Obsidian Wings

There's Something About This I Just Don't Understand ...

by hilzoy

Anderson Cooper interviewed Sarah Palin's spokesperson tonight. He asked what Sarah Palin would be doing next. Here's her answer:

"STAPLETON: OH, everything under the sun that you can possibly think of.

And what she has said and what she did say in her speech was, just alone, getting out there and working with candidates and for candidates to get the right people in office who have those same ideas and ideals, and energy independence and who will work for stronger national security and more support for..."

I see. Sarah Palin resigned as Governor so that she could help people who share her "ideas and ideals" get elected to political office. Maybe if she works really hard at it, she could even get one of them elected governor.

Oh, wait ...

Barracuda

by hilzoy

I just watched Sarah Palin's announcement that she will step down as governor, which was surreal even by her standards. It's hard to pick just one favorite moment, though this has to be on anyone's list:

"Life is too short to compromise time and resources... it may be tempting and more comfortable to just keep your head down, plod along, and appease those who demand: "Sit down and shut up", but that's the worthless, easy path; that's a quitter's way out. And a problem in our country today is apathy. It would be apathetic to just hunker down and "go with the flow".

I also liked the quote from General MacArthur: "We are not retreating. We are advancing in another direction." It takes a certain something to say that without apparent irony.

The part I couldn't get past, though, was the basketball analogy:

"Let me go back to a comfortable analogy for me - sports... basketball. I use it because you're naive if you don't see the national full-court press picking away right now: A good point guard drives through a full court press, protecting the ball, keeping her eye on the basket... and she knows exactly when to pass the ball so that the team can WIN. And I'm doing that - keeping our eye on the ball that represents sound priorities - smaller government, energy independence, national security, freedom! And I know when it's time to pass the ball - for victory."

The thing is: though Palin said several times that she explained her reasons for resigning, she didn't. Specifically, she never explained why right now, she has to pass the ball in order for her team to win. Why not just head in for the layup, or take an outside shot? Why does she have to pass the ball to her Lieutenant Governor?

I have no more idea than anyone else, but hey: what's the point of blogging if not to amass a record of your unfounded speculations so that you can go back and see how wrong you were? My unfounded speculation: I do not believe for a moment that this is about taking time off to prepare for 2012. Nothing I know about Sarah Palin leads me to believe that she would give up power voluntarily, let alone for something that is such a long shot, and in such a transparently self-destructive way. 

I think that there's something we don't know about: either a serious health problem or a serious scandal. In either case, it would, I think, have to be a really big deal to make her react in this way. She has shown herself to be more than capable of brushing off smaller scandals, national embarrassment, and a whole host of other things. She did not step down from the governorship when she gave birth to a child with special needs, or when she was asked to be McCain's running-mate. She did not decline McCain's offer because of the potential embarrassment, either to her or her family, of her daughter being unmarried and pregnant. She is no shrinking violet.

Nor, as I said earlier, does she strike me as someone who would give up power without a very, very compelling reason. I didn't actually get a lot from the recent Vanity Fair piece on Palin, but I did like this quote:

"Remember, says Lyda Green, a former Republican state senator who once represented Palin's home district, and who over the years went from being a supporter of Palin's to a bitter foe, "her nickname in high school was 'Barracuda.' I was never called Barracuda. Were you?"

Well, no, I wasn't. She was. Resigning in the middle of her term is not a barracuda-like thing to do.

I await further news with fascination. I'm also taking bets on who the next imploding Republican Presidential hopeful will be. Speculate away in the comments.

Sarah, We Hardly Knew Ye

by publius

Well, this should end the whole "Sarah Palin is bizarre and erratic" meme. 

Honestly, I don't know what to make of this.  My first thought was that she's obviously gearing up for 2012.  But now I'm not so sure.  Today's announcement was so ill-timed and rambling that it's hard to believe she's seriously considering a presidential run.  Why not wait a few months, and announce the presidential run along with the resignation?  Why not, you know, push a coherent story to the press?

Today only makes sense if she either (1) is done with politics entirely, or (2) is a looney toon.  The whole thing was just so poorly timed -- and the press narrative so bad -- that it's hard to believe a credible presidential candidate would do it.

And lest we forget, this is the person the 72-year John McCain selected to be the Vice President of the United States.

The Wire

by publius

So after years of resisting passionate pleas from friends, I've broken down and started watching The Wire.  I'm now through Season 4 about to start 5.  And it's absolutely fantastic.

To those who haven't seen it -- go start it right now.  If you are reading this blog, chances are you have a fairly high interest in things like politics and policy.  If you do, you will love it.  I mean, you'll love it anyway, but you'll love it even more.

I missed the whole back-and-forth on the larger Wire debate a year and a half ago, but I'll probably do a few posts on it in the near future (below the thread to limit spoilers).  I actually don't watch much TV or movies anymore other than Sesame Street, Barney, and the Daily Show.  But this one you should make time for.

My One and Only Sanford Post

by publius

Poor Mark Sanford – the skeletons keep spilling out of his closet.  And I suspect he’s not long for the Governor’s office.

I can’t help but feel bad for him.  And I suppose this is inappropriate – but from a purely voyeuristic perspective, there’s something tragically beautiful about the whole thing in an ancient Greek/Shakespearian sense. 

To me, the essence of Shakespearian tragedies is that they feature our most basic human animal emotions playing out at the very highest levels of political power.  Enormous public consequences result from individuals acting on their most primitive of emotions.  Acts of rage and lust and jealousy, for instance, cause entire kingdoms to rise and fall.

And that’s what’s tragic about Sanford.  Here’s a governor who was a rising star and a very credible presidential candidate.  He had the affection of ideological conservatives.  In short, he had everything going for him.  But then lust – basic human lust – brought the whole thing crashing down.  I can’t really speak to the morality of it, but it’s good theater from an aesthetic perspective.

The other tragic dimension here – one shared by people like Clinton and Edwards – is that the basic human emotions that brought Sanford down are, ironically, the very same traits that fueled his rise to power.  The yin comes with the yang.

This is armchair psychology to be sure – but successful politicians have a lot of common traits.  They are passionate, ambitious, determined – and they have a real thirst for winning, and for conquest.  If you don’t have this primal ambition driving you, it’s hard to go very far in politics.  Kerry had it.  Bush had it.  Clinton had it.  Carcetti had it.  I think Obama has it too – he’s just better at masking it.

And while these traits have their benefits, they have their costs too.  They can make you reckless – they can make you jump into battles better left alone.  And I can see Sanford in that light.  He was one of the most ideological Republicans in the country – and that helped fuel his rise to power.  It doesn’t shock me, then, that he would be willing to lose himself in ideological love for a mistress abroad.  It all sort of fits.

Andy In Print

by hilzoy

As I think I've written before, Andy Olmsted's parents have collected his Rocky Mountain blog posts from Iraq into a book. If you'd like to order it, it's now available at 1-800-882-3273. Andy's parents will use any money they make above the production costs to establish a scholarship in his name at St. John's Academy in Shrewsbury, Massachusetts, where Andy went to school.

