Archives: 05/2011

Thursday Links

Ratko Mladic Arrested

The arrest of Ratko Mladic is a welcome development that should remove the last major obstacle to closer relations between Serbia and the United States and the EU nations.  For too long, the Western powers have placed an excessive emphasis on his apprehension as a condition (explicit or implicit) for Serbia’s full inclusion in the Western community.

If the objections now continue, Serbs will understandably conclude that the Mladic issue was little more than a convenient excuse that Western governments used to justify a less-than-friendly policy toward Belgrade.  An expected improvement in relations now that Mladic has been apprehended is especially pertinent with respect to Serbia’s path toward membership in the European Union.

The arrest will have little substantive impact on prospects for reconciliation in Bosnia-Herzegovina or anywhere else in the former Yugoslavia, however.  The trend in Bosnia over the past year or so is toward renewed tensions rather than reconciliation, and that trend is being driven by factors that have little to do with the Mladic issue.

On the Politics of Deficits and Debt

Today POLITICO Arena asks:

How will yesterday’s largely symbolic Senate vote rejecting the Ryan FY 2012 budget plan affect the 2012 political fortunes of Republicans, especially those facing possible Tea Party-fueled primary challenges?

My response:

Yesterday’s Senate vote was simply an effort by Democrats to capitalize on the outcome of Tuesday’s NY-26 election. It changed nothing on the ground. Responding to that election, most congressional Republicans, far from deserting the Ryan plan, have only rallied more strongly behind it.

And well they should, because there’s nothing worse in politics than disarray, as wayward moderate Republicans will likely discover in 2012. What 2010 showed was that deficits and debt are dominating our politics like never before. Democrats haven’t come to grips with that. Like Sen. Jeanne Shaheen (D-N.H.) yesterday, they castigate the Ryan plan for ending Medicare “as we know it.” Yet they have no plan of their own.

One can criticize the Ryan plan from a number of perspectives, but at least it’s moving in the right direction. If Republicans stay on course, they should do well in 2012. Columnists like the Post’s E.J. Dionne may continue to delude themselves into thinking that NY-26 marked the end of the Tea Party. I doubt it. But if he’s right, we’re really in trouble.

Notice of Court Orders Is Important in Death Penalty Cases

The representation of prisoners accused of capital crimes is unique in its difficulty – and in the consequences – when that representation is inadequate. Maples v. Thomas, which will be argued before the Supreme Court this fall, exposes some of the serious cracks in the system charged with representing indigent defendants in such cases.   

Cato takes no position on the merits of the death penalty other than that the Constitution does not prohibit it and that our justice system is responsible for, at the very least, ensuring that prisoners receive fair notice of orders on which their lives depend.  Both the courts and counsel failed Cory Maples here. 

Maples was convicted of capital murder and sentenced to death for killing two companions.  After a series of state court appeals which affirmed his conviction, Maples filed a petition for post-conviction relief, which was ultimately dismissed. 

Maples never received notice of this deadline-triggering order because his pro bono lawyers left their big-firm jobs and a court clerk did nothing when the letter containing the order was consequently returned unopened.  Because Maples did not receive notice of the deadline, he did not timely file an appeal and his claims were procedurally defaulted.  The Eleventh Circuit affirmed the district court’s denial of Maples’s subsequent federal habeas petition because Maples “cannot establish cause for his default because there is no right to post-conviction counsel.” 

Cato has now joined The Constitution Project to file an amicus brief supporting Maples and arguing that the Supreme Court should excuse his default because the state failed to notify him of an order that could result in his death.  Moreover, if the default is not excused, the state’s inaction will deny Maples his constitutional right of meaningful access to the courts. 

The Eleventh Circuit relied on the rule that because “there is no constitutional right to an attorney in state post-conviction proceedings, a petitioner cannot claim constitutionally ineffective counsel in such proceedings.”  But Maples’s habeas claim does not involve the ineffectiveness of his post-conviction counsel; his underlying claim is that his trial counsel provided ineffective assistance. Indeed, his post-conviction counsel provided no assistance whatsoever when it was time to appeal. 

Finally, there is cause to excuse Maples’s default because this case is ultimately governed by principles of equity and basic fairness.  Few if any reasonable observers would conclude that it is fair or equitable to put a man to death without allowing the least consideration of appellate claims that could save his life simply because his lawyers left their jobs, a firm mailroom returned letters to them unopened, and the court clerk’s office did nothing when it discovered that crucial notice was never received. 

Again, the case is Maples v. Thomas and you can read Cato’s brief here.

