Move the Meter One Notch Toward Hope

Today I will move the needle on my hope versus despair meter one notch toward hope based on this report. Assistant Attorney General David Kris has testified to the Senate that so far the Obama Administration has reviewed over half the cases of Guantanamo detainees and has yet to find even one who is unprosecutable, but must be detained indefinitely. Admittedly, the other half remain. But so far this should stiffen the spines of any members of Congress who are unwilling to authorize indefinite detention without charges. The real danger of such an authorization, after all, is not so much that it may allow a possibly necessary but very messy way of dealing with GTMO detainees whose cases the previous Administration has hopelessly botched. The real danger is how such a power might be used in the future.

Also encouraging is that both the Obama Administration and the proposal in the Senate favor a presumption in favor of trial by civilian court over trial by military tribunal. Factors the Administration proposes considering in deciding what forum to use include what it calls "strength of interest" factors such as the severity of the offenses charges, the identity of the victim, the location they took place and the context in which the accused was captured; "efficiency" factors such as protection of intelligence sources, foreign policy issues, and legal or evidentiary problems, "other prosecutorial considerations," such as whether the forum allows full presentation, and the sentences available. It proposes deciding what forum to use on a careful case-by-case basis.

More equivocally on the hope/despair spectrum, some of these are legitimate factors to take into account, but others are not. The Detention Policy Task Force's Preliminary Report points out that when terrorists are captured under true battlefield conditions, not all evidentiary requirements of the criminal justice system can be met (i.e., Miranda warnings, exclusion of hearsay, collection of evidence under battlefield conditions, etc). This is a reasonable point. Protecting classified sources may also be a legitimate consideration. But many of the other factors sound suspiciously like simple matters of which forum makes conviction most likely. And making the decision on a case-by-case basis essentially means allowing the executive to forum shop at will. What we need is not a case-by-case determination, but hard and fast rules about when trial by military commission is or is not allowed.

Again on the hope side, the Preliminary Report exclusively defends the use of military tribunals and makes not attempt to argue the case for indefinite detention without trial. The Report advocates eight main changes in the Bush-era military commissions: (1) forbidding coerced statements, (2) rules on hearsay more similar to regular court martial rules, (3) admitting only "voluntary" statements by the accused (I am not clear how this differs from (1)), (4) adopting a modified version of civilian federal court rules on the use of classified material, (5) allowing greater authority to appellate courts, (6) requiring the govenment to disclose exculpatory evidence to the accused, (7) limiting the commissions to trying law of war offenses, and (8) a sunset provision. I have no confidence whatever in sunset provisions. Reapproving a sunsetted statute is rarely more than an empty formality. As for the other changes, it is hard to know what to make of them. Yes, there is some specificity here, but it still leaves a great deal of room to maneuver. The changes set forth could prove to be little more than nicer window dressing for the old Bush Administration military commissions, or it could turn them into a modified form of court martial. The devil is in the details. Alas, I have not seen either what the Senate is proposing or an in-depth analysis of it and therefore cannot say where it weighs in on the spectrum.

That being said, there is plenty of testimony in despair territory as well. A few weeks ago, Defense Department General Counsel assured the Senate that if by some miracle a terrorism suspect is acquitted, he will still be detained indefinitely as if nothing had happened. More recently, another witness said acquitted terrorism suspects will be deported (perhaps to torture and execution).

Hm. Maybe I am moveing the needle on my hope/despair meter in the wrong direction.

Healthcare -- A Word of Advice No One Will Hear

Not surprisingly, Republicans have moved into full-on fearmongering mode about ObamaCare. (Much worse than they were under the Clinton Administration because this time it might actually pass).

We have been warned in the most apocalyptic terms possible about the consequences of any sort of healthcare reform passing. Possible dangers invoked include government controlled healthcare, a government bureaucrat coming between you and your doctor (aren't insurance company bureaucrats much better?), loss of right to choose your own doctor, sub-third-world levels of care, euthanasia of seniors to save on health care costs, horrendous despotism, Americans reduced to Egyptian slaves building the Pharoah's pyramids, dogs and cats living together, etc, etc.

