Archives: 02/2011

The Pentagon Propaganda Machine Rears Its Head

Rolling Stone reporter Michael Hastings—yes, that Michael Hastings—has written another investigative article on U.S. operations in Afghanistan, centered again on a general in the theatre.  The revelations are perhaps more shocking than those that resulted in General Stanley McChrystal’s dismissal last summer.

His newest bombshell alleges that the U.S Army illegally engaged in “psychological operations” with the aim of manipulating various high-level U.S. government officials into believing that the war was progressing in order to gain their continued support.  The list of targets includes members of Congress, diplomats, think tank analysts, and even Adm. Mike Mullen, Chairman of the Join Chiefs of Staff.  Over at The Skeptics, I attempt to put this in context:

While American soldiers and Afghan civilians continue to kill and be killed in Afghanistan, the Pentagon seeks to provide the illusion of progress, systematically misrepresenting realities on the ground to bide more time, gain more troops, and acquire more funding. It’s bad enough that the American media uncritically relays statements from U.S. officials portraying “success” on the ground. Now the Pentagon is using its massive propaganda budget to blur the line between informing the public and spinning it to death. In fact, several years ago the Associated Press found that the Pentagon had spent $4.7 billion on public relations in 2009 alone, and employs 27,000 people for recruitment, advertising and public relations, nearly as many as the 30,000-person State Department. Essentially the Pentagon is trying to influence public policy and lobby civilian officials to shift policies toward their own ends while dispersing the costs onto the American taxpayer.

Luckily, it appears that Americans have come to learn that despite the media’s frequent adulation of their uniformed military, the Pentagon operates just like every other bureaucracy in the federal government. According to a poll released earlier this month by Gallup, 72 percent of Americans want Congress to speed up troop withdrawals from Afghanistan. Much like the McChrystal flap from last summer, there is a very fine line between military officials offering their honest opinion and threatening civilian control of the war.

Click here for the full post.

The Non-Defense of DOMA

The Obama Administration’s decision to stop defending DOMA in the courts has provoked some widespread commentary. Jim Burroway hints that Obama’s strategy here is both deep and cynical. Obama’s locked in a losing fight with Republicans over the budget, because Americans really do want to cut federal spending. This remains true even if, notoriously, nearly the only specific program they want to cut is our negligible foreign aid.

The mood is anti-spending, and it’s just possible that a government shutdown scares Obama even more than it scares the Republicans. The remedy? Change the subject. Make Republicans in Congress defend their stance on gay marriage, which is so not the discussion they’d like to be having.

It could be one of the first instances in which gay marriage counts as a wedge issue against Republicans, rather than for them. Opposing same-sex marriage appeals strongly to a smallish base. To the center, the whole subject is distasteful either way, and they don’t mind if Obama drops it. Finally, more and more people just find the conservatives embarrassing here. Obama sees no need to do their dirty work for them, especially when the work really is that dirty.

Meanwhile, Orin Kerr is worried about executive power:

By taking that position, the Obama Administration has moved the goalposts of the usual role of the Executive branch in defending statutes. Instead of requiring DOJ to defend the constitutionality of all federal statutes if it has a reasonable basis to do so, the new approach invests within DOJ a power to conduct an independent constitutional review of the issues, to decide the main issues in the case — in this case, the degree of scrutiny for gay rights issues — and then, upon deciding the main issue, to decide if there is a reasonable basis for arguing the other side. If you take that view, the Executive Branch essentially has the power to decide what legislation it will defend based on whatever views of the Constitution are popular or associated with that Administration. It changes the role of the Executive branch in defending litigation from the traditional dutiful servant of Congress to major institutional player with a great deal of discretion.

If that approach becomes widely adopted, then it would seem to bring a considerable power shift to the Executive Branch. Here’s what I fear will happen. If Congress passes legislation on a largely party-line vote, the losing side just has to fashion some constitutional theories for why the legislation is unconstitutional and then wait for its side to win the Presidency. As soon as its side wins the Presidency, activists on its side can file constitutional challenges based on the theories; the Executive branch can adopt the theories and conclude that, based on the theories, the legislation is unconstitutional; and then the challenges to the legislation will go undefended. Winning the Presidency will come with a great deal of power to decide what legislation to defend, increasing Executive branch power at the expense of Congress’s power. Again, it will be a power grab disguised as academic constitutional interpretation.

