Obsidian Wings

Stupid Policy Tricks (And Mean-Spirited Too!)

by hilzoy

From the Washington Post:

"A Medicaid rule takes effect tomorrow that will require more than 50 million poor Americans to prove their citizenship or lose their medical benefits or long-term care.

Under the rule, intended to curb fraud by illegal immigrants, such proof as a passport or a birth certificate must be offered at the time a person applies for Medicaid benefits or during annual reenrollment in the state-federal program for the poor and disabled.

Critics fear that the provision will have the unintended consequence of harming several million U.S. citizens who, for a variety of reasons, will not be able to produce the necessary paperwork. They include mentally ill, mentally retarded and homeless people, as well as elderly men and women, especially African Americans born in an era when hospitals in the rural South barred black women from their maternity wards.

"My clients are absolutely dependent on Medicaid for their care," said Andrea Sloan, a lawyer and court-appointed guardian for more than 40 District residents. Many suffer from dementia, lack family contacts and have little in the way of paper trails. Although Sloan is convinced of their citizenship, she is not always sure of such details as their birthplace."

Thinks this is an exaggeration? Consider these cases:

"On Wednesday, a lawsuit challenging the Medicaid rule was filed in Chicago by a coalition of advocacy groups that wants the suit certified as a national class action. (...) Among the plaintiffs in that case are Ruby Bell, 95, born in an Arkansas county that did not issue birth certificates until 1914, and George Crawford, 80, who is so incapacitated from strokes that he cannot speak. According to attorneys, the church members who care for Crawford in Illinois don't even know where to start looking for documents that would pass muster."

And it's not just those two people. The Center for Budget and Policy Priorities did a national survey to find out how many people this might affect. Their findings:

• About one in every twelve (8 percent) U.S.-born adults age 18 or older who have incomes below $25,000 report they do not have a U.S. passport or U.S. birth certificate in their possession. Applying this percentage to the number of adult citizens covered by Medicaid over the course of a year indicates that approximately 1.7 million U.S.-born adults who are covered by Medicaid could lose their health insurance because of the new requirement or experience delays in obtaining coverage as they attempt to secure these documents.
• More than one tenth of U.S.-born adults with children who have incomes below $25,000 reported they did not have a birth certificate or passport for at least one of their children. This indicates that between 1.4 and 2.9 million children enrolled in Medicaid appear not to have the paperwork required.
• Taken together, the survey indicates that Medicaid coverage could be in jeopardy for 3.2 to 4.6 million U.S.-born citizens because they do not have a U.S. passport or birth certificate readily available.
• Some types of citizens would shoulder a greater risk of losing Medicaid than others because they are less likely to have the required documents. While 5.7 percent of all adults in the survey (i.e., adults at all income levels) reported they lack these documents, the percentage was larger for certain groups:
  
  • African American adults: 9 percent
  
  
  • Senior citizens 65 or older: 7 percent
  
  
  • Adults without a high school diploma: 9 percent
  
  
  • Adults living in rural areas: 9 percent
  
  
• These data and earlier research also suggest that elderly African Americans with low incomes may experience particular difficulties because a significant number of them were never issued birth certificates.

And, as the CBPP notes:

"These results are conservative. Many of those who would be most likely to experience difficulty in securing these documents — such as nursing-home residents, Katrina survivors living in temporary facilities, and homeless people — were not represented in the survey. Had the survey included such people, the percentage of people likely to be harmed by the requirement would almost certainly have been found to be higher."

In case you're wondering: no: this policy has no exceptions for people who lost their records during Hurricane Katrina or some other natural disaster, people with Alzheimer's or dementia, or, well, anyone.

It would be one thing if there were some reason to think that Medicaid fraud by illegal immigrants was, in fact, a serious problem. But there isn't. CPBB again:

"In fact, a comprehensive study conducted last year by the HHS Inspector General failed to find any substantial evidence that illegal immigrants are fraudulently getting Medicaid coverage by claiming they are citizens, and the Inspector General did not recommend requiring that documentation of citizenship be required. State officials interviewed by the Inspector General’s office also noted that such a requirement would add significant administrative costs and burdens. Half of the state officials interviewed said they would have to hire more eligibility personnel to handle the increased workload."

As far as I can tell, this is just one more anti-immigrant gesture that sounds like necessary toughness, but on closer examination turns out to impose serious hardships on people for no good reason other than some politicians' need to convince their constituents that they're being tough on immigrants. Sort of like the recent decision by a Georgia town to stop buying books in Spanish*, only with much more serious consequences. And it manages to increase complexity and paperwork at the same time! I mean, what's not to love?

***

* And what a dumb decision that was. It's not as though the only people who read books in Spanish are illegal, or even native Spanish speakers. Sometimes, strange to say, English speakers try to read books in other languages. This is a good thing: it's not as though we in the US have an excess of citizens who can speak several languages, or anything. But even if, for some unfathomable reason, only illegal immigrants ever read books in Spanish, cutting the book budget (by all of $3,000!) wouldn't cause the number of illegal immigrants to go down; it would just mean that the illegal immigrants in this town would be less likely to spend their time reading. And why would anyone want that?

