Archives: July, 2010

I Didn’t Know People Like This Still Existed

Justin Amash, a state legislator from Michigan, describes how laws get made based on his experience. Notice his antidote to such failures: independent judgment and deliberation combined with a sense of responsibility to his constituents.

Amash, by the way, is running for a seat in the U.S. House of Representatives. If he wins, he’ll find the process here to be much the same as in Michigan.

WaPo on No-Fly: Black Hole to Quicksand

I wrote here Monday, and the Washington Post editorialized today, about the lawsuit in which the ACLU is representing a group of people who believe they have been wrongly placed on the government’s no-fly list. I find the Post’s editorial needlessly equivocal and muddied.

The plaintiffs “have a point — to a point,” says the Post. “[T]he list is essentially a black hole.” But it never says how their suit overshoots the mark.

When someone vindicating a constitutional right has a point, he or she has a point—period. Due process is a right prescribed by the Constitution, not something to dither about like Hamlet.

Hewing to a reasoned-sounding middle ground, the Post says, “There are legitimate law enforcement reasons for keeping the list secret: Disclosure of such information would tip off known or suspected terrorists, who could then change their habits or identities to escape government scrutiny.”

Think this through. The no-fly list is self-revealing. Any terrorist who tries to fly and can’t is “tipped off” that he or she is a suspect. (Does it matter whether the list or something else prevented him or her from flying? No.) Said terrorist will take steps to evade the list or someone else will take over—terrorists are fungible. The benefit of secrecy is small to the point of superfluous.

The Post correctly states that “U.S. citizens who believe they are on the list because of bad information should have a chance to challenge that designation before an independent arbiter.” But then it goes all mealy: “A federal court may be an appropriate forum, if governed by procedural safeguards to protect national security information. Creating an independent review panel within the executive might also meet the need.”

The secrecy rationale is tiny. The federal courts have vast experience with issues of all sensitivities. Developing a new (suitably) ”independent” panel would be a mountainous chore. And the constitutional doctrine of separation of powers cuts strongly against the Post’s proposal.

This editorial’s “middle ground” looks a lot like quicksand—a lot like the black hole the no-fly list is.

On the Separation of Press and State

As it often does, The Wall Street Journal this morning offers us an op-ed with which it surely must disagree, entitled “Journalism Needs Government Help” – bringing to mind the fabled knock on the door: “Hi. I’m from the IRS and I’m here to help.” The author is no less than Lee Bollinger, former dean of the law school at the University of Michigan and now president of Columbia University, my undergraduate alma mater. As with many an academic, Bollinger has long been a friend of public-private partnerships: indeed, one could say he has lived by them. But the partnership at issue here is so fraught with peril that one wonders how it can be advanced as uncritically as it is in this little piece.

The argument, in essence, is this. The communications revolution has decimated media budgets. Indeed, “the proliferation of communications outlets has fractured the base of advertising and readers,” leading to shrunken newsrooms, especially in foreign bureaus. Thus the FCC and FTC are now studying the idea of enhanced public funding for journalism. Not to worry, Bollinger assures us, since “we already have a hybrid system of private enterprise and public support” – to wit, public regulation of the broadcast news industry and the Corporation for Public Broadcasting. And the most compelling example of state support not translating into official control, he continues, can be found in our public and private research universities, which receive billions of government dollars annually with no apparent problem.

Really? Try getting your hands on some of those funds, or an appointment in one of those departments, if you have reservations about global warming. Or do we need any better example than the case of Elena Kagan, now before us. When the good dean took her principled stand against admitting military recruiters to the Harvard Law School, the larger university community reminded her of the government funds that were thus put in jeopardy, and she adjusted her position accordingly.

But here comes the kicker: Like those who imagine that there’d be no art without the National Endowment for the Arts, Bollinger tells us that “trusting the market alone to provide all the news coverage we need would mean venturing into the unknown—a risky proposition with a vital public institution hanging in the balance.” Was there no news before the invention of NPR, all things considered? And back on the academic analogy, he adds, “Indeed, the most problematic funding issues in academic research come from alliances with the corporate sector. This reinforces the point that all media systems, whether advertiser-based or governmental, come with potential editorial risks.” True, but government is categorically different than private businesses, of which there is no shortage. Yet those who fail to notice that difference, or discount it, are forever drawn to government because it is, as we say, so easy to get in bed with.

John Stagliano’s Obscenity Trial

Pornography producer John Stagliano is on trial in Washington, D.C., accused of interstate trafficking of obscenity. Reason has been producing workmanlike coverage of the trial.

Setting aside the constitutionally difficult prospect of defining obscenity, the trial is replete with procedural anomalies that call into question the basic fairness of the proceedings.

District Court Judge Richard Leon ruled that Stagliano cannot use expert witnesses, and shut the press out of the jury selection process (which, after a full week, has yet to finish). Things don’t bode well for a free and open trial: The courtroom monitors that will display the crucial evidence are all arranged to be out of the sightlines of press and interested citizens, viewable only by jurors and lawyers. If the press and the public cannot see the evidence, how will we know if the trial is fair?

One of the proposed expert witnesses for the defense is University of California Santa Barbara Film Studies Professor Constance Penley, who would have testified to the artistic value of the indicted films. Artistic value is one of the characteristics of non-obscene materials, so this cripples Stagliano’s defense from the outset. Reason’s interview with Penley is available here.