I miss Andy.

Stay on Target...Stay on Target

by Eric Martin

Mike Hanna is on point, as usual:

The United States took an important step yesterday toward leaving Iraq by moving combat troops out of Iraqi population centers in anticipation of the June 30 deadline specified in the U.S.-Iraq Status of Forces Agreement (SOFA).

This redeployment has focused attention on Iraq's current security situation and triggered stepped-up efforts by insurgents to undermine the symbolic importance of the transition, by launching attacks generally aimed at Shiite civilians. It has also provided fodder for those in the United States who wish to delay withdrawal.

However, looking at Iraq solely through the prism of short-term security trends clouds thinking about how the United States can best prepare for its exit from the country. It also obscures the enduring and fundamental disputes that undermine long-term prospects for stability. The United States should instead continue the transition toward diplomacy with modest goals and a focus on facilitating dialogue and negotiations on the most intractable issues facing Iraqis: governance, territory, and resources.

Make no mistake, Iraq is not on a self-correcting path to tranquility. It is likely to see a near-term increase in baseline levels of violence, and varying levels of violence for years to come.

But the logical case for withdrawal remains unchanged, starting with the binding obligation to withdraw on a fixed timetable as part of the SOFA negotiated by the Bush administration. More broadly, our expanding commitments in Afghanistan and the impact of the current economic downturn have added urgency to the need to rebalance the U.S. military posture.

Delaying withdrawals because of recent bombings would have given insurgents veto power over U.S. actions. More perilously, it would have conceded a key strategic goal of the ongoing insurgency by undercutting the legitimacy of the Iraqi government as sovereign over Iraqi territory. It would also have undermined U.S. credibility in the region at a time when the Obama administration is seeking buy-in and support for its ambitious regional agenda from partners in the Arab world.

Iraq's security gains remain fragile and reversible. But although withdrawal entails risks, there is no credible alternative. As President Obama clearly stated when announcing his timeline for troop withdrawals, "The most important decisions that have to be made about Iraq's future must now be made by Iraqis." Unfortunately, the improved security and accompanying degree of normalcy that has returned to many areas of the country has allowed complacency and overconfidence to set in among Iraqi political actors, frustrating significant political progress.

As Hanna noted, the case for withdrawal remains unchanged.  An uptick in violence is, sadly, almost certainly inevitable (and in the present case, that uptick preceded the actual troop withdrawal, which should tell us something).  In some sense, warring factions are waiting out the American presence (and some keep fighting with us there).  On the other hand, it would be pointless to bankrupt ourselves (and break our army, and hamstring our posture, etc.) in pursuit of that interminable standoff. 

More importantly, the only actors that can bring lasting peace post-US bulwark are the various Iraqi factions with grievances and competing interests, and sooner or later, those parties will have to resolve their conflicts, whether or not we stay another five to ten years in the middle.  Oh, and the Iraqi people want us out sooner regardless, which is kind of important (even if there is eventually some accommodation for military support via a much smaller residual force down the road).

Quote That Man

by publius

Noted communist Michael Gerson spells out the case for emission regulation as succinctly as anyone I've read.  In particular, he notes that one of the underlying purposes of the regulation is to spur market innovation.  Take it away:

Critics argue that carbon restrictions, even if fully implemented, would reduce global temperatures only by minor amounts, which is true. We are not going to regulate our way out of global climate disruption. . . .

But conservatives seem strangely intent on ignoring the power of markets to encourage such innovation. Right now, the emission of carbon is essentially cost-free. Putting a price on carbon would make the development of cleaner energy technologies more profitable.

It's actually worse than cost-free.  There are huge costs -- it's just that they're borne by the public at large rather than by emitters.  Pricing carbon internalizes these costs -- it's the same idea underlying regulation of pollution.

"The Optics Are Bad"

by hilzoy

From the NYT:

"Banks and mortgage lenders are placing top priority on killing President Obama's proposal to create a new consumer protection agency that would regulate home loans, credit card fees, payday loans and other forms of consumer finance.

The Obama administration fired an opening shot on Tuesday, sending Congress a detailed, 150-page proposal for an agency that would set new standards for ordinary mortgages, restrict or prohibit risky loans, investigate financial institutions and enforce new laws aimed at protecting credit card customers.

"This agency will have only one mission -- to protect consumers," said Timothy F. Geithner, the Treasury secretary, in a written statement on Tuesday.

But industry executives vowed on Tuesday to fight Mr. Obama's plan with everything they have, even though banks are still heavily dependent on many taxpayer-supported loans and loan guarantees to get through the crisis. (...)

Bank executives said they knew they faced a difficult political fight, given the soaring number of homeowners facing foreclosure.

"We know the optics are bad," said Scott Talbott, vice president for government affairs for the Financial Services Roundtable, a trade association in Washington. "If you are against a consumer regulatory agency, then everybody will say you're against consumer regulation.""

I suppose that when your industry has come up with such gems as the liar loan, helped bring the entire financial system to the brink of ruin, and helped bankrupt not just the people who took out those loans but people who had nothing to do with them -- people were laid off because of the crisis you helped create -- and when, after all that, you decide to oppose regulation of consumer financial products, you might say that "the optics are bad". 

Here's some more bad optics:

"Gabby Ornelas, a former teller at the giant Bank of America Corp., remembers the training sessions. And she remembers her marching orders: "Sell, sell, sell."

Ornelas was instructed to use her Spanish language skills and Latina heritage to sign up customers for as many kinds of banking services as possible, she said -- services that led to lucrative fees for the bank and financial entanglement for many customers.

"We were coached every day to push multiple checking accounts, credit cards and debit cards even when the customer didn't understand how to use them," said Ornelas, who lives in Landover Hills, Md., a town with a large immigrant population and a per-capita income of less than $19,000.

In one case, she described a Central American mother of three who came back to see her at the bank, distressed about $300 in overdraft fees incurred after Ornelas persuaded the woman to open a second checking account. (...)

The former workers said they were going public to lay out what they saw as a little-known side of BofA's business model: encouraging working-class customers to sign up for high-interest-rate credit and cash advance services and structuring an array of check and debit card services to maximize overdraft fees and other charges."

I can see why people who engage in those kinds of practices -- or these, or these -- might be leery of a consumer protection agency. What I can't see is why the rest of us should listen to them. They had their shot at policing themselves. If they wanted to avoid regulation, they should have taken it. They didn't. To my mind, they have long since forfeited the right to complain.

Coleman Finally Concedes

by hilzoy

From the NYTimes:

"After nearly eight months of waiting, almost 20,000 pages of legal briefs, and millions of dollars in election costs, Al Franken emerged Tuesday as the next United States senator from Minnesota, ending one of the most protracted election recount battles in recent memory.

Mr. Franken, 58, a former comedian and author, could be seated in the Senate as early as Monday, leaders there said, providing Democrats with something they had long hoped for: 60 votes, and thus at least the symbolic ability to overcome filibusters.

