Tag: joseph lieberman

Obama on DC Vouchers. No ‘June Surprise.’

Reports circulated yesterday that President Obama had reached an agreement with House speaker John Boehner (R-OH) and Sen. Joseph Lieberman (I-CT) to not only sustain the DC school voucher program for another few years but to eliminate the legislative cap on student enrollment—theoretically allowing it to grow without limit. Based the program’s performance to date, this would dramatically improve the graduation rate city-wide, likely boost performance academically, and save hundreds of millions of dollars from the bloated DC K12 budget.

But I didn’t write about it, because I didn’t believe it. Sure enough, later in the day, Secretary of Education Arne Duncan offered a clarification. Far from allowing unlimited growth in the program, the president only intended to allow another 85 students to participate—and still opposes the program in principle.

There is simply no way—no way—that President Obama could support an unlimited expansion in this successful, fantastically cost-effective education program. If he did, he would demoralize the most powerful force within the Democratic Party, the teachers’ unions, in the run-up to this fall’s election. Clearly he has no intention of doing that, given his recent advocacy of using federal dollars to grow the public school workforce (despite the fact that public school employment has already grown 11 times faster than enrollment over the past four decades).

We have a president who, for political reasons, cannot throw his full support behind the only federal education program in the nation’s history that is constitutional, successful, and cost-effective.

The Senate’s Interventionist Caucus and Libya

An interesting window into the politics of the Obama administration’s war in Libya may open this week, when Senators Kay Bailey Hutchison (R-TX) and Joe Manchin (D-WV) reintroduce a resolution expressing the sense of the Senate “that it is not in the vital interests of the United States to intervene militarily in Libya,” and calling on NATO member states and the Arab League, two parties who are directly threatened by the violence in Libya, to provide the necessary assets to the mission.

Such resolutions almost never have a direct impact on the conduct of military operations. Hutchison-Manchin isn’t even the first attempt to constrain President Obama’s ability to wage war in Libya. A resolution offered by freshman Senator Rand Paul (R-KY), and cosponsored by Senator Mike Lee (R-UT), went well beyond the question of whether the war advanced vital U.S. national interests, and attempted to reassert the legislature’s control over the warpowers generally. Borrowing from something that then-Senator Barack Obama said in 2007, the resolution read “The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.” This language, which likely strikes most Americans as eminently sensible, managed to garner just 10 votes, all from Republicans.

Still, the prospect of a vote on a much narrower resolution must worry the war’s advocates. At a minimum, an up or down vote on Libya will test the strength of the still-vocal interventionist caucus in the U.S. Senate.

These reliably pro-war members took to the Sunday shows to make the case for escalation. On CNN’s State of the Union, Sen. Lindsey Graham called on the Obama administration “to cut the head of the snake off. Go to Tripoli [and] start bombing Qaddafi’s inner circle.” Worries that the uprising might provide cover for al Qaeda to expand its operations in the Maghreb were unfounded, John McCain asserted. McCain’s long-time friend Sen. Joseph Lieberman agreed, explaining on the same program, “We’re in the fight and the political goal is to get Qaddafi out and to help the freedom fighters achieve their own independent Libya. You can’t get into a fight with one foot. You got to get into it.”

How many others in the Senate subscribe to the interventionists’ interpretation of what America’s role in Libya should be is unclear. I have never understood why Republicans would scramble to follow foreign policy advice from a Democrat, and Al Gore’s running mate, no less. Senators McCain and Graham hold more sway among their GOP colleagues, but their outspoken support for a number of other ill-considered ventures, including especially the war in Iraq, likely gives pause to some. Graham’s fellow South Carolinian Jim DeMint, for example, voted in favor of the Paul-Lee resolution, and has otherwise shown no great enthusiasm for adding to the U.S. military’s already full plate. The Boston Globe’s Theo Emery reports today that Massachusetts Senator Scott Brown isn’t yet ready to endorse an escalation of the war. Meanwhile, Maine’s Susan Collins told Emery that the U.S. military’s role in Libya should be limited to intelligence, logistics, and other capabilities that U.S. allies lack.