Lee Siegel As Robespierre

by hilzoy

I didn't comment on Lee Siegel's claim that the blogosphere is "hard fascism with a Microsoft face", along with the follow-up post that made it clear that he really did mean to call us all fascists, on the grounds that calling people 'moron' or 'wanker' constitutes "attempts to autocratically or dictatorially control criticism." Various bits of mockery floated though my mind over the weekend, but I was busy, and funnier people than I subjected Siegel's post to the ridicule it deserved before I could get to it.

It did start me reading Siegel for laughs, though. And thus it was that I happened on his most recent post, a bizarre rant about baseball caps. (Sample sentence: "The baseball cap's insinuation that life is a game with transparent rules gets to me." -- Huh?) It culminates in this sentence:

"When I see someone wearing a baseball cap in a movie theater, I want them to bring back the guillotine."

Well, I thought as I read this, that explains a lot about why Lee Siegel seems not to notice the line between calling people wankers and sending them to Auschwitz.

***

A few years ago, I met someone I had heard a lot about but had never actually met before. He had joined a cult, and I was curious about how he got into it and why he stayed. One of this cult's beliefs was that unless you reach a very high pinnacle of enlightenment, the thoughts you think are not your own; they are "programmed." I had never seen why anyone would find this line of thought appealing, but talking with him made me see how, for a certain sort of person, it might be useful.

Recently, he said, he had been waiting to turn left into a supermarket parking lot, and none of the cars would let him pass. And then he said this:

"A few years ago, I would have wanted to just get out of my car and smash them all in the face. I would have been that angry. I mean, everyone goes through life feeling like that all the time. But now that I know that those aren't really my thoughts at all, I can just ignore them."

And I thought: Really? You think that everyone goes through life wanting to smash other people's faces in when they can't turn into a parking lot as quickly as they'd like? Personally, I can't recall the last time I wanted to smash someone's face in for any reason, let alone one as trivial as that. And while I'm probably on the non-violent end of the spectrum, I don't think, as he seemed to, that most people go through life in a state of barely suppressed fury. However, the idea that this particular person not only felt that way a lot of the time, but assumed that everyone else did as well, explained a lot about him, including why a cult that allowed him to disavow that fury might seem appealing.

So, Lee Siegel, if you happen to be reading this and would like to get over this business of wanting to kill people for their unfortunate fashion choices, just let me know. I don't normally recommend membership in cults to anyone, but in your case, I know one that just might help.

Hamdan: The Bigger Picture

by hilzoy

The more I mull over the Hamdan decision (pdf), the clearer it seems that it's a mistake to focus exclusively on its implications for the prisoners at Guantanamo. Don't get me wrong: there are surely innocent people down there, held without contact with the outside world, often in prolonged isolation, whose families and loved ones may not know whether or not they are alive; and every single one of them who has a chance to contest his imprisonment in a fair hearing has gained something of enormous value. It's just that this isn't all that's at stake; and that's true in both a good and a bad way.

The good news, of course, is that this decision really does seem not just to extend the Geneva Convention's Article 3 to all detainees, but to demolish the administration's claim that both the Authorization for the Use of Military Force and Article II of the Constitution give him the right to do whatever he wants, including ignoring existing statutes. I cheered when I read this footnote from the majority opinion:

"“Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers.”"

Congress does have war powers! The President cannot disregard statutes at will! We live in a Republic, not a dictatorship! It's a sad commentary on our present circumstances that things like this have to be reaffirmed, but it would, of course, be vastly worse had they been denied. (As they could easily have been had Bush been able to nominate one more Justice, and had Roberts not had to recuse himself.)

However, these points have already been made very well by Glenn Greenwald, Marty Lederman, Jack Balkin, and Karl Blanke. Rather than repeat what they have said more elegantly, and with a lot more knowledge to back it up, I'm going to focus on the bad news, which is: this decision in no way ensures that all, or even most, of the people our government is currently detaining outside the normal legal system will have any rights or recourse whatsoever.

Why is that? One word: Bagram.

"Other military and administration officials said the growing detainee population at Bagram, which rose from about 100 prisoners at the start of 2004 to as many as 600 at times last year, according to military figures, was in part a result of a Bush administration decision to shut off the flow of detainees into Guantánamo after the Supreme Court ruled that those prisoners had some basic due-process rights. The question of whether those same rights apply to detainees in Bagram has not been tested in court.

Until the court ruling, Bagram functioned as a central clearing house for the global fight against terror. Military and intelligence personnel there sifted through captured Afghan rebels and suspected terrorists seized in Afghanistan, Pakistan and elsewhere, sending the most valuable and dangerous to Guantánamo for extensive interrogation, and generally releasing the rest.

But according to interviews with current and former administration officials, the National Security Council effectively halted the movement of new detainees into Guantánamo at a cabinet-level meeting at the White House on Sept. 14, 2004.

Wary of further angering Guantánamo's critics, the council authorized a final shipment of 10 detainees eight days later from Bagram, the officials said. But it also indicated that it wanted to review and approve any Defense Department proposals for further transfers. Despite repeated requests from military officials in Afghanistan and one formal recommendation by a Pentagon working group, no such proposals have been considered, officials said.