Norm Coleman, a Republican who had held the seat for a term, conceded on Tuesday afternoon, hours after the Minnesota Supreme Court issued a ruling in Mr. Franken’s favor, the latest in a series of findings that had left Mr. Franken ahead in the count. In weeks past, some Republican leaders had urged Mr. Coleman to press on to the federal courts if need be, but those calls faded Tuesday.

“Ours is a government of laws, not men and women,” Mr. Coleman, 59, said in a statement he read before reporters outside his home in St. Paul. “The Supreme Court of Minnesota has spoken, and I respect its decision and will abide by the result. It’s time for Minnesota to come together under the leaders it has chosen and move forward. I join all Minnesotans in congratulating our newest United States senator -- Al Franken.”

Wrong. It was time for Minnesotans to come together under the leaders it chose several months ago. Norm Coleman has dragged this out for nearly eight months. It has been clear that Franken would win at least since the three-judge panel ruled in his favor. That was on April 13th. Since then, Norm Coleman has just been trying to delay the inevitable, and denying Minnesota's voters the representation they are due in the process.

I'm glad he has finally decided to end it. But he's several months too late. 

Negotiations: Still Better than Preventive War and Impotent Fist Shaking

by Eric Martin

George Friedman of Stratfor offers useful correctives to some of the narratives about the Iranian election that, due to the fact that they resonated with Western audiences, found fertile soil for propagation (that the conflict was one based on liberal reform vs. clerical rule, pro-Western/US factions vs. anti-Western/US factions, pro-domestic nuclear program vs. anti-domestic nuclear program, etc).  This was the case despite the fact that those Western-oriented storylines only described a small portion of the overall picture - indeed, they served to conceal the larger tectonic clashes underneath:

Iranian President Mahmoud Ahmadinejad ran his re-election campaign against the old clerical elite, charging them with corruption, luxurious living and running the state for their own benefit rather than that of the people. He particularly targeted Ali Akbar Hashemi Rafsanjani, an extremely senior leader, and his family. Indeed, during the demonstrations, Rafsanjani’s daughter and four other relatives were arrested, held and then released a day later.

Rafsanjani represents the class of clergy that came to power in 1979. He served as president from 1989-1997, but Ahmadinejad defeated him in 2005. Rafsanjani carries enormous clout within the system as head of the regime’s two most powerful institutions — the Expediency Council, which arbitrates between the Guardian Council and parliament, and the Assembly of Experts, whose powers include oversight of the supreme leader. Forbes has called him one of the wealthiest men in the world. Rafsanjani, in other words, remains at the heart of the post-1979 Iranian establishment.

Ahmadinejad expressly ran his recent presidential campaign against Rafsanjani, using the latter’s family’s vast wealth to discredit Rafsanjani along with many of the senior clerics who dominate the Iranian political scene. It was not the regime as such that he opposed, but the individuals who currently dominate it. Ahmadinejad wants to retain the regime, but he wants to repopulate the leadership councils with clerics who share his populist values and want to revive the ascetic foundations of the regime. The Iranian president constantly contrasts his own modest lifestyle with the opulence of the current religious leadership. [...] 

When Ahmadinejad defeated Mir Hossein Mousavi on the night of the election, the clerical elite saw themselves in serious danger. The margin of victory Ahmadinejad claimed might have given him the political clout to challenge their position. Mousavi immediately claimed fraud, and Rafsanjani backed him up. Whatever the motives of those in the streets, the real action was a knife fight between Ahmadinejad and Rafsanjani. By the end of the week, Khamenei decided to end the situation. In essence, he tried to hold things together by ordering the demonstrations to halt while throwing a bone to Rafsanjani and Mousavi by extending a probe into the election irregularities and postponing a partial recount by five days. [...]

The key to understanding the situation in Iran is realizing that the past weeks have seen not an uprising against the regime, but a struggle within the regime. Ahmadinejad is not part of the establishment, but rather has been struggling against it, accusing it of having betrayed the principles of the Islamic Revolution. The post-election unrest in Iran therefore was not a matter of a repressive regime suppressing liberals (as in Prague in 1989), but a struggle between two Islamist factions that are each committed to the regime, but opposed to each other.

The demonstrators certainly included Western-style liberalizing elements, but they also included adherents of senior clerics who wanted to block Ahmadinejad’s re-election. And while Ahmadinejad undoubtedly committed electoral fraud to bulk up his numbers, his ability to commit unlimited fraud was blocked, because very powerful people looking for a chance to bring him down were arrayed against him.

The situation is even more complex because it is not simply a fight between Ahmadinejad and the clerics, but also a fight among the clerical elite regarding perks and privileges — and Ahmadinejad is himself being used within this infighting. The Iranian president’s populism suits the interests of clerics who oppose Rafsanjani; Ahmadinejad is their battering ram. But as Ahmadinejad increases his power, he could turn on his patrons very quickly. In short, the political situation in Iran is extremely volatile, just not for the reason that the media portrayed.

The main take away is that those suggesting that the election-related power struggle is evidence that the Iranian regime is, in fact,"irrational," or that the crackdown on protesters  was so odious as to preclude negotiations, or that the parties that would have been willing to negotiate with the US government have been purged, should rethink those assumptions. 

There was nothing irrational about this power struggle. It was basic jockeying for political spoils pursued by rational actors, with a regime that sought to manage the process, and whose overriding goal was pure rationality: self-preservation.  The crackdown on protesters, while unquestionably brutal and horrific to behold, was, sadly, the type of illiberal action that many of our strongest allies in the region engage in regularly, and the violence (tragic as it was) pales in comparison to the actions of other regimes that we have seen fit to negotiate with in the past and present. 

Finally, the Mousavi/Rafsanjani faction was no more willing to cut a deal with the US government absent security guarantees and other concessions than the Ahmadinejad faction.  Regardless of which side came out on top, the contours of the deal remain the same - as do our interests in pursuing that deal, and Iran's interests in the same:

More Alito

by publius

Justice Alito’s racially inflammatory concurrence doesn’t get any better when you read the lower court opinion (pdf).  What’s specifically objectionable is not so much the reference to Kimber, but the needlessly inflammatory description of him.

Admittedly, Kimber does appear in the lower court opinion (pdf).  The firefighters had alleged that New Haven discriminated because the City feared political backlash, particularly from the African-American community and Reverend Kimber.  This was the “pretext,” legally speaking.

Unlike the Supreme Court, the lower court actually ruled on the pretext issue, so it makes sense that he came up.  But the lower court opinion makes only passing references to him in the employment discrimination discussion.  And even when he does come up, the lower court opinion describes him in far more general terms – e.g., he is a “vocal” and influential pastor.  The opinion doesn’t go into detail about him personally – largely because that’s not relevant to anything.

Alito takes a much different approach.  It’s not merely that he mentions Kimber (though even that was wholly unnecessary because the Court didn’t rule on the pretext issue).  What makes Alito’s concurrence so distasteful is the manner of the description. 