Who else might vote for Hutchison-Manchin? Presumably those within the Democratic caucus who still think that war is generally a bad thing, even when it is waged by a Democratic president. No Democrat voted for Paul-Lee, but Senator Manchin’s co-sponsorship of this much more narrowly worded resolution should provide cover for centrists, as well as progressives who once reliably opposed wars of choice.

One thing is clear with respect to the war in Libya: politics favors the skeptics. There is no groundswell of public opinion calling for yet another armed nation-building mission in a strategic backwater. Though the costs of the war are small relative to the gargantuan military budget, most Americans can be counted on to oppose wars that do not clearly advance U.S. national security interests, regardless of how much or how little they cost. They are doubly skeptical given that the costs of the wars in Iraq and Afghanistan have vastly exceeded even the most pessimistic of predictions, and have not delivered the security that the advocates for war claimed.

It is a truism that politics doesn’t generally drive foreign policy. People who celebrate America’s role as the world’s policeman don’t expect to reap great political rewards for taking such an unpopular stand. McCain, Graham and Lieberman have always stood apart in that regard. Recall, for example, that John McCain bragged that he would rather lose an election than lose a war. He never appeared to consider that both eventualities were possible. Perhaps some of his fellow senators will.

Cross-posted from The National Interest

No, Paul Ryan Really Doesn’t Cut Pentagon Spending

Last week I expressed my disappointment with Paul Ryan’s budget plan, specifically about his unwillingness to cut military spending. Some people think that he does cut spending through his acceptance of Secretary Gates’s $78 in “cuts.” (see, for example, Sen. John Sununu; Sen. Joseph Lieberman, AEI’s Gary Schmitt and Tom Donnelly; and the Heritage Foundation’s Baker Spring).

So either I am wrong, or they are. Let me try to set the record straight.

First, all of Ryan’s other savings – savings which I support – were projected either against the Obama administration’s FY 2012 budget or against the current budget baseline. For example, according to Ryan’s own “Key Facts” his plan “Cuts $6.2 trillion in government spending over the next decade compared to the President’s budget, and $5.8 trillion relative to the current-policy baseline.” With respect to military spending, however, Ryan’s plan basically follows the Obama/Gates budget, proposing to spend a staggering $670.9 billion in FY 2012. The Obama administration’s DoD budget request for FY 2012 – including the Pentagon’s base budget plus overseas contingency operations (OCO) – totals $670.9 billion as well.  Of course, that total leaves out national defense spending tucked away in other departments (including nuclear weapons spending in the Department of Energy). Total national defense spending in FY 2012 will top $700 billion. I stand by my earlier assertion that the Pentagon’s budget escapes from Ryan’s budget axe “essentially unscathed.”

Ryan and others claim that military spending has already been cut, hence the decision to embrace this portion of the president’s budget. Sen. Lieberman explained to Bloomberg news, “To a certain extent, Secretary Gates has enabled us at least temporarily to take defense off the table because he has initiated his own round of defense cuts.”

“To a certain extent” is doing a lot of work in that statement. In fact, Gates and Obama do not cut military spending.

First, they don’t claim to do so. These supposed cuts are only “cuts” in Washington-speak. The Pentagon’s base budget under both the Ryan and Obama plans will increase 1 percent in real, inflation-adjusted terms. See the table below, recreated by my colleague Charles Zakaib from the official DoD budget request.

Second, Ryan claims that Gates’s “exhaustive review of the Pentagon’s budget” identified $178 billion in savings. It does nothing of the sort. By Ryan’s own admission, taxpayers will see only $78 billion of these; the other $100 billion are to be “reinvested” elsewhere in the Pentagon. (They’re always “investments” when you’re spending the taxpayers’ money, even when Republicans do it.)

So we’re really talking about $78 billion toward deficit reduction over the next five years, or approximately 2.6 percent of the Pentagon’s base budget (excluding the wars) over that same period. With all due respect, that isn’t a bold plan for reducing the crushing burden of spending and debt; that’s a rounding error.

What’s more, it is highly unlikely that these savings will materialize. Many of these efficiencies involve consolidation of commands – something that Congress has already balked at – and unspecified savings that are relatively easy to identify, but extremely difficult to implement.

