Archives: 03/2010

O’Reilly: No Freedom, No How

Bill O’Reilly teases an interview with John Stossel this way:

Should Americans be able to use their body for any purpose? John Stossel says yes and joins us to explain!

And Bill O’Reilly says no! No to legal prostitution, no to polygamy, no even to legal markets for vitally needed organs. Check it out:

More Stossel videos on personal freedom here. Cato research on organ markets here. And don’t forget to watch John Stossel every Thursday night at 8 on the Fox Business Network.

Diane Ravitch: Expert Historian, Policy Tyro

Diane Ravitch is a leading education historian. Her work in that field is characteristically thorough and well-researched, and her books The Troubled Crusade and The Great School Wars, in particular, made significant contributions to our understanding of U.S. education history.

On the presumption that Ravitch is as much an expert on policy as she is on history, her latest book, recounting her change of heart on certain policy questions, has garnered enormous media attention. I suggest, with all due respect, that this presumption is a mistake. Unlike her thorough and rigorous historical writing, Ravitch’s policy opinions were never grounded in a systematic and comprehensive review of the relevant evidence. They should never have been given credence in the first place.

Consider Ravitch’s 1995 book National Standards in American Education, which endorsed the policy. When I was reviewing evidence on education standards for a chapter in my 1999 book Market Education, Ravitch’s book was still the preeminent source on the subject. After her historical work, it was a disappointment. Quoting Ravitch (p. 25), I wrote the following:

The most common claim made in support of government curricula is that: “Standards can improve academic achievement by clearly defining what is to be taught and what kind of performance is expected.” Unless readers are willing to accept this claim on faith, they can safely ignore it, because there is no compelling evidence that it is true. In her book National Standards in American Education, respected education historian and government standards advocate Diane Ravitch discusses many arguments pro and con, but does not demonstrate that government curriculum guidelines raise student achievement.

So far as I know, Ravitch never conducted a systematic review of the empirical evidence for national standards. Nor has she ever systematically and comprehensively reviewed the research comparing different kinds of public and private schools systems. She is not an authority on these matters.

If I’m mistaken on this point, I would appreciate a reference to any such works. If not, the media and policymakers would do well to stop according her opinions in these areas a weight they do not merit.

The National Broadband Plan Is Bad. Period.

I’ve seen plenty of stories and gotten a fair number of calls from reporters about the national broadband plan. They generally want to get some insight from down in the weeds of the communications world. What do you think of this part? What do you think of that?

But I’m keeping my eye on the ball: This is another industrial-policy boondoggle. It’s a government spending program, created by the so-called “Recovery Act,” that will distort the communications marketplace, and it comes at the cost to taxpayers of having their resources taken from them and handed out to the firms that are best equipped to lobby for government succor.

I don’t care which community gets 1-gigabit connections. The money to pay for it should have been left with the American people to spend as they choose—on 1-gigabit connections if they choose. The debt overhang produced by all this spending makes us worse off, not better off, and the shiny bauble of hi-def, two-way video doesn’t change that.

The Federal Communications Commission should be shuttered. That’s the gist of what I have to say about the “National Broadband Plan.”

The Case against Domestic Military Detention

Washington is consumed once more with the problem of terrorism, driven by the dual pressures of an unsuccessful terrorist attack on commercial aviation and upcoming elections that give politicians an incentive to speak in terms of war. We are again treated to the ridiculous argument that a terrorist attack is either an act of war or a criminal violation but never both. Senators McCain and Lieberman recently proposed a bill that mandates military detention for domestic terror suspects instead of civilian criminal justice proceedings – an approach that sidelines half of our domestic counterterrorism tools.

The Enemy Belligerent, Interrogation, Detention, and Prosecution Act of 2010 would use military detention to incapacitate suspected terrorists. Choosing military detention over prosecution takes criminal justice tools off the table, including prosecuting terrorists for the instrumentalities of terrorism – assembling bombs, financing, and all of the illegal activities associated with attacking the system.

We’ve been down this road before, and domestic military detention in lieu of criminal prosecution has not worked as advertised.

Take the case of Ali Saleh Mohamed Kahlah al-Marri. After the 9/11 attacks, the FBI arrested al-Marri, an exchange student at Bradley University in Peoria, Illinois. The government alleged that al-Marri met with Osama Bin Laden, was working with senior al Qaeda organizers, had a more-than-casual interest in poisons, and was told by his handlers to be in America before September 11th or to forget about executing his mission here.

Terrorism, even when it can be viewed as an act of war perpetrated by a sleeper agent such as al-Marri, inherently breaks laws. Al-Marri arrived in the United States with a suitcase full of credit card numbers and set up a false business entity and bank accounts to finance his mission.

The government produced a seven-count indictment that, if proven, would have put al-Marri away for a long time. The charges included fraudulent use of a false identity (five or fifteen years, depending on the amount of money involved), three counts of bank fraud (thirty years each for a total of 90 years), making false statements to FBI investigators (ten years), and credit card fraud (ten years). This amounts to a maximum sentence of 115 or 125 years in federal prison. Subsequent sentence enhancers for committing these crimes in support of an act of international terrorism make the same indictment worth up to 146 years today.

That’s an impressive prison stretch, but it wasn’t too late for the government to snatch defeat from the jaws of victory.

Before al-Marri’s trial, the government removed him to military custody and asked that the charges against him be dismissed with prejudice (meaning that they cannot be re-filed upon his release). He remained in a naval brig in South Carolina as lawyers fought over his continued detention without trial. No military commission was ever planned for al-Marri. This was a power play to establish the precedent that terrorism suspects could be held indefinitely without trial, and the government asserted at oral argument before the 4th Circuit that the process al-Marri received is what any American citizen would receive.

