What about the Individual Mandate?

Of all the provisions in the proposed healthcare bill, none has aroused such hostility as th individual mandate. It is denounced on the right as forcing people to buy a service they don't want. Opponents on the left rather hypocritically denounce the individual mandate in similar terms, although their real objection is that payments have to go to a profit-seeking insurance company. And the thought of having such a requirement forced on them angers and offends most people.

The essential counter is that the individual mandate, however, unpopular, is necessary as a matter of risk pooling. If insurance companies are not allowed to deny coverage for a pre-existing condition, they will have greater expenses and need more revenue. Besides, people will be tempted not to buy insurance until they get sick, further increasing insurance costs while undermining revenue. Insurance is, in effect, a system whereby the (currently) healthy subsidize the sick.

As a matter of policy, I am not sure this is absolutely necessary. One might allow insurance companies to charge as much as necessary for premiums to sick people and just provide and adequate subsidy to make them affordable. But whatever the policy merits, the whole risk pool argument will never fly as a matter of politics. For one thing, people hate being told that they have to do something because it is their duty to society. But beyond that, if you are trying to sell the idea to Republicans/libertarians, you will never get anywhere pushing the idea of risk pool. The problem is not just that the idea is too complex and wonky for Republican/libertarians to understand. It is that they don't want to understand it or, perhaps, that they understand it perfectly well and are morally opposed.

The problem with risk pooling to a Republican/libertarian is that it is collectivist. The healthy are being asked to pay in to subsidize the sick. That is redistributionist and therefore violates their most basic moral principles. To be told that is your duty to pay into a pool while healthy so that the sick can have access to healthcare looks like a case of robbing Peter to pay Paul -- even if everyone can expect to become Paul some day.

But that leaves an alternative that might be a more acceptable way of looking at it. Healthy people are not being asked to buy insurance to subsidize the sick. They are being asked to pay their dues now, when they are healthy, so they can collect the benefits later when they are sick. When people develop a medical problem, their rates will go up, so they will almost certainly need a subsidy to buy insurance. People who try to cash in on the benefits when they're sick without paying their dues when they're well are a bunch of free riders the system should not support. (Of course, many people will need subsidies to pay for insurance even when well, but we'll sort of gloss over that). So, if instead of having an individual mandate, you simply make the rule that anyone who doesn't buy insurance now when they are healthy will not qualify for a subsidy later on if they get sick, that will be an approach highly agreeable to conservatives.

The problem, of course, is that it will not be acceptable to liberals. Liberals will ask what if someone is too ill-informed, short-sighted or just plain poor to buy health insurance. Are we to leave them to die in the gutter? So far as I can tell, the answer from a libertarian is that this is not a legitimate concern so far as public policy goes. If people don't pay their dues and run into trouble, there is always private charity. We conservatives pay much more to charity than you liberals. If you really cared, you would pay as much as we do. But how much to pay is strictly a private matter and not any business of the government. Not letting government rob Peter to pay Paul is a whole lot more important to a libertarian than what becomes of Paul if he can't pay his doctor bill.

Nonetheless, if anyone wants an individual mandate with any chance of getting past a Republican filibuster, this is the only possibility I could see.

Reflections on Breaking up the Healthcare Bill

One of the proposals for dealing with the new 41-59 Republican "majority" in the Senate is to break the healthcare bill into pieces and pass them one by one, daring the Republicans to vote against them. This proposal has been much criticized. From a policy perspective, it is criticized because the popular and unpopular parts of the bill are mutually indispensable and an attempt to separate them would just send premiums skyrocketing. From politics perspective, Republicans may do anything from automatically filibustering anything to supporting the pieces and then claiming credit. ("Look, we blocked the dreaded Obamacare and gave you this wonderful (if mostly the same) system instead.") Nonetheless, I would like to give my analysis, both in terms of politics and policy, of the separate parts.

Standardizing of benefits and premiums.

One of the Democratic proposals was a standardization of health insurance packets. All policies will offer the same basic benefits packet, the only difference being how much of the tab the insurer versus the insured pays. Likewise, insurance companies will be required to risk pool to offer similar rates to everyone throughout the community. To be honest, I don't have a clear sense of the merits of how this compares to the current, immensely varied system.

But regardless of the policy merits, as a political matter, Republicans will fight this tooth and nail and invoke the filibuster over it. It goes against their basic principles at two levels. First of all, having government dictate benefits packages and rates violates their sense of free market capitalism (and, by extension, freedom). Second, many Republicans propose bare-bones policies as a cost-control measure. If patients bore more of the cost of healthcare, the theory goes, they will consume less of it. Many Republican would like to encourage policies that cover only routine, preventive care and major, catastrophic care.

As a policy matter, this may not be such a bad idea. My big problem with it is there are some things too big to be routine care and too small to be catastrophic that may fend off later catastrophes. A woman who receives an abnormal Pap smear having the abnormality burned out before it becomes life-threatening cancer would be a classic example. My advice would be to allow bare bones policies, but require them to cover any intermediate condition the doctor certifies and a matter of life and death. As a political matter, my guess is that it will be embarrassing for Republicans to vote against that, and that were are unlikely to see Tea Parties demonstrating, demanding that their insurance be allowed to exclude life-saving treatment.

Pre-existing conditions, rescission, and lifetime caps.

As a matter of politics, these are the most popular part of the healthcare bill, and Republicans will probably not want to face a 30 second ad accusing them of voting against them. Nor are we likely to see too many Teabaggers out protesting demanding their insurance companies' right to drop them if they get sick and offering to die as martyrs to free enterprise.