How do you argue with that level of fearmongering? It certainly won't do to point out that Canada and most of Western Europe have varying types of universal healthcare without any such apocalyptic consequences, for two reasons. For one thing, most opponents of healthcare reform already think Canada and Western Europe provide sub-Third World levels of care and are horrendous despotisms. For another, the mere suggestion that some other country might have a good idea worthy of emulation is enough to set off a lot of right-winger's inner xenophobe. (Oh my God, they think other countries are better than us! They want us to stop being Americans and turn into Canadians!)

A better approach would be to point out that here in the USA we already have a major government-controlled health insurance. It's called Medicare. All people over 65 are eligible to belong and so far no one has noticed the government doing them in to save on costs. In fact, life expectancy has increased quite a bit since we adopted it.* If government involvement in healthcare were altogether as catastrophic as you claim, wouldn't we see at least some sign of it with Medicare? And, better yet, dig up some of the fearmongering that occurred when Medicare was first proposed to show just how similar it was to the fearmongering at work today.
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*That is not meant to suggest that the adoption of Medicare caused the increase in life expectancy. Proving or disproving that would require going back in time with a time machine, stopping Medicare, and seeing what happens. But it clearly proves that government-controlled health insurance is compatible with vast increases in life expectancy.

What's the Big Deal About Taxes?

So, many of us are asking, what's the big deal about increasing the top tax rate from 36% to 39.5%? (Or even a little higher). Why this carrying on as if it were some kind of catastrophy, or the first step on the Road to Serfdom?
A top marginal rate of 39.5% is no higher than in the notably prosperous '90's, and lower than the rate most of the time since 1920? Granted, there was some grumbling when Bill Clinton raised the top marginal rate, some warnings of economic catastrophy, some attempts by Republicans to demagogue the issue, but nothing like the hysteria we are experiencing now, the references to a modest tax increase as "demonization," the threats to "Go Galt," the hysterical comparisons to Hitler. What's going on here?

Serious hysteria whipped up
Several things, I suspect. For one thing, the right-wing media was by no means as advanced in 1993 as today. Talk radio was in its infancy. Rush Limbaugh was considered a lunatic. Fox News did not exist yet. The blogosphere was not even a twinkle and anybody's eye. In short, it was not as easy to whip up hysteria in 1993 as it is today. (The hysteria-whipping-up establishment grew rapidly as the '90's progressed).

For another thing, the Clinton tax increases were honest. They were a straightforward attempt to balance the budget, not accompanied by large spending increases. The current proposed increases have to look suspicious. They will almost certainly not be enough to erase the current deficits, so many people justifiably suspect that taxes will end up going up a lot more.

But I think something else is at work as well. The Clinton Administration discovered something that seems obvious in retrospect, but did not receive much attention at the time. When economic growth is concentrated heavily at the top, as it has been since the mid 1970's, even a modest tax increase at the top can greatly increase revenue, by tapping into that growth. (Likewise, the Bush Administration demonstrated the opposite -- when growth is heavily concentrated at the top, a modest tax decrease at the top can cost a lot of revenue). Furthermore, displeasure of Republican ideologues not withstanding, when there is rapid growth at the top, there is not, after all, that much resistence to an increase in the top marginal rate. After all, when your income is rising rapidly, a modest tax increase simply means it is rising a little less rapidly. Ideological dogma aside, who really cares?

But the situation is very different today. Today, incomes and wealth are falling, with losses heavily concentrated at the top. When your wealth and income are rapidly falling, even though they remain well above the national average, even a modest increase in tax rates can feel like adding insult to injury. Also significant, of course, is that with incomes at the top rapidly falling, raising taxes on them will be a much less effective revenue generator than it was in the 1990's.*
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*Of course, we do not know what growth patterns will be when the economy starts to improve.

Iran: The Value of Elections without Democracy

The upheaval is not yet over in Iran, and I cannot pretend to guess what the ultimate outcome will be. What is significant, though, is that the uprising began over a rigged election, and that even many people who supported Ahmadinejad are unwilling to support his rigging of an election. So perhaps I should rethink my previous dismissal of elections, by themselves, as unimportant.