Agriculture Cuts to Usher in the Apocalypse

Harold Camping is “flabbergasted” that the world did not end on May 21st as he had predicted. I think it’s because he didn’t account for the devastation that will be wrought by Republican budget cuts for fiscal 2012, which doesn’t begin until October 1st. Therefore, Camping’s new predication that the world will end on October 21st is much more plausible.

Yesterday the House Appropriations Committee’s subcommittee that deals with agriculture and nutrition programs passed its bill, which will now be considered by the full committee. According to the committee’s numbers, discretionary funding for these programs in 2012 would be $17.2 billion – a $2.7 billion reduction versus 2011.

According to a statement released by the subcommittee’s ranking member, Sam Farr (D-CA), the four horsemen are readying their saddles:

Farmers will be broken. Jobs will be lost. Ag economies will crumple.

Wow, even though “the farm economy [is] booming”? I half expect to see Rep. Farr waving a “The End is Near!” sign from a street corner in early October.

The Associated Press reports that “hunger advocates” are particularly upset by an 11 percent funding reduction for the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC). (“Hunger advocates” is the AP’s bizarre term for advocates of federal welfare programs.) The AP cites an estimate from a group of “hunger advocates” that the cuts could deny benefits to 475,000 people otherwise eligible for WIC.

If you’re looking for Republicans to defend the cuts on the basis that there’s nothing “progressive” about depending on a federal bureaucracy for sustenance then you’re going to be disappointed:

Republicans who wrote the bill said the cuts in domestic food programs are taken from excess dollars in those accounts, and participants won’t see a decrease in services.

Subcommittee chairman Jack Kingston (R-GA) basically says that the cuts are about making the federal government more efficient:

This subcommittee has begun making some of the tough choices necessary to right the ship. We have taken spending to below pre-stimulus, pre-bailout levels while ensuring USDA, FDA, CFTC, and other agencies are provided the necessary resources to fulfill their duties.  Our members have worked to root out waste and duplication and, where they have strayed from their core mission, we rein in agencies so they may better focus on the responsibilities for which they are intended.  In doing so, we balance the urgent need for fiscal restraint with the necessity to provide an abundant food supply, robust trade, prudent conservation measures, and strong rural communities.

Sorry, congressman, but if the media is going to uncritically report the “women and children will suffer” argument, the “root out waste and duplication” counter-argument isn’t going to win the heart of the average American who probably thinks WIC is something that comes out of a candle.

For all the angst over cuts to discretionary spending, I don’t see much discussion over the fact that, according to Republicans, mandatory spending for agriculture and nutrition programs will increase by $3 billion – from $105 to $108 billion. Spending on food stamps, which unlike WIC, is basically on auto-pilot, would increase by almost $6 billion. I’m guessing that the “hunger advocates” didn’t plug that number into their equation.

I’ll end on a positive note by pointing out that Cato’s Downsizing the Federal Government website has essays on why it would be truly “progressive” to eliminate farm subsidies, rural subsidies, food subsidies, and other federal welfare programs.

Antidumping and Bedroom Furniture from China: The Real Story

The Washington Post ran a story in yesterday’s print edition about the U.S. antidumping order against Wooden Bedroom Furniture from China—a case I described seven years ago as the “Poster Child for [Antidumping] Reform” because its sordid details explode the myths upon which rest the rationalizations for the law’s existence.

Those details are nowhere to be found in the WP article, which was published, presumably, to make a few other points.  One such point—the only one with which I agree—is that antidumping duties aren’t very effective at restoring or preserving U.S. jobs.  As the article demonstrates, since the imposition of AD duties on Chinese furniture beginning in 2005, imports from Vietnam, Indonesia, and other countries not subject to the AD restrictions have emerged to fill the vacuum created by declining imports from China.  Not much news in that, though.  This kind of trade diversion is a typical consequence of antidumping restrictions. Likewise, furniture production and the jobs it used to support has not undergone a renaissance in the United States – despite that being the rallying cry of the domestic producers who brought the case in 2004. (More on that in a moment.)

But the article—beginning with its title (“Chinese Make a Run Around U.S. Tariffs”)—leads readers to the faulty conclusion that those cunning Chinese are at it again, looking for ways to prosper at the expense of innocent, upstanding U.S. producers and their workers.  A pretty good tip-off that an article about China and trade is going to miss the mark, mislead, and misinform is when the author describes trade as a contest between two countries with the trade account characterized as a scoreboard.

The United States and China have exchanged accusations of dumping for years and imposed tit-for-tat duties.  All along, though, China has generally come out on top: Its trade surplus with the United States rose to $273 billion in 2010…more than three times the level of a decade earlier.

Is the reader to conclude, then, that more antidumping measures against Chinese products are integral to reducing the trade deficit and, ultimately, “com[ing] out on top”?  That conclusion doesn’t really dovetail with the point about how antidumping does nothing to restore U.S. production.  But I digress.

