Archives: 05/2009

Obama Tries Flinging More Nonsense at the D.C. Voucher Issue

This week’s rally in support of the D.C. voucher program garnered a good bit of attention and perhaps even helped push President Obama into tepid support for keeping current students funded, killing the program slowly and quietly over a longer period.

Of course, as I and others have noted, that’s not the point. Here’s a roundup of what is at issue:

At the Economist’s blog yesterday, they get it spot on:

Actually, that’s not much of a compromise. That’s more of a cover-up. Let’s remember that Mr Obama, who sends his own children to private school, made the following promise during his inaugural address [to support what works] … Here’s a programme that every indication shows is working. So why aren’t we moving forward? ”It’s a cop-out,” says Joseph Robert, a supporter of the progamme. Quite right.

And Mike Petrilli notes how meaningless Obama’s nominal and seriously compromised support really is:

While it’s welcome news that President Obama will request funding to keep the D.C. voucher program’s scholarship recipients in private schools through high-school graduation, it will amount to nothing more than a cheap p.r. stunt unless he also promises to veto any appropriations bill that kills the program outright. Congress is unlikely to follow his wishes unless the president makes it clear that this is a priority for him. But really, what are the chances of that?

Hot Air’s Allahpundit puts the fight over this program in its proper and insulting context:

You’re a real sport, champ. Trillion-dollar federal budget deficits as far as the eye can see and somehow [Obama] and the Democrats can’t scrape together a few million to keep this going. Unbelievable.

“Unbelievable” is one word for it. I can think of some others…

Dan Lips gives a good run-down of the rally and what’s at stake:

To paraphrase Virginia Walden Ford of D.C. Parents for School Choice at today’s rally, we shouldn’t be satisfied until all families — regardless of background — can choose a quality school for their children.

Mary Katherine Ham weighs in as well, with pictures of the rally and of the children that congressional Democrats and Obama have decided don’t matter.

Finally, our own David Boaz notes that many of the D.C. Scholarship kids will have to return to chronically violent and dangerous public schools, and that unsafe public schools are a problem around the metro area; kids in D.C. and around the country would benefit greatly from school choice simply in terms of physical safety.

9/11 Memorial? Good. Eminent Domain Abuse? Bad.

The power of eminent domain, embodied in the Takings Clause of the Fifth Amendment, is so great that it nearly invites abuse, even when the government uses its power for constitutional, and even honorable, reasons.

Case in point: The U.S. Park Service has designed a memorial for Flight 93, the one that crashed in rural Pennsylvania on 9/11.  The plans have been in the works for some time, with the government and representatives of Flight 93’s victims working with the property owners—even explicitly assuring them in 2002 that eminent domain would not be used.

As time passed, however, and the self-imposed deadline to have a memorial in place for the 10-year anniversary of the tragedy grows nearer, the government has become impatient and now plans to condemn the land of the seven owners (representing about 500 of the planned 2,200 acre memorial and national park) who have not yet worked out a deal with the Park Service.

While there are two sides to every story, it seems that the property owners have been flexible and open to negotiation—a far cry from the extorting hold-outs against whom eminent domain is supposed to be invoked:

“It’s absolutely a surprise. I’m shocked by it. I’m disappointed by it,” said Tim Lambert, who owns nearly 164 acres that his grandfather bought in the 1930s. The park service plans to condemn two parcels totaling about five acres — land, he said, he had always intended to donate for the memorial.

“To the best of my knowledge and my lawyer, absolutely no negotiations have taken place with the park service where we’ve sat down and discussed this,” Lambert said.
Lambert said he had mainly dealt with the Families of Flight 93 and said he’s provided the group all the information it’s asked for, including an appraisal.

Even if some takings of property are warranted—a 9/11 memorial certainly fits the “public use” requirement—look at the abuse of power we have here.  Setting aside the question of why Lambert’s five acres are so crucial to a 2,200-acre project (and whether the memorial needs to be that large in the first place), why the strong-arm tactics?