My argument has been straightforward enough. It is that elections are worthwhile only if actual power resides with the elective government. If real power resides elsewhere -- say, in the army running murderously amok, in extralegal death squads, in war lords, and so forth, elections of a powerless government are worthless. The important thing is to reign in the army/death squads/war lords, stop their murderous abuses, establish civilian control, and then we can think about elections.

Iran calls all that into question. Iran, after all, has an elective government that observes democratic forms, but has very little power, with the real power residing with unelected clergy, who determine who may run for election, and can block any unseemly display of independence by the elective government.

Yet looking at the pro-democratic uprising, it would appear that contested elections of a powerless government do have some value after all. A feeble and very incomplete democratic government had proven useful in teaching Iranians democratic habits. It has taught them to look upon government as their business, and choosing their own leaders as a right. It has also taught some important habits of democratic fair play. Many supporters of Ahmadinejad have said that, although they wanted him to win, stealing an election and trying to set himself up as a dictator are going to far. (Alas, I fear that many Americans do not have this level of maturity!)

Maintaining the democratic facade has, until now, had some wholesome effects on the clerical establishment. Until the latest rigged election, the need to maintain the democratic facade has prevented the Ayatollahs from being too openly and aggressively anti-democratic and doing anything that would expose their undemocratic nature too flagrantly.

So, is maintaining the electoral facade worthwhile, even when the nominally democratic government is powerless and true power lies elsewhere? I generally remain skeptical of such elections and believe that reigning in the excesses of the true wielders of power is more important.

Iran may be a partial exception for several reasons. For one thing, although the Iranian government has undoubtedly engaged in significant violations of human rights, at least in recent times (as opposed to the bloody early days of the Islamic Revolution) those abuses have stopped well short of murderously running amok. The real powers, though far from democratic, have given society the sort of breathing room that allows the future capacity for democracy to develop. (The desire to at least appear to rest on popular consent has no doubt been a restraining factor).

Iran is also most unusual in not concealing where true power lies. Normally when a government maintains an electoral facade, but other forces such as the army, death squads, or war lords rule, the wielders of true power do their best to hide in the shadows and pretend not to be actually in charge. The lawless and deceptive nature of their rule in itself undermines whatever vestigial democracy the government may possess. In Iran, by contrast, the true center of power is openly acknowledged, formally established by the constitution, and governed by official laws. Instead of a lawless, deceptive, and often murderous center of true power, Iran has an open, official, and relatively restrained one. This power center has (until the latest rigged election) operated within certain unspoken but clearly understood rules about what was going to far.

Under these circumstances, maintaining a democratic facade and electing a powerless government may be of some value.

That, however, is the good news. The bad news is that the Iranian theocracy may not have been altogether honest, even with itself, with where the true power lies. Facing growing pressure for democratic reform, the theocracy has come to rely more and more on the Revolutionary Guards and Basij to turn back democratic reformers. Following the most recent rigged election, this reliance has become more clear than ever. And if true power does not lie with the theocracy, but with the Basij and Revolutionary Guards, it is, indeed, has lawless and secretive as in countless other countries. And the clearer it becomes to the Basij and Revolutionary Guards that they and not the theocracy hold true power, the fewer compunctions they will have about running murderously amok.

And once such group entrench themselves in power, it is very difficult, short of outright revolution, to dislodge them.

(PS: This is my 200th post)

Palin, Policy, and Elitism

It's a bit late to be doing a post mortem on Sarah Palin, but a number of comments on her have set some of my gears turning. So I thought I would take the time to explain what I have against her.

It is not that she is a conservative feminist. Yes, many feminists do regard a conservative feminist as an oxymoron and take offense at the concept. They point out, correctly, that feminism began as a liberal-to-left-wing phenomenon, with conservatives strongly opposed. But sooner or later we have to move on beyond the past. The existence of conservative feminism is a mark of just how triumphant feminism has been.

It is not because she is self-made or did not go to an Ivy League college or is not a Washington insider. It is not because she has Red State mores, hunts moose, or has five children. It is not because she did not abort a Down's baby, or because her daughter chose a shotgun marriage and/or single parenthood over abortion.

