Tag: obama

How Does It Feel to Be at the Table Now?

On Monday, the Obama administration held a well-publicized love-fest with lobbyists for the health care industry.  It turns out that rather than a “game-changer,” the event was a fraud.  And the industry got burned.

At the time, President Obama called it a “a watershed event in the long and elusive quest for health care reform”:

Over the next 10 years — from 2010 to 2019 — [these industry lobbyists] are pledging to cut the rate of growth of national health care spending by 1.5 percentage points each year — an amount that’s equal to over $2 trillion.

By an amazing coincidence, $2 trillion is just enough to pay for Obama’s proposed government takeover of the health care sector.

Yet The New York Times reports that isn’t the magnitude of spending reductions the lobbyists thought they were supporting:

Hospitals and insurance companies said Thursday that President Obama had substantially overstated their promise earlier this week to reduce the growth of health spending… [C]onfusion swirled in Washington as the companies’ trade associations raced to tamp down angst among members around the country.

Health care leaders who attended the meeting…say they agreed to slow health spending in a more gradual way and did not pledge specific year-by-year cuts…

My initial reaction to Monday’s fairly transparent media stunt was: “I smell a rat.  Lobbyists never advocate less revenue for their members.  Ever.” The lobbyists are proving me right, albeit slowly.  (Take your time, guys.  I don’t mind.)

The Obama administration seems a little less clear on that rule.  Again, The New York Times:

Nancy-Ann DeParle, director of the White House Office of Health Reform, said “the president misspoke” on Monday and again on Wednesday when he described the industry’s commitment in similar terms. After providing that account, Ms. DeParle called back about an hour later on Thursday and said: “I don’t think the president misspoke. His remarks correctly and accurately described the industry’s commitment.”

How did the industry find itself in this position? Politico reports:

The group of six organizations with a major stake in health care…had been working in secret for several weeks on a savings plan.

But they learned late last week that the White House wanted to go public with the coalition. One health care insider said: “It came together more quickly than it should have.” A health-care lobbyist said the participants weren’t prepared to go live with the news over the weekend, when the news of a deal, including the $2 trillion savings claim, was announced by White House officials to reporters.

Gosh, it’s almost like the White House strong-armed the lobbyists in order to create a false sense of agreement and momentum.  Pay no attention to that discord behind the curtain!

At the time, I also hypothesized that this “agreement” was a clever ploy by all parties to pressure a recalcitrant Congressional Budget Office to assume that the Democrat’s reforms would produce budgetary savings.  “Otherwise, health care reform is in jeopardy,” says Senate Finance Committee chairman Max Baucus (D-MT).  Turns out there was no agreement, and the industry was just being used.

American Hospital Association president Richard Umbdenstock was more right than he knew when he told that group’s 230 members:

There has been a tremendous amount of confusion and frankly a lot of political spin.

Merriam-Webster lists “to engage in spin control (as in politics)” as its seventh definition of the word “spin.”  Its second definition is “to form a thread by extruding a viscous rapidly hardening fluid — used especially of a spider or insect.” Which reminds me…

CORRECTION: My initial reaction to Monday’s media stunt – “I smell a rat” – was transcribed incorrectly.  It should have read, “I smell arachnid.”

(HT: Joe Guarino for the pointers.)

End the Drug War. Just Do It.

Obama’s new drug czar, Gil Kerlikowske, in an interview with the Wall Street Journal, says it is time to move away from the “war” rhetoric surrounding federal drug policy.  Since Kerlikowske has just assumed office, this is exactly the right thing to do – set a whole new tone from the militarized approach we have seen over the past 20-30 years. 

Drug abuse is a problem that must be dealt with, but we don’t need to send troops to Latin America, we don’t need former generals like Barry McCaffrey to oversee drug policy, and we don’t need police officers conducting raids on American homes with machine guns and  flash bang grenades.

The political climate on drug policy is shifting.  Republican governors like Arnold Schwarzenegger are calling for an open debate on legalizing marijuana.  New York is finally discarding its Rockefeller drug laws.  And Latin American leaders are urging the U.S. to reverse course.  Obama seems interested in a new direction but the appointment of a sensible law enforcement official like Kerlikowske and talk of “more treatment” is not enough.  We need more decisive action away from the criminalized approach to drug policy.  The time is right to just do it.

For Cato research on this subject, go here.

White House Czar Calls for End to ‘War on Drugs’

This morning in The Wall Street Journal:

The Obama administration’s new drug czar says he wants to banish the idea that the U.S. is fighting “a war on drugs,” a move that would underscore a shift favoring treatment over incarceration in trying to reduce illicit drug use.

…Gil Kerlikowske, the new White House drug czar, signaled Wednesday his openness to rethinking the government’s approach to fighting drug use.

Mr. Kerlikowske’s comments are a signal that the Obama administration is set to follow a more moderate – and likely more controversial – stance on the nation’s drug problems.

The Obama administration is likely to deal with drugs as a matter of public health rather than criminal justice alone, with treatment’s role growing relative to incarceration, Mr. Kerlikowske said.

