Tuesday, January 20, 2009
Friday, January 16, 2009
An alternative to prosecution
I've been thinking and talking about alternatives to prosecuting senior members of the Bush administration for torture.
I thinkt that prosecuting Cheney, Addington, Yoo, etc. in a realstic world would risk becoming a circus, and that it would drag in the new administration and poison the atmosphere of bipartisanship that would allow anything to get done in Washington. In a time of peace and prosperity we managed to get through the Clinton impeachment, but you'll note that not much substantive governing got done during that time. I also think that prosecuting an outgoing administration sets a problematic precedent, as almost every administration does things that are technically illegal-- Lincoln suspending habeas corpus, FDR with Japanese internment, Kennedy and LBJ with their CIA plots against Castro, Reagan with Iran Contra. The fear that actions taken during an adminstration could result in imprisonment could lead to a.) much more dithering by a president, and more perniciously, b.) presidents thinking long and hard before giving up power.
In the Roman Republic, persons elected to the Consulship (or its follow-up position, pro-consul governing a province) had largely unchecked power for their year term, as their body was inviolate (they couldn't be attacked or seized). The primary leash on a Consul, other than threat to reputation, was the threat of prosecution/suit when they stepped down. The Romans didn't have public prosecutors as we do- prosecutions brought on the behalf of those wronged much in the way that civil suits are undertaken nowadays. The idea being that if, while you were consul you unjustly seized somebody's villa, or exiled someone, you could be brought to justice by that party.
In the late Republic, this sort of system was (and I'm broadly generalizing) often ignored in favor of proscription lists, where the incoming winners would create a list of the various people supporting the last administration, and those on the list could be killed and their property taken. This lead to Caesar demanding, after his consulship, an unprecedented five-year proconsulship in Gaul with his own army- to avoid proscription or other serious penalty for his actions as consul. And we all know how that "Caesar gets his own army in Gaul" thing turned out. Now think about an unpardoned Nixon, "about-to-face-prosecution-Dick-Cheney," or similar characters down the road, and ask yourself how many times we want to stand at the Rubicon rolling the dice and hoping that they're all better people than Caesar.
The upshot is that I think that a solution closer to the Republic's "private prosecution" than to the Caesar option is called for in this situation. Fortunately, in the US, we already have something along these lines. The breadth of this administration's torture program has left us with a number of sympathetic plaintiffs, and they have available to them lawsuits called "Bivens Actions," named after Bivens v. Six Unknown Named Agents. In a Bivens Action,
federal employees may become personally liable for constitutional deprivation by direct participation, failure to remedy wrongs after learning about it, creation of a policy or custom under which constitutional practices occur or gross negligence in managing subordinates who cause violations. (Gallegos v. Haggerty, Northern District of New York, 689 F.Supp. 93)
The plaintiffs could bring suit for money damages directly against Cheney, Yoo, etc, and would certainly be helped along by sophisticated attorneys from the ACLU and other such entities. The process could be greatly aided if the Obama administration directed the Solicitor General to file an Amicus brief countering the argument sure to be made by the Bush administration officials that various documents couldn't be turned over because of national security concerns. Obama could essentially say that, since we're closing Gitmo and no longer practicing extraordinary rendition, the documents relating to those practices need no longer be secret. I think there might still be some issues with executive privilege, but the fact that the administration is no longer in power should do much to quell those.
Lawyers (and Classics Majors!)... what am I missing here? Does this work?
UPDATE: A Classics expert friend tells me that Caesar's actions in crossing the Rubicon were largely motivated by the fear of what Pompey would do to him if he returned to Rome (as the Senate demanded) as a private citizen, as opposed to as an inviolate proconsul with an army. The point still stands that it's very problematic to set up a system where Presidents potentially face routine prosecution by their successors... that sets up a serious disincentive to step down. And as my friend writes, "it's a very thin thread we hang on when we talk about the rule of law."
I thinkt that prosecuting Cheney, Addington, Yoo, etc. in a realstic world would risk becoming a circus, and that it would drag in the new administration and poison the atmosphere of bipartisanship that would allow anything to get done in Washington. In a time of peace and prosperity we managed to get through the Clinton impeachment, but you'll note that not much substantive governing got done during that time. I also think that prosecuting an outgoing administration sets a problematic precedent, as almost every administration does things that are technically illegal-- Lincoln suspending habeas corpus, FDR with Japanese internment, Kennedy and LBJ with their CIA plots against Castro, Reagan with Iran Contra. The fear that actions taken during an adminstration could result in imprisonment could lead to a.) much more dithering by a president, and more perniciously, b.) presidents thinking long and hard before giving up power.
In the Roman Republic, persons elected to the Consulship (or its follow-up position, pro-consul governing a province) had largely unchecked power for their year term, as their body was inviolate (they couldn't be attacked or seized). The primary leash on a Consul, other than threat to reputation, was the threat of prosecution/suit when they stepped down. The Romans didn't have public prosecutors as we do- prosecutions brought on the behalf of those wronged much in the way that civil suits are undertaken nowadays. The idea being that if, while you were consul you unjustly seized somebody's villa, or exiled someone, you could be brought to justice by that party.