"Guantánamo was a lightning rod," said a former senior administration official who participated in the discussions and who, like many of those interviewed, would discuss the matter in detail only on the condition of anonymity because of the secrecy surrounding it. "For some reason, people did not have a problem with Bagram. It was in Afghanistan.""

Conditions at Bagram are worse than at Guantanamo:

"From the accounts of former detainees, military officials and soldiers who served there, a picture emerges of a place that is in many ways rougher and more bleak than its counterpart in Cuba. Men are held by the dozen in large wire cages, the detainees and military sources said, sleeping on the floor on foam mats and, until about a year ago, often using plastic buckets for latrines. Before recent renovations, they rarely saw daylight except for brief visits to a small exercise yard.

"Bagram was never meant to be a long-term facility, and now it's a long-term facility without the money or resources," said one Defense Department official who has toured the detention center. Comparing the prison with Guantánamo, the official added, "Anyone who has been to Bagram would tell you it's worse.""

(Things have improved recently, though: "Corrals surrounded by stacked razor wire that had served as general-population cells gave way to less-forbidding wire pens that generally hold no more than 15 detainees, military officials said."

When wire pens holding fifteen people count as an improvement, something has gone badly wrong.)

Moreover, while many of the prisoners at Guantanamo have lawyers, those at Bagram don't:

"But some of the detainees have already been held at Bagram for as long as two or three years. And unlike those at Guantánamo, they have no access to lawyers, no right to hear the allegations against them and only rudimentary reviews of their status as "enemy combatants," military officials said.

Privately, some administration officials acknowledge that the situation at Bagram has increasingly come to resemble the legal void that led to a landmark Supreme Court ruling in June 2004 affirming the right of prisoners at Guantánamo to challenge their detention in United States courts.

While Guantánamo offers carefully scripted tours for members of Congress and journalists, Bagram has operated in rigorous secrecy since it opened in 2002. It bars outside visitors except for the International Red Cross and refuses to make public the names of those held there. The prison may not be photographed, even from a distance."

Moreover:

"The most basic complaint of those released was that they had been wrongly detained in the first place. In many cases, former prisoners said they had been denounced by village enemies or arrested by the local police after demanding bribes they could not pay. (...)

As at Guantánamo, the military has instituted procedures at Bagram intended to ensure that the detainees are in fact enemy combatants. Yet the review boards at Bagram give fewer rights to the prisoners than those used in Cuba, which have been criticized by human rights officials as kangaroo courts. (...)

Reviews are conducted after 90 days and at least annually thereafter, but detainees are not informed of the accusations against them, have no advocate and cannot appear before the board, officials said. "The detainee is not involved at all," one official familiar with the process said."*

Bagram is scheduled to be shut down within about a year. Most of the detainees will be turned over to the Afghan government, but some may end up in the new high-security prison our government is building near Kabul.

***

As I read the Hamdan decision, it does require that the protections of Article 3 of the Geneva Conventions be extended to all detainees, including these. However, there doesn't seem to be any way at all for this requirement to be enforced. It's not just that it's unclear either that Hamdan allows for an individual cause of action based on the Geneva Conventions, or that the arguments the court made in Rasul would apply to detainees held in Afghanistan. The more serious problem is: if no one other than the ICRC, which has a policy of strict confidentiality, is allowed to visit this facility; if the names of detainees are not released; if no one outside the government has any clue what's going on there, or to whom, then how on earth can anyone try to enforce the law there? How could the detainees get lawyers? And how could those lawyers possibly represent them adequately without being allowed to meet them, learn about the conditions in which they're being kept or the justification for keeping them there, and so on?

(I'd be interested in any lawyers' take on this. How would one bring the law to bear in a situation like this if the government was determined to prevent it?)

In my more cynical moments, I interpret Bush's claim that he wants to close Guantanamo down not as the expression of an idle wish, but in light of these facts. The Supreme Court, he might say, thinks we made a mistake in not treating detainees at Guantanamo in accordance with the Geneva Conventions. I think we made a mistake in allowing people access to those detainees. We corrected that mistake two years ago; we do have to figure out what to do with the detainees who are still at Guantanamo, but going forward, the Supreme Court won't be bothering us anymore. Because we have created a real legal black hole, from which no light escapes.

And if it turns out that the administration did slip up by allowing one tiny piece of information to slip out -- specifically, the name and location of their new Guantanamo -- and this somehow allows the courts to extend legal protections to the detainees there, I predict a sudden increase in the populations of the black sites, about which not even that much is known.

Hamdan: Clearing Up A Few Points

by hilzoy

When I read the majority opinion in Hamdan (pdf), I thought to myself: I can see, right now, that one part of this decision can be taken out of context and made to sound ridiculous, even though when you actually read the decision, it isn't. And lo! Andrew McCarthy at The Corner makes the very point I had anticipated, in addition to another so stupid it didn't even occur to me. I'm just going to go through these points -- plus one more about the Detainee Treatment Act -- for the benefit of those of you who don't want to read the entire 185 pages of legal reasoning for yourselves, so that you can put these objections in context.

