Gingrich Conflates Meaning of Indigo vs. Cobalt

Electoral scholars and pundits appear to be reaching consensus that the Democratic nomination could very well be decided by the superdelegates. Writing in today’s New York Times, AEI scholars Thomas Mann and Norm Ornstein project that neither Obama nor Clinton is “likely to come close to the 2,025 delegates needed to win the nomination” from their pledged delegate counts. The key to the nomination, they write, is winning enough support from the 796 superdelegates.

Even though Democratic Party insider and superdelegate herself Donna Brazile said on CNN, “If 795 of my colleagues decide this election, I will quit the Democratic Party,” Mann and Ornstein express faith that the superdelegates will fulfill their purpose and produce a candidate behind whom Democrats will unify. At this point, anyway, that process seems more likely to produce bitterness than unity.

Meanwhile, on the pages of today’s Wall Street Journal, Newt Gingrich opines that, given the seeming stalemate, the only way to produce a legitimate Democratic presidential candidate is for the party to permit Michigan and Florida to hold do-over primary elections. Excluding those states’ delegations from the nominating process or including them and awarding the majority of those delegates to Clinton (who won those technically-meaningless-at-the-time elections after breaking her pledge not to campaign there) boils down to a choice between disenfranchising voters in two states or allowing party insiders to run roughshod over the nominating process. That, Gingrich claims, would constitute a “tainted or stolen” nomination, which would potentially “delegitimize the election itself and its outcome.” Gingrich implores: “The voters — not the party insiders — have the moral authority to choose the nominee.”

I agree with Newt that voters have the moral authority (and having primary elections in the first place honors that truth). But this is an issue between and among a group of people called Democrats, who are members of the same political party by choice. This is a nominating election, which is administered according to party rules, which have been agreed to — at least tacitly — by all party members. One of the rules is that there are superdelegates, whose opinions carry more weight then Joe and Jane Democrats’.

In the cases of Florida and Michigan, party rules were broken and consequently, members’ privileges were revoked. Voters haven’t been disenfranchised; party members have been disciplined.

How the issue is “resolved” will say nothing about the legitimacy of the general election and its outcome. How could a McCain victory in November be delegitimized by Democratic Party nominating procedures? Even more to the point, how could a Clinton or Obama victory in November be delegitimized when the proper rules and processes yield either her or him as the party’s nominee?

The best way to “resolve” the issue is to stay the course.  Rules are in place to guide the process. That doesn’t mean there won’t be discord; there probably will be. But changing the rules now, at this late date, to avoid implementing the original party nominating rules would be the real scandal.

2008 Looking to Be a Bountiful Harvest of Dumb Foreign Policy Ideas

It’s only the day after Valentine’s Day, but we’re already looking at a pretty solid year in terms of dumb foreign policy ideas emanating from the renowned Foreign Policy Community. The newest entry, coming on the heels of the announcement of our ginormous, wasteful defense budget is the new push to expand the nation-building office in the State Department. Robin Wright gives us a peek through the keyhole in the WaPo, opening the article with her tongue appropriately in cheek:

Are you a road engineer who speaks Urdu? A city planner fluent in Arabic? Maybe a former judge who happens to know Pashto and seeks foreign adventure?

Right. It’s really a shame, because all of the former judges I know familiar with Islamic jurisprudence are actually speakers of Turkic languages. (Kidding.) The point here is that for a federal government that can only scrape together 50 Arabic speakers to work as FBI agents, it’s a little nutty to think we have the requisite skill-sets to staff a nation-building office. (Maybe we should just take people off translating suspected terrorist documents to do some work on irrigation and urban planning? Please.)

Wright then turns to the unfortunate substance of the (non-)debate over the new policy:

The 2009 budget calls for $248 million for the program, up from $7.2 million in the 2007, he said.

The idea of an emergency civilian corps has had mixed congressional reception since State’s Office of the Coordinator of Reconstruction and Stabilization (CRS) was created in 2004. Herbst so far has fewer than 90 people who have been deployed in small teams to Afghanistan, Chad, Haiti, Iraq, Kosovo, Lebanon, Nepal, Sri Lanka and Sudan.

Under the new budget proposal, the CRS nucleus would grow to a 250-person Active Response Corps pulled from U.S. agencies, including Agriculture, Commerce, Justice and Treasury. It would include city planners, economists, port operators and correction officials, Herbst said. They would undergo months of training. Their mission would be to deploy within the first 72 hours of a U.S. military landing. As much as 80 percent of the team would be dispatched for as much as one year.

“We are proposing shifts across our civilian agencies that will bring all elements of national power to bear in the defense of America’s vital interests,” Herbst told Congress.