But if, by some miracle, Robert Gates’s successor(s) manage to get them passed by Congress, those savings won’t actually be dedicated to deficit reduction: they will be completely devoured by spending on the wars. This is the greatest sham of all. Charles Knight at the Project on Defense Alternatives (and a key contributor to the Sustainable Defense Task Force, of which I was also a member) explains:

For several years now White House budget projections have included a “placeholder for outyear overseas contingency operations” most of which are accounted for by the wars in Iraq and Afghanistan. This placeholder number has been and remains $50 billion. Every year actual OCO (overseas contingency operations) spending turns out to be several times that number. FY11′s OCO is $159 billion and FY12′s is $118 billion.

Adjusting for the effect of the new OCO for FY12, the $68 billion budgeted above the placeholder of $50 billion eats up most of the $78 billion in Pentagon cuts that Secretary Gates offered up in January to fiscal responsibility….The remaining $8 billion (and much more) will go to the war budgets when reality collides with placeholder projections.

On 14 February Pentagon Comptroller Hale confirmed that the $50 billion placeholders for FY13 and beyond was the “best we can do.” Others make an attempt to be more realistic. The high tech industry association called Tech America annually projects DoD budgets for ten years out. In their 2010 projection they estimate that OCO spending will be $102 billion in FY13, $69 billion in FY14 and $57 billion in FY15. When we subtract the $50 billion placeholder for each of those years and total the remainder we find that the Pentagon is likely to spend $78 billion more in the years FY13 through FY15 than in the White House budget projections.

I hope that I’m proved wrong. I hope that the wars in Iraq and Afghanistan are brought to a close. I hope that the Congress gets serious about tackling Pentagon waste, and stops treating the military budget as an elaborate jobs program. I hope that our brave men and women in uniform get the hardware, equipment, and training that they need, and that Americans get the “defense budget” that they deserve. But if past history is any guide, the Pentagon’s budget will continue to climb, other countries around the world will continue to free ride on Uncle Sam’s largesse, and U.S. taxpayers will be left to foot the bill.

Egyptian Government Attacks Egypt’s Internet

In response to civil unrest, the Egyptian government appears to have ordered service providers to shut down all international connections to the Internet. According to the blog post at the link just above, Egypt’s four main ISPs have cut off their connections to the outside world. Specifically, their “BGP routes were withdrawn.” The Border Gateway Protocol is what most Internet service providers use to establish routing between one another, so that Internet traffic flows among them.

An attack on BGP is one of few potential sources of global shock cited by an OECD report I noted here the other day. The report almost certainly imagined a technical attack by rogue actors but, assuming current reporting to be true, the source of this attack is a government exercising coercion over Internet service providers within its jursidiction. Nothing I pick up suggests that Egypt’s attack on its own Internet will have spillover effects, but it does suggest some important policy concerns.

The U.S. government has proposed both directly and indirectly to centralize control over U.S. Internet service providers. C|Net’s Declan McCullagh reports that an “Internet kill switch” proposal championed by by Sens. Joseph Lieberman (I-Conn.) and Susan Collins (R-Maine) will be reintroduced in the new Congress very soon. The idea is to give “kill switch” authority to the government for use in responding to some kind of “cyberemergency.”

We see here that a government with “kill switch” power will use it when the “emergency” is a challenge to its authority. When done in good faith, flipping an Internet “kill switch” would be stupid and self-destructive, tantamount to an auto-immune reaction that compounds the damage from a cybersecurity incident. The more likely use of “kill switch” authority would be bad faith, as the Egyptian government illustrates, to suppress speech and assembly rights.

In the person of the Federal Communications Commission, the U.S. government has also proposed to bring Internet service providers under a regulatory umbrella that it could then use for censorship or protest suppression in the future. On the TechLiberationFront blog, Larry Downes has recently completed a five-part analysis of the government’s regulatory plan (1, 2, 3, 4, 5). The intention of its proponents is in no way to give the government this kind of authority, but government power is not always used as intended, and there is plenty of scholarship to show that government agencies use their power to achieve goals that are non-statutory and even unconstitutional.

The D.C. area’s surfeit of recent weather caused the cancellation yesterday of a book event I was to participate in, discussing Evgeny Morozov’s The Net Delusion: The Dark Side of Internet Freedom. I don’t know that he makes the case overwhelmingly, but Morozov argues that governments are ably using the Internet to stifle freedom movements.

