Don’t Make a Federal Case Out of It

Federal agents investigate, arrest, and prosecute local law enforcement agents on a fairly regular basis.  Unfortunately, state and local police rarely investigate, arrest, and prosecute federal agents.  I suspect the locals are just intimidated by the FBI, Secret Service, IRS, etc.  When something suspicious or questionable happens, the feds tell the locals something to the effect of “Back off.  We’ll handle this ourselves-internally.” 

So Arizona officials deserve some credit for pressing ahead and treating Border Patrol Agent Nicholas Corbett like any other suspect.  According to the local prosecutor, Corbett’s story does not hold up and sufficient evidence points toward his guilt.  If that is indeed the situation, this case should be simple: Prosecute.  The fact that the victim didn’t have a visa in his pocket does not matter.   It also does not matter that Corbett had a federal badge in his wallet.

The Arizona officials did mess up one important aspect of this caseWhy is this matter in federal court?  Well, I already know why because this typically happens in these rare circumstances when a federal agent is prosecuted.  The more precise question is: Why didn’t the Arizona officials object to the transfer to federal court?   One news story alludes to juror bias, but that does not hold up.  Where are the jurors in federal court coming from?  Rhode Island?  The issue isn’t really rural vs. big city either because, again, if you name any big city in Arizona, there are going to be Arizona courts there! 

The thinly veiled reason for the removal procedure is that the state process is supposedly rigged/biased against the federal agent.   Arizona officials should have recognized this and defended their justice system instead of just rolling over. 

Agent Corbett has a right to a trial – like any other person accused of a crime.  The point here is that he would have had the opportunity to argue self-defense in the Arizona state courts.  And if he is convicted but thinks his trial was unfair, he can appeal and try to persuade a higher court with specifics.  This case belongs in state court, not federal court.  

Washington Post Takes Even-handed Look at “Middle Class Squeeze’

If you believe Lou Dobbs and most politicians on the campaign trail, you would think the great American middle class has basically vanished—squeezed to death by falling home values, rising medical and tuition bills, and competition from low-wage workers in Mexico and China.

Today’s Washington Post business section provides a valuable reality check. In a story headlined, “An Upside for the Middle Class: Lost Amid the Stresses Are Gains in Standard of Living,” reporter Michael A. Fletcher provides an even-handed assessment of just where the American middle class stands today.

The article reports what the doomsayers have been saying about rising levels of consumer debt, “flattening wages” and rising income inequality. But it also quotes from a range of experts that trade, technology and economic growth have raised the standard of living for most Americans.

Here are a few facts from the Post article that you won’t learn from CNN’s Lou Dobbs Tonight:

Items once considered luxuries—dishwashers, central air conditioning, video cameras—are now common. The average size of new homes has increased 40 percent in the past generation. And as many consumer items cost less, Americans are shopping more. In 1991 the average American bought 33.7 pieces of apparel; by 2002 he or she bought 48 items, according to Boston College sociologist Juliet Schor. In 2005, she said, Americans were projected to discard more than 63 million computers.

Americans are twice as likely to travel overseas than they were in 1980, and overall they spend more than ever for other recreation, including sporting events, movies and plays—the mark of an ever-improving quality of life, some researchers say.

Of course, supporting a middle class family can be and often is hard work. But we shouldn’t allow ourselves to be panicked into grasping for big-government solutions to an economic crisis that does not exist.

For a more in-depth look at how most Americans are faring in this era of expanding trade and globalization, you can check out my recent Cato study, “Trading Up: How Expanding Trade Has Delivered Better Jobs and Higher Living Standards for American Workers.”

NCLB Wobegon

The No Child Left Behind Act hoodwinks parents and the public, allowing politicians to take credit for expanding student “proficiency” no matter how little kids actually know. What’s the trick?  Let’s go to South Carolina, where yesterday the state’s House of Representatives passed a bill that in two years would change the state’s testing system and produce “dramatic” proficiency increases.

Sound suspicious? Don’t worry, no standards will be harmed in the making of this miracle:

The state is not lowering its standards, [Rep. Bob] Walker said.