In the late Republic, this sort of system was (and I'm broadly generalizing) often ignored in favor of proscription lists, where the incoming winners would create a list of the various people supporting the last administration, and those on the list could be killed and their property taken. This lead to Caesar demanding, after his consulship, an unprecedented five-year proconsulship in Gaul with his own army- to avoid proscription or other serious penalty for his actions as consul. And we all know how that "Caesar gets his own army in Gaul" thing turned out. Now think about an unpardoned Nixon, "about-to-face-prosecution-Dick-Cheney," or similar characters down the road, and ask yourself how many times we want to stand at the Rubicon rolling the dice and hoping that they're all better people than Caesar.
The upshot is that I think that a solution closer to the Republic's "private prosecution" than to the Caesar option is called for in this situation. Fortunately, in the US, we already have something along these lines. The breadth of this administration's torture program has left us with a number of sympathetic plaintiffs, and they have available to them lawsuits called "Bivens Actions," named after Bivens v. Six Unknown Named Agents. In a Bivens Action,
federal employees may become personally liable for constitutional deprivation by direct participation, failure to remedy wrongs after learning about it, creation of a policy or custom under which constitutional practices occur or gross negligence in managing subordinates who cause violations. (Gallegos v. Haggerty, Northern District of New York, 689 F.Supp. 93)
The plaintiffs could bring suit for money damages directly against Cheney, Yoo, etc, and would certainly be helped along by sophisticated attorneys from the ACLU and other such entities. The process could be greatly aided if the Obama administration directed the Solicitor General to file an Amicus brief countering the argument sure to be made by the Bush administration officials that various documents couldn't be turned over because of national security concerns. Obama could essentially say that, since we're closing Gitmo and no longer practicing extraordinary rendition, the documents relating to those practices need no longer be secret. I think there might still be some issues with executive privilege, but the fact that the administration is no longer in power should do much to quell those.
Lawyers (and Classics Majors!)... what am I missing here? Does this work?
UPDATE: A Classics expert friend tells me that Caesar's actions in crossing the Rubicon were largely motivated by the fear of what Pompey would do to him if he returned to Rome (as the Senate demanded) as a private citizen, as opposed to as an inviolate proconsul with an army. The point still stands that it's very problematic to set up a system where Presidents potentially face routine prosecution by their successors... that sets up a serious disincentive to step down. And as my friend writes, "it's a very thin thread we hang on when we talk about the rule of law."
Thursday, January 15, 2009
CAT and Torture
Earlier this week, Susan Crawford, the former Inspector General of the DoD and Court of Appeals for the US Armed Forces, and convening authority for the military tribunals trying terror suspects, stated flatly that Mohammed al-Qahtani , the "20th hijacker" on September 11th, couldn't be tried because he had been tortured. Dahlia Lithwick and Philippe Sands write that the admission by a top government/military official that the United States has committed torture changes the game:
Under the 1984 Torture Convention, its 146 state parties (including the United States) are under an obligation to "ensure that all acts of torture are offences under its criminal law." These states must take any person alleged to have committed torture (or been complicit or participated in an act of torture) who is present in their territories into custody. The convention allows no exceptions, as Sen. Pinochet discovered in 1998. The state party to the Torture Convention must then submit the case to its competent authorities for prosecution or extradition for prosecution in another country.
I'm not sure how the obligation to prosecute would square with the very strong American legal tradition of prosecutorial discretion. Typically, decisions by the government not to prosecute aren't reviewable in court, so I don't know what mechanism could force the Justice Department to prosecute if the President and AG decide not to.
This does, however, bring significantly more pressure onto the incoming Obama administration to do something about looking into the Bush Administration's torture policy. What that something should be I don't quite know.
Under the 1984 Torture Convention, its 146 state parties (including the United States) are under an obligation to "ensure that all acts of torture are offences under its criminal law." These states must take any person alleged to have committed torture (or been complicit or participated in an act of torture) who is present in their territories into custody. The convention allows no exceptions, as Sen. Pinochet discovered in 1998. The state party to the Torture Convention must then submit the case to its competent authorities for prosecution or extradition for prosecution in another country.
I'm not sure how the obligation to prosecute would square with the very strong American legal tradition of prosecutorial discretion. Typically, decisions by the government not to prosecute aren't reviewable in court, so I don't know what mechanism could force the Justice Department to prosecute if the President and AG decide not to.
This does, however, bring significantly more pressure onto the incoming Obama administration to do something about looking into the Bush Administration's torture policy. What that something should be I don't quite know.
Tuesday, January 13, 2009
How to push back on the Bush Administration's "midnight regs"
A friend of mine emails me a post on Obsidian Wings from shortly after the election which is a must-read for anyone concerned about the last-minute regulations that are being pushed through government agencies by the Bush administration:
Among the regulations being monitored are a proposal to end a ban on carrying loaded guns in national parks, a plan that could make it harder for women to get federally funded reproductive health care, and a Labor Department proposal to change the way regulators assess risk for jobs, especially those that expose workers to chemicals.