The unanticipated point is that if the Supreme Court rules that al Qaeda detainees have Geneva protections, then "the Supreme Court will have dictated that we now have a treaty with al Qaeda". Wrong. Al Qaeda is not a signatory to the Geneva Conventions. In signing and ratifying those Conventions, we did not enter into a treaty with them. What we did was: to enter into a treaty that governs our conduct with respect not only to soldiers of countries that have signed and ratified the Geneva Conventions, but also with regard to other people. That does not mean that we have "a treaty with those people", any more than the fact that the fact that members of the Kiwanis Club have Geneva protections means that each of the 71 state parties (pdf) to the Geneva Conventions has a treaty with the Kiwanis Club. To say that it does mean this is just dumb.

The point I expected concerns the Court's reasons for holding that Common Article 3 of the Geneva Conventions applies to al Qaeda detainees. (It's called 'Common Article 3' because it is Article 3 in all four Geneva Conventions; see, for instance, here.) Article 3 reads as follows:

"Art. 3. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

(2) The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict."

The point I expected was: but this only applies to "armed conflict not of an international character". Our fight against al Qaeda is obviously of an international character! They attacked us here; we attacked them in Afghanistan; how much more "international" can you get?

What follows is an attempt to explain and gloss the Court's reasoning, as I understand it. I think I agree with it, though I'd feel more confident if i knew more about the history of the Geneva Conventions. However, my point here is not to convince anyone that it's right, but just to make it clear that it's not the silly point that the objection above makes it sound like.

Hamdan

by hilzoy

The Supreme Court has found that the military tribunals set up by the administration to try enemy combatants held at Guantanamo and elsewhere are illegal:

"The Supreme Court ruled Thursday that President Bush overstepped his authority in ordering military war crimes trials for Guantanamo Bay detainees.

The ruling, a rebuke to the administration and its aggressive anti-terror policies, was written by Justice John Paul Stevens, who said the proposed trials were illegal under U.S. law and international Geneva conventions."

I have not been able to find a copy of the decision. (If anyone has one, I'd love to see a copy.) [UPDATE: it's here. END UPDATE] However, Marty Lederman seems to have gotten hold of the syllabus, and he argues that this decision is even more significant than the AP story quoted above makes it seem to be:

"More importantly, the Court held that Common Article 3 of Geneva aplies as a matter of treaty obligation to the conflict against Al Qaeda. That is the HUGE part of today's ruling. The commissions are the least of it. This basically resolves the debate about interrogation techniques, because Common Article 3 provides that detained persons "shall in all circumstances be treated humanely," and that "[t]o this end," certain specified acts "are and shall remain prohibited at any time and in any place whatsoever"—including "cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment." This standard, not limited to the restrictions of the due process clause, is much more restrictive than even the McCain Amendment. See my further discussion here.

This almost certainly means that the CIA's interrogation regime is unlawful, and indeed, that many techniques the Administation has been using, such as waterboarding and hypothermia (and others) violate the War Crimes Act (because violations of Common Article 3 are deemed war crimes).

If I'm right about this, it's enormously significant."

From the syllabus as quoted by Lederman:

"Justice Stevens delivered the opinion of the Court, except as to Parts V and VI-D-iv, concluding:

(...) (d) The procedures adopted to try Hamdan also violate the Geneva Conventions. The D. C. Circuit dismissed Hamdan’s challenge in this regard on the grounds, inter alia, that the Conventions are not judicially enforceable and that, in any event, Hamdan is not entitled to their protections. Neither of these grounds is persuasive. Pp. 62-68.

(i) The appeals court relied on a statement in Johnson v. Eisentrager, 339 U. S. 763, 789, n. 14, suggesting that this Court lacked power even to consider the merits of a Convention argument because the political and military authorities had sole responsibility for observing and enforcing prisoners’ rights under the Convention. However, Eisentrager does not control here because, regardless of the nature of the rights conferred on Hamdan, cf. United States v. Rauscher, 119 U. S. 407, they are indisputably part of the law of war, see Hamdi, 542 U. S., at 520-521, compliance with which is the condition upon which UCMJ Art. 21 authority is granted. Pp. 63-65.

(ii) Alternatively, the appeals court agreed with the Government that the Conventions do not apply because Hamdan was captured during the war with al Qaeda, which is not a Convention signatory, and that conflict is distinct from the war with signatory Afghanistan. The Court need not decide the merits of this argument because there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not between signatories. Common Article 3, which appears in all four Conventions, provides that, in a “conflict not of an international character occurring in the territory of one of the High Contracting Parties [ i.e., signatories], each Party to the conflict shall be bound to apply, as a minimum,” certain provisions protecting “[p]ersons … placed hors de combat by … detention,” including a prohibition on “the passing of sentences … without previous judgment … by a regularly constituted court affording all the judicial guarantees … recognized as indispensable by civilized peoples.” The D. C. Circuit ruled Common Article 3 inapplicable to Hamdan because the conflict with al Qaeda is international in scope and thus not a “conflict not of an international character. ” That reasoning is erroneous. That the quoted phrase bears its literal meaning and is used here in contradistinction to a conflict between nations is demonstrated by Common Article 2, which limits its own application to any armed conflict between signatories and provides that signatories must abide by all terms of the Conventions even if another party to the conflict is a nonsignatory, so long as the nonsignatory “accepts and applies” those terms. Common Article 3, by contrast, affords some minimal protection, falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a nonsignatory who are involved in a conflict “in the territory of” a signatory. The latter kind of conflict does not involve a clash between nations (whether signatories or not). Pp. 65-68.