The main problem with the article is that it escorts readers to the incorrect conclusion that it was Chinese furniture producers who initiated efforts to get around the U.S. antidumping duties.  Implied throughout the article is that a man named Lawrence Yen, president of a Chinese furniture company, was the architect of some crafty plan to avoid U.S. duties.  It reports that during a meeting of Chinese furniture makers in Dongguan: “[Yen] told them [he] would set up a factory in Vietnam,” which was presented in the article as though it were the idea’s genesis.  The caption to the inset chart of furniture imports in the article reads:

To avoid a 2005 U.S. tariff on Chinese-made wooden bedroom furniture, Chinese furniture companies moved operations to other Asian countries, thwarting U.S. efforts to curb “dumping,” the export of goods at unfairly low prices.

This presentation of events may serve the clichéd theme that Americans are in a pitched battle with the Chinese, who are willing to stretch and break the rules to “win,” but it fails to give readers critical parts of the story.  The fact is that this strategic tariff aversion plan, which is as legal and common as off-the-shelf tax minimization software at Best Buy, was the brainchild of the U.S. domestic furniture industry before it filed the case in 2004.

Here’s where my 2004 paper would be useful to readers interested in a fuller accounting of the details:

The case of Wooden Bedroom Furniture from China has nothing to do with unfair trade and is a perfect example of the need for antidumping reform. The filing of this case was a tactical maneuver by one group of domestic producers that seeks to exploit the gaping loopholes of the antidumping law to get a leg up on its domestic competition. Domestic producers realize that the only way to compete and offer their customers variety is to source at least some production from abroad. Instead of preserving or returning domestic jobs (which is the public justification for the petition) import restrictions will cause a shift in sourcing from China to places like the Philippines, Indonesia, Brazil, and Vietnam–places from which many of the petitioners have begun or are poised to begin importing themselves.

At the time this case was initiated, the same U.S. furniture producers who were petitioning for relief from imports from China were investing in furniture operations in other countries.  There’s nothing illegal or objectionable about investing in foreign production, but the assertions of the petitioning U.S. producers that their aim was to restore U.S. production and U.S. jobs were clearly false.  It is testament to the laughably modest standards for finding a domestic industry injured by reason of dumped imports that duties were ever imposed in the furniture case.  Consider this:

The petitioners’ argument that the U.S. furniture industry is being hurt by Chinese imports is similarly suspect. In the 1990s, U.S. producers began to supplement their domestic production with furniture made in China. The import surge from China did not begin until years after U.S. producers began to cultivate the Chinese industry.

Consider the experience of Vaughan-Bassett Furniture Company, one of the largest U.S. producers and a petitioner in this case. In the late 1990s Vaughan-Bassett invited one of the largest Chinese producers, Lacquer Craft, to its factory to videotape production of bedroom furniture so that it could produce bedroom furniture in China for Vaughan-Bassett to import and resell. According to testimony before the ITC, U.S. producers turned to China to “supplement their product line because they had ideas, they had designs, they were the professionals in our industry, and they knew after traveling to China and seeing the infrastructure there that they could make certain bedrooms in China, bring it here, mark it up 30 to 40 percent to a retailer and still sell it for less than they could have made it for.”

Some producers invested directly in Chinese manufacturing facilities, while others simply imported from unrelated Chinese producers. U.S. retailers soon caught on, recognizing the many benefits of purchasing from China. They could cut out the middlemen (U.S. producers) who were simply importing, marking up, and profiting; they could produce a greater variety of designs (including hand carvings and inlays) that are cost-prohibitive in the United States; they could respond to high levels of defects in U.S. production by switching to alternatives; and they could have custom designs mass-produced and labeled under their own brand names.

While imports of wooden bedroom furniture from China have increased considerably over the past few years, domestic producers (including many of the companies that brought or at least supported the antidumping petition) have played a major role in that increase. In 2000, 6 percent of domestic producers’ U.S. shipments were sourced from China. By 2002, that figure increased to 19.6 percent, and through the first half of 2003, that figure stood at 26.6 percent.

According to the ITC’s own preliminary report in this case:

As an initial matter, we note that the record indicates it has become common practice for members of the domestic industry to import the subject merchandise from China as a means of supplementing their domestic production in the market place. For example, the record shows that 20 of the 40 responding domestic producers imported Chinese merchandise during the period and that the 12 largest domestic producers of wooden bedroom furniture all imported reasonably substantial and increasing volumes of merchandise from China during the period of investigation. In fact, the *** companies within the petitioning group all have imported increasing volumes of subject merchandise from China during the period of investigation.