Liberals: If you think declining to defend DOMA is the right decision, how will you feel when a Republican administration declines to defend in a school prayer case? Or an abortion case? Or on Obamacare itself?

There are two very, very distinct issues here. One concerns gays and lesbians. The other concerns the proper relationship among the three branches of the federal government. One is about policy; the other is about procedure. Deciding a procedural question based on what it means for a one-time policy outcome is just bad governance. The questions we should be asking are – How much power would this really give the president? Is this a particularly new power? (Arguably it’s not.) And in any case, are we comfortable with the president having it, even if he or she has radically different views about policy?

When we look at it that way, there’s a near-perfect parallel to the perennial debate over the filibuster. Everyone hates it when they’re in the majority. Everyone loves it when they’re in the minority. Politics really is the mind-killer.

Not Just Breathing: Now the Feds Can Regulate Thinking

I suppose it’s a metaphysical question: Is it more outrageous/scary to argue that Congress can regulate breathing, as Akhil Amar recently argued (prompting my “Every Breath You Take” parody) or that it can regulate thinking, as the latest federal judge to rule on Obamacare opined

That is, Judge Gladys Kessler, echoing two other district judges who ruled in the government’s favor, found that the decision not to purchase health insurance was itself an action and so reachable by Congress’s power under the Commerce Clause. The activity/inactivity distinction that we Obamacare opponents have been pushing is mere “semantics,” you see.  Well, as Randy Barnett said in an emailed press statement:

This decision makes crystal clear that the government is seeking the dangerous and unprecedented power to regulate the economic “decisions” of all Americans – including the decision to refrain from engaging in economic activity.  If allowed by the Supreme Court, Americans would be reduced from citizens to the subjects of Congress, which would now have the discretionary power to run their lives.

He’s right, unfortunately.  But take a deep breath or breathe a sigh of relief (while both are still legal) because, at the end of the day, this latest ruling adds nothing to the debate except a new appellate court from which we can expect an opinion later this year.  (It also ran the record on the “taxing power” argument – the one so favored by the academics I’ve debate over the past year – to 0-4, including two judges who otherwise ruled for the government.)

See also Ilya Somin’s reaction.

Look, the arguments on both sides are clear: On the one hand, the federal government cannot require people to engage in economic activity under the guise of regulating commerce. On the other, the decision not to act is itself an action – “mental activity”? – that is subject to regulation. The battle lines are drawn, the armies of lawyers ready. The only remaining question is whether the Supreme Court will ultimately find that there are constitutional limits to federal power.

SAT/ACT Factoid Debunked

There’s been a factoid making the rounds during the Wisconsin union standoff that you may have seen. I’m not sure what the ultimate source of the factoid is, but here’s the meat of it as reiterated by a blogger for The Economist:

Only 5 states do not have collective bargaining for educators and have deemed it illegal. Those states and their ranking on ACT/SAT scores are as follows:

South Carolina – 50th
North Carolina – 49th
Georgia – 48th
Texas – 47th
Virginia – 44th

If you are wondering, Wisconsin, with its collective bargaining for teachers, is ranked 2nd in the country.

Now, aside from the factoid, if true, providing no real insight into whether collective bargaining is good or bad for education – there are myriad variables at work other than collective bargaining, none of which does this control for – but the factoid itself is highly dubious. Again, it is hard to find the original source for this, but I looked up 2009 ACT and SAT state rankings, and at the very least it seems highly unlikely that Virginia ranks 44th out of all states. According to the ACT ranking, for instance, Virginia places 22nd, and on the SAT (assuming the linked to list is accurate – I’m doing this fast), it ranked 33rd. It’s hard to see how those would be combined for a 44th place overall finish.

How about the Wisconsin second place-finish? Well, that is accurate for the SAT, but notably only 5 percent of Wisconsin students took the SAT – a negligible rate. On the ACT, which is the main test taken in the Badger State, Wisconsin finished 13th – not bad, but hardly great.

So what does this tell you? Not that collective bargaining is educationally good or bad – like I said, you just can’t get there from here – but that you have to be very careful about your sources of information. Unfortunately, that seems especially true when you’re dealing with education.

Privacy? Nuthin’. Respect My Authoritah!