(iii) While Common Article 3 does not define its “regularly constituted court” phrase, other sources define the words to mean an “ordinary military cour[t]” that is “established and organized in accordance with the laws and procedures already in force in a country.” The regular military courts in our system are the courts-martial established by congressional statute. At a minimum, a military commission can be “regularly constituted” only if some practical need explains deviations from court-martial practice. No such need has been demonstrated here. Pp. 69-70.

(iv) Common Article 3’s requirements are general, crafted to accommodate a wide variety of legal systems, but they are requirements nonetheless. The commission convened to try Hamdan does not meet those requirements. P. 72.

(d) Even assuming that Hamden is a dangerous individual who would cause great harm or death to innocent civilians given the opportunity, the Executive nevertheless must comply with the prevailing rule of law in undertaking to try him and subject him to criminal punishment. P. 72.

Justice Stevens, joined by Justice Souter, Justice Ginsburg, and Justice Breyer, concluded in Parts V and VI-D-iv:

(...) 2. The phrase “all the guarantees … recognized as indispensable by civilized peoples” in Common Article 3 of the Geneva Conventions is not defined, but it must be understood to incorporate at least the barest of the trial protections recognized by customary international law. The procedures adopted to try Hamdan deviate from those governing courts-martial in ways not justified by practical need, and thus fail to afford the requisite guarantees. Moreover, various provisions of Commission Order No. 1 dispense with the principles, which are indisputably part of customary international law, that an accused must, absent disruptive conduct or consent, be present for his trial and must be privy to the evidence against him. Pp. 70-72.

Justice Kennedy, agreeing that Hamdan’s military commission is unauthorized under the Uniform Code of Military Justice, 10 U. S. C. §§836 and 821, and the Geneva Conventions, concluded that there is therefore no need to decide whether Common Article 3 of the Conventions requires that the accused have the right to be present at all stages of a criminal trial or to address the validity of the conspiracy charge against Hamdan. Pp. 17-19."

While I Am Not A Lawyer, I agree with Marty Lederman: if this is what they found, then this is extremely good news.

Who Elects These People?

by hilzoy

Now is the time for all good men and women to come to the aid of their country; and if you happen to be from the US, you could do a lot worse than sending a campaign contribution to Joe Sestak. He's running against Curt Weldon, who is, in my completely unprofessional opinion, just the sort of lunatic we do not need in Congress. Many of you have probably seen the story about Rep. Curt Weldon's attempt to discover WMD in Iraq as a campaign stunt (h/t TPMMuckraker):

"A caravan of jeeps and heavy equipment crawls across the Iraqi desert, headed for a secret location on the banks of the Euphrates River.
Their mission: to dig 25 feet down into the riverbed and unearth concrete bunkers filled with chemical weapons produced by Saddam Hussein's regime and hidden before the outbreak of the Iraq war in 2003.

And who's that, dressed in a safari jacket and a pith helmet, supervising the dig?

None other than our own U.S. Rep. Curt Weldon (R., Pa.), leading a secret mission to unearth the Holy Grail of the war: the weapons of mass destruction that have eluded every other U.S. search team since our troops invaded three years ago.

Does this sound incredible - or ludicrous? Not to Dave Gaubatz.
Gaubatz said that Weldon intended just such an expedition over the Memorial Day weekend, until Gaubatz put the kibosh on it. (...)

Gaubatz said he first contacted Weldon and Rep. Peter Hoekstra (R., Mich.), head of the House Intelligence Committee, to share his info and get them to prod the Defense Department and intelligence agencies to do the WMD searches in the locales.

Instead, Gaubatz said, Weldon latched onto the idea as a "personal political venture" and discussed a Hoekstra-Weldon trip to Iraq, under the guise of visiting the troops, that would detour to Nasiriyah.

Once there, Gaubatz said, the congressmen planned to persuade the U.S. military commander to lend them the equipment and men to go digging by the Euphrates for the cache Gaubatz believed to be there.

He said that Weldon made it clear he didn't want word leaked to the Pentagon, to intelligence officials, or to Democratic congressmen.

As Gaubatz told me: "They even worked out how it would go. If there was nothing there, nothing would be said. If the site had been [scavenged], nothing would be said. But, if it was still there, they would bring the press corps out." (...)

"It was treated as an election issue that would get votes," he said. "I've never been involved in politics, so it was a very big eye-opener to me." (...)

After the meeting, he said, he called a reporter at the Washington Times and alerted her of the plan. In turn, he said, she called Weldon's office to get confirmation. That inquiry, Gaubatz said, scuttled the project."

Curt Weldon is really a piece of work. In fact, it's amazing how many stories that I had filed away under 'Congresspeople being bizarre as usual' turned out to be stories about Weldon. For starters...