Instead of letting an otherwise legitimate contract negotiation—the very foundation of our private property system—run its course, the government is resorting to robbing people because they had the misfortune to own the land near the place a historic tragedy occurred. This type of abuse is why eminent domain must be used sparingly, and why courts must be vigilant in enforcing the Fifth Amendment’s protection of property rights.

H/T: Nicki Kurokawa.

A Whale of a Disgraceful ED Budget

Tad DeHaven does a fine job of exposing the mere window dressing that are the cuts in President Obama’s FY 2010 budget proposal. I’ll not add much to that other than to say that while Tad gives Obama’s predecessor a deserved hard time for his own paltry efforts to rein in spending, President Bush’s Education Department  budgets looked downright Draconian compared to what the Obama team just produced.

Bush’s FY 2009 ED budget proposal included nearly $3.3 billion in cuts, generated by eliminating 47 programs. Given the dismal performance of all federal education efforts, this was obviously far too little, but compare it to Obama: His proposed budget would cut just twelve measly programs from ED’s budget, for a puny savings of about $551 million. And if that doesn’t give you a powerful feel for just how unserious this administration seems to be about saving taxpayers even a thin dime or two, look what program is not among those proposed to be cut:

EDUCATIONAL, CULTURAL, APPRENTICESHIP, AND EXCHANGE PROGRAMS FOR ALASKA NATIVES, NATIVE HAWAIIANS, AND THEIR HISTORICAL WHALING AND TRADING PARTNERS IN MASSACHUSETTS

The purpose of this program is to develop culturally based educational activities, internships, apprentice programs, and exchanges to assist Alaska Natives, native Hawaiians, and children and families living in Massachusetts linked by history and tradition to Alaska and Hawaii, and members of any federally recognized Indian tribe in Mississippi.

For this whale of a waste – and so many others in the ED budget – to have survived portends nothing but ill for the nation. Nothing but ill.

New at Cato

Here are a few highlights from Cato Today, a daily email from the Cato Institute. You can subscribe, here.

  • Don’t want to buy GM, Chrysler or AIG stock? Too bad, says Richard Rahn.
  • Jim Powell spells out Obama’s tax assault on U.S. businesses in National Review.
  • In Forbes magazine, Dan Mitchell reiterates his defense of tax havens.
  • Will Wilkinson explains what happens when you start playing politics with private enterprise in Marketplace.
  • In Thursday’s Cato Daily Podcast, ElCato.org editor Gabriela Calderon discusses elections in Ecuador.
Topics:

The Jurisprudence of Detention: Definitions and Cases

Almost a year has passed since the Supreme Court’s decision to extend habeas rights to Guantanamo in Boumediene. Detention policy is currently under review by interagency task forces; it is worth looking at what the developing body of detention rulings say about the future of detention.

Taking prisoners is an unavoidable part of military action. Telling our troops that they can engage identified enemies with lethal force but cannot detain them puts them in an impossible position.

But who can we hold? The Taliban foot soldier is an easy case, but as we move away from the battlefield things get a little fuzzy. A chronological review of the decisions regarding detainee status gives some insight.

Salim Hamdan

The first case comes from the military commissions convened in Guantanamo. Though it predates Boumediene, it puts the question of who is an unlawful enemy combatant in front of a judge.

Salim Hamdan was the petitioner in the Supreme Court case that invalidated military commissions established by executive order. Congress responded to his victory at the Supreme Court with the Military Commissions Act (MCA) to establish legislatively-sanctioned commissions, but their jurisdiction is limited to “alien unlawful enemy combatants.”

Following the passage of the MCA, Hamdan’s defense counsel filed a motion for an additional hearing to determine whether he was a lawful or unlawful combatant. If he was a lawful combatant, then the commission would lack jurisdiction and he might then be prosecuted in a court-martial. Lawful combatants (i) have a commander, (ii) wear uniforms or a distinctive symbol, (iii) bear their arms openly, and (iv) follow the laws of land warfare.

Captain Allred, the officer presiding, granted the defense motion.