These regulations can be made without the consent of Congress as part of the powers delegated to the various government agencies controlled by the executive branch. Once in place, it can be very laborious to remove them- involving extended periods of public "notice and comment" where industry lobbyists have the opportunity to drag out the proceedings.
Publius on Obsidian Wings brings up a law that I hadn't previously heard of called the Congressional Review Act of 1996 (CRA), that would allow Congress and Obama to nip these regulations in the bud, without being subject to filibuster in the Senate:
Long story short – the CRA potentially helps Obama repeal last-minute regulations in two ways: (1) it extends the “effective date” of Bush’s “major” regulations; and (2) it gives Congress a limited window to veto any newly-enacted regulation, regardless of whether it’s already become effective.
To back up, the CRA requires that agencies submit copies of new regulations to Congress before they can go into effect. With respect to #1 above, the CRA requires that “major” rules cannot go into effect until 60 days after this submission. As Professor Shane notes, if “Congress adjourns for a new session within 60 days,” then the review period restarts on the 15th day of the next session. In short, it’s as if the rules had been submitted to Congress for the first time around Day 1 of the Obama presidency. That means any last-minute “major” rules won’t be “effective” when Obama takes office. Thus, he can postpone (and presumably kill) them immediately.
However, #2 is arguably more important because it covers rules that have already gone into effect. For any new rule (major or not), Congress has a limited 60-day window to repeal it via joint resolution (which must be signed by the president). Here too, if Congress adjourns within 60 days of receiving the rule submission, the whole thing starts again on Day 15 of the next congressional session.
In short, Congress and Obama can repeal any new rule in the next congressional session for up to 60 days. Even better, no filibuster – Senate debate is explicitly limited to 10 hours. I presume the legal eagles working for Obama know all this – but it can’t hurt to remind them.Long story short – the CRA potentially helps Obama repeal last-minute regulations in two ways: (1) it extends the “effective date” of Bush’s “major” regulations; and (2) it gives Congress a limited window to veto any newly-enacted regulation, regardless of whether it’s already become effective. I’ll expand on both below.
To back up, the CRA requires that agencies submit copies of new regulations to Congress before they can go into effect. With respect to #1 above, the CRA requires that “major” rules cannot go into effect until 60 days after this submission. As Professor Shane notes, if “Congress adjourns for a new session within 60 days,” then the review period restarts on the 15th day of the next session. In short, it’s as if the rules had been submitted to Congress for the first time around Day 1 of the Obama presidency. That means any last-minute “major” rules won’t be “effective” when Obama takes office. Thus, he can postpone (and presumably kill) them immediately.
However, #2 is arguably more important because it covers rules that have already gone into effect. For any new rule (major or not), Congress has a limited 60-day window to repeal it via joint resolution (which must be signed by the president). Here too, if Congress adjourns within 60 days of receiving the rule submission, the whole thing starts again on Day 15 of the next congressional session.
In short, Congress and Obama can repeal any new rule in the next congressional session for up to 60 days. Even better, no filibuster – Senate debate is explicitly limited to 10 hours.
Among the regulations being monitored are a proposal to end a ban on carrying loaded guns in national parks, a plan that could make it harder for women to get federally funded reproductive health care, and a Labor Department proposal to change the way regulators assess risk for jobs, especially those that expose workers to chemicals.
These regulations can be made without the consent of Congress as part of the powers delegated to the various government agencies controlled by the executive branch. Once in place, it can be very laborious to remove them- involving extended periods of public "notice and comment" where industry lobbyists have the opportunity to drag out the proceedings.
Publius on Obsidian Wings brings up a law that I hadn't previously heard of called the Congressional Review Act of 1996 (CRA), that would allow Congress and Obama to nip these regulations in the bud, without being subject to filibuster in the Senate:
Long story short – the CRA potentially helps Obama repeal last-minute regulations in two ways: (1) it extends the “effective date” of Bush’s “major” regulations; and (2) it gives Congress a limited window to veto any newly-enacted regulation, regardless of whether it’s already become effective.
To back up, the CRA requires that agencies submit copies of new regulations to Congress before they can go into effect. With respect to #1 above, the CRA requires that “major” rules cannot go into effect until 60 days after this submission. As Professor Shane notes, if “Congress adjourns for a new session within 60 days,” then the review period restarts on the 15th day of the next session. In short, it’s as if the rules had been submitted to Congress for the first time around Day 1 of the Obama presidency. That means any last-minute “major” rules won’t be “effective” when Obama takes office. Thus, he can postpone (and presumably kill) them immediately.
However, #2 is arguably more important because it covers rules that have already gone into effect. For any new rule (major or not), Congress has a limited 60-day window to repeal it via joint resolution (which must be signed by the president). Here too, if Congress adjourns within 60 days of receiving the rule submission, the whole thing starts again on Day 15 of the next congressional session.