The change is in wording, such as the meaning of “proficient.”

“Our ‘proficient’ is above grade level,” he said, while No Child Left Behind defines proficient as being at the appropriate grade level.

“You will see a dramatic increase in your level of proficiency,” Walker said.

Of course you will. It just it won’t mean anything.

Candor With the Court

President Bush and Attorney General Michael Mukasey owe the Supreme Court an explanation.  Four years ago, one of Bush’s top lawyers, Solicitor General Paul Clement, told the Supreme Court that the administration did not use coercive methods on prisoners to extract information.  Given the recent admission by CIA Director Michael Hayden that three prisoners were waterboarded, we now know that the Supreme Court was misled.  If Mukasey hopes to get the Justice Department back on track, he must find out how this happened and take corrective action.

In the spring of 2004, the Bush administration was advancing its sweeping vision of executive power before the Supreme Court.  An American citizen, Jose Padilla, a suspected terrorist, had been arrested at Chicago’s O’Hare airport.  Padilla was then moved to a military brig where he was held in solitary confinement for two years.  The government refused to allow Padilla to meet with anyone, including his lawyer.  According to the Bush administration, once a prisoner is designated an “enemy combatant,” he loses the legal protections of the American Constitution—even if the prisoner is an American citizen arrested in the United States.  Because of the grave issues involved, the Supreme Court decided to hear Padilla’s constitutional objections and rule on the controversy.

Although the central issue in the Padilla case concerned the president’s power to imprison American citizens, the Supreme Court wanted to examine the breadth of the Bush administration’s legal claims.  Solicitor General Clement argued that America was at war and that the president, as commander-in-chief, could not have his military decisions “second-guessed” by the judiciary.  A pivotal moment in the Padilla oral argument came when Clement was asked about torture (pdf)(pp. 20-23).  Testing the limits of Clement’s logic, the Supreme Court justices wanted to know if there was any legal check on the executive power to coerce prisoners to obtain military intelligence.  Clement tried to talk around the question, but then a member of the Court asked this blunt question, “Suppose the executive says mild torture we think will help get this information.  It’s not a soldier who does something against the Code of Military Justice, but it’s an executive command.  Some [foreign governments] do that to get information.”

This was supposed to be the moment of truth, but the White House representative faltered by saying, “Well, our executive doesn’t.”

That was doubletalk.  Four years later, the White House is telling a different story, albeit in dribs and drabs.  Waterboarding is not the same as water torture.  Only the CIA does it.  Only a few prisoners.

Clement could have said this to the Supreme Court, “Our Office of Legal Counsel has determined that the infliction of pain equivalent to organ failure is the legal limit.”  Or he could have said something similar to what Vice President Dick Cheney said recently—that the administration does have a tough program for “tough customers.”  Instead, Clement sought to assure the Supreme Court that there was no need to wrestle with such questions because even mild torture was beyond the pale to ”our executive.”  Satisfied with that answer, the Court moved on to other legal issues.

Professional legal obligations prohibit lawyers from making false statements of fact or law to a court.  And if a false statement is made, whether intentionally or by mistake, attorneys have an obligation to bring the error to the court’s attention even after the conclusion of the relevant proceeding.  As a former federal judge, Attorney General Mukasey must appreciate the importance of the legal rules requiring candor toward the courts.  Indeed, it was precisely that obligation that recently prompted Mukasey to initiate a criminal investigation into the CIA’s destruction of an interrogation videotape in another case.  That disclosure came to light when a Justice Department lawyer discovered the CIA’s action and took the appropriate corrective action by notifying a court of what transpired.  Keeping such facts from the court might have prevented the subsequent criminal inquiry and the negative publicity, but it would have violated the legal rules.

There is no evidence that the misrepresentation to the Supreme Court in the Padilla case regarding tough tactics against prisoners was deliberate—so this matter does not appear to warrant another special prosecutor or even an internal criminal inquiry.  But neither should this matter be permitted to slip by unnoticed.  Since the rule of candor toward the courts is unlikely to ever be openly attacked, it is imperative to defend this rule when we see it undermined—especially before the Supreme Court.    If the rule is worth preserving, and it is, it needs to be enforced.  At a minimum, Mukasey should officially inform the Supreme Court of the error.