Alito goes out of his way to paint Kimber as Public Enemy Number #1, and uses racial innuendo to do so.  Alito writes, for instance, that Kimber (1) calls lots of people racist; (2) threatened a race riot during a trial of a black man for the murder of a white Yalie; (3) was convicted for stealing funeral payments and commiting perjury; and (4) made racist slurs as chairman of a government board of fire commissioners.  (See p. 3-4 of Alito’s concurrence – p. 44-45 of the pdf).

Look, Kimber may be a very bad dude.  But none of this stuff is relevant in the slightest.  It’s unnecessary to even bring him up.  But if he must be included, the only even potentially relevant facts are that he’s influential and vocal.  There’s no need to include any of the rest.

Unless of course you want to push white people’s buttons in inflammatory ways.  But then again, maybe the firefighters’ description of Kimber pushed Alito’s buttons.  Either way, it’s unseemly for a Supreme Court Justice in 2009 to be writing this stuff.

Hanging Out with Young Thugs that All Carry Nines

by Eric Martin

If someone suggested to me that the way to fix what's been ailing Somalia over the past few decades is 40 more tons of weapons and ammunition, my brain would do a double take.  And yet...

The U.S. government has provided about 40 tonnes of weapons and ammunition to Somalia's embattled government in the past six weeks to help it fight Islamist insurgents, a senior U.S. official said on Friday.

The official, who spoke on condition of anonymity, said the United States spent less than $10 million on what he described as small arms and ammunition as well as on payments to other nations to train Somali government forces.

While the State Department confirmed on Thursday that it was providing weaponry to the government, it had not previously provided details on the type, cost or amount.

Like Jason Sigger, I tend to agree with Steven from Realistic Defense:

I'm not sure that aiding the Somali government is something the United States should be actively doing. Officials in the State Department and the Pentagon have predicted Somalia as the next terrorist incubator for years now. If Somalia falls to radical Islamists, is the United States adversely effected? I think the whole failed states as terrorist havens is an idea that dominates most of the foreign policy establishment, but is severely misguided. Terrorism is a phenomenon that can exist in a variety of states. The liberal democracies of western Europe were home to numerous terrorist groups between the 60's and 90's, so it's not an occurrence isolated to third world countries. And while the United States has not had the same experiences of domestic terrorism as some other countries, several groups from Puerto Rican nationalists to Aryan Nations have been able to operate successfully.

Look at Afghanistan. al-Qaeda was able to set up a permanent base for operations only with the help of the Taliban, which exerted powerful rule over the country. Terrorists need a stable environment, it does them no good to be involved in civil wars, as that only misdirects their energy and resources. We should keep an eye on Somalia, but this sort of offshore balancing is not likely to help either the Somalis or Americans.

Admittedly, there are no clear or easy solutions for the many problems that have led to instability and conflict in Somalia for over a quarter century.  But that's just it: given the intractable, gordian knot-like matrix of conflicts and their myriad causes, why does the US government feel compelled to interfere with a proposed "solution," and why does the US government think it can succeed even if it has a legitimate interest?  Especially if the solution offered involves either backing an invasion of Somalia by its long time regional rival, Ethiopia, or dumping another 40 tons of guns and ammunition on a nation already awash in such weaponry.

I've got a better idea, and it has the advantage of not inserting America in a local conflict (or conflict"s") such that one side (or multiple side"s") views us as mortal enemies and is more likely to support anti-American efforts at some point in time.  It also has the benefit of being much, much cheaper.  That would be: neither provide arms and ammunition, nor support military invasions (by long time adversaries, or otherwise). 

Sometimes we just can't solve every conflict around the globe.  That's especially true when we attempt to defuse armed conflict with more of the same (or the tools to perpetuate it).  Radical, I know.

Health Care Clip

--by Sebastian

One of the most ridiculous things about the current American health care system is the accidental legacy of the price controls of WWII which led companies to promote health care benefits since they could not compete on price.  The weird and unnecessary tie between health care benefits and working distorts all sorts of possible ways of dealing with lack of insurance. 

But I'm not here to talk about how to fix that today.  I'm here to show you the result of that strange tie, I give you Runaway Box "Boyfriend with Health Care Benefits":

ENDA (Again)

by hilzoy

A few days ago, Barney Frank introduced HR 2981, a new version of the Employment Non-Discrimination Act, which bans employment discrimination against anyone on the basis of sexual orientation or gender identity. Unlike last time, this bill includes protections for transmen and transwomen. That's the good news.

The bad news is that, according to drjillygirl at Pam's House Blend, not enough Democrats are on board to pass the bill. As of two days ago, 48 Democrats are undecided on ENDA. They are: 

Bobby Bright (AL), Parker Griffith (AL), Vic Snyder (AR), Dennis Cardoza (CA), Allen Boyd, (FL), Sanford Bishop (GA), David Scott (GA), Walt Minnick (ID), Bobby Rush (IL), Daniel Lipinksi (IL), Deborah Halvorsen (IL), Jerry Costello (IL), Peter Visclosky (IN), Joe Donnelly (IN), Brad Ellsworth (IN), Ben Chandler (KY), Frank Kratovil (MD), Dutch Ruppersberger (MD), Bart Stupak (MI), Mark Schauer (MI), Travis Childers (MS), Bennie Thompson (MS), Dina Titus (NV), Michael McMahon (NY), Scott Murphy (NY), Paul Tonko (NY), Daniel Maffei (NY), Earl Pomeroy (ND), Dan Boren (OK), Kathleen Dahlkemper (PA), Jason Altmire (PA), Christopher Carney (PA), Paul Kanjorski (PA), John Murtha (PA), John Spratt (SC), Stephanie Herseth Sandlin (SD), Al Green (TX), Solomon Ortiz (TX), Henry Cuellar (TX), Gene Green (TX), Glenn Nye (VA), Bobby Scott (VA), Thomas Perriello (VA), Rick Boucher (VA), Gerald Connolly (VA), Alan Mollohan (WV), Ron Kind (WI), David Obey (WI).

You can find their email addresses here. 

This should not be a hard bill to pass. The idea that people should not be able to lose their jobs because they are gay or transgender should not be controversial. For some reason that I do not understand, however, it seems to be. 

And it's really, really important. This might be our best shot at getting protection from employment discrimination for a lot of people who need it. It might also be our best shot at getting a bill passed that includes protection for transmen and transwomen. This really matters: my best stab at explaining why is here. Altogether too often, the burden of educating people about trans issues, and advocating for their rights, falls on trans people themselves. As I try to explain in that post, this is not fair. And now is a good time for those of us who are not trans to step up to the plate and explain to our representatives why this matters to us. 

It's not 1966 anymore. There is no excuse for the fact that it is still legal to discriminate against people on the basis of sexual orientation or gender identity. If your Representative is still on the fence, let him or her know how you feel.

Justice Alito's Disgraceful Concurrence

by publius

I must confess that Justice Alito’s concurrence in Ricci was one of the most bizarre opinions I’ve ever read.  The kindest thing I can say is that it’s gratuitously inflammatory.  Alito goes out of his way to paint a very unflattering portrait of a black New Haven pastor who allegedly has the New Haven government on a leash.  It would be a cool storyline for The Wire, but it’s a little weird to see it in a Supreme Court opinion.