Allred found that Hamdan’s service to Al Qaeda as Osama Bin Laden’s driver and occasional bodyguard, pledge of bayat (allegiance) to Bin Laden, training in a terrorist camp, and transport of weapons for Al Qaeda and affiliated forces supported finding him an enemy combatant. Hamdan was captured at a roadblock with two surface-to-air missiles in the back of his vehicle. The Taliban had no air force; the only planes in the sky were American. Hamdan was driving toward Kandahar, where Taliban and American forces were engaged in a major battle. The officer that took Hamdan into custody took pictures of the missiles in Hamdan’s vehicle before destroying them.

Hamdan’s past association with the Ansars (supporters), a regularized fighting unit under the Taliban, did not make him a lawful combatant. Though the Ansars wore uniforms and bore their arms openly, Hamdan was taken into custody in civilian clothes and had no distinctive uniform or insignia.

Based on his “direct participation in hostilities” and lack of actions to make him a lawful combatant, Captain Allred found that Hamdan was an unlawful enemy combatant.

Decisions Under the Enemy Combatant Definition

Following Boumediene, detainees have had their cases heard by federal judges. The District Court for the District of Columbia adopted and applied the following definition, and the government need only prove it by a preponderance of the evidence:

An “enemy combatant” is an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.

District Judge Richard J. Leon moved through these cases quicker than his colleagues and gives us several decisions to look at.

Lakhdar Boumediene, et al.: Five ordered released, one detained. This is the set of six petitioners that won the right to habeas corpus hearings at the Supreme Court. They were picked up in Bosnia and allegedly planned to travel to Afghanistan to fight against American forces. Judge Leon ordered five of the six released because the word of an unnamed informant was simply not enough to justify their detention. Since the evidence was insufficient to determine that a plan to travel to Afghanistan existed, Judge Leon did not reach the question of whether such a plan would constitute “support.” Leon found that the sixth man, Belkalem Bansayah, was an enemy combatant based on corroborating sources and evidence that he was adept in using false passports in multiple fake names and was facilitating the travel of others to fight in Afghanistan. This constituted “support” necessary to find him an enemy combatant.

Hisham Sliti: One detained.  Sliti is a Tunisian who traveled from London to Afghanistan on a false passport. He was detained in 2000 by Pakistani authorities because of his false passport and had an address book with contact information for radical extremists. He escaped back into Afghanistan and was later re-captured fleeing the American military in 2001. Judge Leon found that he had traveled to Afghanistan with the financial support of extremists with well-established ties to Al Qaeda, spent time with Al Qaeda-affiliated radicals, stayed at a guesthouse associated with Al Qaeda that served as barracks for terrorist training camps, and that other guests at the house were instrumental in creating terrorist cells. By his own admission, he knew the location, appearance, and code words used by those attending the nearby training camp.

Moath Hamza Ahmed al Alwi: One detained. Al Alwi is a Yemeni who traveled from Saudi Arabia to Afghanistan to fight alongside the Taliban against the Northern Alliance. Judge Leon found that al Alwi could remain in custody based on the evidence that he had trained at Al Qaeda camps, stayed at Al Qaeda guesthouses, fought on two fronts with the Taliban, and did not leave Afghanistan until his Taliban unit was bombed on two or three occasions by American aircraft.

Mohammed el Gharani: One ordered released.  El Gharani is a Saudi who went to Pakistan around 2001. The government alleged that he had been a member of an Al Qaeda cell in London, stayed at an Al Qaeda-affiliated guesthouse, and fought American forces at the battle of Tora Bora. Judge Leon did not find these claims credible, as all of them were based on the word of fellow detainees. The government also alleged that he had been a courier for Al Qaeda, but had insufficient evidence to back up this claim.

In the above cases, six detainees have been ordered released and three met the criteria to be classified as “enemy combatants.”

Transition From “Enemy Combatant” to “Substantial Support”

The Obama administration has since dropped the term “enemy combatant” and changed its claim of detention authority:

The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.

The first decision under the new definition came down from District Judge Ellen Huvelle.

