Archives: 10/2010

Try the 9/11 Conspirators in Both Federal Courts and Military Commissions?

That’s the proposal Benjamin Wittes makes in today’s Washington Post. Wittes says that by splitting the legal baby, by “charging the 9/11 case in both military commissions and federal court,” the Obama administration can satisfy political considerations on both sides of the aisle.

This is a path fraught with legal issues. The constitutional bar against double jeopardy would prevent a trial in one forum and re-trial in the other for the same actions. Wittes spells out his proposal in greater detail in this post at the Lawfare blog, and he acknowledges this risk. The same sovereign cannot try someone twice for the same crime and Wittes acknowledges that the “John Allen Muhammed Model,” named after one of the Beltway snipers, used the separate sovereigns doctrine in ways that do not apply to Guantanamo. The Beltway snipers were liable for separate crimes in Maryland and Virginia in a way that does not translate directly to the 9/11 conspirators.

Wittes recognizes these legal issues and proposes that federal prosecutors and military commissions prosecutors clearly separate the crimes they respectively charge.

I’d go further. The clearest way to make this work is not to “charg[e] the 9/11 case in both military commissions and federal court.” This proposal only works if you charge pre-9/11 conduct in an Article III court and the 9/11 attacks in a military commission.

The Double Jeopardy Clause of the Fifth Amendment would prevent “charging the 9/11 case in both military commissions and federal court.” Federal prosecutors charged Khalid Sheikh Mohammed well before 9/11 for his participation in the Bojinka Plot, a plan to blow up airliners over the Pacific Ocean. To the extent that he and other 9/11 co-conspirators can be charged with crimes related to Bojinka or other pre-9/11 attacks, this would pass constitutional muster. Otherwise, this is a not an advisable course of action.

Where Double Jeopardy is a concern, the broad sweep of Material Support of Terrorism (MST) charges works against the government, not for it. If an MST charge is used in federal court in anything 9/11-related, the defendants have an excellent case that it bars any charges related to that attack in a military commission and vice versa. MST charges don’t even belong in a military commission, as Assistant Attorney General David Kris warned Congress before it revised the commissions with the Military Commissions Act of 2009. So if you’ve got MST on your mind, best to keep it in a civilian court. The Court of Military Commissions Review is getting ready to weigh the validity of MST in the commissions in the case of Ali al Bahlul, so stay tuned.

The Double Jeopardy bar in prosecuting before a military commission and then in a civilian court is also grounded in first principles. When Benedict Arnold betrayed General Washington and the fortifications at West Point, he escaped. His co-conspirators did not. British Major John André was tried and hanged by a military commission. Joshua Hett Smith, a citizen of New York and citizen of what would become the United States, was likewise tried by a panel of military officers. The panel found insufficient evidence to convict him. The prosecution failed to establish that he knew the true object of André’s meeting with Arnold, and might have reasonably believed that he was ferrying a British officer to negotiations with an American officer without knowledge of Arnold’s betrayal. When Smith transferred to a local jail, the civilian grand jury found that he could not be tried for treason for the actions that previously subjected him to a military trial; his protection from Double Jeopardy stood firm.

Keep in mind, I’m not endorsing Wittes’ plan. Wittes has a lot of “creative” ideas that I think are destructive of the liberty we’re trying to protect. He says in his book, Law and the Long War, that the “psychological Rubicon” of preventive detention is something “we simply need to cross.” Count me opposed, as I said in this post. But it’s worth noting that, before anyone gets too excited about a bipartisan compromise, there are serious issues with two sets of trials for KSM and the rest of the 9/11 co-conspirators.

Halloween: Uncle Sam Style

The Office of Senator Tom Coburn (R-OK) has released an appropriately timed report on federal subsidies that have gone to the deceased. From the introduction:

In the past decade, Washington sent over $1 billion of your tax dollars to dead people. Washington paid for dead people’s prescriptions and wheelchairs, subsidized their farms, helped pay their rent, and even chipped in for their heating and air conditioning bills.

In some cases, these payments quietly gather in a dormant bank account. In many others, however, they land in the pockets of still-living people, who are defrauding the system by collecting benefits meant for a now-deceased relative.