More realistically, both Republicans and Tea Parties may resist these measures on the grounds that they will make premiums skyrocket. And, of course, that is true. As a policy matter, it is the big reason many on our side oppose breaking the bill into its constituent parts. We do recognize the basics of the market and that there is no free lunch. If insurance companies are to be forces to incur all these additional costs, they have to be allowed additional revenue.

If Republicans resist banning pre-existing conditions and lifetime caps (I can't imagine anyone defending rescission), they will undoubtedly argue that these will make insurance more expensive. Democrats should freely acknowledge as much -- and then call for subsidies to help people pay for the increased rates. Personally, though, I believe this is worth passing even if subsidies don't pass. After all, what will happen if we do force insurance companies to take on so many more costs but don't offer subsidies? Insurance rates will skyrocket. The public will be outraged. And Congress will face one of three choices: (1) do nothing; (2) change the law to allow the bad old practices; (3) create a subsidies to help people buy insurance. Granted, the Teabaggers will probably be outraged at the subsidies and call for repealing the law instead, but I am guessing they will be in the minority, and the pressure for subsidies will be too strong to resist.

Subsidies

As a matter of policy, there is no doubt that if we are going to ban denials based on pre-existing conditions, rescission, and lifetime caps, we will need subsidies to cope with the increased rates. (Really, we need them anyhow). As a matter of politics, Republicans and the Tea base will no doubt be outraged and see the subsidies as "socialism," "a complete government takeover of healthcare," and something that calls for taxes. So there will be considerable resistance to such subsidies. On the other side, there is the threat of 30 second ads that "Senator So-and-So cast the deciding vote that blocked assistance to individuals and small businesses buying health insurance." And there is the specter of public wrath when premiums skyrocket and no help is at hand. So we may be able to pry loose a few Republicans to vote for subsidies to help buy insurance.

The other question is how to fund such subsidies. Republicans have an inflexible principle: No tax increases, even, no matter what the circumstances. That's going to be a tough one to overcome. No doubt even Republicans who do agree to subsidies will insist on financing them by cutting other spending. Here's my only suggestion. There is generally less resistance to taxes if people are assured that a particular tax goes into a particular fund to support a particular program. It feels more accountable that way. I personally think this is generally a bad system and that programs should be paid for from the general fund and all compete on an equal basis. The other problem is that whatever the revenue source for the fund, there is no way to ensure that it matches actual need for subsidies. But no matter. If creating a separate tax to pay for a "trust fund" is the only way to get subsidies enacted, I say go for it. (Of course, Republicans might just filibuster anything that raises taxes anyhow, regardless of skyrocketing premiums).

Cost control.

There are three cost control measures Republicans favor: (1) limiting malpractice claims; (2) allowing insurance companies to compete across state lines; and (3) bare bones policies. Everything else is "rationing," "government control of health care," "government bureaucrats coming between you and your doctor," "pulling the plug on granny" and even "death panels," "euthanasia of seniors" and perhaps even T-4. Republicans will not yield one inch on this. It is a matter of basic principle to them. Free markets, not government, must be in charge of controlling costs.

Notice that they have been sure there were death panels in there somewhere even before the healthcare bill was proposed in the first place. Republicans began to be alarmed over the subject ever since the stimulus bill included funds for comparative effectiveness research. That alone was enough to set off their alarm bells, even though it was only research and had no authority to mandate at all. Ever since the healthcare bill was proposed, Republicans have been sure there are death panels (by one name or another) in some part of it somewhere, even if their location constantly migrates. This is a huge, HUGE issue to them; anything that may suggest government restricting access to healthcare, or rationing it.

It's useless to point out that comparative effectiveness research is something the Mayo Clinic does that allows them to deliver top quality healthcare at well below average rates. It's pointless to argue that insurance companies deny people treatment all the time. It's useless to point out that pricing people out of healthcare altogether (which is what the free market approach will do) is ITSELF a form of rationing. None of those matter. What is important to Republicans is that all those are part of the private sector. Any cost control measure in the bill will be work of the Evil Government.*

So no cost controls other than tort reform or competition across state lines will be in any bill that can get through the Senate. But don't despair. Republicans do favor "entitlement reform." "Entitlement reform" is a euphemism for cutting Medicare, something they have denounced this bill for doing. But they fear openly taking responsibility for it and want to appoint a commission to make recommendations. Maybe, with luck, we can appoint some people to the commission who will make reasonable cost control recommendations.

Next post: The most controversial issue of all: Individual mandate.

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*And, to be fair to Republicans, their fears are not entirely crazy. Larger organizations do indeed tend to be more bureaucratic and rigid than smaller ones. It may be true that what works well at the Mayo Clinic would become overly rigid and bureaucratized if done by a large insurance company, let alone the government.

Memo to the Democrats

OK, nothing very original in this post, but hey, I'm a busy law student. I don't have time.

To the Democrats: No, it wasn't because you moved too far too fast or pushed too far to the left. No, you wouldn't have gotten bipartisan cooperation if only you hadn't asked so much. And no, having a different order of priorities would not have made the slightest difference. And, finally, no, the Republicans are not going to be the least bit more cooperative now that they've tasted blood and are closing in for the kill.

What did you do wrong. Two things. (1) You were Democrats. (2) You were in power. In that you violated the 28th Amendment that every Republican knows was passed during the Reagan Administration by Bruce Ackerman's informal Amendment process: "Republicans shall at all times be in power."

What could you have done differently? Well, you might have had a come-to-Jesus moment, changed your registration to Republican, and reported to Fox News for your marching orders. Short of that, nothing. No matter what you did, no matter how moderate or restrained, you would still have been denounced as wild-eyed leftwing extremists. It's a standard formula they trot out every time. They used it against Bill Clinton, the junkfood-eating Arkansas hillbilly from the centrist DLC, and they'll use it on you. Stop being a battered wife and trying to figure out you offended the abuser. And don't get silly ideas like that he'll change now, or it's different this time. Go out and take a self-defense class instead.