My problem with Sarah Palin amounts to three closely related complaints. (1) She clearly does not understand any leading national issues. (2) She does not want to understand leading national issues. (3) She equates her ignorance with virtue and knowledge with elitism.

Number one is merely a defect in knowledge, not in temperament, that is by itself remediable. Number two is a permanent disqualification from the Presidency, but it may still be a matter of priority rather than temperament, that leaves her qualified for some lesser office. But to equate ignorance with virtue and treat it as morally superior to knowledge -- that is a flaw in temperament that should disqualify her from any responsible office. It is the same temperamental flaw that was the undoing of George Bush. And it appears to be a large part of her appeal to many of her followers.

An extraordinary example of what this can mean comes from a Ta-Nehisi Coates quote from one of his readers: "[I]f I said, 'The average American voter simply can't understand complicated national issues.' Your response would not be 'You're wrong; Barack Obama understands complicated national issues.' A response like that would make no sense--Obama is is a singularly talented individual; he's not just a representative American voter. In order to have faith in democracy, we have to believe that a majority of us, not simply the best of us, are capable of making the right call."

This is, when you get right down to it, a remarkable statement. It means that the democratic ideal is to elect people with no understanding of complicated national issues because, after all, most average Americans don't understand such issues and we want leaders just like us. How does one answer such an absurd statement?

First of all, although most Americans do not understand complicated national issues that is, after all, not a flaw in temperament, but a matter of priority. Most Americans occupy their lives with other things. But addressing complicated national issues is, after all, what Washington is all about. Wanting our leaders in Washington to have a better understanding of complex national issues than the average American is no more elitist than wanting a doctor with specialized knowlege about the functioning of the body, a mechanic with specialized knowledge of cars, or a programer with specialized knowledge of computers.

Second, although average Americans may not understand complicated national issues, we have at least some ability to judge whether the leaders we send to Washington do. Sarah Palin more than amply demonstrated that she did not.

And third, chosing our leaders is, after all, not the same as choosing a doctor, a mechanic, or a programer. In choosing a doctor, mechanic, or programer, technical skills and professional competence are all that really matter. In choosing our leaders, we want people who share our values, goals and social vision. (All the silly business about Obama's bowling scores and taste in mustard is, in effect, using these as markers of the values he represents). We want people who are honest and play fair with their constituents. We want people who demonstrate overall good judgment. And (let's face it) we want good politicians who know how to make friends and influence people, or they will never get anything done. These, too, are things that ordinary Americans with no particular understanding of the complexities of public policy are qualified to judge.

So, in short, we want to choose leaders who share our values, priorities and goals; leaders of honest, integrity and good judgment; and leaders who know how to get things done. Is it so elitist to say that we also want leaders with a deeper understanding of complex national issues than our own. Yes, this does mean trusting in our leaders to get those complex details right. But if those leaders share our overall objectives and have good judgment, is that so bad? It is certainly better than choosing leaders who share our values but don't understand complex national issues and trusting them to guess.

How Best to Investigate

Continuing from the prior post, the New York Times reports that the CIA Inspector General's report on what really went on at the secret "black sites" may soon be released, and that Attorney General Eric Holder is sufficiently outraged to be considering prosecution. Naturally it treats any attempt to find out about the Bush Administration's crimes as a foolish distraction from what is really important.

By contrast, the Washington Post suggests that "[B]y confining any criminal investigation to the narrow issue of CIA interrogators who operated outside legal boundaries, and by ruling out the possibility of criminal charges for lawyers and policymakers, the Obama administration has given itself an argument for forestalling a congressional probe likely to be far messier and more public than a traditional law enforcement inquiry."

My own view on all of this is decidely mixed. Beyond any doubt, I want the Bush Administration crimes brought out into broad daylight for all to see. Sunlight, as the saying goes, is the best disinfectant, and only exposure has a chance of rooting them out and keeping them for recurring. The question is who should do the exposing, the executive or Congress.