Once Upon A Time...

by hilzoy

Sometime in the next few days, I plan to see An Inconvenient Truth. (Finally, the various friends I want to see it with will all be both in town and free.) In preparation, I present the following inspiring story:

Once upon a time, there was a looming environmental catastrophe. When a few scientists first drew attention to it, they were dismissed as alarmists. Over the years, however, increasing amounts of evidence that they were right began to accumulate, and scary predictions began to seem more and more realistic.

Industry was not about to take this lying down, however, and they began to mount a serious campaign to discredit the scientists who advocated taking immediate steps to avoid disaster. They downplayed the problem, predicted that taking action would involve massive costs, and tried to block any regulation of their products. It seemed likely that they would prevail when a Republican president was elected on a platform of deregulation, especially since this particular President was no great friend of the environment, and appointed people with extensive anti-environmental track records to head the Department of the Interior and the EPA. (I was talking to a Park Service guy at a national park during that period, and he claimed that the Park Service nickname for the then Secretary of the Interior was "Old Rape-n-Scrape." I had not mentioned my own political views; this came out unprompted.) Moreover, the new President was generally hostile to the UN and international agreements, which made it seem unlikely that the US would participate in any international solution to this problem.

Nonetheless, as time went on, the scientific evidence kept mounting up. It was not yet absolutely conclusive, but there was a very strong case that human action was damaging the environment in ways that might soon become irreparable unless we took very serious action.

Guess what happened next? I'll quote from a book on the topic:

"The United States undertook ... leadership in achieving international agreement on [dealing with the threat]. The U.S. government set the example by being the first to take regulatory action against the suspect chemicals. Later, it developed a comprehensive global plan for protecting [what needed to be protected] and tenaciously campaigned for its international acceptance through bilateral and multilateral initiatives. The staff of the U.S. Environmental Protection Agency (EPA) labored tirelessly to develop volumes of analyses on all aspects of the problem that gradually had an impact on skeptics both at home and abroad. A negotiating strategy devised by the U.S. Department of State not only employed customary diplomacy but also capitalized on the expertise of EPA and the National Aeronatics and Space Administration (NASA), as well as involving Congress, environmental groups, industry, and the media."

As a result, despite widespread skepticism that the nations of the world would ever be able to agree on a solution, they did; and the same conservative Republican president who hired "Old Rape-n-Scrape" to run the Department of the Interior signed the resulting treaty into law. Though there are still some challenges, the threat has in all likelihood been averted (pdf), which is why the treaty that averted it has been called "one of the great international achievements of the century".

***

I often worry that we will somehow get used to the sheer awfulness of this administration -- the way in which almost nothing they do is good. That's why, every so often, I try to remember the good things that previous conservative Republican administrations have done, and to ask: If Reagan could not only sign the Montreal Protocol on Substances That Deplete the Ozone Layer, but actually lead the effort to get it passed, why on earth can't Bush do something similar or global warming?

He hasn't, though. Not only that, he has tried to undo parts of the Montreal Protocol itself:

"Under a treaty known as the Montreal Protocol, the chemical was to be banned for most uses by the end of this year. But local and international politics have allowed methyl bromide to elude elimination the way some stubborn bacteria resist antibiotics.

The United States, on behalf of strawberry growers like Mr. Garroutte in California, tomato growers in Florida and other agribusinesses, has already obtained international approval for a 16 percent increase in consumption next year over the nation's reported use in 2003. This has happened through a new process that provides for exemptions from the ban in the case of "critical uses." With approval in hand for the use of 8,942 tons of methyl bromide in 2005, compared with 7,659 tons in 2003, the government is now seeking to add 840 tons to the permissible amount in next year's total.

Like the United States, other developed countries are now seeking new exemptions from the treaty, and environmentalists fear a domino effect. Although the amount of methyl bromide currently at issue is less than 1 percent of ozone-depleting chemicals, the gas quickly attacks the ozone layer, which scientists say is now beginning to heal itself.

"The United States has been the driving force for the protocol up until now," said David Doniger, who is policy director of the Climate Center at the Natural Resources Defense Council, an environmental group. "This is the first time the U.S. is driving in reverse.""

The administration later backtracked a bit: the treaty had prohibited exemptions over 30% of 1991 levels, and we generously agreed to limit ourselves to 35% rather than have the entire treaty collapse because of the demands of people who need methyl bromide for "critical uses": people like "tomato and strawberry growers and operators of golf courses." Also, "beekeepers, cultivators of tobacco seedlings and others."

Golf courses. Tobacco seedlings. I ask you.

Letting the ozone layer heal itself is a good thing. We should be proud that we led the fight for the Montreal Protocol, and ashamed that we haven't done anything remotely similar on global warming. That we have a conservative, industry-friendly President who is skeptical of international agreements and hostile to the environment doesn't begin to explain it.

Rawls Made Easy As Easy As I Can Make Him

by hilzoy

As both a background to Sebastian's post on Rawls and a justification of my own views, here's a short version of Rawls' arguments on justice. In what follows, I'll indicate, at some points, which texts I'm drawing on; I'll refer to A Theory of Justice as TJ, and Political Liberalism as PL.