Granted, I may be overreacting. The news cycle is very short sighted and tends to project current trends indefinitely into the future. Why, just a year ago, conventional wisdom had it that the Republicans were divided, demoralized, and headed for decline. And I remember very well in 1995 people were writing epitaphs for the Clinton Administration as a failure and assuming that the Republicans has a complete free reign to pass anything they wanted, even though they didn't have a veto-proof majority.

It didn't work that way. Republicans did a great job of attacking Clinton and his agenda as dangerously radical, but when they actually tried to enact their own agenda, it turned out not to be very popular. Clinton reinvigorated his presidency by challenging the Republicans to a showdown and winning. Both came away from the encounter chastened and were able to work together to some degree. I actually thought the Republicans would conclude from that that there was such a thing as being too right wing. We all get these foolish delusions sometimes. But you have a lot more experience than I do, and less excuses.

So, maybe you'll have the chance to do it again. If so, the time to start is right now. Conventional wisdom already holds that when Senate Democrats outnumber Republicans 60-40, they hold a razor-thin advantage," and that when it shifts to Dems 59, GOP 41, Democrats have lost the "majority." Folks, I know that pundits have to keep their mouths moving or their brains may start working, but doesn't it indicate that something is the matter when holding a wide majority in the House, a 59-41 majority in the Senate and the Presidency are all dismissed as inconsequential compared to the Republican's 41-59 Senate lead?

For starters, don't fumble on the 5-yard line. No one respects a team that does that. Then, start offering up a lot of popular legislation and dare the Republicans to block it. Better yet, choose legislation that will be popular with independent swing voters but not the Tea Party base and force the Republicans to choose which group to piss off. Alternately, you could completely give up and let them sweep the 2010 election. I'm guessing that the Tea Party's message of taking a chainsaw to government will be wildly popular until they win elections and actually start to do it.

Of course, it that's your strategy, you'd better be prepared to actually roll up your sleeves and clean up the mess they make. This post (much repeated across the Left Blogosphere) rather strongly indicates that you are much too afraid of responsibility ever to actually stand up for your principles and try to govern.

If that's the case, then why on earth should anyone vote for you? Granted, the Republicans don't seem that interested in governing either, but at least they have the courage of their convictions and are ready to say so.

But if all you are interested in doing is tiptoeing around, trying to avoid offending the Republicans or taking any sort of responsibility, I would suggest changing your name. To the Cheese-Eating Surrender Party.

Signing Off, Again

And, once again, school is resuming, and my blogging will go into temporary suspension. And I had so hoped to post about the Warren Court!

So, What Am I Afraid Of?

So, given that democracies die when polarization gets out of hand, and given that I am warning about the dangers of out of control polarization, am I actually afraid that our democracy is in danger of dying? The answer has to be no, but . . .

Although polarization is the underlying disease that destroys democracy, the ultimate failure can take place in many ways -- an undemocratic party controlling the levers of power and subverting the system from within, civil war, military coup, foreign invasion of a country weakened by division, and any combination of the above. I do not see any of these as being in the cards. So I have long been asking myself, "Then what are you afraid of?" Paul Krugman (and others following his lead) finally offered the answer -- Californication. The danger we face is not the overthrow of our government or the complete breakdown of democracy, so much as government and democracy becoming dysfunctional to the point of being non-functional.

Krugman focuses on the danger of a permanent Republican minority. Extremism may shrink the Republican Party enough that it can never win a majority, but not too small to block the majority from taking action. This is the pattern in California. Worse yet, a party that knows it will never hold actual power is relieved from any actual responsibility. It can feel free to wreck things as much as possible, knowing that the dominant party will be blamed. Or, in the words of Matthew Yglesias:

You can have a system in which a defeated minority still gets a share of governing authority and participates constructively in the victorious majority’s governing agenda, shaping policy around the margins in ways more to their liking. Or you can have a system in which a defeated minority rejects the majority’s governing agenda out of hand, seeks opening for attack, and hopes that failure on the part of the majority will bring them to power. But right now we have both simultaneously. It’s a system in which the minority benefits if the government fails, and the minority has the power to ensure failure. It’s insane, and it needs to be changed.

In California, the minority's ability to block action takes the form of the two-thirds requirement to pass a budget. In the federal government, it takes the form of the filibuster. I am still not clear when it became the rule that to pass legislation, the dominant party must have not only a majority in both houses, but a super-majority in the Senate. Scholars of the filibuster say it did not happen overnight. The filibuster was invoked for 8% of all legislation in the 1960's, 27% in the 1980's, and 70% in the 2007-2008 Congress. In Lyndon Johnson's time, it was assumed that Medicare could pass by a 55-45 vote. Another Senate observer believes that pure obstructionism began with the Clinton healthcare bill in 1994.

Speaking as a casual observer, I remember that the Senate was divided 50-50 following the 2000 election and the general assumption was that in case of a tie, Dick Cheney would cast the deciding vote. No one suggested that legislation was impossible because the Republicans did not have a 60 vote majority. Yet when the Democrats won Congress in 2006, reporters casually spoke of a 60-vote majority being required to pass legislation. They did not report on Republican invocation of the 60-vote rule for 70% of all legislation as extraordinary because they did not see it that way. And with healthcare legislation, reporters have made amply clear that requiring a 60-vote majority is the "ordinary" way of doing things and passing legislation by a simple majority is an extraordinary measure, sometimes referred to at the "Armageddon option."

