Archives: February, 2009

Holder Takes a Small Step toward State Secrets Reform

Brian Beutler, guest-blogging for Matt Yglesias at Think Progress this week, takes a look at the steps the new attorney general, Eric Holder, is taking on the state secrets front. The Supreme Court case that established the modern state secrets privilege involved a lawsuit against the Air Force by three widows whose husbands had died in an aviation accident. The government convinced the Supreme Court that revealing information about the crash to the plaintiffs would endanger national security. But Beutler points out that there was just one problem:

The government lied. Contrary to its claims, the bomber wasn’t on a secret mission, and there were no top secret technologies aboard. Nothing in the incident report, which was declassified several years ago, legitimized the government’s decision to withhold it. What the report did contain, however, was evidence that the plane had been rather poorly maintained–a fact that might have been embarrassing for the Air Force, and vindicating for the dead mens’ wives, but that hardly amounted to a legitimate claim of state secret.

Unfortunately, the Supreme Court’s ruling is still controlling precedent, and the Bush administration used the state secrets privilege for maximum legal advantage, routinely asserting it in cases related to national security. Attorney General Holder has promised to review these assertions and withdraw those that are not “legally appropriate” circumstances.

This is good as far as it goes, but I agree with Beutler that it doesn’t go far enough. It’s nice to have responsible leaders in the executive branch who don’t abuse their powers, but it’s far more important to put laws in place that will prevent irresponsible leaders from abusing those powers in the future. In the case of the state secrets privilege, that means legislation narrowing the privilege to cases where there’s a genuine danger to national security and giving judges the power to review the relevant secrets in private to verify that it’s being invoked legitimately. Maybe that won’t matter while Eric Holder is in office. But even if Holder doesn’t abuse the state secrets privilege, it’s a safe bet that some future attorney general will. Reforming the privilege now, while memories of Bush administration abuses are fresh, is urgently needed.

The poster child for state secrets reform should be the ongoing Al Haramain case. An Islamic charity accused of funneling money to terrorist organizations was inadvertently handed a document that contained evidence that the government had spied on the charity without proper legal authority. When Al Haramain sued the government for this apparent violation of the law, the government made the astonishing argument that the document’s very existence was a state secret, that Al Haramain must return its copies of the document, and that therefore Al Haramain had no standing to sue the government because it had no evidence that it was the target of illegal surveillance. While we don’t know exactly what was in the document, it appears that rather than containing genuine state secrets, it simply contains politically-embarrassing evidence that the government has been conducting an illegal domestic surveillance program. The law should be changed to make it clear that the government can’t use the state secrets doctrine to get politically embarrassing evidence thrown out of court. And the law should explicitly give judges the power to review secret evidence in for themselves (in private and with appropriate security precautions) and judge for themselves whether the evidence merits state secret protection.

Attention Struggling Workers in New York State…

Click here to see a good example of how your state government is spending your money.

For those disinclined to click, the headline reads: “State employee: I get $93,803 for no work.”

If I were a taxpaying New Yorker I would be miffed that a state employee was getting paid $93,803 to work.

Of course, defenders of state government employees will dismiss this story as an anomaly.  But a key paragraph in the story indicates why societal drains like Mr. Hinton are more common in state bureaucracies than one might think:

“He [Hinton] said he has essentially done very little work since about 1999 but has a competitive civil service position so that he is protected should layoffs occur and cannot be fired without due process, unlike the political appointees occupying posts he seeks.”

Having worked in the “management” side of state government, I can attest that due process for state employees = incompetence insurance.

The Stimulus and Socialized Medicine

Most of the debate over the stimulus bill (or the Big Boondoggle as my colleague David Boaz calls it) has been over the cost and wasteful spending. Less mentioned are the bill’s many provisions that would increase government control over the U.S. Health Care system. For example,

  • The bill would spend $83 billion to subsidize state Medicaid costs, including paying 100 percent of the cost of Medicaid coverage for unemployed workers and their families. And there would be no income or asset limits whatsoever on eligibility. As a result, still more of the middle-class would be shifted into government health care. Nor is the extension of eligibility limited to just the middle-class. A Republican amendment to bar millionaires from the program was stripped out before final passage in the House.
  • For the unemployed who don’t go directly into government-run health care, the stimulus bill would spend $30 billion to extend COBRA coverage, and have taxpayers pick up 65 percent of premium costs. It would also require employers to continue COBRA coverage until a worker becomes eligible for Medicare. (Currently employers are only required to provide COBRA coverage for 18 months). Studies show that this would raise the cost of insurance for employers and workers.
  • The bill would spend $1.1 billion to create a Comparative Effectiveness Council, so that the federal government can decide on whether medical treatments are worth the money. Once the federal government decides how medicine should be practiced, according to the summary featured in a discussion draft of the bill, “interventions…that are found to be less effective and in some cases more expensive will no longer be prescribed.”
  • And, the stimulus would also spend some $20 billion for the federal government to muscle its way into the growing market for electronic medical records.