The essence of this case, then, is well summarized by representatives of Furniture Brands International, Inc., the largest U.S. producer and an opponent of the petition. This case boils down to “a request by domestic producers who are significant importers of the subject merchandise to impose duties on imports that they have voluntarily made on the ground that their very own actions have caused them injury.”

Are petitioners really calling on the federal government to stop them before they import again? The actual story looks more complicated. Evidence presented during the ITC proceeding indicates that certain petitioners have begun or are poised to begin importing from alternate sources should antidumping duties be imposed on Chinese furniture.

The ITC preliminary report confirms this trend is likely underway:

U.S. imports of wooden bedroom furniture from Indonesia, Brazil, Malaysia, and Thailand, the fifth, sixth, eighth, and tenth respective largest foreign country suppliers of wooden bedroom furniture to the United States, increased by a total of $100.4 million during 2000-02 and by another $26.7 million in January-June 2003 from the same period in 2002. Although still a small supplier of wooden bedroom furniture to the U.S. market, U.S. imports of these products from Vietnam increased by a total of $8.5 million during 2000-02 and by another $11.6 million in January-June 2003 from the same period in 2002.

A brief submitted to the ITC by the Furniture Retailers Group indicated that petitioners “have been busy helping to set up operations in numerous third countries, such as Indonesia and Vietnam, where costs are lower than in China. In fact, this week representatives of Vaughan-Bassett are in Vietnam meeting with Vietnamese furniture companies.”

The brief went on to question why the petition named only China and not any of the other low-price third-countries since source-shifting is a common response to country-specific antidumping duties. The answer, of course, was implied.

Although  the antidumping law is hailed by its supporters as a tool to ensure “fair trade” and to “level the playing field” and to protect American firms and workers from “ill-intentioned foreigners,” the fact is that the law is frequently used by U.S. companies seeking advantage over other U.S. companies, with hapless consumers and consuming-industries the collateral damage.

But when media give scant and selective coverage to the topic, they are abetting the status quo, which depends on the continued inscrutibility of the operation of this costly canard.

No Time to Debate Patriot

Back in February, Democratic leader Harry Reid promised fellow senator Rand Paul that—after years of kicking the can down the road—there would be at least a week reserved for full and open debate over three controversial provisions of the Patriot Act slated to expire this weekend, with an opportunity to propose reforms and offer amendments to any reauthorization bill.  And since, as we know, politicians always keep their promises, we can look forward to a robust and enlightening discussion of how to modify the Patriot Act to better safeguard civil liberties without sacrificing our counterterror capabilities.

Ha! No, I’m joking, of course. Having already cut the legs out from under his own party’s reformers by making a deal with GOP leaders for a four-year extension without reform, Reid used some clever procedural maneuvering to circumvent Rand Paul’s pledged obstruction, slipping the Patriot extension into an unrelated small-business bill that’s privileged against filibusters. All this just to prevent any debate on amendments—the most prominent of which, the Leahy-Paul amendment, is frankly so mild that it ought to be uncontroversial. (Among other things, it modifies some portions of the statute already found constitutionally defective by the courts, and codifies some recordkeeping and data use guidelines the Justice Department has already agreed to implement voluntarily.) Apparently it’s too much to even allow these proposals to be debated and voted on.

One reason may be that a growing number of senators—most recently Ron Wyden and Mark Udall—have been raising concerns about a classified “sensitive collection program” that makes use of the sunsetting “business records provision,” also known as Section 215.  They’ve joined Dick Durbin and (former Senator) Russ Feingold in hinting that there may be abuses linked to this program the public is unaware of, and that, moreover, the secret Foreign Intelligence Surveillance Court has interpreted this provision (in a classified ruling, of course) in a way that the general public would find surprising, and which goes beyond the law’s apparent intent. Intelligence operations, of course, must remain secret, but this means we are now governed by a body of secret law, potentially at odds with citizens’ understanding of the public statute—with the result that we cannot even know the true reason that common sense reforms, once endorsed unanimously by the Senate Judiciary Committee, cannot be adopted. This is—to put it very mildly—not how a democracy is supposed to function. Equally troubling, there’s strong circumstantial evidence (which I’ll outline in a separate post) that the program in question may involve large-scale cell phone location tracking and data mining—a conclusion shared by several other analysts who’ve followed the issue closely.

The one silver lining here is that, while press may not have the patience for a complicated policy debate involving byzantine intelligence law—especially now that many Democrats have decided that powers which raised the specter of tyranny under George W. Bush are unobjectionable under an Obama administration—they are always happy to cover a legislative boxing match. Perhaps, thanks to Sen. Paul’s intransigence, we’ll finally see a little sunlight shed on these potent and secret surveillance powers.