Paralysis of the legislature endangers democracy in other ways as well. Presidents have long tended to act through executive decree if Congress proved unwilling to give them what they want. This does grave damage to democracy if it is simply a matter of the President and Congress pursuing different agendas. But if Congress becomes paralyzed and legislation impossible, but President may have little choice. A paralyzed Congress, IOW, can encourage an already dangerous slide toward elective dictatorship.

And these are only the dangers we face if the current polarization makes Republicans lose. Krugman briefly touches on the alternative. The Tea Party movement has no positive program, except, perhaps, tax cuts. Otherwise it is driven by incoherent rage at government and shows no interest dealing with the real world, let alone governing. What if that makes the Republicans win?

Polarization: What is Disloyalty?

As I have said before, democracy begins to unravel when polarization reaches the point that some parties place winning before loyalty to the democratic rules of the game. The loyal opposition, in other words, becomes disloyal. New Zealand's Paul Buchanan believes that we are getting there fast. By disloyal opposition, he means not only the Republican party establishment in and out of Congress, but the broader opposition such as Fox News, talk radio, Tea Parties, etc.

But what does it mean to break the democratic rules of the game? Does one have to resort to actual illegality, or can one remain within the letter of the law and still be "disloyal"? Buchanan believes that "loyalty" requires not only obedience to the law, but to unwritten norms as well. The difference is whether one regards the party in power as an adversary or an enemy, and politics as a high stakes game or war. He gives the example of opposition to the Allende government in Chile as an example of disloyalty, although his example is not very illuminating. As examples of disloyalty, he cites refusing to pass any laws at all and organizing hostile strikes and demonstration (hardball, sometimes extremely so, but legal), as well as arming and financing right-wing paramilitaries and negotiating with the army for a coup (illegal).

Needless to say, neither Republicans, nor Tea Partiers, nor Fox News are organizing paramilitaries or negotiating for a coup. If disloyalty = illegality, then we still have a hardball but loyal opposition. But Buchanan believes the US context sets the bar for disloyalty a good deal lower, to encompass such acts as refusing to engage in any meaningful negotiations on healthcare or finance reform, shouting liar during an address to Congress, crowing that the US was not allowed to host the Olympics, openly expressing hope Obama fails, overheated denunciations, paranoid rumors receiving encouragement, Tea Parties, flirtation with Birthers, condoning people showing up at demonstrations armed, encouraging stockpiling of weapons in anticipation of a gun ban, and encouraging military insubordination.

Buchanan sees these things as each tolerable each in isolation, but signs of disloyalty when seen in combination because they seek to delegitimize the Obama presidency. I, by contrast, see these things as qualitatively different. (In fact, while Buchanan lists these acts randomly, I have listed them in what I consider escalting order of severity). To refuse to negotiate on a piece of legislation you deem dangerous is not disloyalty. Nor is it disloyalty to block innocuous legislation as a bargaining chip. Shouting liar is merely bad manners. Hostile demonstrations are, after all, an accepted feature of American politics. Also accepted features are a great deal of spin and cherry picking, a certain amount of unrealistic or exagerated fear, and some fibs.

Telling flagrant lies and whipping up paranoia and hysteria are a good deal more dangerous. I refer, of course, to everything from Sarah Palin's talk of "death panels" to Republicans' reluctance to repudiate the "birthers" to some of the more overheated signs at Tea Parties to the nonsense Glenn Beck spouts on Fox News. The United States has had a paranoid right wing for a long time. portions of the paranoid right may fairly be described as disloyal even if their actions are strictly peaceful and lawful. (I'm thinking of you, John Birch Society).

The paranoid right has long had a few representatives in Congress, and mainstream Republicans have not always been able to fully dissociate themselves from it. But even if the paranoid right has a toehold in power, we have survived just fine by keeping it from getting any more. It is different altogether for the paranoid right to capture (or be near to capturing) a major political party, or for its more paranoid fantasies to be broadcast on a major news network to the broad general public. Telling willful and flagrant lies for political advantage may be classified as disloyalty, but at some point lies stop being lies and the leaders who tell them begin believing their own propaganda. What we face is a large portion of the general public and a major political party becoming completely unmoored from objective reality. That is not disloyalty so much as derangement.

Finally, there is the matter of people agitating for political violence. The good news here is that they remain marginalized (at least so far). We have not (so far) seen anything like the rise of militias of the sort that occurred under Bill Clinton. Nor are we seeing the sort of romanticization of political violence that occurred under Clinton. To the contrary, violence is (almost) uniformly rejected as illegitimate. The Republican base emphatically rejects any suggestion that today's overheated rhetoric could escalate into actual violence as a liberal slander. In the 1990's, many militia types hailed Al Capone as a capitalist hero who knew the value of the right to keep and bear arms. When Glenn Beck compares Obama to Al Capone today, he means it as condemnation.

And while the militia movement (and some mainstream libertarians) romanticized political violence and the value of an armed citizenry in the 1990's, I never recall their basic assumptions being challenged. People argued whether the militia movement was racist, but I don't recall anyone saying, like liberal columnist EJ Dionne, "Free elections and open debate are not rooted in violence or the threat of violence. They are precisely the alternative to violence, and guns have no place in them." Or ultra-libertarian Justin Raimondo, "The whole point of even attending such a gathering, or, indeed, any sort of rational discussion about anything, is that we leave our guns—embodying the possibility of coercion—outside the door. We forsake force, and rely solely on our persuasive powers to get our point across."

Of course, in the 1990's, protestors were not actually showing up wearing guns.

