive views on interrogation does not bode well for the chances of much-needed improvements in our detention and interrogation policy.
General Petraeus should be asked tough questions during his confirmation hearings. These include:
• If he really believes that CIA officials violated the Geneva Conventions and thus the laws of war, does he support criminal prosecution of those who approved enhanced interrogations and those who carried them out?
• Is the Army Field Manual (whose drafting he supervised) really sufficient to question high-value detainees?
• Since the manual is publicly available on the Internet, can’t terrorists train to resist those techniques?
• Does the Field Manual exhaust every possible lawful interrogation technique? And if not, why should the United States deprive itself of other lawful interrogation techniques?
• What does he think of former CIA Director Mike Hayden’s argument that the president’s executive order should be amended to allow additional lawful techniques, or that a classified annex be added to the manual to restore some uncertainty as to what captured terrorists may face?
• Why is it that, outside of Iraq and Afghanistan, there has been not one single detention of a high-value al Qaeda terrorist by the United States since Obama took office? And what, if anything, will he do to change that?
• Does he believe that high-value terrorists should be taken into custody alive whenever possible, rather than being killed with unmanned drones?
• If he agrees that terrorists should be taken into custody alive whenever possible, exactly where should they be taken? Does he agree with current CIA Director Leon Panetta’s statement to Congress that if the United States captured any high-value al Qaeda terrorists, they would likely be taken to Guantanamo Bay for questioning?
• What will he do about Umar Patek—the first high-value al Qaeda terrorist captured alive since Obama took office? Patek is in Pakistani custody, and the United States has reportedly not been allowed access to him. Press reports indicate that Patek was in Yemen before his capture, and attended a meeting of fellow jihadists in Mecca before heading to meet with al Qaeda leaders in Pakistan—meaning he could have potentially life-saving information about plots against the homeland.
• Is it acceptable for the United States to be without access to such a high-value terrorist? Does he agree that it is essential such a high-value terrorist be taken into U.S. custody for interrogation? As CIA director, would he do everything in his power to ensure that Patek in transferred into U.S. custody, just as Khalid Sheikh Mohammed and other senior al Qaeda leaders were once handed over to the United States by Pakistan?
General Petraeus is an outstanding military leader who turned the tide of the conflict in Iraq and has set the battle in Afghanistan on a positive trajectory. He deserves respect and admiration for these achievements. But this does not mean that he is the right man to lead the CIA. Petraeus should have to answer these and other pressing questions before he is confirmed by the Senate for this critical post.
(U.S. Navy photo by Photographer’s Mate 1st Class Shane T. McCoy)
Washington Post writers Peter Finn and Anne Kornblut recently examined the Obama administration’s vexations toward closing down the Guantanamo Bay Detention Center. The article cites lack of leadership, legislative restrictions, and legal hurdles in the administration’s slow reversal of its plan to try detainees in civilian court.
Public opinion should be added to the list of obstacles. Although President Obama recently told AP that he doesn’t plan to “stop making the case” to close the prison, he may have missed his opportunity in ensuring public support. Polling shows that the high-water mark for approval of closing the Guantanamo Bay prison was in early 2009, at the beginning of his presidency. Over the last two years, opinions have shifted to favoring keeping the facility open. In February 2009, a plurality of 46 percent told Pew pollsters that they approved of Obama’s decision to close the military prison. Thirty-nine percent disapproved. By November 2009, only 39 percent approved and nearly half, 49 percent, disapproved. While new polling on the issue has been scarce, 67 percent approved the administration’s decision of “keeping open the prison at Guantanamo Bay for terrorist suspects” in an April 2011 NBC/Wall Street Journal poll.
It probably doesn’t come as much surprise that people are paying little attention to the issue. Only 16 percent told Pew in March 2011 that they were paying a lot of attention to “President Obama’s decision to allow military trials of detainees at Guantanamo Bay.” Back in February 2009, 57 percent said they were paying a lot of attention to Obama’s decision to close Guantanamo in a year.
Recent polling has shown that Americans favor military tribunals over civilian trials. In a January 2010 Quinnipiac poll, a solid majority, 59 percent, preferred “trying people suspected of involvement in terrorists attacks” in “a closed military court with a military judge.” Thirty-four percent preferred an open criminal court.
A driving factor behind the shift in attitudes, as the Post article cites, is that people don’t want the prisoners in the United States. A January 2010 Fox News question, which asked respondents to assume that Guantanamo was closed, found that a majority (58 percent) wouldn’t want the prisoners to be transferred to the United States. Only a third were in favor of transfer. Given these strong public reservations, it seems that Obama has quite an uphill battle ahead if he still plans to close the prison.
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