Events going on here in the United States right now could position the U.S. government to exercise the kind of authority we might look down our noses at Egypt for practicing. The lesson from the Egypt story—what we know of it so far—is that eternal vigilance is the price of freedom.

First, They Came for the Sex Offenders

First, they came for the sex offenders. I am not a sex offender, but I opposed the civil commitment of sex offenders by the federal government because it is not an activity within the enumerated powers of Congress. The Supreme Court decided otherwise in Comstock, with the exception of Justices Thomas and Scalia.

Next, they will come for suspected terrorists. As Dahlia Lithwick (who I rarely agree with – here is her commentary on the Heller case) points out, the Supreme Court’s decision in Comstock may have some frightening implications for domestic preventive detention of terrorism suspects in lieu of criminal prosecution.

I saw this firsthand last summer when I attended a scholars meeting with the Obama administration’s Detention Policy Task Force (the same one that Andy McCarthy publicly refused to attend). I gave my views on where detention policy should go, as did a conference room full of experts on the laws of armed conflict and criminal justice (who shall remain anonymous, as this meeting was off the record). I was dismayed to hear a law professor from a prestigious university propose a system of preventive detention as the logical solution to countering terrorism. Worse yet, to make this law less provocative, the professor further proposed that preventive detention should be applied in other criminal contexts, so that the department of pre-crime would not be seen as unfairly targeting only enemy combatants overseas. This professor had taught many of the Department of Justice staffers in the room, and I looked around to see heads nodding at the suggestion.

I responded forcefully that such a system is antithetical to American traditions of due process. Battlefield detention is necessary to incapacitate insurgents and terrorists overseas, and is often employed in lieu of killing them. Broad powers of detention without trial in the criminal context do not make Guantanamo less controversial; they bring it on to our shores and in to our courtrooms. If we have enough information to show that someone is a threat by a preponderance of the evidence in order to detain them, we probably have enough to indict them for conspiracy. One of the reasons that few people turn to political violence in the United States is that the Bill of Rights bars the government from telling the citizenry how to worship, what to think, and what they can say. Generally speaking, you have to actually be a criminal to get charged as one.

Would the votes in Comstock translate into a Supreme Court ratification of such a system? Probably not, since Kennedy and Alito stressed in their concurrences that the circumstances in Comstock are unique. And Hamdi showed us that Scalia takes habeas corpus rights seriously when it comes to citizens. Unfortunately, only Stevens shared this view and he looks to be replaced by Elena Kagan, who argued that civil commitment in Comstock was an extension of Congress’ power to create and run a prison system (not an enumerated power). But this isn’t about counting the noses currently on the Court; it’s about creating a new normal where the people in prison are detainees, not defendants.

Unfortunately, there are more than a few people in favor of such a system. Jack Goldsmith and Neal Katyal (now the acting Solicitor General) propose a terrorism court. Sens.  McCain and Lieberman want to treat all terrorism suspects as enemy combatants. Sens.  Lieberman and Brown want to strip the citizenship of terrorism suspects and try them by military commission. Sens. Graham and McCain plan to close Guantanamo by creating a preventive detention court. Take a conservative plan to deal with enemy combatants captured on the other side of the world, strap on some liberal angst over tea parties and militia groups, and you’ve got a bipartisan plan for wholesale degradation of everyone’s liberties.

And when the proposal comes, the first thing they’ll say is that this is how we already deal with sex offenders.

The Lieberman-Brown Bill and Your Right to Stay out of Gitmo

The attempted Times Square bombing prompted Senators Joseph Lieberman (I-CT) and Scott Brown (R-MA) to propose that anyone suspected of providing material support, as defined by 18 U.S.C. § 2339A, to State Department-listed terrorist groups be stripped of their citizenship. As Julian Sanchez points out, existing law provides for expatriation for a number of reasons, but in two distinct categories. The first is for actions that demonstrate intent to relinquish citizenship: swearing loyalty to another nation, serving in a foreign military as an officer or non-commissioned officer (or in any capacity if that country is at war with the United States), formal renunciation before a diplomatic official, and similar actions. The second is for serious crimes against national security: treason, rebellion, insurrection, advocating the overthrow of the government, seditious conspiracy, and levying war against the United States.