My (not so) New Hobbyhorse

It's not really a new subject, since I've posted on it before, but expect it to become an obsession with me, to the extent that I have added a new label (and post-dated some previous posts with it). I am becoming obsessed with how democracies fail. On the one hand they fail many different ways. Some are subverted from within by anti-democratic parties. Some fall to military coups. Some dissolve into civil war. Some fall to foreign invaders.* But in all cases, the underlying dynamic is the same. Rival factions become increasingly polarized, shun all compromise and cooperation, disregard (or, sometimes, openly oppose) the rules of democratic fair play, and tear the democratic fabric apart. It is for that reason that today's highly polarized politics worry me.

Why has Obama moved so timidly on shutting down GTMO and ending torture? At least in part, because because of polarization and intense Republican attacks. Why has he refused to prosecute Bush era crimes and done his best to cover them up? At least in part, for fear of the partisan firestorm such an action would unleash. Why is healthcare reform so difficult to pass? Polarization. Why are we unable to take any action on global warming? Polarization. Ditto finacial reform? Polarization. The list goes on. Whatever your prime issue, polarization is almost certainly what is impeding action on it.

I do not mean to imply by this that everything on the Democratic agenda automatically deserves to succeed simply because the Democrats won in 2008. But I do suspect that things have reached the point where partisanship is becoming an end in itself regardless of the merits of policy. Or, as Saturday Night Live put it,"Mr President, We do not want to defeat health care reform, we want to defeat you, and this seems like the best way to do it."

This country has become so polarized that every issue, every one, has to be seen through the lens of polarization. The merits of a policy have become secondary.

Continued, next post

A Few More Straws in the Wind

So, the Obama Administration has decided that if it isn't going to torture anybody or indefinitely detain Abdulmutallab without trial, it might as well at least expand the no-fly list, create a bigger hassle at airports, and subject passengers from whole countries, including Nigeria, to greater scrutiny. I suppose given heights of Republican hysteria, a Democratic administration has to mistreat somebody to show that it cares.

In a possible piece of good news, right-wing correspondent Michael Yon was senselessly hassled and subject to mindless scrutiny by TSA screeners. Good! The only way it will ever be politically safe to advance civil liberties is if a right-winger is hassled by a liberal administration. Maybe Yon can inspire the right wing to get some sanity back into airport procedures.

Of course, sanity in airports will only increase the pressure to torture people. . .

In other news, Glenn Greenwald has some excellent links, one explaining all the random noise distracting intelligence from real leads. (Alas, he does not give any figures on what percentage of tips are things like reports from the suspect's own father and how many are anonymous tips from paid informants, fourth-hand rumors and the like. Recognizing that some things have to be classified, that sort of general information can still be useful in figuring out what is going on and how the system went wrong).

The other explained the amount of distraction that accompanies even well-targeted intelligence gathering. Radical Yemeni cleric Anwar al-Awlaki is an obvious and very legitimate intelligence target. And, in fact, his e-mails are being monitored. He corresponded by e-mail with both Fort Hood shooter Nidal Hassan and underpants bomber Umar Farouk Abdulmutallab. So did tens of thousands of others. How do you know which two correspondents out of tens of thousands will turn out to be the terrorists?

Update:

Apparently the Secret Service is regularly interviewing birthers. Good! For the same reason as screening Yon.

A Very Good Point

Adam Serwer has a very good point, amplifies by Obsidian Wings. We should all be grateful to Umar Farouk Abdulmatallab's father for approaching the US embassy to mention his son's alarming radicalism. Would he have done that if he had believed it would lead to his son being tortured, then locked away forever without a trial in a very ill-famed prison?

Another important question is, why aren't Democrats shouting this to the skies. Yes, I know, it is hard to call for sanity when the opposing party is denouncing sanity as unpatriotic. Torturing the Other and locking him away forever as far away as possible has a lot of appeal and recognizing the Other as human is hard, especially when one of Them just tried to kill a lot of Us. But it is time for the Obama Administration to grow the part of itself that Abdulmutallab damaged and make the attempt. The only way you will ever relieve the pressure to hurt more Muslims it to convince people that Muslims are human, too. And what better way to show it than to point out that the senior Abdulmutallab, himself a Muslim, was willing to tip off the US against his own son.

Read the torture memos over. Don't ask if it's torture. Ask if it's something a father would willingly expose his son to. And remind people, this father was willing to tip off a foreign country against his own son only because he was convinced of our justice and humanity. Anything that undermines that reputation is going to undermine the flow of tips.

Emphasize the importance of such tips. They have served us well up till now. Worried parents and the CAIR tipped of the FBI when five American Mustlims went to Pakistan to join the jihad. In Saudi Arabia today 60-70% of all information about al-Qaida suspects now comes from relatives, friends and neighbors, rather than security agencies or surveillance. Obama, Administration spokesmen, and leading Democrats should be hammering on this theme over and over again. Not all Muslims are our enemies. They have provided us with countless useful tips. To keep the tips coming, we must be seen to be fair and humane. Interviews with the senior Abdulmutallab and some of the parents who turned in their sons would help.

[And while we're at it, if Obama really wants to close GTMO, he should be revealing the stories of people wrongly held their who have gotten on with their lives after release. Of course, that would just emphasize more the crimes of his predecessor and heighten partisan attacks . . .].

Torture Memos, Continued

The memos describing torture authorized almost perfectly match the accounts given by the detainees to the Red Cross. At the time the Red Cross report first came out, there were questions as to its accuracy, but the parallels make amply clear that it is accurate.

The third memo authorizes a general process of 30 days, with the option to renew. The Red Cross accounts describe processes of a month or two.