The second group would be a roughly 2,000-strong Standby Response Corps, again pulled from all branches of government and having the same diverse skills. They would train for two or three weeks a year and would be the second group to deploy in a crisis. Between 200 and 500 would deploy within 45 to 60 days of a crisis onset, Herbst said in an interview.

The third group is the Civilian Reserve Corps of about 2,000 that would be pulled from the private sector and state or local governments, much like the military reserve. Its members would sign up for a four-year commitment, which would include training for several weeks a year and an obligation to deploy for as much as one of the four years, Herbst said.

This is a recipe for disaster. As Chris Preble and I pointed out more than two years ago, “the overwhelming majority of failed states have posed no security threat to the United States.” Further, we argued, “attacking a threat rarely involves paving roads or establishing new judicial standards.” Accordingly, as Ben Friedman, Harvey Sapolsky, and Chris (the guy’s a busy man!) pointed out in a paper released Wednesday, the best policy response to this reality is “a wise and masterly inactivity in the face of most foreign disorder.”

As usual, the U.S. government finds itself running, not walking, in the opposite direction from reality.

Two Sides of the Rule of Law Coin

The president has argued that “[i]f these companies are subjected to lawsuits that could cost them billions of dollars, they won’t participate. They won’t help us. They won’t help protect America.” Pretty scary stuff. But as Kurt Opsahl at EFF points out, if this is an accurate reflection of the telecom companies’ position (and it’s quite possible the president is misrepresenting their position), it’s little more than blackmail. It suggests that the telecom companies would hold the nation’s security hostage for a get-out-of-jail-free card.

Kurt also points out that complying with judicially-issued warrants isn’t optional. The intelligence community isn’t reliant on the goodwill of the telecom industry to ensure compliance. A company that refuses to participate in a lawful eavesdropping program would be ordered to do so by a judge and held in contempt if it refused. So there’s no reason to worry about the telecom companies “not cooperating.” Judges will compel them to cooperate if they’re legally required to do so.

In a sense, complying with lawful surveillance requests and refusing to comply with unlawful ones are two sides of the coin called the rule of law. It’s outrageous that a company would voluntarily violate its customers’ privacy when the law prohibits them from doing so. It would be equally outrageous for a company to refuse to cooperate after the government had gone through the appropriate legal channels. We don’t want decisions about who gets spied on to be subject to the whim of either the president or telecom executives. That’s why we entrust that decision to judges, who are knowledgeable about the law and insulated from corrupted influences.

Meet the New Boss, Same as the Old Boss

In his final press conference as Russian president, Vladimir Putin made clear yesterday that as prime minister he has no intention of playing second fiddle to his chosen successor, Dmitry Medvedev. “I have been president for eight years and worked pretty well. I won’t need to hang his portrait,” he remarked.

Putin added: “The highest executive power in the country is the Russian government, led by the premier.” One can’t imagine any of his prime ministers saying that and getting away with it during his presidency. He also made it clear he will remain prime minister throughout Medvedev’s turn in office, or for as long as “I am meeting goals that I myself have fixed.”

As if to emphasize that Putin will remain the real boss in the Kremlin, Russia’s new ambassador to NATO, Dmitry Rogozin, told the Financial Times, “Putin’s role will be as strong as ever.” Closely linked with Putin, Rogozin, a well-known nationalist politician, can even sound like the bullish outgoing president. Asked in the interview about Japan’s protest this week over a Russian bomber violating the country’s airspace, Rogozin joked: “It’s been a long time since the Japanese have seen the Russians in the air. They got quite a surprise.”

Putin’s marathon press conference yesterday was vintage stuff: he was full of his usual bluster. It was all in marked contrast and tone to Medvedev, who in a speech today in Siberia talked about how he wanted to improve relations with Russia’s neighbors. So it looks like we are going to see a routine of good cop, bad cop. Some analysts wonder if Medvedev will be prepared to play a secondary role to Putin. Will a divided power system emerge? My money is on Putin and his KGB friends to retain the upper hand.

The Right to Bear… Um…

This week, the U.S. Court of Appeals for the Fifth Circuit, which is based in New Orleans and covers Texas, Louisiana, and Mississippi, struck down a Texas statute that criminalized the promotion and sale of sex toys. The Fifth Circuit — where I clerked my first year out of law school — thus became the first and only jurisdiction in the country to recognize the individual right to bear both arms (in the 2001 case of U.S. v. Emerson) and dildoes. (Yes, the statute actually uses the word “dildo” as an example of a prohibited ”obscene device,” which is otherwise defined as a device “designed or marketed as useful primarily for the stimulation of human genital organs.”)

The Fifth Circuit’s analysis correctly rests on the Supreme Court’s 2003 decision Lawrence v. Texas, which found that Texas’s anti-homosexual sodomy statute violated the Fourteenth Amendment right to engage in private intimate conduct free from government intrusion. Put simply, there is no state interest compelling enough to overcome the individual right to freedom in the bedroom.