Anyway, Alito’s concurrence is inappropriate on multiple levels.  And you can’t really appreciate how bizarre Reverend Kimber’s role is until you see how utterly unnecessary and irrelevant the discussion of him was.

First, Alito was analyzing an issue that the majority opinion didn’t even reach.  It was completely unnecessary.  To grossly simplify, employment discrimination cases go like this.  The court first decides whether the employer acted legitimately.  If not, the employer can respond that its inappropriate action was justified.  Third, assuming the employer meets this step, the employee can turn around and say, “that justification is merely a pretext for discrimination.” 

The Court’s opinion in Ricci was technically about Step 1, although Step 2 came into play.  The Court never reached Step 3.  But Alito went there anyway – in weirdly specific detail.  Basically, he said, “even if the dissent is right about Step 1 and 2, the firefighters could still easily win at Step 3.”  His reasoning was that the professed fear of litigation could be a “pretext” for pleasing a “politically important racial constituency” (i.e., black people in New Haven).

So just to be clear before we continue – he’s analyzing an issue that’s completely unnecessary.

From there, he goes on to paint a sordid tale (taken virtually entirely from the firefighters’ description of the facts) about a politically important and controversial black pastor in New Haven who, according to Alito, apparently runs the city.  This pastor was also upset about the tests and spoke out at the public meetings.  Alito described this pastor in exceeding detail, as if he were writing a Richard Price novel or something.

Here’s Alito’s Rube Goldberg logic.  The pastor has influence on the mayor.  The mayor, in turn, has influence on the government board that actually made the decision.  Understand that the stars of Alito’s concurrence – the pastor and the mayor – didn’t actually make any decision on the tests.  That decision was made by a separate “politically insulated” entity, to use Ginsburg’s terms. 

So the mayor is legally irrelevant here.  And the black pastor (who supposedly influenced the mayor) is doubly irrelevant.  How exactly Alito establishes this “influence” in the first place is a separate and interesting question. 

But even assuming the mayor is relevant and that he influences the government board, Alito assumes the worst.  Instead of assuming the mayor was trying to avoid liability under federal law, Alito sees him as caving to a certain constituency for illegal reasons.  But how exactly can a Supreme Court Justice make that conclusion about New Haven politics?  It’s almost like multiple dimensions of inappropriateness folded together in space-time.

It’s the weirdest thing I’ve read in a while.  And it's disgraceful.  At best, he's seen too many Wire episodes.  At worst, he's playing on prejudices to help justify the Court's decision.

Notably, Roberts didn't join this concurrence, although Scalia and Thomas did.  Sort of interesting, I think.  Roberts is just politically smarter than the rest of them.

[Adam Serwer has more on the Alito concurrence here and here.]

The Politics of Ricci

by publius

I’ve been traveling today, and have tried to avoid the Ricci commentary as best I could.  But my take is that Ricci is an extremely political opinion – and a deeply flawed one at that.  Simply put, it’s politics masquerading as legal doctrine.  Indeed, Ricci is a perfect example of why the politics of judicial nominees matters. 

The reality is that political preferences often determine legal outcomes.  And when I say that politics matters, I mean it in two different respects – one appropriate, one inappropriate. 

First, politics comes into play when judges must choose between two equally plausible interpretations of indeterminate law.  Here, the decision is generally (and rightly) made on policy grounds whether the judge admits it or not.  And I’m fine with that.  We should be debating many of these issues on pragmatic policy grounds rather than cloaking them in inaccessible legalese.  It’s more democratic.

But politics can also enter in a second, and more pernicious, way.  Politics can often drive judges to ignore clearly-applicable laws, procedures, and norms that are obstacles to their preferred political outcome.  It is here that politics becomes inappropriate “activism.”

Ricci has elements of both.  That is, it has both appropriate and inappropriate political considerations driving the outcome.

To step back, Ricci doesn’t really turn on all the various complex legal doctrines that you’ve probably read about.  When you scrape away the legalese (i.e., the Matrix), the case is really about one’s political opinion of certain remedies for historical racial discrimination.  Conservatives like Roberts don’t really (in their heart of hearts) think racial discrimination is a problem anymore.  Innocent white people can’t keep paying the price for crimes their ancestors committed.

Others, like Ginsburg, view the issue more historically.  They don’t see racial discrimination in terms of the personal moral failings of our ancestors, but as deep structural harms whose legacy lives on and must be addressed.  It’s like a river that has carved a deep canyon over centuries.  Even when the water gets turned off, the canyon remains.

That’s what Ricci is about.  The legal doctrine is simply a mask for this political fight. 

And the Court’s majority opinion is political in at least three different ways.  In other words, there are at least three points in the analysis where the actual decision is best explained as political rather than legal (warning – some of this gets wonky).

First, there is the threshold question of whether New Haven rejected the tests “because of” race (i.e., whether it was clearly “disparate treatment”).  The Court summarily said “yes,” and then proceeded with the subsequent analysis.  But the answer isn’t nearly as clear as the Court claimed.  As Ginsburg explained, New Haven could have rejected the tests because of various potential flaws. 

And besides, rejecting tests to prevent discrimination is not the same as discriminating because of race.  But these are largely political opinions.  And I’m actually ok with politics entering here.  The law isn't clear, so let’s assume this dispute falls into Category #1 above.

The second and third points in the analysis, however, are examples of inappropriate politics (Category #2).  To make a long story short, the Court reached decisions it should never have reached, and that it could not procedurally reach at this early stage of the litigation.

To begin, there was the decision not to remand.  Remember that the Court announced a new (and demanding) standard regarding when employers can justify decisions based on fear of disparate-impact litigation.  The appropriate response (at the summary judgment stage) would have been to send the case back down to let the lower courts take a crack under the newly-announced standard.

But the Court didn’t do that.  It announced the new standard – and then proceeded to play the role of trial court by making factual decisions from cherry-picked pieces of the record. 

Technically, the Court could only proceed at this stage if there were NO material factual disputes on the various legal issues (e.g., business necessity).  The conclusion that there were no such disputes is simply laughable.

It’s ok to proceed with a summary judgment if the material facts are undisputed.  That happens a lot.  And to be realistic about it, it happens a lot even when there are a few disputed material facts, or when the legal issues don't turn on fact-intensive questions.

But this case was different.  The legal disputes here were incredibly fact-intensive – and the record was full of material factual disputes that cut to the very heart of the legal issues.  In short, the case needed to go to trial. 

Next, there was the specific analysis of individual questions like the “business necessity” defense.  I won’t belabor it, but “business necessity” is a demanding standard that is fact-intensive.  The Court, however, concluded that scoring a written exam was vitally necessary to being a firefighter by ignoring other parts of the record.  In short, it was a political decision.  The Court essentially covered its ears and said, “nah, nah, business necessity, nah, nah, can’t hear you.”

Pure politics – all the way down.