Well, that’s at least a modest step in the right direction. However, I want to see how policies change (if they do) under the Obama administration. A change in terminology won’t mean much if the authorities still routinely throw people in jail for violating drug laws.

As for the international war on drugs, everyone in the Washington area is welcome to join us this Friday on Capitol Hill to discuss the consequences of the war on drugs abroad.

Obama’s Broken Toaster

APTOPIX ObamaRecently on Leno, President Obama compared some financial products to an exploding toaster. His words:

When you buy a toaster, if it explodes in your face there’s a law that says your toasters need to be safe. But when you get a credit card, or you get a mortgage, there’s no law on the books that says if that explodes in your face financially, somehow you’re going to be protected.

So this is – the need for getting back to some common sense regulations – there’s nothing wrong with innovation in the financial markets. We want people to be successful; we want people to be able to make a profit. Banks are critical to our economy and we want credit to flow again. But we just want to make sure that there’s enough regulatory common sense in place that ordinary Americans aren’t taken advantage of, and taxpayers, after the fact, aren’t taken advantage of.

While I think we would all like to get to “common sense” regulation – arriving at such is unlikely if one’s understanding of the very problem is flawed, as seems to be the president’s.

Unlike broken toasters, mortgages and credit cards do not fail to pay themselves – borrowers fail to pay, almost always for a reason that has little to do with the characteristics of the loan itself. There is a wealth of empirical data documenting the causes of bankruptcy, mortgage and credit card default – much of which has been assembled by those on the left (take a look at any of Professor Elizabeth Warren’s work on bankruptcy). The fact is that the number one cause of all of these events is job loss. If the president has a plan for a mortgage that protects you from losing your job, I would love to see how that’s going to work. After job loss, comes unexpected health bills and divorce.

My hope had been that Obama’s talk about broken toasters was just a little pandering and could be safely ignored. However, judging from the structure of his foreclosure relief plan, he appears to believe that if we just lower the borrower’s rate, all would be saved. The sad truth is that his foreclosure plan does nothing for those really in need – who have lost their job for instance – they are simply out of luck. But then helping people who have lost their job would undermine the argument that it is all the fault of the product.

Who’s Blogging about Cato

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The Jurisprudence of Detention: Definitions and Cases

Almost a year has passed since the Supreme Court’s decision to extend habeas rights to Guantanamo in Boumediene. Detention policy is currently under review by interagency task forces; it is worth looking at what the developing body of detention rulings say about the future of detention.

Taking prisoners is an unavoidable part of military action. Telling our troops that they can engage identified enemies with lethal force but cannot detain them puts them in an impossible position.

But who can we hold? The Taliban foot soldier is an easy case, but as we move away from the battlefield things get a little fuzzy. A chronological review of the decisions regarding detainee status gives some insight.

Salim Hamdan

The first case comes from the military commissions convened in Guantanamo. Though it predates Boumediene, it puts the question of who is an unlawful enemy combatant in front of a judge.

Salim Hamdan was the petitioner in the Supreme Court case that invalidated military commissions established by executive order. Congress responded to his victory at the Supreme Court with the Military Commissions Act (MCA) to establish legislatively-sanctioned commissions, but their jurisdiction is limited to “alien unlawful enemy combatants.”

Following the passage of the MCA, Hamdan’s defense counsel filed a motion for an additional hearing to determine whether he was a lawful or unlawful combatant. If he was a lawful combatant, then the commission would lack jurisdiction and he might then be prosecuted in a court-martial. Lawful combatants (i) have a commander, (ii) wear uniforms or a distinctive symbol, (iii) bear their arms openly, and (iv) follow the laws of land warfare.

Captain Allred, the officer presiding, granted the defense motion.

Allred found that Hamdan’s service to Al Qaeda as Osama Bin Laden’s driver and occasional bodyguard, pledge of bayat (allegiance) to Bin Laden, training in a terrorist camp, and transport of weapons for Al Qaeda and affiliated forces supported finding him an enemy combatant. Hamdan was captured at a roadblock with two surface-to-air missiles in the back of his vehicle. The Taliban had no air force; the only planes in the sky were American. Hamdan was driving toward Kandahar, where Taliban and American forces were engaged in a major battle. The officer that took Hamdan into custody took pictures of the missiles in Hamdan’s vehicle before destroying them.

Hamdan’s past association with the Ansars (supporters), a regularized fighting unit under the Taliban, did not make him a lawful combatant. Though the Ansars wore uniforms and bore their arms openly, Hamdan was taken into custody in civilian clothes and had no distinctive uniform or insignia.

Based on his “direct participation in hostilities” and lack of actions to make him a lawful combatant, Captain Allred found that Hamdan was an unlawful enemy combatant.

Decisions Under the Enemy Combatant Definition

Following Boumediene, detainees have had their cases heard by federal judges. The District Court for the District of Columbia adopted and applied the following definition, and the government need only prove it by a preponderance of the evidence:

An “enemy combatant” is an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.

District Judge Richard J. Leon moved through these cases quicker than his colleagues and gives us several decisions to look at.