As Julian and I point out in this piece at Politico, there is a key difference between the existing expatriation provision and the Lieberman-Brown proposal.

The existing expatriation capacity triggers, if at all, after conviction for listed crimes against national security. The Lieberman-Brown proposal would strip citizenship where there is an allegation of material support to a Foreign Terrorist Organization.

With this very important distinction, it is clear that the Lieberman-Brown bill does not merely update expatriation law for the 21st century.  I discuss some of the low points of this legislation in this podcast:

This bill is an end-run around the jurisdictional limitation of the military commissions. After expatriation, a former citizen could be shipped off to Guantanamo for trial by a panel of military officers for a domestic crime. This is a step that the Bush administration never took. The military commissions, from the original executive order through the Military Commissions Acts of 2006 and 2009, are limited in jurisdiction to non-citizens. This is an attempt to take terrorism prosecutions out of civilian federal courts, which already effectively deal with domestic terrorism, and put defendants in a forum where they will have fewer rights.

What if the defendant is expatriated by a preponderance of the evidence (51% sure that they provided material support to an FTO) but are acquitted at the commission? Now we have the possibility of a natural-born non-citizen, who, unlike the traditional expatriation subject, has no other nationality to fall back on.

This procedure won’t pass constitutional muster anyway, as David Cole points out. Citizenship cannot be stripped so lightly against a person’s will.

In short, this is an ineffectual political stunt that aspires to be a radical threat to civil liberties. This proposal shouldn’t become law.

Playing Chicken Again

As I wrote in this post, Senators McCain and Lieberman proposed a broad piece of anti-terrorism legislation. The Enemy Belligerent, Interrogation, Detention, and Prosecution Act of 2010 would use military detention to incapacitate suspected domestic terrorists, including American citizens. This is a sea change in counterterrorism policy and a break from American principles that mandate a day in court.

This bill is a bad idea for several reasons. First, for the points that I made in my previous post, the civilian criminal justice system successfully incapacitates domestic terrorists. Our laws are built to do that – it’s the international nature of al Qaeda and the necessity of military force in the expeditionary conflicts we are fighting that make things different. Second, I doubt that this policy will be seen as a bonanza for domestic counterterrorism, and the agencies responsible tasked with using military detention won’t actually have much use for it. Third, and most importantly, detaining American citizens minus a suspension of habeas is unconstitutional and will be held so in court.

The policy prescribed under this bill is to direct anyone apprehended and suspected of terrorism into military custody for their initial interrogation. The bill bars them from being read Miranda rights, directs a high-value detainee interrogation group to determine whether or not they fit the bill as an unprivileged enemy belligerent (Military Commissions Act 2009 language for unlawful enemy combatant), and further directs authorities to submit this information to Congress. Anyone designated as an enemy belligerent can be detained until the cessation of hostilities, which amounts to whenever Congress says that the war on terrorism is over.

The kicker is that aliens detained domestically under this system must be tried by a military commission. Citizens cannot be tried by military commissions, and the jurisdictional language in the Military Commissions Act (MCA) reflects this. Basically, the government would collect a bunch of intelligence that is inadmissible in federal courts and then hold American citizens indefinitely. Also, detaining large numbers of Muslim aliens (who may have strong ties to local Muslim communities) and prosecuting them in military commissions threatens to radicalize citizens who are Muslims. The perceived double standard – commissions for Muslims in America, civilian trials for everyone else – is counterproductive when it comes to defeating terrorist recruiting.

I say that this won’t be a bonanza for the intelligence community because I see this scenario playing out in three ways:

First, it might work as seamlessly as the bill’s sponsors describe. This could be true if we already have a lot of evidence, the suspect is arrested, temporarily transferred for a short session of non-admissible interrogation, and then kicked back to the civilian criminal justice system (true with citizens, not with aliens). There’s an argument that traditional police interrogations could get the same (or more) information that the military can, because military interrogators do not have the bargaining tools such as snitching on co-conspirators for reduced sentences, plea bargains and the like. I won’t belabor that, since it’s not the point of this post.