I’ll stop there.  But on deck – Justice Alito’s bizarre concurrence.

Not So Long Ago

by hilzoy

Hendrick Hertzberg has a good piece on the fortieth anniversary of the Stonewall Riots. In it, he quotes a 1966 article from Time called "The Homosexual in America". It's worth reading as a stunning reminder of exactly how far we've come in the last forty three years. For instance:

"Both [male homosexuality and lesbianism] are essentially a case of arrested development, a failure of learning, a refusal to accept the full responsibilities of life. This is nowhere more apparent than in the pathetic pseudo marriages in which many homosexuals act out conventional roles -- wearing wedding rings, calling themselves "he" and "she."

And:

"Homosexuality (...) is a pathetic little second-rate substitute for reality, a pitiable flight from life. As such it deserves fairness, compassion, understanding and, when possible, treatment. But it deserves no encouragement, no glamorization, no rationalization, no fake status as minority martyrdom, no sophistry about simple differences in taste -- and, above all, no pretense that it is anything but a pernicious sickness."

For some reason, the tone in which this is written bothers me almost as much as the content: it's somehow curdled. The condescension, the fake knowingness, the pervasive underlying "heh heh heh" -- it sets my teeth on edge.

As long as one gay man or lesbian is denied the right to marry, or legally discriminated against because of his or her sexual orientation, or asked to leave the military after honorable service, we haven't come far enough. But we have come a long, long way.

The Awful Truth

by hilzoy

In my last post, I noted the disquieting fact that Nick Gillespie, the editor of Reason, misquotes Carl Sandburg in the same way as Bill Ayers. Using Jack Cashill's methodology, I have now discovered frightening new evidence that Ayers actually ghostwrites Nick Gillespie's blog posts at Reason. Specifically:

* As Jack Cashill notes, both Bill Ayers and Barack Obama refer to a "yellow dog". Nick Gillespie uses the phrase "Yellow Dog Democrat". Coincidence? I think not.

* Bill Ayers refers to "ducks". So does Gillespie.

* Like Ayers, Nick Gillespie refers to "water buffaloes".

* Like Ayers, Nick Gillespie uses the word 'baleful', which even Jack Cashill had to look up.

* Like Ayers, and unlike Cashill, Nick Gillespie knows what the term "bill of particulars" means.

* Like Ayers, Nick Gillespie writes a lot about "social control".

* Gillespie also uses the phrase "beneath the surface", a sure sign of secretly being Bill Ayers.

* Gillespie does not talk much about eyebrows, a trademark Ayers word. However, his own eyebrows are rather impressive. Ayers probably implanted them as Gillespie slept.

I could go on, but you get the point. Faced with this mass of A-level matches, there is only one possible conclusion: the editor of the best libertarian magazine I know is actually Bill Ayers. 

In Which I Discover Bill Ayers In My Head

by hilzoy

Of all the bits of lunacy unleashed by the prospect that Barack Obama might actually win the election, my personal favorite was Jack Cashill's claim that Bill Ayers had ghostwritten Barack Obama's Dreams From My Father, based on such stunning evidence as this:

"Although there are only the briefest of literal sea experiences in Dreams, the following words appear in both Dreams and in Ayers' work: fog, mist, ships, seas, boats, oceans, calms, captains, charts, first mates, storms, streams, wind, waves, anchors, barges, horizons, ports, panoramas, moorings, tides, currents, and things howling, fluttering, knotted, ragged, tangled, and murky."

Guess what? Cashill is back with a new installment, which is even funnier. His first piece of evidence: Both Obama and Ayers not only quote the same line from Sandburg's Chicago, they misquote it in the same way: "Hog butcher to the world", not "Hog butcher for the world." I misremembered it as 'to the world', which just goes to show that I am, in fact, Bill Ayers. But I'm not alone: writers for the Chicago Tribune, the Washington Post, the San Francisco Chronicle, and even, to my amazement, Reason's Nick Gillespie all turn out to be Ayers too. Who knew?

But wait! There's more:

"In his Indonesian backyard Obama discovered two "birds of paradise" running wild as well as chickens, ducks, and a "yellow dog with a baleful howl."

In Fugitive Days, there is even more "howling" than there is in Dreams.  Ayers places his "birds of paradise" in Guatemala.  He places his ducks and dogs together in a Vietnamese village being swept by merciless Americans.  In Parent, he talks specifically about a "yellow dog."   And he uses the word "baleful" to describe an "eye" in Fugitive Days. For the record, "baleful" means "threatening harm."  I had to look it up."

Wait: they both mentioned yellow dogs? And ducks? Well: that settles it. It also means that Bill Ayers wrote Old Yeller and Make Way For Ducklings. As a birder, I should also note that while Obama managed to put his birds of paradise in Indonesia, where Birds of Paradise are actually found, either Ayers' bird was an exotic captive or he just appropriated the name because it sounded nice.

I didn't have to look up 'baleful'. Funny thing, that. Moving right along:

"Ayers is fixated with faces, especially eyes.  He writes of "sparkling" eyes, "shining" eyes, "laughing" eyes, "twinkling" eyes, eyes "like ice," and people who are "wide-eyed" and "dark-eyed." 

As it happens, Obama is also fixated with faces, especially eyes.  He also writes of "sparkling" eyes, "shining" eyes, "laughing" eyes, "twinkling" eyes, and uses the phrases "wide-eyed" and "dark-eyed." Obama adds "smoldering eyes," "smoldering" being a word that he and Ayers inject repeatedly. Obama also uses the highly distinctive phrase "like ice," in his case to describe the glinting of the stars."

Twinkling eyes? That's evidence? 

Cashill does not think that Ayers wrote The Audacity of Hope, though. That had to have a different author. Why? 

"In Audacity of Hope, Obama does not use (...) most of the distinctive words or combinations of words in Dreams.  In Audacity, for instance, there are virtually no descriptions of faces or eyes, and the few that the author does use are flat and cliched -- like "brave face" or "sharp-eyed." In Dreams, seven different people "frown," twelve "grin," and six "squint."  In Audacity, no more than one person makes any of these gestures. (...)

These two Obama books almost assuredly had different primary authors."

It would be foolish, in the face of this evidence, to point out that Dreams is a memoir while Audacity is a campaign book about policy, and thus that one would expect both more description and more striking language in the first than in the second. Likewise, after extensive analysis, I have concluded that while I seem to myself to have written both my scholarly publications and my blog posts, I cannot have done so, since there are lots of phrases -- 'Oh Noes!' and 'Ya Think?' leap to mind, as does the word 'blog' -- that never appear in my scholarly work, but do appear in my blog posts.

The explanation is obvious. As I said, since I remembered Sandburg's poem wrong, Bill Ayers apparently ghostwrites my memories. He probably writes my blog posts too. I just wish he had told me himself, rather than leading me to infer his presence in my head on the basis of all this literary "analysis."