Since 2000, the known cost of these payments to over 250,000 deceased individuals has topped $1 billion, according to a review of government audits and reports by the Government Accountability Office, inspectors general, and Congress itself. This is likely only a small picture of a much larger problem.

As a Cato essay on fraud and abuse in federal programs discusses, these problems are endemic because the federal government is a “vast money transfer machine.” While federal subsidy programs should be cut because they harm the economy and are unfair to taxpayers, Coburn’s findings of pure waste represent one more reason to pursue terminations of federal programs.

Is the FAIR Tax a Political Liability?

In the past 15 years, I’ve debated in favor of a national sales tax, testified before Congress on the merits of a national sales tax, gone on TV to advocate for a national sales tax, and spoken with dozens of reporters to explain why a national sales tax is a good idea. Even though I prefer a flat tax, I’ve been an ardent defender of sales tax proposals such as the FAIR tax because it would be a great idea to replace the current system with any low-rate system that gets rid of the tax bias against saving and investment. I even narrated this video explaining that a national sales tax and flat tax are different sides of the same coin — and therefore either tax reform proposal would significantly improve prosperity and competitiveness.

I will continue to defend the FAIR tax and other national sales tax proposals that replace the income tax, but I wonder whether this is a losing battle. Every election cycle, candidates that endorse (or even say nice things about) the FAIR tax wind up getting attacked and put on the defensive. Their opponents are being dishonest, and their TV ads are grossly misleading, but they are using this approach because the anti-FAIR tax message is politically effective. Many pro-tax-reform candidates have lost elections in favorable states and districts, largely because their opponents were able to successfully demagogue against a national sales tax.

The Wall Street Journal reaches the same conclusion, opining this morning about the false — but effective — campaign against candidates who support a national sales tax.

In 16 House and three Senate races so far, Democrats have blasted GOP candidates for at one point or another voicing an interest in the FAIR tax. …FAIR tax proponents are right to say these Democratic attacks are unfair and don’t mention the tax-cutting side of the proposal, but the attacks do seem to work. Mr. Paul’s lead in Kentucky fell after the assault, and the issue has hurt GOP candidate Ken Buck in a close Colorado Senate race. In a special House election earlier this year in Pennsylvania, Democrat Mark Critz used the FAIR tax cudgel on Republican opponent Tim Burns. In a district that John McCain carried in 2008, Mr. Critz beat the Republican by eight points and is using the issue again in their rematch. This is a political reality that FAIR taxers need to face. …[I]n theory a consumption tax like the FAIR tax is preferable to an income tax because it doesn’t punish the savings and investment that drive economic growth. If we were designing a tax code from scratch, the FAIR tax would be one consumption tax option worth debating. But … voters rightly suspect that any new sales tax scheme will merely be piled on the current code.

We won’t know until next Tuesday what is going to happen in Kentucky and Colorado, and we won’t know until then what will happen in the other campaigns where the FAIR tax is an issue. But if there are two tax reform plans that achieve the same objective, why pick the approach that faces greater political obstacles?

FAIR tax proponents presumably could defuse some of the attacks by refocusing their efforts so that repealing the income tax is the top priority. This would not require any heavy lifting since all honest proponents of a national sales tax want to get rid of the 16th Amendment and replace it with something that unambiguously prohibits any direct tax on income. So why not lead with that initiative, and have the national sales tax as a secondary proposal? This is what I propose in the video, and I think it would be much harder for demagogues to imply that a FAIR tax would mean a new tax on top of the corrupt system that already exists.

Misleading Headline Dept.: ‘Council Aids West Side Housing’

At his must-read blog Future of Capitalism, Ira Stoll points out (reprinted by permission) an instance in which the news-side WSJ uncritically accepts at face value the claims of New York City politicos:

“Council Aids West Side Housing” is the headline over a news article in the Wall Street Journal reporting, “A change to city zoning laws aims to preserve affordable housing for a large swath of the West Side, blocking new development in the Garment District, West Chelsea and Hudson Yards….The City Council voted on Wednesday to extend a zoning-law amendment that previously has been applied to Clinton, a midtown West area also known as Hell’s Kitchen. It now will also restricts landlords or developers from changing more than 20% of any multi-family building in the additional West Side neighborhoods. Council members say the rules will allow for building renovations but not demolitions…..About 1,500 units in 108 buildings will fall under the new amendment….The vote on Wednesday was an extension of the 1974 Clinton Special District amendment, which was passed to protect that area’s low-rise character and affordable housing.”