The judge has even kept the jury selection questionnaire’s secret. Richard Abowitz is covering the trial for Reason. His latest dispatch is available here. Read the whole thing. Additional coverage from The Blog of Legal Times is available here. Full disclosure: Stagliano is a former Cato donor.

Senate Bill Sows Seeds of Next Financial Crisis

With Majority Leader Harry Reid’s announcement that Democrats have the 60 votes needed for final passage of the Dodd-Frank financial bill, we can take a moment and remember this as the moment Congress planted the seeds of the next financial crisis.

In choosing to ignore the actual causes of the financial crisis – loose monetary policy, Fannie/Freddie, and never-ending efforts to expand homeownership – and instead further expanding government guarantees behind financial risk-taking, Congress is eliminating whatever market discipline might have been left in the banking industry.  But we shouldn’t be surprised, since this administration and Congress have consistently chosen to ignore the real problems facing our country – unemployment, perverse government incentives for risk-taking, massive fiscal imbalances – and instead pursued an agenda of rewarding special interests and expanding government.

At least we’ll know what to call the next crisis: the Dodd-Frank Crash.

More about the Calorie Police

It’s nice to get quoted in the Los Angeles Times, even if the author obviously didn’t understand what I was getting at. I’ll try to clear up the confusion here.

Karen Caplan writes:

Does Kuznicki (or anyone else) really think that the goal of a healthy diet is simply to minimize the total number of calories consumed? (Perhaps these are the same folks who swear by Taco Bell’s Drive-Thru Diet.)

A 12-ounce serving of whole milk contains 12 grams of protein, along with 45% of the calcium and 36% of the vitamin D you need each day. The same amount of soy milk also has 12 grams of protein and 14% of the daily recommended intake of iron.

Care to guess how many vitamins and minerals are in a can of Coke?

I certainly don’t think that a healthy diet means only reducing one’s calorie intake. I do, however, believe that the stated goal of the policy was not to improve overall health, but to reduce obesity. And for that, which one do you pick?

a) consume fewer calories

or

b) get more calcium and vitamin D.

Does anyone seriously suggest that (b) is the right choice? Is this what passes for nutritional advice at the Los Angeles Times? Eat whatever you want, and as long as you take your vitamins, you won’t get fat?

The policy we’re talking about was not intended to make sure that people get all their vitamins and minerals. It was intended to curb obesity. And for that purpose it will do essentially nothing, as I noted, I still think correctly, in the original post.

Kilcullen Joins the ‘To Hell with Karzai’ Faction?

“No, really—tell him that. ‘Hanging from a lamppost!’”

Three weeks ago I observed that Stephen Biddle, a Council on Foreign Relations scholar who previously had emphasized the centrality of Hamid Karzai to the prospects for success in Afghanistan, had coauthored an article in Foreign Affairs on Afghanistan that hardly mentioned Karzai.

Now one of the archbishops of counterinsurgency and close Petraeus confidante David Kilcullen appears to have joined the “To Hell with Karzai” caucus as well.  First, in an interview with Doyle McManus of the LA Times, Kilcullen lamented that Karzai “has been treating us as if he’s got us over a barrel,” and suggested that we might want to remind the Afghan president that “he’s a guy who will be hanging from a lamppost a month after we leave if we don’t protect him.”  Tough stuff!

Today Kilcullen piles on some more in a NPR interview, advising a strategy of bypassing the central government and “empowering” local constituencies to fight the Taliban themselves.  Kilcullen says that the Afghan National Police have been “raping people’s children” at checkpoints and “shaking people down.”  By contrast, Kilcullen says, the Afghan National Army is better but is far too small to take the reins from the Americans any time soon.

The most vexing thing about all this is Kilcullen’s caveat that there must be “safeguards in place so that it doesn’t lead to the creation of alternative power structures that suck the oxygen away from a legitimate government.”  But how is that supposed to work?  It seems like “empowering” local forces to police their own territory and fight the Taliban is a zero-sum diffusion of power away from the central government and into the provinces.  In the LA Times interview, Kilcullen said that “the absolutely critical thing we haven’t done very well is come up with a political strategy to take an illegitimate government and turn it into a legitimate one.”  But it’s hard to see how doing an end-run around Karzai by training (and arming?) local constituencies to fight the Taliban helps achieve this “absolutely critical thing.”  Presumably this is why Karzai reportedly hates the idea.  It seems to me that this reflects an important strategic confusion: Is our strategy to build a viable national state in Afghanistan, or to embrace the diffuse and non-national existing power structures in Afghanistan at the expense of the central government?  If it’s the latter, why do we need a counterinsurgency campaign?  If it’s to do both, I think we’ve got problems.

Alternatively, is this all a big bluff to get Karzai to believe that America may leave if he doesn’t start doing what we tell him?  If so, Karzai should probably call the bluff.  American government officials have made Afghanistan out to be a vital national interest and would have a hard time turning a 180 on that judgment.  Meanwhile, Republican sharks have already begun circling Obama, and a searing and humiliating meltdown in Afghanistan probably isn’t on David Axelrod or Rahm Emanuel’s agenda right now.

Now, I’m no counterinsurgency guru, but I don’t see how you square this center-versus-periphery circle.  Maybe one of my COIN guru pals like Spencer Ackerman or Andrew Exum could help me out here.