In short, Congress and Obama can repeal any new rule in the next congressional session for up to 60 days. Even better, no filibuster – Senate debate is explicitly limited to 10 hours. I presume the legal eagles working for Obama know all this – but it can’t hurt to remind them.Long story short – the CRA potentially helps Obama repeal last-minute regulations in two ways: (1) it extends the “effective date” of Bush’s “major” regulations; and (2) it gives Congress a limited window to veto any newly-enacted regulation, regardless of whether it’s already become effective. I’ll expand on both below.
To back up, the CRA requires that agencies submit copies of new regulations to Congress before they can go into effect. With respect to #1 above, the CRA requires that “major” rules cannot go into effect until 60 days after this submission. As Professor Shane notes, if “Congress adjourns for a new session within 60 days,” then the review period restarts on the 15th day of the next session. In short, it’s as if the rules had been submitted to Congress for the first time around Day 1 of the Obama presidency. That means any last-minute “major” rules won’t be “effective” when Obama takes office. Thus, he can postpone (and presumably kill) them immediately.
However, #2 is arguably more important because it covers rules that have already gone into effect. For any new rule (major or not), Congress has a limited 60-day window to repeal it via joint resolution (which must be signed by the president). Here too, if Congress adjourns within 60 days of receiving the rule submission, the whole thing starts again on Day 15 of the next congressional session.
In short, Congress and Obama can repeal any new rule in the next congressional session for up to 60 days. Even better, no filibuster – Senate debate is explicitly limited to 10 hours.
How high?
I'm generally a supporter of our close strategic relationship with Israel, but it's definitely not helpful to a.) our general international prestige and b.) any concept in the Arab world that the U.S. can be an "honest broker" in the region to have Olmert bragging about his ability to have the U.S. president pulled off a podium like a kid dragged out of class to go talk to the principal:
In an unusually public rebuke, Prime Minister Ehud Olmert of Israel said Monday that Secretary of State Condoleezza Rice had been forced to abstain from a United Nations resolution on Gaza that she helped draft, after Mr. Olmert placed a phone call to President Bush.
“I said, ‘Get me President Bush on the phone,’ ” Mr. Olmert said in a speech in the southern Israeli city of Ashkelon, according to The Associated Press. “They said he was in the middle of giving a speech in Philadelphia. I said I didn’t care: ‘I need to talk to him now,’ ” Mr. Olmert continued. “He got off the podium and spoke to me.”
Israel opposed the resolution, which called for a halt to the fighting in Gaza, because the government said it did not provide for Israel’s security. It passed 14 to 0, with the United States abstaining.
Mr. Olmert claimed that once he made his case to Mr. Bush, the president called Ms. Rice and told her to abstain. “She was left pretty embarrassed,” Mr. Olmert said, according to The A.P.
(via Andrew Sullivan)
In an unusually public rebuke, Prime Minister Ehud Olmert of Israel said Monday that Secretary of State Condoleezza Rice had been forced to abstain from a United Nations resolution on Gaza that she helped draft, after Mr. Olmert placed a phone call to President Bush.
“I said, ‘Get me President Bush on the phone,’ ” Mr. Olmert said in a speech in the southern Israeli city of Ashkelon, according to The Associated Press. “They said he was in the middle of giving a speech in Philadelphia. I said I didn’t care: ‘I need to talk to him now,’ ” Mr. Olmert continued. “He got off the podium and spoke to me.”
Israel opposed the resolution, which called for a halt to the fighting in Gaza, because the government said it did not provide for Israel’s security. It passed 14 to 0, with the United States abstaining.
Mr. Olmert claimed that once he made his case to Mr. Bush, the president called Ms. Rice and told her to abstain. “She was left pretty embarrassed,” Mr. Olmert said, according to The A.P.
(via Andrew Sullivan)
Friday, January 09, 2009
High Speed Stimulus
John Judis Makes an interesting argument in TNR that Obama needs to consider two significant additions to his stimulus/recovery plan. The first, which I wholeheartedly agree with, is that the stimulus should include massive investment in transit, particularly in inter-city high-speed rail, particularly in the Northeast Bos-Wash corridor and on the West Coast between San Diego and San Francisco. The Accela train, which I've taken from NY to DC, is the fastest rail in the U.S., and only runs at about 100 mph, or half of what bullet trains in Asia and Europe can achieve.
Cutting the travel times between these cities by half or more would make rail the best option for travelers, and would ultimately save money that would have to be spent on less eco-friendly infrastructure like expanded highways and airports. The California High Speed Rail Authority estimates that HSR in California could save $80-150 billion in road and airport expansions.
Right now, the Obama plan only includes $5 billion for inter-city rail, where estimates run about $100b for East and West coast projects (and also think about the potential for an HSR network in the midwest between Indianapolis, Detroit, Chicago, Milwaukee and Cleveland, which with already-available HSR technology could be about an hour's train ride apart).
The second part of Judis's article, about re-establishing the Bretton Woods system, is above my level of economics, but worth reading for those who know more about international finance than I.