The key point is this: Reasonable people can honestly disagree about what needs to be done about the threat posed by terrorists, but a conscientious discussion of our Constitution and laws must begin with a clear understanding of what our government is actually doing and what it is actually proposing to do next.

Blinded by Ideology

Given the outspoken, anti-trade views of thrice-elected Senator Byron Dorgan (D-ND), you might think that North Dakotans have no stake in the global economy.  After all, if you’re comfortable voting for a candidate who disparages NAFTA and other trade agreements, certainly your livelihood wouldn’t depend on, say, exports to Canada.

Carter Wood over at the National Association of Manufacturers posted this gem (“Leading the Nation in Exports…and Protectionism?”) earlier today.

North Dakota’s exports grew faster than any other state’s in 2007, and the primary destination for its mostly agricultural output was Canada.  If I were a North Dakota farmer, I’d be a bit wary of my senator, whose rationale for endorsing Barack Obama is that he (Obama) “has always opposed Nafta.”

Good grief.

RIP WFB

WFB - From the Washington PostWe knew it had to happen but still it’s a shock. A classical liberal — and libertarian enabler — in so many ways, William F. Buckley, Jr. was the quintessential public intellectual without whom public intellectual life is now hard to fathom.

Though not a great philosophical influence on me personally — I came around to his writing later even than I started reading National Review (originally finding it, to use both Buckleyesque language and irony, sesquipedalian) — the institution he created and movement he fostered certainly affect my life daily. Before think tanks emerged to counter the left-wing takeover of the academy and public discourse, before cable channels provided alternatives to network news, long before the Reagan Revolution, Buckley famously began standing athwart history yelling stop.

All this while embodying the prolific, polymathic, bon vivant style that appeals to those of us who ever dreamed of inhabiting that realm of ideas between academia and the real world and having great fun doing it. Well played, Mr. Buckley, well played.

Obama and Clinton Threaten to Bully Our Neighbors over Trade

When they weren’t jabbing at each other over health care and Iraq, Barack Obama and Hillary Clinton spent a good chunk of their debate last night arguing over which of them is the strongest critic of the North American Free Trade Agreement. Both declared that they would withdraw the United States from the agreement if Canada and Mexico did not agree to inserting “enforceable” labor and environmental standards into the agreement.

Talk about a non-starter. It is unlikely that our two neighbors would agree to reopen a 14-year-old agreement that has worked well for all three nations. [You can read my assessment of NAFTA here.] In effect, Obama and Clinton will be asking our two neighbors to bend their national labor and environmental standards to the demands of the U.S. Congress under threat of trade sanctions. Where exactly is the upside for Canada and Mexico in such a request?

Of course, there is no upside. So the only motivation will be the threat that the United States will unilaterally withdraw from NAFTA. That, of course, would result in the re-imposition of tariffs on trade with our two most important trading partners. And because Mexican tariffs on imports from the rest of the world are significantly higher than U.S. tariffs, U.S. exporters to Mexico would face a much steeper tariff increase than Mexican exporters to the United States. By withdrawing us from NAFTA, the Democrats would transform what has truly become a “level playing field” of zero tariffs into one tilted against U.S. exporters.

And even if the U.S. government were able to demand that Mexico impose new and tougher environmental and labor restrictions on its producers, there is little reason to believe that goods now made in Mexico would be soon be produced in Youngstown, Ohio, and elsewhere in the United States. The far more likely scenario is that producers in Mexico would shift production to China, Vietnam, and other lower-cost producers.

Finally, consider the foreign policy implications of threatening to withdraw from NAFTA. The Democratic candidates have been critical of the Bush administration for its checkered record of winning friends abroad. But have the Clinton and Obama campaigns considered how our friends in Canada and Mexico will react to the heavy-handed demand that they re-write their domestic labor and environmental laws under threat of face tariff retaliation from Uncle Sam?

This would confirm the worst fears of our closest neighbors.