The Basics: The basic question Rawls sets out to answer is (not coincidentally) one I raised in a previous post, namely: given several different ways of structuring the basic institutions of society (or, as I said in my posts, the rules of the game), how do we decide which is just? Note a few points: (1) He is talking about the rules of the game, not ad hoc interventions. (2) He limits his inquiry to justice within a society, and assumes that the society in question exists in conditions of "moderate scarcity", meaning that "natural and other resources are not so abundant that schemes of cooperation become superfluous, nor are conditions so harsh that fruitful ventures must inevitably break down" (TJ 127.)

His answer is, basically: a just system is one that would be chosen by people in what he calls the 'Original Position'. (Trust me: all the off-color jokes involving this phrase have already been made.) In the Original Position, people know all sorts of general facts about the world, including not just science but also economics. However, they do not know any particular facts about themselves: their race, their gender, their specific views about what kind of life they want to lead, their religion and values, and so forth. They do know, however, that they have some view about what sort of life they want to lead; they just don't know which it is.

They are also assumed to be fully rational, and mutually disinterested. 'Mutual disinterest' means that while, for all they know, they may care about all sorts of other people in real life, in the Original Position they are concerned to maximize their own good. Note that the better off I am in real life, the more I can do to help others, so making this assumption in the Original Position enhances my ability to be generous in the real world, if I want.

So the basic idea is: we decide what principles we should use to assess the rules of our society as if we didn't know who we would be, or even which kind of person we would be -- born rich or born poor; black, white, Asian, Native American, or whatever; Catholic, Muslim, atheist, Jain, or an adherent of some other religion; smart or not so smart; male or female; and so on. What we would choose under those conditions determines what rules are just.

According to Rawls, under these conditions people would choose the following principles as criteria by which to assess social institutions:

I. Each person has an equal claim to a fully adequate scheme of basic rights and liberties, which scheme is compatible with the same scheme for all.

II. Social and economic inequalities are to satisfy two conditions: first they are to be attached to positions and offices open to all under conditions of fair equality of opportunity; and second, they are to be to the greatest benefit of the least advantaged members of society.

(These are generally referred to as 'the two principles'.)

So: why does Rawls say these things? I'll consider first his argument for the Original Position, and then his argument for the two principles.

On Rawls

by Sebastian--

Hilzoy's recent post on liberals and libertarianism (which attracted surprisingly few comments when compared to the other posts in the series) reminded me of something I wanted to talk about.  Since she specifically didn't want to deal with it in that post I thought I would bring it to another thread rather than try to threadjack over there.  The bit I wanted to talk about was:

I'm going to get there by deferring the question of justifying my claims; I've decided that if I don't cut to the chase, I may never get to the end of this. (Short version: Rawls.) But first, a few short notes.

I'm not a huge fan of Rawls, but I'm not totally sure if it is specifically his views or the way elaborations on his views have played out.  I have read his Political Liberalism though not his other works.  The following are free-form thoughts about some of his more influential ideas.

His principles of Justice are generally stated:

I.     Each person has an equal claim to a fully adequate scheme of basic rights and liberties, which scheme is compatible with the same scheme for all; and in this scheme the equal political liberties, and only those liberties, are to be guaranteed their fair value.

II.     Social and economic inequalities are to satisfy two conditions: first they are to be attached to positions and offices open to all under conditions of fair equality of opportunity; and second they are to be to the greatest benefit of the least advantaged members of society.

In part, my resistance to the first part of the formulation may not be a direct reaction to his views but rather a resistance to these views as they play out in modern debates.  My problem is not with his definition of basic rights and liberties, but with the problem that the concept of what 'basic rights' include seems to be expanding to include economic equality issues.  So my problem may be that popular views of Rawls mix the  two together into once concept.  Does anyone else have that sense?

I have major objections to the second principle.  I'm not sure his 'veil of ignorance' hypothetical justifies it as strongly as he thinks.  I am not convinced that from behind the veil people would generally choose the hyper-conservative (in the sense of risk) position of maximizing the position of the least well off.  I suspect many people would be willing to have a small risk of being worse off for a large chance at a place in a society which was much better off than a more equalized society.  I suspect that this risk would be modified by the number of people in that position (the smaller the risk of actually being in the lowest group the greater material inequality people would be willing to risk) and by the level of the position of the lowest group. 

To be more specific imagine a scale of wealth where 1 is near constant starvation, 5 is the material level of successful primitive hunter tribes, 10 is the material success of non-abused serf in the Middle Ages, 20 is the level of wealth of the middle class in Mexico, 50 is the level of wealth of the middle class in the US, 100 is the level of wealth and opportunity available to the upper quarter of the US population, 500 is the wealth available to the upper 1% of the US population and 1000 is the level of wealth available to Bill Gates. 

I suspect few people would choose from behind the veil to be in a society with 1/3 distribution of 1,10,1000 if 5,100,500 were available.  People may very well choose a 1/3 distribution of 50/100/500 over 20/500/1000 from behind the veil.  But is it really true that people would choose a 50% distribution of 50/100 over a 1% chance at 20 and a 99% chance at 1000?  Would people really choose a 75%/15%/10% distribution of 50/100/500 over a 5%/25%/25%/20%/25% distribution of 75/100/500/1000?  Would people really choose a 99%/1% split of 50/100 over a 1%/99% split of 49/500?  I guess my intuitions don't mesh with his, but I just don't think so.  I think with a basic level well above subsistence, people are willing to risk a small or medium chance of slightly worse outcomes for a medium to high chance of much better outcomes. 