Cutting the travel times between these cities by half or more would make rail the best option for travelers, and would ultimately save money that would have to be spent on less eco-friendly infrastructure like expanded highways and airports. The California High Speed Rail Authority estimates that HSR in California could save $80-150 billion in road and airport expansions.
Right now, the Obama plan only includes $5 billion for inter-city rail, where estimates run about $100b for East and West coast projects (and also think about the potential for an HSR network in the midwest between Indianapolis, Detroit, Chicago, Milwaukee and Cleveland, which with already-available HSR technology could be about an hour's train ride apart).
The second part of Judis's article, about re-establishing the Bretton Woods system, is above my level of economics, but worth reading for those who know more about international finance than I.
MASH: Gaza
Jeffrey Goldberg has a great idea for ameliorating Palestinian anger at the Israeli incursion into Gaza- set up a giant field hospital so that Israeli doctors can treat wounded Palestinian civilians.
Enough with the fundraising
Marc Ambinder gives voice to something I've been feeling, namely that I'm pretty sick of being hit up by the Obama folks for funds to pay for the inauguration. I realize that they have to pay for the parades, the bunting and all of that, but I'd have to imagine that by now that's taken care of and I'm being asked to pay for inaugural balls and dinners that I'm not attending.
I appreciate that Obama isn't taking lobbyist money to fund the inauguration, and that the capital mall will be open for folks to attend without tickets, making this a more populist event than it's been in the past. Still, lots of people stretched their budgets to contribute during the campaign, and it's been a bit much to have every email from David Plouffe contain a request for another $250.
I think it would have been a better idea to send out fewer fundraising emails for the inauguration and save the requests for when they're really needed, like to run ads in critical congressional districts to pass universal health care. I realize that the inauguration needs to be paid for, but Plouffe and co. are drawing down their pool of good will a bit early.
I appreciate that Obama isn't taking lobbyist money to fund the inauguration, and that the capital mall will be open for folks to attend without tickets, making this a more populist event than it's been in the past. Still, lots of people stretched their budgets to contribute during the campaign, and it's been a bit much to have every email from David Plouffe contain a request for another $250.
I think it would have been a better idea to send out fewer fundraising emails for the inauguration and save the requests for when they're really needed, like to run ads in critical congressional districts to pass universal health care. I realize that the inauguration needs to be paid for, but Plouffe and co. are drawing down their pool of good will a bit early.
Thursday, January 08, 2009
Joe the War Correspondent
Right-leaning blogging outfit Pajamas Media, in a move sure to heighten its credibility among readers, has hired 2008 campaign has-been Sam "Joe the Plumber" Wurzelbacher to handle war correspondent duties in Israel and Gaza.
This should give him the resume to be the GOP's VP in 2012.
This should give him the resume to be the GOP's VP in 2012.
Wednesday, January 07, 2009
Sanjay Gupta, maybe less of a joke than I previously thought.
Jokes aside, I don't really see the problem with Sanjay Gupta as Surgeon General. He's a neurosurgeon with an MD from U Michigan, and was an assistant professor of neurosurgery at Emory. I've never watched much of him on CNN, but he seems to be pretty effective at conveying public health information to laypeople, which is basically the job description of the Surgeon General.
Apparently a number of folks are up in arms about Gupta's appointment because he criticized Michael Moore for "fudging facts" in Sicko. After that criticism, Gupta debated Moore on Larry King Live, and later corrected a misstatement he made during that debate. I haven't seen Sicko or the debate, but Moore has been widely criticized for sloppy fact-checking, so I hardly think that this is a disqualification.
Others have criticized Gupta as a celebrity and for not being "at the top of his field," but the Surgeon General isn't a prize for being the nation's best doctor- in fact, I'd rather that the very best doctors stay in hospitals and their practices. The job of the Surgeon General is largely a symbolic one- to convince people to take measures that will increase their health and the public health. This is basically what Gupta's been doing on CNN, arguably more effectively than the last couple Surgeons General (I'll buy you a beer if you can tell me who the current one is without looking it up). If Gupta's celebrity gets people to pay more attention to the government's exhortations to eat better, exercise more, not lick lead paint, etc., then this seems like a good choice.
Apparently a number of folks are up in arms about Gupta's appointment because he criticized Michael Moore for "fudging facts" in Sicko. After that criticism, Gupta debated Moore on Larry King Live, and later corrected a misstatement he made during that debate. I haven't seen Sicko or the debate, but Moore has been widely criticized for sloppy fact-checking, so I hardly think that this is a disqualification.
Others have criticized Gupta as a celebrity and for not being "at the top of his field," but the Surgeon General isn't a prize for being the nation's best doctor- in fact, I'd rather that the very best doctors stay in hospitals and their practices. The job of the Surgeon General is largely a symbolic one- to convince people to take measures that will increase their health and the public health. This is basically what Gupta's been doing on CNN, arguably more effectively than the last couple Surgeons General (I'll buy you a beer if you can tell me who the current one is without looking it up). If Gupta's celebrity gets people to pay more attention to the government's exhortations to eat better, exercise more, not lick lead paint, etc., then this seems like a good choice.