A free-market-oriented economist with some common sense might point out that restricting new high-rise development may preserve “affordable housing” for the lucky few occupants of the 1,500 units now locked into place. But this free-market-oriented economist with some common sense might also point out that by restricting the supply of new housing units, the change in the law won’t “Aid Housing,” as the headline claims, but it will actually hurt housing by making it illegal to build much more of it. People living outside these neighborhoods who would like to move in will have a harder time doing so now that the government has artificially restricted the housing supply. The Journal article doesn’t get into this.

A commenter further points out that the land-use freeze will cut into the property tax base on which the city can draw, meaning that the city will raise funds by taxing someone else – another reason to expect that life for city newcomers will be less affordable in coming years, not more.

A Witch Hunt Is Underway in Ecuador

Many people feared that President Rafael Correa would unleash a witch hunt in Ecuador after the police uprising of September 30th that his government quickly dubbed a “coup attempt.” As my colleague Gabriela Calderón wrote a few days after those incidents, the government’s narrative that Correa was kidnapped in a hospital by rogue elements of the national police has been severely undermined by several witnesses who claim that Correa stayed voluntarily in the building and was in control of the situation the entire time. Mary O’Grady of the Wall Street Journal also mentioned this in her weekly column.

One of these critical witnesses is César Carrión, director of the hospital where Correa was supposedly being held against his will. Carrión had not been implicated by the authorities in the police riots—until last week. On October 21st Carrión declared in a special report aired on CNN en Español that Correa hadn’t been kidnapped or faced any threat. A couple of days later, Correa lambasted Carrión on national TV, calling him a “conspirator” and warning him that “he better know who he’s dealing with, I’m the president and you’re my subordinate… you can’t make your boss look like a liar.” Carrión was fired from his post soon afterward, and yesterday he was arrested for “attempting to murder Rafael Correa.”

Many other people, including journalists, who dared to question the government’s dubious claim that there was a coup attempt (for example, the military high command gave its full support to the president the day of the supposed coup) have also been harassed by the authorities. However, some government officials apparently didn’t get the memo of the official coup attempt allegation. On the day of the uprising, Doris Soliz, minister of Political Coordination told CNN en Español that there wasn’t a coup under way. Also that day, Vinicio Alvarado, secretary of Public Administration denied on public TV the possibility of a coup, saying that the protest was simply “a specific demand from a government institution.”

International observers have also raised many doubts about the seriousness of Correa’s coup allegation. But what seems clear now is that the Ecuadorian government is dead serious in its efforts to use the incident to persecute political opponents and independent media. Those who challenge the official narrative, face the consequences.

Embed the Raidmap

Cato Fellow Radley Balko highlighted the trend toward heavy-handed police practices in Overkill: The Rise of Paramilitary Police Raids in America. Radley continues to chronicle police abuses at The Agitator and Reason. Recent examples of police excesses include the unnecessary death of seven-year old Aiyana Jones in Detroit and this raid on an innocent elderly couple in Chicago (immigrants who fled the Soviet Union because of oppression).

One of the fruits of Radley’s research was the Raidmap, a Google map application that allows you to see the scope of this epidemic of “isolated incidents.” You can also sort botched raids by category: death of an innocent, raid on an innocent suspect, death or injury of an officer, death of a nonviolent offender, unnecessary raids on doctors and sick people, and other examples of paramilitary police excess.

View Original Map and Database

Now you can embed the Raidmap on your website or blog as seen below. The code is on the Raidmap page.

Pass it on.

The Tea Party’s Other Half

Emily Ekins and I have an op-ed in today’s Politico pointing out that while the Tea Party is united on economic issues, there is a split virtually right down the middle between traditional social conservatives and those who think government should altogether stay out of the business of “promoting traditional values.” Candidates and representatives hoping to appeal to the Tea Party, we argue, need to focus on a unifying economic agenda that takes into account this strong libertarian undercurrent.