UPDATE:  I just realized that one of my examples doesn't fit into the Rawlsian scheme.  "Would people really choose a 75%/15%/10% distribution of 50/100/500 over a 5%/25%/25%/20%/25% distribution of 75/100/500/1000?" doesn't make sense from Rawls' point of view.  They would choose the latter because the lowest is at 75 instead of 50.  To make sense it should read: 

"Would people really choose a 75%/15%/10% distribution of 75/100/500 over a 5%/25%/25%/20%/25% distribution of 50/100/500/1000?"  In this instance, even the poorest people in the poorest distribution are at the wealth of the US middle class.  At such a level I strongly suspect that people would take a small risk of slight loss in the second distribution for the large chance of gain in the second. 

Shameless plug

by Katherine

There's a book coming out tomorrow that I'm recommending to more or less everyone I know: Guantanamo and the Abuse of Presidential Power, by Joseph Margulies.

I haven't read the finished product yet, but I was a volunteer research & editorial assistant for this project, so I read drafts of the manuscript more times than I can count. It covers a lot of ground. A huge amount of what I know about US treatment of prisoners in the war on terror in general, and Guantanamo in particular, comes through this book.

Joe Margulies was the lead U.S. lawyer for Shafiq Rasul, Asif Iqbal, and Rhuhel Ahmed, the three prisoners featured in The Road to Guantanamo. That's Rasul as in Rasul v. Bush, though he was actually released before the Supreme Court issued its decision. Margulies also represented Mamdouh Habib, an Australian citizen who was "extraordinarily rendered" to Egypt and tortured for months before being transferred to Bagram and Guantanamo. He may well have saved Habib from being sent to Egypt a second time--a story I will not tell here (see chapter 9 of the book for that one.) That's how I know him: I had used his court declaration on Habib's torture in my thesis, and when I found out I was moving to Chicago I emailed it to him.

They filed the papers in Rasul in February 2002, about three months after the clean-up crews put out the last fires out at the World Trade Center site, and two months after the first prisoners arrived in Guantanamo. They had trouble finding an attorney admitted before the federal courts in D.C. to sign the complaint as local counsel. The first conference calls between the lawyers who eventually filed the case actually happened several weeks before the first prisoners arrived. I've asked several times: how did you guys realize what this meant so soon, back when the rest of us (including plenty of good liberals, including myself) were either scratching their heads over the Serious Moral Dilemma of the ticking time bomb, or simply not paying attention?

There's probably no single answer to that queston. I don't think it's a coincidence that Margulies, and many of the lawyers involved at the beginning, represented death row inmates in the South for many years. In February 2000, he actually witnessed the execution of a client (at her request--she wanted someone she knew there; she did not want her children or grandchildren to see), after a Texas governor running for President on a platform of "compassionate conservatism" denied yet another clemency petition. I don't think her guilt was at issue; the appeal was about ineffective assistance of counsel and mitigating factors that the jury never heard about. And I don't mean that there was any personal animus towards Bush--not from the guy who several months after the Amnesty International/gulag controversy was seriously worried that the phrase "abuse of presidential power" in the title was too inflammatory or personal, and who is always very quick to point out that on the list of executives who have overstepped their bounds in wartime, Bush is joined by not only FDR and Lincoln but also Earl Warren. It's just that I think being a death penalty lawyer in Texas gives you a healthy respect for due process, and an understanding that when you cut corners innocents will be harmed.

And so, when the government and its allies assured us that the prisoners in metal cages and orange jumpsuits were "trained killers", "the worst of the worst", "the kinds of people who will chew through the hydraulic lines of an aircraft...the Hannibal Lecters of south-west Asia,"  a small handful of lawyers responded: "prove it."

I still can't quite believe I'm lucky enough to know one of them, who has been a complete mensch to me since I first emailed him out of the blue. It's truly comforting to know that David Addington has an antithesis, and I look forward to the day that my hypothetical future children study Rasul and Guantanamo in social studies class, and I can tell them I knew him. But he hates when I talk about him this way, so I'll cut it out, and draw this to a close. 

Obviously, Joe Margulies is far from a disinterested observer on these issues, and obviously, I'm far from a disinterested critic. But I wouldn't have spent half as many late nights as I did on this book if I didn't think it was damn good, and if I didn't think he understood the cliche that my journalism professor in college used to repeat to us incessantly: "The truth is bad enough." For opponents of this administration's interrogation and detention policies--the truth is bad enough. It is also very nearly the only resource we have. I can tell you first-hand that this book was written with those things in mind. It is not objective; it is a serious attempt to be honest and fair.

I'd also recommend this NPR interview with Margulies from last week, and this Chicago Tribune article that quotes him on the recent suicides.

Correction: Margulies did not represent Rhuhel Ahmed. I screwed that up because I was used to associating the "Tipton Three" with one another. The third original client in Rasul v. Bush was Australian citizen David Hicks, who is still at the base--Margulies was replaced as his counsel before they got permission to meet with clients, though.