Shameless, Feckless Cowards

Further to yesterday’s post, rather than have a vote on the U.S.-Colombia Free Trade Agreement within 90 legislative days (as set out by law), House Speaker Nancy Pelosi announced that she will change House rules to avoid having a vote on the agreement before the November elections. It’s not yet clear to me how that can be done, but such action will speak volumes about the rudderless Democratic Party.

Apparently, the leadership hasn’t decided whether supporting the agreement—supporting export opportunities, encouraging and deepening business ties, promoting investment in Colombia, supporting an ally in a hostile region, and preserving the value of U.S. credibility—is worth more votes than union money can buy.

If members of Congress don’t want to be held accountable to the electorate, they shouldn’t seek office in the first place. But as we’ve seen time and again, it’s never about good policy. It’s only about holding onto power. No wonder Americans have such contempt for Congress.

John Yoo’s Neoconstitution

I’ve read through most of the John Yoo torture memo released last week (Part 1, Part 2 [.pdfs]). As I’d gathered from the news reports, there’s not much new here: the core of the argument has been known since at least 2004, with the release of the infamous August 1, 2002 torture memo, also drafted by Yoo. At the Justice Department’s Office of Legal Counsel from 2001 to 2003, Yoo was the key figure in advising the executive branch as to the limits–if any–to its powers. As Georgetown’s David Cole has put it, Yoo “was the right person in the right place at the right time…. Here was someone who had made his career developing arguments for unchecked power, who could cut-and-paste from his law review articles into memos that essentially told the president, ‘You can do what you want.’”

In the memo released last week, once again we see a breathtakingly narrow interpretation of what constitutes torture under US law. To rise to the level of torture, the abuse must, Yoo argues, inflict pain equivalent to that associated with “death, organ failure, or serious impairment of body functions.” Presumably, the rack qualifies under that definition, but hey, what about the thumbscrew?

Such questions ultimately don’t matter much under Yoo’s analysis, because, in his view, Congress lacks the constitutional power to prevent the president from ordering torture: “Any effort by Congress to regulate the interrogation of enemy combatants would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the President.” As Yoo sees it, telling the executive branch not to abuse prisoners is like telling the CINC what weapons can be used to take a hill occupied by the enemy: “Congress can no more interfere with the President’s conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield.”

One of the problems Tim Lynch and I experienced talking about our 2006 paper on the administration’s constitutional theories is that when you describe the implications of those theories in calm, sober tones, people tend to think you’re being strident and hysterical. Luckily John Yoo is willing to serve as his own reductio ad absurdum. If you don’t have the time for an 81-page memo, try this short, cringe-inducing YouTube clip:

Let’s stipulate that neither the rack, the thumbscrew, nor testicle-crushing have been tactics approved of nor employed by the US government in prosecuting the war on terror. The tactics we’re talking about–stress positions, sleep deprivation, waterboarding, and the like–are far less dramatic. Under the Yoo theory, though, those tactics and more are available for use even against American citizens accused of terrorist involvement. And reading the latest memo, with its detailed and tendentious discussion of what might be permissible under existing law (assuming existing law exists), it’s hard not to be reminded of US citizen Jose Padilla’s claim that during his confinement he was subjected to stress positions, forced hypothermia, and mind-altering drugs. Was Padilla making it up? Quite possibly. We’ll likely never know. At one stage of the Padilla case, asked by Justice Ginsburg whether the administration’s theory would permit torture, then-deputy solicitor general Paul Clement answered:

You have to recognize that in situations where there is a war – where the government is on a war footing – that you have to trust the executive to make the kind of quintessential military judgments that are involved in things like that.

John Yoo has written, unironically, of “the president’s right to start wars.” Coupled with the other elements of the Yoo theory–which is to say, the Bush administration’s constitutional theory–the result is a jaw-dropping doctrine of unchecked presidential power. When we’re at war, anything goes. And the president gets to say when we’re at war.

Maybe the Surge Isn’t Working

Via Glenn Greenwald, a Rasmussen poll released yesterday indicates that support for withdrawing from Iraq has reached an all time high. 26% of Americans support leaving “immediately,” 39% want U.S. troops home within one year, not contingent on conditions, and 31% want to stay until “the mission is complete.” So 65% of Americans want US troops out of Iraq within–at the outer bound–one year. 31% support the McCain strategy of staying indefinitely.

Two main purposes of the Surge were, in the words of Thomas Donnelly, to “redefine the Washington narrative,” and as White House adviser Peter Feaver put things, to “develop and implement a workable strategy that could be handed over to Bush’s successor.” This can’t look too good for these folks. It speaks volumes, on the other hand, about the wisdom of the American people.

The Vote: Ease? Security? Or Enough Already?

The Universal Right to Vote by Mail Act of 2007 (H.R. 281) recently passed the House Committee on House Administration. It would amend the Help America Vote Act of 2002 to require states to allow eligible voters to request a mail-in ballot for all federal elections without having to provide a reason.

In a TechKnowledge piece called “Voter ID: A Tempest in a Teapot that Could Burn Us All,” I shared some thoughts that are relevant to this bill:

Increasing voter participation has been a policy fetish for the last decade or two-never mind whether more voting for its own sake makes a better democracy… . The growth in absentee balloting has undone some of the protections against voter impersonation and multiple voting that previously existed. People are much more reticent to commit fraud in person - it’s riskier - so in-person voting was a natural security against impersonation fraud. Voting in multiple jurisdictions is simply too time-consuming to do on any scale when it has to be done in person.