The second memo authorizes sleep deprivation by chaining to the ceiling for up to 180hours (seven and a half days). The Red Cross report describes chaining to the ceiling for up to seven days.

The first memo authorizes placing Abu Zubayda in a cramped box, although he was wounded. Abu Zubayda described being placed in a cramped box, although wounded.

The memos authorize slamming subjects against a false wall, with a rolled towel around their necks to prevent whiplash. The Red Cross report describes subjects slammed against a wall with rolled towels against their necks to prevent whiplash. Zubayda mentions that the first time he was slammed against a solid wall, but afterward a plywood false wall was placed to soften the impact.

The memos state, and the Red Cross reports confirm, that only the three highest value detainees were waterboarded.

And so forth.

But in the end, this fine parsing over what is and is not torture might not be so bad if one keeps in mind that the Convention Against Torture (Article 16) requires each member to "prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture." In other words, the distinction between torture and "merely" "cruel, inhumane or degrading treatment" is hard to make, but it is not in any event the distinction between lawful and unlawful, but only between a more and serious offense. That is what makes the final memo particularly appalling. One can argue over whether the CIA black sites cross over the line into torture or are merely "cruel inhumane and degrading," but the final memo argues that they are not cruel, inhumane or degrading, either.

First, the memo points out that since the black sites are other countries, they are not in "territory under [US] jurisdiction." The memo thus interprets the treaty as allowing members to evade this provision by taking their prisoners into each other's territory and engaging in cruel, inhumane and degrading conduct there. The memo further argues that, in ratifying the treaty, the Senate said it interpreted "cruel, inhumane and degrading" as equivalent to "cruel and unusual" under the Constitution. Since the Constitution does not apply to non-citizens outside the US, Article 16 allows us to be as cruel, inhumane and degrading as we want so long as it stops just short of torture and happens to non-citizens on foreign soil. Finally, the memo "enhanced interrogation" is being done to people who have not been convicted of a crime, and is not meant as punishment, but only to make them talk, government interest in fighting terrorism will outweigh any harm done. The memo then argues in detail its great care not to harm detainees by never dousing them with water cold enough to cause hypothermia, not allowing them to hang by the wrists when suspended from the ceiling, waterboarding with saline so they don't get pneumonia or electrolyte depletion, and other such acts of tender solicitude.

The worst part is, at least some Supreme Court justices these days would probably buy this argument. Antonin Scalia sees it as positively an affront to suggest that non-citizens outside the US have any rights. He has also expressed the general opinion that the ban on "cruel and unusual punishment" applies only to people who have been convicted of a crime. Before then, it is open season. And in the odious case of Martinez v. Chavez, the Supreme Court effectively approved the use of torture to extort a confession so long as the police ultimately conclude the subject was innocent and do not prosecute him. However, I am confident that Justice Kennedy would disagree, and that such a viewpoint would be rejected by today's Supreme Court on a vote of 5 to 4.

The Final "torture memo" released was the CIA Inspector General's Report. It adds relatively little, partly because it heavily quotes the original Yoo memo, partly because the three later memos quote heavily from it, but mostly because whole pages are blacked out. It makes the point that only some of the high value detainees were subject to "enhanced interrogation techniques," but that "unenhanced" techniques included forcible shaving, stripping, hooding, isolation, shackling upright, and sleep deprivation and diapering for up to 72 hours. It discusses the necessity of torture for gaining information, the difficulty in knowing whether a detainee is withholding or not, (Abu Zubayda continued to be waterboarded on orders from above long after his immediate interrogators believed he had told all he knew), the damage torture might have to America's moral standing, and fears of getting caught.

The most significant part of the Inspector General's Report is probably pages 85-89, in which they attempt to assess the effectiveness of their techniques. They conclude that torture did, in fact, yield valuable information, but they cannot determine which techniques were most effective since all were used at once. Page 87 identifies individuals, and page 88 plots that the subjects revealed under torture, although they did not uncover any evidence these plots were imminent.

In other words, no true ticking bomb. They cannot say that these plots could not have been discovered by other means, or even that they would have occurred at all. And, for what it is worth, FBI Agent Ali Soufan disputes this account, attributing much of the information the CIA says it obtained by torture in fact came from other sources. Not having any inside information, I cannot presume to judge.

I am well aware that many people, especially in light of the most recent attack, will say so what. The CIA black sites housed only a handful of high-value detainees, all high ranking Al-Qaeda members, all with important information, and all vile and evil terrorists who deserved what they go. And perhaps if those few had been the only ones tortured, one might dismiss the whole episode as a detail, a regretable incident that may or may not have been necessary. But what all too many people today are forgetting is that torture was not limited to a handful of high value Al-Qaeda detainees. The Senate Armed Services Committee has extensively documented that torture by the military was extensive, systematic, extending far beyond high level detainees or even low-level insurgents, and ordered from the very top. Any serious discussion of torture under the Bush Administration has to take into account that it was a regular, planned military policy -- and is probably still going on, albeit without official approval, to this day.

Torture Memos

This post addresses an unpleasant subject, one I have intended to write about for months, but somehow always managed to avoid -- the Torture Memos. Not the original one by John Yoo, that claimed the President had authority to torture, any law to the contrary notwithstanding. These are the memos explaining why various acts did not violate existing laws against torture, released by Obama before the general firestorm of controversy convinced him not to let anything else from the Bush Administration be released.