Seat Burris
Erwin Chemerinsky, Dean of the UC Irvine Law School, noted constitutional scholar, and renowned among recent bar examinees as the guy who memorized three hours worth of con law outline, lays out a pretty good case why Burris should be seated by the Senate:
The relevant provision of the Constitution is found in Article I, Section 5. It says: "Each house shall be the judge of the elections, returns and qualifications of its own members." But the Supreme Court has been clear that these words do not bestow on the House or the Senate unfettered discretion in deciding whom to seat.
Chemerisnky notes that in Powell v. McCormack, Chief Justice Warren, writing for a 7-1 majority, held that "The Constitution leaves the House without authority to exclude any person, duly elected by his constituents, who meets the requirements for membership expressly provided in the Constitution." Applied to the Senate, those requirements are Burris be at least 30, be a U.S. citizen for 9 years, and be a resident of Illinois, all three of which he unquestionably meets.
Those who wish to block Blagojevich's appointment are also mustering a second constitutional argument, citing Congress' stated power to decide "elections" and "returns" of its members. The claim is that Burris was not properly selected and thus the Senate can exclude him. The problem here is that Burris unquestionably was lawfully selected. According to the 17th Amendment, "When vacancies happen in the representation of any state in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies." Illinois law gives this power to the state governor, and that is Blagojevich until he is impeached and found guilty.
The Supreme Court's conclusion could not be clearer or more on point: "In short, both the intention of the framers, to the extent that it can be determined, and an examination of basic principles of our democratic system persuade us that the Constitution does not vest in the Congress a discretionary power to deny membership by a majority vote."
The relevant provision of the Constitution is found in Article I, Section 5. It says: "Each house shall be the judge of the elections, returns and qualifications of its own members." But the Supreme Court has been clear that these words do not bestow on the House or the Senate unfettered discretion in deciding whom to seat.
Chemerisnky notes that in Powell v. McCormack, Chief Justice Warren, writing for a 7-1 majority, held that "The Constitution leaves the House without authority to exclude any person, duly elected by his constituents, who meets the requirements for membership expressly provided in the Constitution." Applied to the Senate, those requirements are Burris be at least 30, be a U.S. citizen for 9 years, and be a resident of Illinois, all three of which he unquestionably meets.
Those who wish to block Blagojevich's appointment are also mustering a second constitutional argument, citing Congress' stated power to decide "elections" and "returns" of its members. The claim is that Burris was not properly selected and thus the Senate can exclude him. The problem here is that Burris unquestionably was lawfully selected. According to the 17th Amendment, "When vacancies happen in the representation of any state in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies." Illinois law gives this power to the state governor, and that is Blagojevich until he is impeached and found guilty.
The Supreme Court's conclusion could not be clearer or more on point: "In short, both the intention of the framers, to the extent that it can be determined, and an examination of basic principles of our democratic system persuade us that the Constitution does not vest in the Congress a discretionary power to deny membership by a majority vote."
An Intelligence Professional in Charge
Dianne Feinstein, pushing back against Obama's choice for CIA Director, Leon Panetta, says that "the agency is best served by having an intelligence professional in charge."
Remember that, for the past five or six years, most of the "intelligence professionals" operating at the CIA have been involved in one way or another with Bush's rendition and torture policy (including 11 year agent and former Bush CIA head Porter Goss). Also note that current Defense Secretary Robert Gates is the only career CIA man ever to helm the Agency- most of the directors (Tenet, George H.W. Bush, William Webster) had tangential intelligence experience before taking the helm, but were never line agents.
Panetta, as a four term congressman and Clinton's chief of staff for three years, has an enormous amount of national security experience. The president's CoS knows everything that's going on in the government, including the intelligence and national security apparatus. Add to this that Panetta is an exceptionally strong administrator, has a good relationship with Obama, and has unequivocally denounced the use of torture, and this looks like a good pick to me.
Remember that, for the past five or six years, most of the "intelligence professionals" operating at the CIA have been involved in one way or another with Bush's rendition and torture policy (including 11 year agent and former Bush CIA head Porter Goss). Also note that current Defense Secretary Robert Gates is the only career CIA man ever to helm the Agency- most of the directors (Tenet, George H.W. Bush, William Webster) had tangential intelligence experience before taking the helm, but were never line agents.
Panetta, as a four term congressman and Clinton's chief of staff for three years, has an enormous amount of national security experience. The president's CoS knows everything that's going on in the government, including the intelligence and national security apparatus. Add to this that Panetta is an exceptionally strong administrator, has a good relationship with Obama, and has unequivocally denounced the use of torture, and this looks like a good pick to me.
Department of Questionable Choices
From my Texan buddy: Clearly, if Sanjay Gupta is going to be Surgeon General, then the best choice for Commerce Secretary must be the guy from "Sham-Wow!"