The bill would require states to verify signatures on absentee ballots by cross-checking them with voters’ signatures on the official list of registered voters, but this only begins to shore up the security hole opened by mass absentee balloting.

The people who want this bill undoubtedly believe it will improve both the political discourse and their electoral prospects. Folks on the other side - the proponents of identification requirements for voting - will only be energized by these efforts, which lower the bar for both legitimate voting and for voter fraud.

Both sides should just drop this food-fight-to-the-death and work on substantive policies that they believe will win voters to their sides. Hopefully, those policies are centered on limited government, free markets, and peace.

A Defining Moment for Democrats and Trade

Mark Penn thought he could support the U.S.-Colombia Free Trade Agreement out of the right side of his mouth, while he opposed it out of the left. That controversy lost Mark Penn his firm’s contract with the Colombian government and his role with the Clinton campaign. Now it just may be metastasizing and moving up to Capitol Hill.

Congressional Democrats are getting hysterical over President Bush’s decision yesterday to send the U.S.-Colombia Free Trade Agreement up to the Hill for a vote. They claim that the president’s circumvention of protocol (not getting a final blessing from Congress first) now renders passage of the agreement virtually impossible.

The truth is that Congress was never going to give the administration an official green light and the president exercised the only real choice at his disposal.

But since when do Democrats cry for want of a successful trade agreement? I think there’s a little more to the story, which I address in this NRO oped today.

The long and short of it is that by sending the deal to Congress now, legislative intransigence before the November election is no longer an option. Democrats have 90 legislative days (until the end of September) to decide once and for all, in plain view of the electorate, the unions, the business community, and the international community, how they really feel about trade. The vote and the debate leading up to it could expose some deep fissures in the party, and could raise serious questions about America’s credibility and capacity to lead on matters of trade and economics.

More on the Value of Preventive Medicine

David Brown has an excellent article in the Health section of today’s Washington Post:

Most of us naturally assume that preventing a disease is cheaper than waiting for the disease to appear and then treating it. That belief is especially dear to politicians, who often view prevention as an underused weapon in the battle against health-care costs.

The campaign Web site for Sen. Hillary Clinton (D-N.Y.) notes that her health-care plan is “targeting the drivers of health-care costs, including our back-ended coverage of health care that gives short shrift to prevention.” Rival Sen. Barack Obama (D-Ill.) asserts that American families can save up to $2,500 a year each if five cost-containing strategies are implemented, one of which is “improving prevention and management of chronic conditions.”…

Even when prevention greatly reduces future cases of a particular illness, overall cost to the health-care system typically goes up when lots of disease-preventing strategies are put into practice. This is usually true whether treating the preventable diseases is cheap or expensive.

I raise similar points here and here.

Two points bear clarification, however. First, just because preventive medicine often increases medical spending, that does not necessarily mean (in the words of the article’s headline) that it is “Cheaper To Let People Get Sick.” Illness imposes its own costs, and so it may be cheaper to spend money on preventive care even when doing so increases overall medical spending because the benefits of avoiding illness outweigh the additional spending. But we should not think that spending additional money on preventive medicine would reduce medical spending. Second, contrary to what Brown claims in his first sentence, there very likely was a period in health economics when an ounce of prevention was worth a pound of cure. During the period when public health measures first began to control contagious diseases and foodborne illnesses, prevention probably did deliver health improvements 16 or more times greater than those delivered by treatments for existing conditions.

The article also contains this priceless comment from Louise B. Russell of Rutgers University:

“The point of the medical-care system is to serve people. It is not the point of people to serve the medical-care system.”

Let’s hope that one gets a lot of play in the near future.

McCain the Burkean?

Jonathan Rauch has a fascinating short essay in the May edition of The Atlantic (not yet available online) labeling John McCain as a solid conservative, with his seeming anti-establishmentarian iconoclasm nothing more than another indicia of the G.O.P.’s desertion of its core values.

McCain, you see, is a true follower of Edmund Burke, who was “[t]radition-minded but (contrary to stereotype) far from reactionary,” believing in “in balancing individual rights with social order” and advocating only incremental, thoughtful reform. Modern conservatives (or at least Republicans), on the other hand, disdain “small ball” and want to blow up the government.

It’s a clever analysis, especially the contrast of conservative ideas with conservative temperament (though a candidate whose temper is often said to be an Achilles heel is hardly the best vehicle for making that distinction). Ultimately Rauch is too clever by more than half, however, torturing McCain’s policies until they confess to the writer’s thesis. For example, even if it were true that McCain’s campaign finance work ultimately “produced a reform that was mostly modest in its aims,” the Senator’s attack on free speech is a square peg that cannot be forced into a round Burkean hole. And McCain’s latent support for the extension of the Bush tax cuts can much more easily be attributed to presidential politics than to a convoluted notion that after a few years a policy “becomes well established and woven into everyday life” (and therefore must continue lest societal stability be torn asunder).

“McCain,” Rauch concludes, “is an antirevolutionary, not a counterrevolutionary.” That may be true in some sense – and McCain’s views on many issues are genuinely conservative (just as others are libertarian and yet others herald a trust-busting populism) – but it doesn’t make him Burkean.