Does anyone actually believe that increasing government control over one-seventh of the U.S. economy is going to be stimulative?

What Happened to No-Drama Obama?

Promoting the big deficit spending bill in the Washington Post, President Obama writes:

[I]f nothing is done, this recession might linger for years. Our economy will lose 5 million more jobs. Unemployment will approach double digits. Our nation will sink deeper into a crisis that, at some point, we may not be able to reverse.

“[A] crisis that, at some point, we may not be able to reverse”? Flooding and locusts, too?

Hmmm. Now, where have we heard such fear-mongering before?

We’ve Heard This All Before

I’m sure there’ll be much ado about President Obama’s rallying cry for the ever-growing “stimulus” in today’s Washington Post , but to me it reads as just so much lofty but empty rhetoric. And at least in education, we’ve heard it all before.

Here’s what the President wrote about education in today’s op-ed:

Now is the time to give our children every advantage they need to compete by upgrading 10,000 schools with state-of-the-art classrooms, libraries and labs; by training our teachers in math and science; and by bringing the dream of a college education within reach for millions of Americans.

Now, where might I have heard this sort of thing before? Oh, here’s an example! From President Jimmy Carter back in 1979, pushing for creation of the U.S. Department of Education:

The Federal government has a limited, but critical responsibility…to ensure equal educational opportunities; to increase access to postsecondary education by low and middle income students; to generate research and provide information to help our educational systems meet special needs; prepare students for employment; and encourage improvements in the quality of our education. 

President Carter, of course, got his Department of Education, and schools have also gotten a lot more money, as Adam Schaeffer and I pointed out yesterday. Indeed, looking specifically at the period between 1979-80 and 2004-05 (the latest for which data is available), inflation-adjusted, per-pupil expenditures in public elementary and secondary schools rose from $6,549 to $11,470, a 75 percent increase. And total federal education funding? Adjusted for inflation, In 1980 Washington spent or helped to provide $94.5 billion. By 2006, that figure had ballooned 146 percent, hitting $232.0 billion!

So how can we have pretty much all the same needs as we had in 1979? Because education spending is almost always as empty as the rhetoric that drives it, doing little or nothing to actually improve outcomes for students while letting politicians appear to “care” and enriching powerful education interest groups. In other words, it does nothing of what it promises, but keeps the busted status quo going strong!

‘Buy American’ Debate Is Not Dead Yet

The near-$1 trillion spending bill working its way through Congress has all the hallmarks of business as usual in Washington. It includes billions of dollars for home-state pet projects, billions more in spoils for majority-party benefactors, and numerous provisions that its sponsors hoped would elude close scrutiny.

One such provision is the Buy American requirement, which restricts competition to domestic suppliers on infrastructure projects financed through the spending bill. The provision clearly violates U.S. commitments under various international agreements to allow most major trading partners to compete for government procurement. And it invites frivolous waste of the kind reserved for people spending other people’s money.

By limiting competition, expanded Buy American requirements mean that taxpayers would get the smallest bang for their infrastructure buck. Cordoning off the market for U.S. suppliers would mean higher price tags, fewer projects funded, and fewer people hired. And by abrogating our obligations to allow major trading partners to compete for those projects, any short-term increases in U.S. economic activity and U.S. job creation likely would be offset by lost export sales–and the jobs that go with them–on account of copycat protectionism abroad.

Buy American requirements have been a part of U.S. procurement rules for 75 years. But those restrictions have been eased over the decades. Under various international agreements, the United States grants waivers to most major trade partners from many of the law’s restrictions. But the House-passed and original Senate-proposed legislation would supersede the waivers and raise considerably the threshold for issuing case-specific exemptions to foreign firms that wish to bid on procurement projects funded from the legislation.

On February 3, one week after passage of the House-version of the spending bill, President Obama finally broke his silence over the issue, expressing aversion to “sending a protectionist message” and opposition to provisions that could “trigger a trade war.”  The president’s comments were expected to soften the stance of some proponents of Buy American in both chambers.  Indeed those comments appear to have made some impression in the Senate.

Although the Senate voted down an amendment by Sen. McCain to exempt all of the infrasturcture spending in the bill from Buy American laws, it agreed to insert an amendment (sponsored by longtime trade skeptic Byron Dorgan, of all people) to ensure that the Buy American clause would be “applied in a manner consistent with United States obligations under international agreements.”  But that’s still no guarantee.  Unless the Buy American language is stripped entirely or the legislation includes language explicitly granting the waivers that currently exempt most of our major trade partners, there will be room for interpretation.

And there is still the problem of the House of Representatives, where the President’s concerns have not registered with the Congressional Steel Caucus or the chairman of the House Transportation Committee, James Oberstar, who said, “If [Buy American provisions are] not in, I’m not supporting this package and I’ll bring a lot of votes with me.”

So, will congressional Democrats very publicly shun their president on this issue or can they resist their growing habit of acting unilaterally and provocatively on trade?  The issue remains quite unresolved.