My ideal answer is Congress. We badly need to know that the legislative branch can assert itself and reign in the excesses of the executive, instead of leaving the executive to police itself. I want such exposure to be as "messy" and "public" as possible. Certainly the Church Committee managed to effectively expose the excesses of every administration from FDR to Nixon to plenty of public scrutiny and seriously shift (though temporarily!) shift the balance of power away from the executive.

On the other hand, our whole system, including our system of media, has become so executive oriented these days that exposure by Congressional investigation may not matter at all. "Messy" though it may be, such an investigation may escape the notice of the public. After all the Senate Armed Services Committee launched an excellent investigation and report on torture by the military, but made little impact. Because of the heavily executive-oriented natures of our media today, their fine exposure did not gain a fraction of the attention given to the release of the OLC Torture Memos by the Obama Administration, and, unlike the release of the memos, did not spark any sort of serious public debate.

My ultimate conclusion, therefore, is that to be truly effective, exposure of the Bush Administration crimes must be done by both the executive and the legislature. The little exposures that have taken place so far have kept the frail process alive so far. Here's to more down the line!

A Small, Green Shoot of Hope?

So, in the overall hope-and-despair cycle, the latest round goes to hope. For quite some time I have been concerned that the only Bush-era policies Obama will even try to modify (let alone reveal) will be torture, and that he will quietly continue whatever warrantless surveillance was in place. It now appears that the warrantless wiretapping will not be forgotten quite so easily.

As required by the Democrats' general capitulation on warantless surveillance, the Inspector General has issued a report on such surveillance that reveals (unsurprisingly) that the portions acknowledged by the Bush Administration were merely the tip of the iceberg and that something much larger was going on. What that "something" was remains a closely guarded secret, but perhaps that knowlege that improper surveillance was happening will spur Congress to look into what it was. I have downloaded the report and intend to read it and give a (belated) opinion on it at some time in the future. (And I have already read the Torture Memos and not commented yet).

As a preliminary matter, I will make a few comments. First, it is disturbing that Congress was not able to unearth any of this information on its own, but had to rely on an executive investigation. This is yet another disturbing example of the overwhelming executive domination of our government these days -- and the spinelessness of Congress unless the executive leads the way. As a small measure of comfort, this executive investigation was at least done on the command of Congress.

What Obama Should Have Done

Perhaps I give President Obama too much credit here, but I believe that he does genuinely want to close the facility and Guantanamo Bay. He just is not will to expend any actual political capital on it. (In fact, is he willing to spend any political capital on anything at all? The stimulus, maybe). The result, of course, is that if he does not care enough to spend any political capital, nothing will get done.

In the end, the only way to get such a thing done is to just go and do it. What seems radical and outrageous may be unthinkable until someone actually does it. George Bush understood this principle well. Anonymous Liberal explains:

Had Bush gone to Congress in October of 2001 and asked for the authority to torture detainees, conduct warrantless surveillance of all international calls, and detain people indefinitely without process at Guantanamo Bay, I don't think he would have had much luck.

The perverse truth is that by engaging in these activities unilaterally (and in some cases illegally), the Bush admininistration was ultimately able to secure much greater statutory authority than it otherwise could have. By simply claiming this power for itself and acting accordingly, Bush created a situation where--in the wake of adverse court rulings--Congress was faced with the choice of stopping activities the Bush administration claimed had been crucial in preventing terror attacks (such as "enhanced interrogation," processless detention, and warrantless surveillance) or retroactively legalizing these activities. . . .

On top of that, the simple fact that the Bush administration had been engaged in these activities for years served to normalize such activities in the minds of many Americans and many politicians, a reality which helped make their eventual statutory ratification possible. . . . By acting first and letting the chips fall where they may, the Bush administration was able to dramatically shift the baseline of the debate. Instead of a debate over how to tweak FISA, we found ourselves in a debate over whether FISA was unconstitutional and should be gutted completely. Instead of a debate over what detention conditions were adequate for detainees, we found ourselves in a debate over what forms of torture the CIA should be authorized to continue using against them.