Second, there’s the possibility that the military and the intelligence community won’t want to get involved in a lot of these cases, essentially nullification of what Congress would dictate with this bill. The FBI would monitor the communications of someone like JihadJane, have mountains of evidence against her, and have a case that supports the arrest of her co-conspirators overseas. In this case military detention is unwarranted, so the military investigator shows up, decides that the law enforcement agents have the situation in hand, and high-fives them on the way out the door. The bulk of terrorism suspects don’t have a wealth of information about other plots, so mandating military detention is tying the Executive’s hands by making counterterrorism agents jump through additional bureaucratic hoops when they take people into custody. I thought this was something that conservatives oppose.

Mandating military custody gets hairier in real emergencies. Imagine a parallel to the 1993 WTC bombing where the FBI knows that a cell is assembling a bomb but doesn’t sweep up the suspects before the bomb is operational and in a truck bound for its intended target. Agents lose track of the suspects, but quickly locate one of them and take him into custody. The new law would mandate that they first get the guy into military custody before asking him where the bomb is going. Besides creating an incentive to put military investigators (CID, NCIS, or OSI) on every Joint Terrorism Task Force in America (possible Posse Comitatus and 10 U.S.C. 375 issues with this and the rest of the bill), this doesn’t even guarantee that a military investigator is with the agents who capture the suspect that we need information from right now. Under the current “soft-on-terrorism law enforcement approach” the law enforcement agents can question the suspect directly and be assured that the exigency of the situation makes his statements admissible in court via Quarles, where the Court created a “public safety” exception for the post-arrest, pre-Miranda questioning of a rapist who had hidden his gun in a supermarket. A bomb heading toward the federal building or a shopping mall is a bigger threat than a revolver mixed in with the fresh fruit, and courts get this. If the course of action dictated to the people on the ground fails the “ticking bomb” scenario, it ought to be opposed by all armchair counterterrorism experts who take their cues from 24.

The third possibility is a worst-case scenario. Suppose we have an American citizen who gets taken into military custody, gives up a lot of information, but then won’t repeat it when he is kicked back to the civilian law enforcement system. Some will make the case that this is justification for an honest-to-goodness preventive detention system to keep such a person in custody.

This raises the question of constitutionality with regard to holding American citizens as domestic enemy combatants. More to the point, it resurrects the case of Yaser Hamdi with a differently-situated plaintiff. Hamdi was a dual US-Saudi citizen who was captured on the battlefield in Afghanistan. He was brought to the US and kept in a naval brig in Charleston, South Carolina. The Supreme Court heard his case and the plurality held that he could be detained as an enemy combatant, but that some form of administrative hearing was required to balance his liberty interest versus the government’s national security concerns.

Justices Scalia and Stevens dissented and got this case right (agreeing with Cato’s brief). American citizens cannot be held without trial short of suspending habeas corpus, and Congress has not supplied language to comply with the Non-Detention Act when it passed the Authorization for the Use of Military Force after 9/11.

After all, President Bush’s military order of November 13, 2001 directs the Secretary of Defense to detain and try enemy aliens by military commission. The Military Commissions Acts of 2006 and 2009 have not deviated from this language.

The court challenge that results is a return to the Executive playing “chicken” with the courts, and the Executive continuously losing.

Courts will distinguish domestic terrorism suspects from those who participated in hostilities on the battlefield. This was the reasoning behind Jose Padilla’s loss in the 4th Circuit. He had been on the battlefield and escaped, parallel to Yaser Hamdi and the Nazi saboteurs of the Quirin case. This distinguished him from Lambdin Milligan, the post-Civil War domestic terrorist who was ordered out of a military commission and back into the civilian courts.

Even those who disagree with Scalia and Stevens can count votes on the Court. The narrow circumstances in Hamdi are not present here, and the battlefield/civil society distinction has the potential to sway all but two or three of the justices. Kennedy indicated displeasure with the jurisdictional shell game the Bush administration played with Jose Padilla, along with Roberts and Stevens. Souter, Ginsburg, and Breyer voted to hear his case even after he had been transferred from enemy combatant status to federal court.

The bottom line is that this bill mandates treating all terrorist attacks as acts of war and not criminal violations, when some are clearly both. It isn’t bad policy because there is no justification for military force – there is – it’s bad policy because it prohibits a pragmatic legal response to terrorism. If the law enforcement paradigm gets results for the threat, use it. The same goes for the military paradigm. But let’s not pick one over the other for the sake of domestic politics.