More Puzzlement

by hilzoy

Daniel Larison says a(nother) wise thing (h/t):

"Americanists believe that any statement from the President that fails to build up and anoint Mousavi as the preferred candidate is discouraging to Mousavi and his supporters, because they apparently cannot grasp that being our preferred candidate is to be tainted with suspicion of disloyalty to the nation. It is strange how nationalists often have the least awareness of the importance of the nationalism of another people. Many of the same silly people who couldn’t say enough about Hamas' so-called "endorsement" of Obama as somehow indicative of his Israel policy views, as well as those who could not shut up about his warm reception in Europe, do not see how an American endorsement of a candidate in another country's election might be viewed with similiar and perhaps even greater distaste by the people in that country."

Indeed. And a lot of those same people thought that Iraqis would adore us because we had overthrown Saddam Hussein, apparently without thinking: however much they hated him, it's deeply humiliating to have someone else overthrow your dictator and occupy our country. And so, in all likelihood, however happy Iraqis might be at first, we should expect that not to last: inevitably, soldiers in an alien country make mistakes and kill or detain the wrong people, call in airstrikes on people who are doing nothing wrong, etc.; and when that happens, our welcome, however warm initially, will very quickly turn to resentment.

National pride is a powerful thing, and a completely comprehensible one. Why the very people who will brook no criticism of their own country, even when it's fully justified, should fail to understand this is a mystery.

Puzzled By Honduras

by hilzoy

From the New York Times:

"The Honduran president, Manuel Zelaya, was ousted by the army on Sunday after pressing ahead with plans for a referendum that opponents said could lay the groundwork for his eventual re-election, in the first military coup in Central America since the end of the cold war.

Soldiers entered the presidential palace in the capital, Tegucigalpa, and disarmed the presidential guard early Sunday, military officials said. Mr. Zelaya’s private secretary, Eduardo Enrique Reina, confirmed the arrest. (...)

Political tensions have increased as Mr. Zelaya pressed ahead with plans for a nonbinding referendum that opponents said would open the way for him to rewrite the constitution to run for re-election despite a one-term limit. In the weeks leading up to the referendum, supporters and opponents of the president held competing demonstrations.

Last week, the Supreme Court and Congress both declared the referendum unconstitutional. But on Thursday, the president led a group of protesters to an air force installation and seized the ballots, which the prosecutor’s office and the electoral tribunal had ordered confiscated.

After the armed forces commander, Romeo Vazquez, said that the military would not participate in the referendum, Mr. Zelaya fired him. But the Supreme Court declared the firing illegal."

I am puzzled by this. I found the Times' description of the referendum unilluminating ("a referendum that opponents said could lay the groundwork for his eventual re-election" -- what does that mean?) So I went off in search of the actual question, which seems to be this:

"¿Está usted de acuerdo que en las elecciones generales de noviembre de 2009 se instale una cuarta urna para decidir sobre la convocatoria a una Asamblea Nacional Constituyente que apruebe una nueva Constitución política?"

Unless my rusty Spanish misleads me, this means: "Do you agree that there should be a fourth urn (I'm guessing this means: ballot box) in the Nov. 2009 general elections to decide whether to convene the National Constituent Assembly to approve a new Constitution?" 

Apparently, the Supreme Court ruled that this referendum is unconstitutional, either because the President does not have the right to call referenda, or because "the constitution says some of its clauses cannot be changed." (Though why the latter would mean that the referendum is illegal, and not just that the proposed Assembly could not legally change those parts of the Constitution, is a mystery.)

As a result, the Army, which normally distributes ballots, declined to do so, the President sacked the head of the Army, his Attorney General argued to the Supreme Court that the firing was illegal (on the rather puzzling grounds that "it regarded the president's decision to hold the referendum as "illegal," and therefore his order to the military commanders as well"), and the Supreme Court agreed. 

Meanwhile, the Congress banned referenda within 180 days of a general election, thereby making this referendum illegal. The President took the ballots so that the referendum could be held, and today the military removed him from power and flew him to Costa Rica.

The President's supporters seem to think that he plans to use a National Constituent Assembly to create some sort of Chavez-like system in Honduras. His supporters seem to think that the coup just reflects an entrenched oligarchy's unwillingness to contemplate anything that might reduce their power.  (Some Honduran takes are here.)

For my part, I am puzzled. (Seriously: I know nothing about Honduras.) If holding an Assembly to revise the Constitution is such a bad idea, why not just vote no on the referendum? If the people would, in fact, like to have such an Assembly, why not have one? What, in short, is so scary about a referendum that simply asks whether people would like to have an Assembly that might revise the Constitution in as yet unspecified ways? And even if there's some reason for thinking that it is scary, is this (seemingly) mild, non-binding referendum anywhere near threatening enough to hold a coup over?

Can anyone shed light on this?

Update: I checked Randy Paul's blog as I was writing this, but he waited until I had just hit post to put up a lovely, link-filled post about this. Check it out. 

I should also have mentioned this, from the WSJ: "The Obama administration and members of the Organization of American States had worked for weeks to try to avert any moves to overthrow President Zelaya, said senior U.S. officials." Apparently, the Honduran military just stopped taking their calls.

Here's Obama's statement:

"I am deeply concerned by reports coming out of Honduras regarding the detention and expulsion of President Mel Zelaya. As the Organization of American States did on Friday, I call on all political and social actors in Honduras to respect democratic norms, the rule of law and the tenets of the Inter-American Democratic Charter. Any existing tensions and disputes must be resolved peacefully through dialogue free from any outside interference."

The EU:

"The EU strongly condemns the arrest of the constitutional president of the Republic of Honduras, Manuel Zelaya, by the armed forces. This is [an] unacceptable violation of constitutional order in Honduras. The EU calls for the urgent release of President Zelaya and a swift return to constitutional normality."

Other reactions here, here, and here.

Indefinite Detention

by hilzoy

From the Washington Post:

"Obama administration officials, fearing a battle with Congress that could stall plans to close the U.S. prison at Guantanamo Bay, are crafting language for an executive order that would reassert presidential authority to incarcerate terrorism suspects indefinitely, according to three senior government officials with knowledge of White House deliberations.

Such an order would embrace claims by former president George W. Bush that certain people can be detained without trial for long periods under the laws of war. Obama advisers are concerned that an order, which would bypass Congress, could place the president on weaker footing before the courts and anger key supporters, the officials said. (...)

Under one White House draft that was being discussed this month, according to administration officials, detainees would be imprisoned at a military facility on U.S. soil, but their ongoing detention would be subject to annual presidential review. U.S. citizens would not be held in the system.

Such detainees -- those at Guantanamo and those who may be captured in the future -- would also have the right to legal representation during confinement and access to some of the information that is being used to keep them behind bars. Anyone detained under this order would have a right to challenge his detention before a judge."

This is a very puzzling article. It has some good news: for instance, that Obama has rejected the idea of national security courts. This is good: the idea of trying to construct an entire new set of courts, all of whose procedures could be litigated until eternity, is crazy, and why we need a new court system has never been adequately explained. If the administration has rejected that, that's good news. 