Tuesday, January 06, 2009
Another view of Gaza
While I don't think that Israel's invasion of Gaza is going to solve anything, Jeffrey Goldberg (who has served in the Israeli army) makes an interesting point about Hamas and the omnipresent photos of young Palestinian victims of the war:
Hamas terrorists unblinkingly and ostentatiously use their own civilians as human shields. I've seen this up-close, and it's repulsive. One story the media isn't telling, because it's impossible to get this story in these circumstances (especially because Israel stupidly won't allow foreign reporters into Gaza) is how much resentment the Hamas policy of using Palestinians as human shields causes among Gaza civilians. Early reports indicate that Hamas mortar teams were firing from the UN School. This shouldn't surprise anyone.
One more thing, speaking of pornography -- we've all seen endless pictures of dead Palestinian children now. It's a terrible, ghastly, horrible thing, the deaths of children, and for the parents it doesn't matter if they were killed by accident or by mistake. But ask yourselves this: Why are these pictures so omnipresent? I'll tell you why, again from firsthand, and repeated, experience: Hamas (and the Aksa Brigades, and Islamic Jihad, the whole bunch) prevents the burial, or even preparation of the bodies for burial, until the bodies are used as props in the Palestinian Passion Play. Once, in Khan Younis, I actually saw gunmen unwrap a shrouded body, carry it a hundred yards and position it atop a pile of rubble -- and then wait a half-hour until photographers showed. It was one of the more horrible things I've seen in my life. And it's typical of Hamas. If reporters would probe deeper, they'd learn the awful truth of Hamas. But Palestinian moral failings are not of great interest to many people.
Hamas terrorists unblinkingly and ostentatiously use their own civilians as human shields. I've seen this up-close, and it's repulsive. One story the media isn't telling, because it's impossible to get this story in these circumstances (especially because Israel stupidly won't allow foreign reporters into Gaza) is how much resentment the Hamas policy of using Palestinians as human shields causes among Gaza civilians. Early reports indicate that Hamas mortar teams were firing from the UN School. This shouldn't surprise anyone.
One more thing, speaking of pornography -- we've all seen endless pictures of dead Palestinian children now. It's a terrible, ghastly, horrible thing, the deaths of children, and for the parents it doesn't matter if they were killed by accident or by mistake. But ask yourselves this: Why are these pictures so omnipresent? I'll tell you why, again from firsthand, and repeated, experience: Hamas (and the Aksa Brigades, and Islamic Jihad, the whole bunch) prevents the burial, or even preparation of the bodies for burial, until the bodies are used as props in the Palestinian Passion Play. Once, in Khan Younis, I actually saw gunmen unwrap a shrouded body, carry it a hundred yards and position it atop a pile of rubble -- and then wait a half-hour until photographers showed. It was one of the more horrible things I've seen in my life. And it's typical of Hamas. If reporters would probe deeper, they'd learn the awful truth of Hamas. But Palestinian moral failings are not of great interest to many people.
Spitzer on the Stimulus Plan
Eliot Spitzer, in an apparent bid for a political comeback, has taken to writing op-ed pieces for Slate. A couple of these in the past have been pretty good, but today's piece, Robots, not Roads, was a mountain of bad advice.
Spitzer criticized Obama's stimulus plan, which is largely a combination of tax cuts and infrastructure spending, as being too backward looking:
Paving roads, repairing bridges that need refurbishing, and accelerating existing projects are all good and necessary, but not transformative. These projects by and large are building or patching the same economy with the same flaws that got us where we are. Our concern should be that as we look for the next great infrastructure project to transform our economy, we might rebuild the Erie Canal and find ourselves a century behind technologically.
Spitzer instead suggests smart power meters, which would adjust the cost of power consumption based on usage and other factors, alternative fuel infrastructure (hydrogen pumps, recharging stations, etc.) and giving every school a robotics club. (Spitzer does suggest using some of the stimulus for subsidizing the switch to online medical records, which I totally support).
There are three main problems with Spitzer's high-tech stimulus plan. The first is that for the bulk of this spending (other than the robotics clubs, since giving every one of America's 120,000 schools 10 grand for a robotics club would only cost a bit over a billion), there isn't a readily agreed upon standard that can be quickly implemented. Electricity transmission, medical records and auto fuel all are governed by network effects, whereby the adoption of a standard makes each unit much more effective. A stimulus package that gives Georgia money to implement one kind of medical record program isn't very helpful if New York is implementing a different one- which is what would happen without clear standards. Same thing with alt fuel- even Spitzer isn't clear whether electric vehicle recharging or hydrogen is the way to go. Spending the stimulus that way would be like paying for a mix of canals, highways and railroads that aren't interoperable.
The second problem (related to the first) is that none of this stuff is quite ready to go yet. The benefit of spending on roads, buildings, etc. is that most states and municipalities have plans and projects that could start hiring immediately once the federal checks show up (or even once they're promised). Many of these projects, like NYC's 2nd avenue subway line, or construction on I-81 through PA, were already in progress before state funds dried up with the recession. High-tech stimulus would require an enormous amount of time figuring out which projects are worthwhile, how they should be implemented, understanding the environmental impacts, etc. before anyone could break ground. With the economy in need of an immediate jumpstart, this kind of delay is a no-go.