They begin with August 1, 2002 memo signed by John Yoo that (apparently) got things started. Abu Zubayda had been captured, and the CIA suspected he was holding back information and wanted to use "enhanced" techniques. They asked whether such techniques would violate anti-terrorism statutes. The outcome was predetermined. Yoo dissected the law in a manner familiar to anyone who has attended law school, breaking it down into constituent parts and determining which parts are met. (For instance, to violate the torture statute, an action must (1) take place outside the US, (2) be done under color of law (3) on a person in custody, (4) inflict severe physical or mental pain or suffering, and (5) be intentional. Needless to say, conditions 1 through 3 can be safely assumed). The opinion, cool, detached and clinical, shows a stunning lack of imagination about what these techniques mean in the flesh and blood rather than on paper. Stress positions and long time standing can't possibly be painful because they will be limited by muscle fatigue. (Does he not realize that muscle fatigue, if severe, is itself painful?) Sleep deprivation can't be so bad because it has been done for 11 days in controlled experiments without long-term harm. (He obviously hasn't read memoirs of Soviet prisoners describing what prolonged sleep deprivation, for considerably shorter times than 11 days are like). And, of course, there is waterboarding. Severe pain is not distinguished from severe suffering. Prolonged mental harm is considered torture if it "profoundly disrupt[s] the senses," or involves the threat of imminent death. He acknowledges that waterboarding is an "imminent threat of death," but it doesn't cause prolonged mental harm because soldiers do it in SERE training. (Does Yoo not understand the difference between what is done at gunpoint and what is done in a training exercise?) But not to worry, even if you do end up causing severe pain or suffering or prolonged mental harm, you didn't intend to do it because I told you it was okay.

Apparently this memo was just a little too disingenuous because it was followed up by the Bradbury memo of May 10, 2005, which is somewhat more legally sophisticated than its predecessor. For instance, it acknowledges that experiencing many of these techniques as a prisoner may not be entirely the same as experiencing them as a trainee. It acknowledges that some things like muscle fatigue, waterboarding, or sleep deprivation, though not specifically painful, might be considered "suffering." But no problem. Pain, if sufficiently severe, is always torture, suffering, no matter how severe, is not torture unless sufficiently prolonged. (That clears waterboarding). And, unlike the earlier memo, it acknowledges the sleep deprivation, if sufficiently prolonged, may "profoundly disrupt the senses," (once again, try reading memoirs of Soviet prisoners to understand just how profound the disruption is, and just how unbearable). But it still approves the technique on the theory that prisoners will get over it once they sleep again. Unlike the earlier memo, which says there is no precedent on what is torture because no one has ever been prosecuted under the torture statute, the later memo admits there is precedent on what is torture when some other country does it -- and then engages in self-congratulatory preening for not being as bad as all that. (In fact it cites a case finding that prolonged sleep deprivation and waterboarding, described as "water torture," were torture, at least combined with other techniques such as beating).

But if it is legally more nuanced than its predecessor, the second memo is also more graphic. It described prisoners being kept awake for up to 180 hours by shackling them to the ceiling, which, it assures us, is not painful. (Care to try it?). Being held on one's feet for seven days causes swelling in the legs, but no problem, the swelling is not painful (ditto). It also gives a disturbingly graphic account of waterboarding. This is where it is revealed that it was done to Abu Zubayda 83 times and KSM 183 times. It also says that, unlike SERE training, which merely cut off oxygen and allowed CO2 levels to rise, waterboarding by the CIA allowed water to enter the upper respiratory tract, where it could be inhaled and cause pneumonia. Subjects also responded by swallowing as fast as they could. Some apparently drank so much water that the interrogators had to switch to saline to prevent electrolyte depletion. (Just how much water is that?) Finally, the memo offers the reassurance that a doctor will at all times be standing by to prevent harm. Somehow, though, that is not very reassuring because torturers regularly do exactly that -- to prevent the subject from being killed by accident.

Another memo follows, even more disturbing, that described the techniques as used in combination. Although the description of the techniques in combination is even more graphic and disturbing than reading about them separately, the memo naturally approves them. It engages is a certain self-congratulation for not using all the techniques at once, although all that means is that it is not possible to make a prisoner hold a stress position, slam him into the wall, hold him in a cramped box, and waterboard him all at the same time.

But perhaps most disturbing of all, even as the memo continues to insist that no "prolonged mental harm" is caused, it also explains that the purpose of the milder techniques is to "bring the detainee to 'a baseline, dependent state," 'demonstrat[ing] to the [detainee] that is has no control over basic human needs." (quotation marks and brackets in the original). The purpose of the harsher techniques is "to create a state of learned helplessness and dependence." I am reminded of nothing so much as the Star Trek episode Catspaw:

KIRK: So, are you going to wave your magic wand and destroy my mind, too?

SYLVIA: There's no damage, really, just a removal of all knowledge and will.

KIRK: You don't call that damage?

(Quoted from memory, minor errors are possible. Subject continued in the next post).

Data Mining: The Needle in a Haystack Problem

Let us be fair to Obama. He does appear to be committed to ending his predecessor's policies of torture and indefinite detention without hearing. He has, admittedly, been rather timid and incomplete in his approach, often more interested in covering up his predecessor's crimes than rooting them out. And even this tepid approach has engendered considerable resistence, which can only escalate in the wake of the most recent attack. But there is a clear and identifiable difference here between the Obama and Bush approaches.

By contrast, Obama has not created any daylight between himself and Bush on wiretapping (as it was finally approved by Congress). Nor is that all. The Bush Administration's approach to wiretapping attracted the most attention because of its blatant illegality, but it was only a small part of a larger whole that we still know very little about, and that the Obama Administration has embraced, apparently without modification. Consider:

The Inspector General's Report on surveillance found no evidence of intentional misuse of the warrantless surveillance program (p. 13), but warned that in its current, legal form it involves "unprecedented collection activities" that must be closely monitored (p. 38). The IG report gave only the vaguest hints what the warrantless surveillance consisted of, other than to quote NSA director Michael Hayden to the effect that saying the activities were "more aggressive" than FISA allowed, but "less intrusive" because the period of time was much shorter than authorized by a FISA warrant (p. 16). This appears to confirm reports by the Washington Post that computers were sifting "hundreds of thousands" of calls, faxes and e-mails into and out of the US. After various levels of screening, some agents were allowed to listen to some conversations -- about 5,000 people according to one source.