Then there's this: 

"One administration official said future transfers to the United States for long-term detention would be rare. Al-Qaeda operatives captured on the battlefield, which the official defined as Iraq, Afghanistan, Pakistan and possibly the Horn of Africa, would be held in battlefield facilities. Suspects captured elsewhere in the world could be transferred to the United States for federal prosecution, turned over to local authorities or returned to their home countries.

"Going forward, unless it's an extraordinary case, you will not see new transfers to the U.S. for indefinite detention," the official said."

Ken Gude of the Center for American Progress comments:

"Congress has already approved traditional law of war detention in the Authorization to Use Military Force of 2001. The Supreme Court sustained military detention authority of those detainees captured in zones of active combat in 2004 in Hamdi v. Rumsfeld, so President Obama is on firm legal ground should he choose to limit military detention to those circumstances. (...)

This would be a significant shift from the Bush administration’s policy that swept into U.S. military detention virtually anyone suspected of terrorist activity captured anywhere in the world. It would restore the bright line between criminal and military detention, a crucial distinction to preserve not just in the United States, but also in other countries that look to or use the U.S. as an example."

That's not entirely right, I think. First, I'd like to see a very clear definition of "the battlefield", to prevent future reversions to Bush's doctrine that it was the entire world. This should not be left up to the discretion of the President. Second, this allows for exceptions to the rule that future detainees will be either held as prisoners of war, transferred to the US for trial, turned over to local authorities, or sent home. Those exceptions should not be "rare", or reserved for "extraordinary cases"; they should be nonexistent.

Finally, of course, there's that little bit about "going forward". Those detainees that the administration believes that it can neither try nor release could be held indefinitely, according to this policy. That is, of course, the elephant in the room. And it's just wrong.

In this country, we have what we call "laws". When you break a law, you can be tried, and, if the government can prove your guilt beyond a reasonable doubt, you can be sent to jail. If the detainees in question have not actually violated any laws, then it's hard to see why we propose to detain them. If they have, and we cannot prove it beyond a reasonable doubt, then we should ask: why not? 

If we don't have convincing evidence against someone, we should not detain him. If we do have such evidence, but it was obtained under torture and the person we tortured will not repeat it in court, then it is unreliable. If we have evidence, but revealing it would compromise "sources and methods", then we're in a pickle, but not an insoluble one. We might allow a judge to review that evidence in camera. We might decide that convicting this person is worth compromising some of our secrets. We could try to find more evidence that we could disclose. But we do not get to just detain someone indefinitely. 

No President should have that power. Period.

I sympathize with Obama's not wanting the Congress to pass legislation on this topic. They have been horrible on these issues so far, and I see no reason to think that they would change. (And, yes, Obama has been awful too, but the Congress has been even worse.) If he somehow has to obtain the power to detain people indefinitely, and it's legal to do it via executive order, fine.

I also don't envy him the politics of it. Obviously, if some released detainee commits an act of terror against the US, all hell will break loose. And the costs of that will not be purely political: people might not get health insurance, or we might be unable to act on global warming, if some released detainee decides to blow himself up in an American city. I wish that my fellow citizens were also moved by the wrongness of keeping people who might be innocent locked up without recourse, but apparently not enough of them are.

But that doesn't make it right. Obama does not have to do this. The rule of law is one of our most basic values. It underwrites the freedoms that we go on and on about, but are apparently unwilling to risk much of anything to preserve. 

Shame on him if he does this. And shame on us.

The CRA... Still Not Causing the Meltdown

by publius

Megan McArdle cheers on John Carney in a misguided attempt to once again blame the housing meltdown on the CRA -- i.e., a 1970s law intended to limit loan discrimination.  She writes:

[T]he role of the CRA in the financial meltdown [has been] understated by liberals who are unwilling to admit that regulation, too, can produce hideous unintended consequences.  . . . Regardless of how much causal blame you assign it, the financial crisis has certainly proven that the CRA seems to have been a very, very bad idea.

Essentially nothing in that excerpt is true.  Felix Salmon and Ryan Chittum hopefully put the stake through this argument, but it keeps appearing (the Chittum post is more comprehensive).  To sum them up -- the bad loans at the heart of the meltdown came overwhelmingly from unregulated, non-bank lenders who weren't even covered by the CRA.  In addition, the CRA loans did very well.  And there's basically not a shred of evidence that the CRA led to the meltdown.  And you can't evade that 100% lack of evidence by citing vague "mentalities" and drawing imaginary causal lines constructed entirely of ideology.

Why I'm Happy about Waxman-Markey

by publius

Well, it’s certainly not perfect.  But at the end of the day, I think Waxman-Markey is a very good thing – and one that deserved a “Yea” vote.

The most significant achievement is simply that the bill would impose real limits on emissions.  And that’s what matters most – the reduction is more important than the distinct question of revenue allocation.  And while the emissions limits are not strong enough, they're a good start – and would give the country more credibility to work for meaningful international limits.

Like any legislation, there were a lot of smelly compromises required to get the bill out.  Some of them are really bad – particularly the ones involving the Department of Agriculture Keeping Americans Fat, Unhealthy and Cancerous (KAFUC).  But all that said, there are various reasons why I think the bill was nonetheless worth supporting.

First, there’s the inertia principle.  The real obstacle to major reform like this is setting up the initial institutional framework.  It takes a lot more cost and effort to set up the initial regime than to tweak it down the road.  (This concept is borrowed from Volokh’s “slippery slopes” paper). 

Second, it’s hard to imagine getting anything much better at this point given the political and institutional contexts.  Frankly, it’s something of a miracle that we’re even seeing it happen.  It seems to defy public choice theory* because the people who would benefit most are the diffuse public at large who don’t have an organized lobby with similar power as say the oil companies, KAFUC lobbyists, and other energy companies. 

And while the political norms have shifted a great deal on this issue in recent years, we’re not there yet.  Americans still don’t feel a sense of urgency about global warming (note the relative non-coverage of this bill).  And as Yglesias notes, the rotten and undemocratic institutional structure of Congress is practically designed to kill a bill like this.

Third, I think the bill will get better in time, not worse.  One strong objection I’ve heard from the left is that Waxman-Markey would be counterproductive because it would suck the wind of out of “real” reform efforts.  In other words, the bill would be a false comfort. 

Perhaps.  But my hope is that the politics on this issue is getting better, not worse.  In the years to come, one hopes that more and more Americans come around on issues like food policy and climate change.  And I’m also hopeful that we’ll see “greener” politicians on all levels of government.  Having this initial regulatory framework in place will make future grassroots efforts more efficient and effective – one hopes.

Last point – a big kudos to the House liberals.  I know that all the media attention gets lavished on the median Senate votes.  But they really came through here on an important bill that has real political risks and no immediate short-term benefits.  It was an act of principle.

Just think – if we got rid of the Senate entirely (which we should), Americans would currently be seeing some truly landmark progressive legislation on health care coverage and climate change.  Fortunately though, we have a system that ensures that Wyoming gets as much representation as California.

*Mark Thompson has a thoughtful post responding to my earlier public choice post that’s worth a read.