Besides Texas, only three states have a similar obscene devices statute: Mississippi, Alabama, and Virginia. The Mississippi Supreme Court has upheld its state’s statute, while neither the Alabama nor Virginia Supreme Courts have entertained such challenges. The legislatures of Louisiana, Kansas, and Colorado had also enacted obscene-device bans, but the laws did not survive review by their respective state supreme courts.

The Eleventh Circuit (covering Alabama, Georgia, and Florida), however, just last year rejected a similar Fourteenth Amendment challenge to the Alabama statute. While the U.S. Supreme Court declined to review that ruling, the Fifth Circuit’s decision now squarely opens up a “circuit split,” which means the issue is ripe for the Court to take up next term. 

The Court has not wanted to touch sex toys cases with, um, a 10-foot pole. But it now has the opportunity to enforce this particular individual right in the same year it (fingers crossed) throws out the D.C. gun ban.

The Free Market Produces Incoherent Headlines

Today’s Washington Post has a story on economic espionage by Chinese interests, most of which have connections to the Chinese government and military. Inexplicably, the headline of the story is “Even Spies Embrace China’s Free Market.”

Government-sponsored economic espionage has little to do with free markets. These are crimes (or at least civil wrongs) sponsored directly or indirectly by over-large governments. Crime and over-large governments are antithetical to free markets, not a part of them.

Evidently, there’s some kind of market failure at the Post. (Note to the economic illiterates at the Post: That’s a joke.)

FISA Confusion

I’ve been reading a lot of coverage of the FISA debate this week. I’m getting a little tired of reading commentary from supporters of eliminating judicial oversight who seem to have no clue what they’re talking about. Consider this from FrontPageMag’s Jacob Laksin:

Instead of enjoying the flexibility necessary for real-time intelligence gathering, government officials would be forced to revert to the antiquated standards of the Foreign Intelligence Surveillance Act (FISA), which requires the approval of a special court even to monitor terrorist targets overseas.

In the first place, FISA has been updated repeatedly since the September 11, 2001, so the idea that it’s “antiquated” is silly. Don’t listen to me, listen to the president: “The new law [in 2001] recognizes the realities and dangers posed by the modern terrorist. It will help us to prosecute terrorist organizations — and also to detect them before they strike.”

In the second place, FISA does not, and never has, required a warrant to eavesdrop on foreign communications. FISA only comes into play when intercepting communications between foreigners and Americans, or when conducting surveillance entirely within the United States.

Laksin continues:

One of the signal virtues of the PAA is the fact that it provides liability protection to private companies, like telecoms, who cooperate with the government and aid surveillance efforts. Companies like AT&T already face multibillion dollar lawsuits from leftist activist groups like the Electronic Frontier Foundation, who charge that the companies broke the law by assisting government efforts to prevent terrorist attack. With the expiration of the PAA, these companies will lose their legal protections. In the current litigious climate, it is more than likely that they will simply stop aiding the government in its intelligence work.

The Protect America Act, which was passed last August, did not include retroactive immunity. That’s why there are pending lawsuits against the telecom companies from those “leftist activist groups.” The PAA does include liability protection for firms that cooperate after the law takes effect, and those provisions will expire on Saturday. However, the idea that this will cause telecom companies to stop “cooperating” is absurd. Telecom companies cooperate with eavesdropping not out of the goodness of their heart, but because (once the executive branch has gotten the appropriate warrant) they’re legally required to do so. That will continue to be true after the PAA expires. And in any event, the law is pretty clear on this subject. The only “liability protection” they really need is to follow it.

And on we go:

To be sure, the version of the PAA bill that passed the Senate is far from perfect. For one thing, the bill vastly expands the role of the FISA court in surveillance work, a prospect that should alarm anyone concerned about intelligence agents’ ability to respond rapidly to potential threats.

I’m not sure what he’s referring to. It’s true that the Senate legislation would require the executive branch to file various reports with the FISA court. But given that it simultaneously eviscerates the requirement to get a FISA warrant for foreign-to-domestic communications, I don’t see how it could plausibly be considered an expansion of the FISA court’s role. And these reporting requirements certainly wouldn’t degrade agents’ ability to respond rapidly to potential threats because it gives the government several days after the fact to submit the appropriate reports. Probably the most stringent requirement in the Senate bill is the one requiring the attorney general to send a copy of each “certification” he signs to the FISA court within five days. Running off a copy of an order and sending a courier over to drop it off hardly seems like an intolerable burden.

I could go on, but you get the point. The problem is that most readers have neither the time nor the patience to research these issues in any detail. So when conservative pundits make misleading claims, a lot of readers can’t tell the difference. It’s very frustrating for those of us who are actually familiar with the underlying facts.

(Cross-posted at The Technology Liberation Front)