A fascinating enforcement action under the Health Insurance Portability and Accountability Act (HIPAA) shows what really matters in the world of privacy regulation.

The U.S. Department of Health and Human Services has imposed a $4.3 million civil penalty against Maryland-based Cignet Health for violations of its regulations. HHS’s Office for Civil Rights (OCR) found that Cignet violated 41 patients’ HIPAA rights by denying them access to their medical records, which they requested between September 2008 and October 2009. The penalty for these violations is $1.3 million.

But Cigna’s real crime was willful disobedience of the government. Who knows why, but according to the government:

During the investigations, Cignet refused to respond to OCR’s demands to produce the records. Additionally, Cignet failed to cooperate with OCR’s investigations of the complaints and produce the records in response to OCR’s subpoena. OCR filed a petition to enforce its subpoena in United States District Court and obtained a default judgment against Cignet on March 30, 2010. On April 7, 2010, Cignet produced the medical records to OCR, but otherwise made no efforts to resolve the complaints through informal means.

OCR also found that Cignet failed to cooperate with OCR’s investigations on a continuing daily basis from March 17, 2009, to April 7, 2010, and that the failure to cooperate was due to Cignet’s willful neglect to comply with the Privacy Rule. Covered entities are required under law to cooperate with the Department’s investigations.

The penalty for that was $3 million.

Notably, the HHS release says nothing about the condition of the aggrieved parties. How are they doing with their $31,000 a piece? Does it fully compensate for their inability to access medical records during the relevant period?

Just kidding! Nobody really cares.

This enforcement action has nothing to do with remedying a genuine breach of privacy—an annoyance and genuine paperwork problem, yes—and everything to do with sending a message: You will respect my authoritah!

Despite Huawei’s Experience, America Is Open to Chinese Investment

After several days of defiance, Chinese telecom equipment manufacturer Huawei announced Monday that it would abide a recommendation from the Committee on Foreign Investment in the United States (CFIUS) that it divest of U.S. technology company 3-Leaf. CFIUS is an inter-agency group charged with reviewing the national security implications of proposed foreign investments in U.S. companies and assets and advising the president about whether or not he should block those transactions on security grounds. CFIUS is composed of representatives from 16 different U.S. government departments and agencies and is chaired by the Secretary of the Treasury.

Last week, CFIUS issued a recommendation that the president block Huawei’s $2 million purchase of assets—including certain patents—from 3-Leaf on the grounds that the transaction presented a risk to national security. (Technically, the recommendation was for the president to compel Huawei to divest of 3-Leaf, since the transaction was consummated in May 2010, before CFIUS was made aware of the deal). Apparently, CFIUS was concerned about Huawei’s ties to the Chinese government—specifically the Chinese military.

Despite assurances from Huawei’s vice president of government affairs, William Plummer, that the company “is 100 percent employee-owned and has no ties with any government, nor with the PLA,” Huawei’s ownership structure is opaque. A letter submitted to administration officials from U.S. Senators Jim Webb (D-VA) and Jon Kyl (R-AZ) alleged that Huawei has a “history of illegal behavior and ties with the People’s Liberation Army, Taliban and Iranian Revolutionary Guard.” The letter also accused Huawei of various patent and trademark infringements and suggested that the small scale of Huawei’s acquisition ($2 million) was designed to enable the transaction to avoid scrutiny—a theory that is lent credibility by Huawei’s decision not to inform CFIUS of its intention to purchase 3-Leaf.

Huawei’s decision this week to abandon the deal spares the president from issuing a formal opinion on the matter, and in all likelihood spares Huawei the added humiliation of a formal rejection from the U.S. president. Meanwhile, Huawei and officials of the Chinese Ministry of Commerce are lambasting the CFIUS decision as further evidence that the United States is closed to Chinese direct investment, and implying that U.S. investors might expect similarly shoddy treatment in China. What to make of all of this?