The Obama Administration could have done exactly the same thing. To some extent, it has. Consider, for instance, what happened when Obama proposed to move some terrorists from GTMO to the United States for trial. The Republican Party (and many Democratic Senators) collectively freaked out. They unleashed an insane storm of panic that terrorists held, even in maximum security prisons, had some sort of super human powers and could escape and terrorize the country. So what did Obama do? He moved a terrorist to a New York prison for trial (not scheduled until next year). And what was the response? Effectively, none. And, it seems a safe assumption, once one terrorist in a maximum security prison turns out not to have super powers after all, the transfer of others for trial will seem a lot less scary.

Good for him! Now, if he had only been willing to spend a little political capital on the issue, the same approach would have worked for releasing suspects who have been cleared into the US.

Start with one or more GTMO detainees who have been determined not to be a threat. Perhaps one would start with the Uighurs. A media blitz would be in order. (We know Obama knows how to use the bully pulpit. So why isn't he using it?) Portray them as innocent victims of the evil Communist Chinese. Emphasize that the Chinese have been manipulating us to do their dirty work for them. Demonstrate that the FBI, the Pentagon and the federal courts have all determined the Uighurs to pose no threat whatever if released. Show the Uighurs released into Albania. They have adjusted to life perfectly well there and not engaged in any terrorism. Explain that the rest of the world is too afraid of China to accept the Uighurs and only we, the US, are big enough and strong enough to stand up to the Chinese. Meet in private with the Virginia delegation to Congress. Show them all the evidence there is no danger whatever. Promise that the FBI will keep an eye on them. Offer Virginia extra juicy pork in the stimulus and support for whatever piece of legislation is especially dear to Virginian hearts.

Or maybe releasing 17 terrorism suspects into Virginia is too much. Maybe it is better to release just one or two into Dearborn, Michigan, home of the largest Muslim community in the US. Senator Carl Levin would probably be more open to the possibility than anyone from the Virgina delegation. Besides, Michigan is in so much economic trouble and so dependent on federal largesse, it is easy to throw your weight around. But release someone.

Six months later announce a dramatic follow up. Nothing has happened! The releasees are slowly adjusting and show no sign of interest in terrorism. Have a slightly less dramatic follow up a year later. Still nothing has happened! By now if we are lucky, other countries have taken the other detainees cleared for release. (Our refusal to take in any has been a major obstacle). If we are not so lucky, releasing more into the US will be a whole lot less scary.

Granted, this approach will generate a lot of pushback at the beginning. Republicans will become hysterical. So will many Democrats, just to be on the safe side. Your ratings in the polls will fall. Talk radio and Fox News will collectively freak out. But then again, hysteria requires a lot of energy and just isn't that sustainable. And Fox New and talk radio will always be freaking out about something. Done with enough publicity of these men's innocence and harmlessness (remember, whoever seizes the initiative controls the narrative), it won't be as suicidal as it appears. And as time goes by and nothing happens, the panic will subside. As with George Bush and the practice of torture, a radical, unthinkable action will cease to be radical and unthinkable because it has been done.

Despair or Confusion?

It's a bit late in the game to be commenting, but President Obama's proposal that if Congress does not give him power to indefinitely detain terrorism suspects without trial he will do so by executive order deserves comment.

On the one hand, the proposal is doubly an outrage. Proposing indefinite detention without charges by authority of Congress is bad enough. But at least in his original speech, Obama was humble enough to acknowledge that "prolonged detention should not be the decision of any one man" and that such a system would require Congressional and judicial oversight. So now that it appears that if Congress will not give him the authority he wants, what is Obama proposing to do? Grant himself unilateral power to institute prolonged detention without Congressional or judicial oversight, of course.

On the other hand, there is a certain insanity to the entire dispute. For once, certain members of Congress are standing firm, refusing Obama authority to indefinitely detain terrorism suspects without trial. Yet at the same time we have been detaining terrorism suspects suspect without trial for almost seven years now, which makes the entire issue sort of moot. And as if that were not bad enough, Congress has passed a law specifically forbidding their release. So if Congress refuses to authorize indefinite detention of terrorists without charges, yet forbids their release, what meaningful distinction could there possibly be?