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.

Cato Scholar Comments on Breakup between Bush, U.S.

A lot of my colleagues here were really excited when The Onion, to my mind America’s premier fake news source, cited the work of our colleague Dr. Adam Stogsdill recently. But now Brian Whitaker has also made it onto The Onion’s pages to comment on another important story.

WASHINGTON—Amid allegations that his thoughtless and insensitive decisions have damaged his relationship with the nation, President George W. Bush vowed Monday that he would, starting now, “make everything better.”

“This time I’m serious,” Bush said. “I am ready to make a fresh start if we can just put the past behind us. I promise.”

[…]

Despite Bush’s seemingly conciliatory stance, public response to Bush’s promises has been frosty at best. Cato Institute policy scholar Brian Whitaker echoed the sentiments of many Americans, calling Bush’s recent overtures “too little, too late.”

“We want to believe that he’s finally going to be the president we always wanted, but we’ve given him so many chances,” Whitaker said. “I don’t think we can handle another disappointment. Maybe it’s time to realize that President Bush will never be the head of state we need him to be.”

“Then again, maybe our expectations are unfair,” Whitaker added. “He seemed so sincere this time. He wouldn’t abuse his executive powers if he didn’t care about us, right?”

Whitaker predicted that the nation will likely move forward and try to forget Bush, though it may be difficult for Americans to ever trust a president again. He said the current crop of presidential contenders offers little in the way of an alternative to Bush, but maintained that “at least Barack Obama listens to us.”

Wow, congrats, Brian. A lot of folks in the building are bound to be pretty jealous today.

Donnelly on the Surge

AEI’s Thomas Donnelly writes for the Weekly Standard blog:

More moderate Democrats are increasingly adjusting to the reality that the Iraq surge has been a military success, and that it is starting to create conditions for workable political compromise in Baghdad as well as Iraq’s provinces–see, for example, the air of desperation that has seized the hard-core anti-war crowd. Yet today’s Washington Post carries an op-ed by former Clinton chief of staff John Podesta clearly intended to intimidate Democratic candidates into sticking to their withdrawal pledges no matter what happens in Iraq. The article’s headline, “A War We Must End,” is a hint of the pay-no-attention-to-the-facts nature of the argument.

Donnelly’s readers might be interested in this shocking nugget buried in a smart op-ed by Andrew Bacevich a few weeks back:

In only one respect has the surge achieved undeniable success: It has ensured that U.S. troops won’t be coming home anytime soon. This was one of the main points of the exercise in the first place. As AEI military analyst Thomas Donnelly has acknowledged with admirable candor, “part of the purpose of the surge was to redefine the Washington narrative,” thereby deflecting calls for a complete withdrawal of U.S. combat forces. Hawks who had pooh-poohed the risks of invasion now portrayed the risks of withdrawal as too awful to contemplate. But a prerequisite to perpetuating the war – and leaving it to the next president – was to get Iraq off the front pages and out of the nightly news. At least in this context, the surge qualifies as a masterstroke. From his new perch as a New York Times columnist, William Kristol has worried that feckless politicians just might “snatch defeat out of the jaws of victory.” Not to worry: The “victory” gained in recent months all but guarantees that the United States will remain caught in the jaws of Iraq for the foreseeable future.

Something to keep in mind when Donnelly and his fellow-travelers comment on the surge’s impact on the Washington narrative.

My boss Chris Preble was beating this drum weeks ago in the American Prospect.