The Post article denied that any domestic calls had been subject to warrantless surveillance. But USA Today famously reported that the NSA was also keeping an immense database of all domestic phone calls, "the largest database ever assembled in the world," looking for suspicious patterns. The legality of this program has never been settled. The same goes for the less publicized Homeland Security program keeping score on international travelers to assess their threat risk.

There is no question about the legality of of National Security Letters, which allow the FBI to command the production of a wide variety of information without having to resort to a subpoena, let alone a warrant. FBI use of NSL's has been extensive, with some 140,000 such letters issues from 2003 to 2006, an average of nearly 50,000 a year. Approximately half of those letters did not lead to any prosecution at all, and most others were used in immigration, money laundering or fraud cases. Very few were used to prosecute actual terrorists. The total number dropped to 16,000 once such abuses were revealed, but soon began edging up again afterward. Also legal is the ever-expanding terrorism watch list, along with the much smaller No-Fly list, which nonetheless contains many dubious entries and torments even more innocent people who happen to have the same name as a tangential terror suspect.

And then there were plans that were rejected at first, only to be adopted in other form such as TIPS, which sought to recruit mail carriers, meter readers, repairmen and so forth as spies and informants. Or Total Information Awareness, that was supposed to analyze patterns in everything. These did not so much disappear as mutate. These are the Bush era policies and programs that the Obama Administration is keeping intact. All fit under the broad rubric of data mining.* All seek to vacuum up huge quantities of data and analyze it for patterns indicating terrorist activity.

Data mining has its defenders. For instance former libertarian Richard Posner argues that there is no danger to civil liberties because the initial scrutiny is done by machine, and only seen by human eyes (or ears) if the program indicates a threat to national security. The only danger could be in abuse the blackmail political rivals. Others at the time of the USA Today article argued that because of the sheer volume of data, there could be no danger to privacy.

The basic problem with looking for terrorists by data mining is there just aren't that many terrorists out there. The estimated number of Al-Qaeda operatives in Yemen is 300. Another 200 are estimated to be in Pakistan. John Ashcroft's sweeping dragnet after 9-11 netted a grand total of one (Ali Saleh al-Marri). The sleeper cells predicted at the time never appeared. (I realize, of course, that Al-Qaeda is not the only terrorist organization in the world. But it is the only one that targets us). In short, we are looking for a needle in a haystack. Data mining in such an instance poses serious problems.

Security expert Bruce Schneier explains well. When searching for a needle in a haystack, adding more "hay" does not good at all. Computers and data mining are useful only if they are looking for something relatively common compared to the database searched. For instance, out of 900 million credit card in the US, about 1% are stolen or fraudulently used every year. One in a hundred is certainly the exception rather than the rule, but it is a common enough occurrence to be worth data mining for. By contrast, the 9-11 hijackers were a 19-man needle in a 300 million person haystack, beyond the ken of even the finest super computer to seek out. Even an extremely low rate of false alarms will swamp the system.

And that does, in fact, appear to have happened. The FBI, frustrated with all the false leads generated, began referring to them as "calls to Pizza Hut." An NSA data miner acknowldged, "Frankly, we'll probably be wrong 99 percent of the time . . . but 1 percent is far better than 1 in 100 million times if you were just guessing at random."

But there are obvious problems with generating so many false leads. The first is whether it is useful at all. The Inspector General's Report was unable to quantify its usefulness to any degree, other than to say that Hayden vouched for its usefulness and said that it would have captured two of the 9-11 hijacker. But has it thwarted any actual terrorist attacks? Most thwarted attacks have begun with a specific tip. (This is worth an entire post). Another, which Schneier focuses on, is the waste of manpower investigating false leads that might be put to other use.

But besides uselessness and the time and effort wasted on false leads, there are real civil libertarian dangers as well. Bush's defenders are quick to point out that none of the data mining led to COINTELPRO style abuses. So far as I know, this is true. But there are other kinds of dangers as well. When a system regularly generates false leads and forces police to investigate them, these fruitless investigations, too, are an infringement on the liberty of people senselessly investigated and expose everyone to the risk of such pointless investigation. Investigation of false alarms differs from COINTELPRO-style abuses in being mindless rather than malicious, but it infringes on liberty nonetheless.

The other danger is that any police force tasked with looking for needles in a haystack, there will be strong institutional and bureacratic pressure to find something. If no needles are turning up, the temptation will be to find a prickly piece of hay and try to convince people that it is sort of like a needle. This can, indeed, lead to COINTELPRO sorts of abuses. In Maryland, state police investigated everyone from anti-war groups to PETA to customers protesting a 72% rate increase as possible terrorists. (The article also cites abuses by city police and the FBI, but links are not functioning).

Obviously, this is not the best time politically to call for a cutback in data mining activities. Obama is already under sufficient attack for not torturing, for using civilian trials, and for releasing GTMO detainees determined not to be terrorists. For him to move away from data mining now would lead to a wingnut feeding frenzy. But what we need is not any more information to swamp the system, but better analysis of what we already have. And no ridiculous rules against leaving your seats for the last hour of flight.

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*Actually, NSL's quite probably are not a data mining tool so much as a method to streamline data collection that it is easy to get sloppy and overuse.