Yasin Muhammed Basardh: One ordered released. Basardh is a Yemeni who was arrested in early 2002 and transported to Guantanamo Bay. He cooperated with detention authorities, giving information about his fellow detainees. As a result, other detainees physically assaulted him and threatened to kill him. Judge Huvelle determined that widespread disclosure of Basardh’s cooperation with the government renders his prospects for rejoining terrorists “at best, a remote possibility.”

Judicial Review of the Authority to Detain

The definitions of “enemy combatant” and the power claimed by the Obama administration are very similar, and the addition of “substantially” is probably only going to affect marginal cases.

A recent review of the revised claim of detention power broadly approved the government’s power of detention. District Judge Reggie B. Walton accepted, in a slightly modified form, the general power of the government to detain those who have participated in hostilities. In doing so, he rejected a detainee’s claims that the Authorization for Use of Military Force passed after 9/11 did not allow military detention and that detainees must be tried in a civilian court or released.

Judge Walton adopted the following definition for detention decisions:

[I]n addition to the authority conferred upon him by the plain language of the AUMF, the President has the authority to detain persons who were part of, or substantially supported, the Taliban or al-Qaeda forces that are engaged in hostilities against the United States or its coalition partners, provided that the terms “substantially supported” and “part of” are interpreted to encompass only individuals who were members of the enemy organization’s armed forces, as that term is intended under the laws of war, at the time of their capture.

Judge Walton did limit the government’s detention authority to those part of the “command structure” of Al Qaeda and the Taliban. This precludes detaining “[s]ympathizers, propagandists, and financiers” that may be part of enemy organizations in an abstract sense but who are not part of the organizations’ command structure. Judge Walton also did not resolve the issue of organizations and individuals “associated” with the Taliban and Al Qaeda.

Though Judge Walton rejected the petitioners’ “direct participation in hostilities” standard for detention in favor of the government’s “substantial support” standard, he explicitly authorized detention of an Al Qaeda “member tasked with housing, feeding, or transporting” members of the organization. An Al Qaeda cook who trained at a terrorist camp can be detained just as “his comrade guarding the camp entrance.”

The competing definitions can often arrive at the same conclusion. Captain Allred determined that Salim Hamdan was an unlawful enemy combatant for a combination of the “substantial support” activities under the “direct participation in hostilities” standard.

Conclusion

The cases above illustrate that the general principles of detention have not changed significantly with adjusted definitions. The terms “enemy combatant,” “direct participation in hostilities,” and “substantial support” will be interpreted by judges on a case-by-case basis much like a finding of probable cause to issue a warrant or justify a search.

Time to End the War on Drugs

Gov. Arnold Schwarzenegger is calling for a large-scale study on the question of  whether to legalize marijuana.  Arnold wants the study to include international comparisons to show the possible impact of such a change.  Cato just released such a study concerning Portugal.

Our friends at NORML are running ads like this in some markets.

Over at Reason, Jacob Sullum takes a look at national Zogby poll numbers, which shows that a majority of voters support marijuana legalization.

New Doherty Book Review

There is a new review of Brian Doherty’s book, Gun Control on Trial: Inside the Supreme Court Battle over the Second Amendment, over at The American Spectator.

The review captures the uphill battle that the Heller litigants faced in the District of Columbia:

When an employee on the Taxicab Commission once suggested that taxicab drivers be able to arm themselves for self- defense, a spokesman for then mayor Anthony Williams said, “The proposal is nutty, and obviously, it would not be entertained seriously by any thinking person.” After D.C. readjusted its laws in the wake of Heller so that guns were no longer prohibited but regulated to the point of making ownership exceedingly difficult, Mayor Adrian Fenty justified it thusly: “I don’t think [the people of D.C.] intended that anybody who had a vague notion of a threat should have access to a gun.” Apparently the mayor doesn’t know or doesn’t care that once a threat is real, it’s probably too late to go through all of the city’s regulatory hoops.

Cato held a book forum for the event, which is available here.  Also check out Reason TV’s videos of Brian discussing this historic legal battle, both before and after the decision came down.