The third problem is that high-tech stimulus would do less to ease unemployment. Many of the recently unemployed are low-skilled workers or workers in the construction trades, who can readily find work in standard infrastructure projects. They then spend their wages on local goods and services. Standard infrastructure projects also use a lot of bulky, inexpensive stuff like concrete, wood, steel, etc., much of which is produced in the U.S. because it's not feasible to ship from far away (steel largely excepted). The cement or lumber companies then pay their employees who spend that money locally. This creates what's called a Keynsian multiplier, which increases the value of every dollar of infrastructure spending. High-tech stimulus, however, would probably require importing (at least initially) many of the components of the smart meters, computers for medical records or technology for recharge or hydrogen stations- and that money would go straight out to the exporting countries. Additionally, although there have been layoffs in the tech world, the U.S. still has a shortage of engineers and high-tech workers, and would probably have to either open up immigration or repurpose engineers who were previously working on other projects in order to implement a massive, multi-hundred billion dollar high-tech stimulus plan. Either way, it wouldn't help much with unemployment.
Finally, one of the best reasons to undertake a standard infrastructure stimulus program is that, because there's little demand for construction labor and materials, those "inputs" would cost less than they would in better times, so the government could buy a lot of infrastructure for each stimulus dollar spent. With American infrastructure slipping into third-world territory, now is a great time to buy.
Spitzer criticized Obama's stimulus plan, which is largely a combination of tax cuts and infrastructure spending, as being too backward looking:
Paving roads, repairing bridges that need refurbishing, and accelerating existing projects are all good and necessary, but not transformative. These projects by and large are building or patching the same economy with the same flaws that got us where we are. Our concern should be that as we look for the next great infrastructure project to transform our economy, we might rebuild the Erie Canal and find ourselves a century behind technologically.
Spitzer instead suggests smart power meters, which would adjust the cost of power consumption based on usage and other factors, alternative fuel infrastructure (hydrogen pumps, recharging stations, etc.) and giving every school a robotics club. (Spitzer does suggest using some of the stimulus for subsidizing the switch to online medical records, which I totally support).
There are three main problems with Spitzer's high-tech stimulus plan. The first is that for the bulk of this spending (other than the robotics clubs, since giving every one of America's 120,000 schools 10 grand for a robotics club would only cost a bit over a billion), there isn't a readily agreed upon standard that can be quickly implemented. Electricity transmission, medical records and auto fuel all are governed by network effects, whereby the adoption of a standard makes each unit much more effective. A stimulus package that gives Georgia money to implement one kind of medical record program isn't very helpful if New York is implementing a different one- which is what would happen without clear standards. Same thing with alt fuel- even Spitzer isn't clear whether electric vehicle recharging or hydrogen is the way to go. Spending the stimulus that way would be like paying for a mix of canals, highways and railroads that aren't interoperable.
The second problem (related to the first) is that none of this stuff is quite ready to go yet. The benefit of spending on roads, buildings, etc. is that most states and municipalities have plans and projects that could start hiring immediately once the federal checks show up (or even once they're promised). Many of these projects, like NYC's 2nd avenue subway line, or construction on I-81 through PA, were already in progress before state funds dried up with the recession. High-tech stimulus would require an enormous amount of time figuring out which projects are worthwhile, how they should be implemented, understanding the environmental impacts, etc. before anyone could break ground. With the economy in need of an immediate jumpstart, this kind of delay is a no-go.
The third problem is that high-tech stimulus would do less to ease unemployment. Many of the recently unemployed are low-skilled workers or workers in the construction trades, who can readily find work in standard infrastructure projects. They then spend their wages on local goods and services. Standard infrastructure projects also use a lot of bulky, inexpensive stuff like concrete, wood, steel, etc., much of which is produced in the U.S. because it's not feasible to ship from far away (steel largely excepted). The cement or lumber companies then pay their employees who spend that money locally. This creates what's called a Keynsian multiplier, which increases the value of every dollar of infrastructure spending. High-tech stimulus, however, would probably require importing (at least initially) many of the components of the smart meters, computers for medical records or technology for recharge or hydrogen stations- and that money would go straight out to the exporting countries. Additionally, although there have been layoffs in the tech world, the U.S. still has a shortage of engineers and high-tech workers, and would probably have to either open up immigration or repurpose engineers who were previously working on other projects in order to implement a massive, multi-hundred billion dollar high-tech stimulus plan. Either way, it wouldn't help much with unemployment.
Finally, one of the best reasons to undertake a standard infrastructure stimulus program is that, because there's little demand for construction labor and materials, those "inputs" would cost less than they would in better times, so the government could buy a lot of infrastructure for each stimulus dollar spent. With American infrastructure slipping into third-world territory, now is a great time to buy.
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