We conducted a survey of 639 attendees at the October 9, 2010 Tea Party Convention in Virginia, one of the larger state Tea Party gatherings of its kind to date. We included the same questions from Gallup and the American National Election Studies that David Boaz and I have used to identify libertarians in our previous studies, “The Libertarian Vote” and “The Libertarian Vote in the Age of Obama.”

In our new survey, we found libertarians were 48 percent of Tea Partiers, versus 51 percent who held traditional conservative views. We defined traditional conservatives as agreeing that “the less government the better,” and that “the free market can handle these problems without government being involved,” but also believing that “the government should promote traditional values.”  Tea Party libertarians agreed that less government is better, and prefer free markets, but believe that “the government should not favor any particular set of values.”

These findings help refute the assumption that the Tea Party is just another conservative group, both fiscally and socially. The data should also caution Republicans not to over-interpret potential midterm gains in the House and Senate as a mandate for social as well as fiscal conservatism.

Our survey replicated the methodology of a Politico/Targetpoint survey from a Tea Party rally in April, which also revealed an even split between libertarians and conservatives. At the time, journalist David Weigel criticized this finding because it sampled a tea party rally that featured Ron Paul. No surprise, Weigel reasoned, that the survey “skewed” libertarian because Ron Paul’s supporters “were out in force.”

This Tea Party Convention in Virginia also featured Ron Paul—as well as Lou Dobbs, Rick Santorum and Ken Cuccinelli. With this more wide-ranging speaker line up, it would be harder to argue that the crowd skewed libertarian. If anything, we might have expected the sample to skew conservative.

While ours and Politico’s surveys sampled local tea party events, add to this a new national survey from The Washington Post/Kaiser/Harvard on the role of government. It found respondents who support or lean toward the tea party split on the social issues: 42 percent moderate-to-liberal, 57 percent conservative or very conservative. These three data points, taken together, suggest that our findings would likely hold up if we repeated the survey at other tea party events nationwide.

Many still mistake the tea party as one large group, sharing common interests, which our research shows is incorrect. For instance, Washington Post columnist Harold Meyerson made this mistake, in an widely circulated op-ed earlier this week, asserting that the Tea Party has “the worldview of the American right – and the polling shows conclusively that that’s who the Tea Party is that.” As the chart below shows, libertarian and conservative Tea Partiers agree on economic issues, but libertarians are less concerned about social issues.

Both groups are extremely concerned about the recently passed health care reform, cutting federal government spending, and reducing the size of government. However, Tea Party libertarians are less concerned than conservatives about the moral direction of the country, gay marriage, immigration, job outsourcing, “the Mosque in NYC,” and abortion. While these differences may seem subtle, given the question wording we used, small changes are statistically significant.

It is important to recognize that these groups are not necessarily consistently ideological on all fronts. For example, we shouldn’t expect Tea Party conservatives to reflect all the views of William F. Buckley, Jr., nor Tea Party libertarians to reflect all the views of John Stossel or scholars at Cato. Nevertheless, the two groups were unified on economic issues but were different on social and cultural issues at a statistically significant level.

One finding surprised me. While we know the word “libertarian” remains unfamiliar to many who hold libertarian beliefs, the word may be gaining traction. On surveys, most libertarians identify themselves as independent, moderate or, reluctantly, conservative. However, in our survey we included an option for respondents to self-identify as “libertarian.”

Surprisingly, 35 percent of respondents who hold libertarian views self-identified as such. In previous surveys, we’ve found only 2 to 3 percent self-identify as “libertarian” nationally. To the extent that Tea Partiers talk to their neighbors and friends, perhaps we will begin to see the word “libertarian” catch on. This would certainly be good news for the “libertarian brand,” and a possible trend worth exploring in future research.

Emily and I will be writing up our findings as part of a longer study. And Emily’s more extensive research on the Tea Party, including her widely circulated analysis on Tea Party signs, will be part of her doctoral dissertation for UCLA. In the meantime, here is our survey questionnaire, and some charts showing further break down between libertarians and conservatives. Please eekins [at] (let us know) if you have additional data questions.