The Supreme Court agreed to review his case, prompting the Obama administration to move al-Marri back to the civilian criminal justice system in early 2009. The government re-indicted al-Marri on two counts of material support of terrorism (maximum sentence of thirty years). He pleaded guilty to one count and received eight years. The judge was barred from officially giving credit for time served in military custody, but a fifteen-year sentence minus six years and change for being in military custody is what he received.

The al-Marri case was not a success. He should have been locked up for the rest of his life, but cramming a set of civilian crimes into a case for military detention failed to protect national security and provide justice.

The McCain-Lieberman proposal would have pushed al-Marri’s trial into a military commission. As they stand now, our military commissions have jurisdiction over material support of terrorism but not the panoply of federal statutes that allow prosecution of the instrumentalities of terrorism. The Founders allowed Congress to punish war crimes –- “Offenses against the Law of Nations” –- and bank fraud does not fit the bill. Congress could add a catch-all provision to the commissions’ statute, but do we really want military officers sitting in judgment of domestic financial crimes?

Many terrorist acts are simultaneously acts of war and criminal violations, and applying one legal paradigm to the exclusion of the other makes for good politics but terrible policy. The United States should continue to use its criminal justice tools. Conservatives have been railing for years about limits on the Executive during wartime; passing this bill would certainly tie the Executive’s hands. If you can get 146 years, take it. We can defeat al Qaeda both on the battlefield and in the courtroom.

Scalia Can No Longer Call Himself an Originalist

As I blogged last week, the Supreme Court didn’t seem amenable to Privileges or Immunities Clause arguments in last week’s gun rights case, McDonald v. Chicago.  This is unfortunate because the alternative, extending the right to keep and bear arms via the Due Process Clause, continues a long-time deviation from constitutional text, history, and structure, and reinforces the idea that judges enforce only those rights they deem “fundamental” (whatever that means).

It was especially disconcerting to see Justice Antonin Scalia, the standard-bearer for originalism, give up on his own preferred method of interpretation – and for the sole reason that it was intellectually “easier” to use the “substantive due process” doctrine.

Josh Blackman and I have an op-ed in the Washington Examiner pointing out Scalia’s hypocrisy.  Here’s a choice excerpt:

Without the Privileges or Immunities Clause … the Court must continue extending the un-originalist version of substantive due process to protect the right to keep and bear arms. To give original meaning to the Second Amendment, it must ignore the original meaning of the Fourteenth Amendment!

Yet this is the line Scalia took last week: Instead of accepting the plain meaning of the Privileges or Immunities Clause—which uncontrovertibly protects the right to keep and bear arms—the justice chose a route that avoids disturbing a 140-year-old precedent rejected by legal scholars of all ideological stripes.

In 2008, Scalia wrote, “It is no easy task to wean the public, the professoriate, and (especially) the judiciary away from [living constitutionalism,] a seductive and judge-empowering philosophy.” But at the arguments in McDonald, he argued that while the Privileges or Immunities Clause “is the darling of the professoriate,” he would prefer to follow substantive due process, in which he has now “acquiesced,” “as much as [he] think[s it is] wrong.”

Put simply, if the opinion Scalia writes or joins matches his performance last week, he can no longer be described as an originalist (faint-hearted or otherwise).  A liberty-seeking world turns its weary eyes to Justice Clarence Thomas – who has expressed an openness to reviving the constitutional order the Fourteenth Amendment was designed to create – to convince his wayward colleague that the way to interpret legal text is to look to its original public meaning.

Read the whole thing.

DC Vouchers, Democrats and Teachers Unions

The Washington Post ran an incisive op-ed yesterday by Kelly Amis and Joseph Robert on the DC voucher program. As they noted, Sen. Joseph Lieberman is calling on the Senate to restore funding for the program which was terminated on a nearly party-line vote by Congress last December.

A few Democrats (Dianne Feinstein and Robert Byrd) have joined with Lieberman, but the rest of the party has apparently decided that producing better educational outcomes for poor kids at one quarter the cost of public schooling is not politically advantageous.

As Amis and Robert point out, private schools are far less unionized than the public school sector, so giving families an easier choice between the two will likely eat into to union revenues. And teachers union revenues end up disproportionately in the political piggy banks of Democrats.

The only thing that will change this situation is if voters decide they’ve had enough of such craven, Machiavellian politics, and vote the bums out. And some Democrats do indeed already seem to have had enough.

The Least Obama Could Do for Civil Liberties

Sen. Patrick Leahy (D-VT) has just fired off a letter to Barack Obama urging him to finally appoint some members to the long-vacant Privacy and Civil Liberties Oversight Board, echoing a similar recent request from a coalition of civil liberties groups.

I don’t think anyone should make excuses for Obama’s appalling about-face on Patriot Act reform, but at least in that case there’s a real, difficult, and complex policy debate that needs to play out in a preoccupied Congress for anything to happen. But there is no reason whatever that seats on this board should sit vacant a year into this presidency. Congress agreed to create the independent board—after a predecessor within the White House was deemed to lack sufficient independence—back in 2007. There’s agreement that the board is needed; the president just needs to pick people to sit on it. Yet there are precious few signs he’s even conducting a serious search. After a long series of decisions that have appalled civil libertarians, staffing the watchdog group Congress created three years ago is, quite literally, the absolute least Obama could do to begin living up to his campaign rhetoric.