Lakhdar Boumediene, et al.: Five ordered released, one detained. This is the set of six petitioners that won the right to habeas corpus hearings at the Supreme Court. They were picked up in Bosnia and allegedly planned to travel to Afghanistan to fight against American forces. Judge Leon ordered five of the six released because the word of an unnamed informant was simply not enough to justify their detention. Since the evidence was insufficient to determine that a plan to travel to Afghanistan existed, Judge Leon did not reach the question of whether such a plan would constitute “support.” Leon found that the sixth man, Belkalem Bansayah, was an enemy combatant based on corroborating sources and evidence that he was adept in using false passports in multiple fake names and was facilitating the travel of others to fight in Afghanistan. This constituted “support” necessary to find him an enemy combatant.

Hisham Sliti: One detained.  Sliti is a Tunisian who traveled from London to Afghanistan on a false passport. He was detained in 2000 by Pakistani authorities because of his false passport and had an address book with contact information for radical extremists. He escaped back into Afghanistan and was later re-captured fleeing the American military in 2001. Judge Leon found that he had traveled to Afghanistan with the financial support of extremists with well-established ties to Al Qaeda, spent time with Al Qaeda-affiliated radicals, stayed at a guesthouse associated with Al Qaeda that served as barracks for terrorist training camps, and that other guests at the house were instrumental in creating terrorist cells. By his own admission, he knew the location, appearance, and code words used by those attending the nearby training camp.

Moath Hamza Ahmed al Alwi: One detained. Al Alwi is a Yemeni who traveled from Saudi Arabia to Afghanistan to fight alongside the Taliban against the Northern Alliance. Judge Leon found that al Alwi could remain in custody based on the evidence that he had trained at Al Qaeda camps, stayed at Al Qaeda guesthouses, fought on two fronts with the Taliban, and did not leave Afghanistan until his Taliban unit was bombed on two or three occasions by American aircraft.

Mohammed el Gharani: One ordered released.  El Gharani is a Saudi who went to Pakistan around 2001. The government alleged that he had been a member of an Al Qaeda cell in London, stayed at an Al Qaeda-affiliated guesthouse, and fought American forces at the battle of Tora Bora. Judge Leon did not find these claims credible, as all of them were based on the word of fellow detainees. The government also alleged that he had been a courier for Al Qaeda, but had insufficient evidence to back up this claim.

In the above cases, six detainees have been ordered released and three met the criteria to be classified as “enemy combatants.”

Transition From “Enemy Combatant” to “Substantial Support”

The Obama administration has since dropped the term “enemy combatant” and changed its claim of detention authority:

The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.

The first decision under the new definition came down from District Judge Ellen Huvelle.

Yasin Muhammed Basardh: One ordered released. Basardh is a Yemeni who was arrested in early 2002 and transported to Guantanamo Bay. He cooperated with detention authorities, giving information about his fellow detainees. As a result, other detainees physically assaulted him and threatened to kill him. Judge Huvelle determined that widespread disclosure of Basardh’s cooperation with the government renders his prospects for rejoining terrorists “at best, a remote possibility.”

Judicial Review of the Authority to Detain

The definitions of “enemy combatant” and the power claimed by the Obama administration are very similar, and the addition of “substantially” is probably only going to affect marginal cases.

A recent review of the revised claim of detention power broadly approved the government’s power of detention. District Judge Reggie B. Walton accepted, in a slightly modified form, the general power of the government to detain those who have participated in hostilities. In doing so, he rejected a detainee’s claims that the Authorization for Use of Military Force passed after 9/11 did not allow military detention and that detainees must be tried in a civilian court or released.

Judge Walton adopted the following definition for detention decisions:

[I]n addition to the authority conferred upon him by the plain language of the AUMF, the President has the authority to detain persons who were part of, or substantially supported, the Taliban or al-Qaeda forces that are engaged in hostilities against the United States or its coalition partners, provided that the terms “substantially supported” and “part of” are interpreted to encompass only individuals who were members of the enemy organization’s armed forces, as that term is intended under the laws of war, at the time of their capture.

Judge Walton did limit the government’s detention authority to those part of the “command structure” of Al Qaeda and the Taliban. This precludes detaining “[s]ympathizers, propagandists, and financiers” that may be part of enemy organizations in an abstract sense but who are not part of the organizations’ command structure. Judge Walton also did not resolve the issue of organizations and individuals “associated” with the Taliban and Al Qaeda.

Though Judge Walton rejected the petitioners’ “direct participation in hostilities” standard for detention in favor of the government’s “substantial support” standard, he explicitly authorized detention of an Al Qaeda “member tasked with housing, feeding, or transporting” members of the organization. An Al Qaeda cook who trained at a terrorist camp can be detained just as “his comrade guarding the camp entrance.”

The competing definitions can often arrive at the same conclusion. Captain Allred determined that Salim Hamdan was an unlawful enemy combatant for a combination of the “substantial support” activities under the “direct participation in hostilities” standard.

Conclusion

The cases above illustrate that the general principles of detention have not changed significantly with adjusted definitions. The terms “enemy combatant,” “direct participation in hostilities,” and “substantial support” will be interpreted by judges on a case-by-case basis much like a finding of probable cause to issue a warrant or justify a search.