First, as I’ve argued before (e.g., here, here, and here), the United States should be open to foreign direct investment from all countries and the rules and regulations governing investment should be transparent, consistent, straightforward, and applied equally to suitors from all countries. That being said, state and local governments should be aggressively courting Chinese investment, for the reasons I gave in a paper published 14 months ago:

If it is desirable that China recycle some of its estimated $2.4 trillion in accumulated foreign reserves, U.S. policy … should be more welcoming of Chinese investment in the private sector. As of the close of 2008, Chinese direct investment in the United States stood at just $1.2 billion—a mere rounding error at about 0.05 percent of the $2.3 trillion in total foreign direct investment in the United States. That figure comes nowhere close to the amount of U.S. direct investment held by foreigners in other big economies. U.S. direct investment in 2008 held in the United Kingdom was $454 billion; it was $260 billion in Japan, $259 billion in the Netherlands, $221 billion in Canada, $211 billion in Germany, $64 billion in Australia, $16 billion in South Korea, and even $1.7 billion in Russia.

Some of China’s past efforts to take equity positions or purchase U.S. companies or buy assets or land to build new production facilities have been viewed skeptically by U.S. policymakers, and scuttled, ostensibly over ill-defined security concerns. But a large inflow of investment from China would have an impact similar to a large increase in U.S. exports to China on the value of both countries’ currencies, and on the level of China’s foreign reserves.

In light of China’s large reserves, its need and desire to diversify, America’s need for investment in the real economy, and the objective of creating jobs and achieving sustained economic growth, U.S. policy should be clarified so that the benchmarks and hurdles facing Chinese investors are better understood.

Since 2008, Chinese direct investment in the United States has increased from $1.2 billion to perhaps as much as $6.5 billion last year. If only President Obama’s speech last week at the Chamber of Commerce exhorting U.S. business to invest and hire were given at the Guandong Business Club…

Second, I am no security expert, so I cannot comment on the credibility of CFIUS’ concerns or the senators’ allegations about Huawei. But I think it is entirely reasonable to have a process, like that conducted by CFIUS under the Foreign Investment and National Security Act, to vet transactions to ensure that those presenting risks to national security are brought to the attention of the president, who can then exercise his discretion to block them. Like some prospective export transactions, some prospective purchases of U.S. assets present legitimate security risks that may warrant intervention. Is the process completely apolitical and immune from insider maneuvering? No. Is there scope for politically driven decision making? Yes. Can the process be used to steer a transaction away from the foreign suitor and toward a politically favored domestic entity? Sure. But so far there have been few accusations of that nature, so why make the perfect the enemy of the good?

Finally, in the immediate case, Huawei acted clumsily, if not irresponsibly, and in defiance of a process with which it should by now be quite familiar. In 2008, Huawei had to withdraw its bid for American company 3Com after CFIUS found national security problems, some of which could have been resolved had Huawei been more forthcoming about its ownership structure and business dealings. Likewise, Huawei was excluded from participation in a major network upgrade by Sprint Nextel over similar concerns about the company’s ties. That the company thought it could just circumvent CFIUS carrying that kind of historical baggage and quietly purchase 3-Leaf last May speaks to a profoundly amateurish decision making process at Huawei, or an imperative to conceal something.

Despite the sour grapes expressed by Huawei and its patron, the Chinese Ministry of Commerce, the United States is open and ready to welcome Chinese investment

Is Buying a House with Cash Bad?

The Washington Post reported today that the increase in January home sales was driven mainly by an increase in all-cash sales.  Whereas I would have thought increasing sales, especially driven by cash buyers, was a sign of market strength; the Post and the National Association of Realtors portrayed this as a bad thing.  NAR chief economist Lawrence Yun went so far as to call this portion of the market “unhealthy.”

Of course, what NAR and the rest of the real estate lobby were complaining about was that home sales and prices were not being driven by easy credit.  For the housing industry, it would seem that the “correct” house price is the price that is propped up by loose credit. 

Yun goes on to say that ”investors are taking the advantage of conditions to purchase undervalued homes.”  I used to work with Yun, he’s a smart guy, but I don’t think anyone is smart enough to say that the homes being sold are ”undervalued.”  Consider that most non-industry forecasters are projecting further price declines.

More cash sales actually means less future foreclosures, because the cash buyers start out with 100% equity from day one.  They are very unlikely to walk away, regardless of the future path of prices.  Cash buyers also pay prices that are closer to reflecting the fundamentals of supply and demand, which are ultimately driven by income and demographics. 

What the high percentage of cash borrowers, at 37 percent, says to me, is that there is a significant demand for housing that isn’t dependent upon massive taxpayer subsidies to the mortgage industry.