Archives: 12/2011

The Real Trouble With the Defense Authorization Bill

The Senate on Thursday passed the 2012 defense-authorization bill. It includes a controversial provision meant to put al-Qaeda suspects and their associates in military custody rather than prosecute them as criminals. The White House has rather weakly threatened a veto, complaining primarily that the bill undercuts their discretion in dealing with terrorists.

If the White House vetoes the bill, it will be for the wrong reasons. The trouble is not what the law mandates but what it affirms. It does not require the president to put any terrorists in military custody but rather to comply with a new bureaucratic process if he chooses not to do so. Even as we move toward the end of the wars in Iraq and Afghanistan, the law affirms a presidential power to detain anyone, including American citizens, in the name of fighting a nebulous and seemingly permanent terrorist menace. That is bad for both civil liberties and for our ability to think clearly about terrorism.

Most debate about the bill concerns section 1032. It says that the armed forces “shall hold” anyone that is part of al-Qaeda or an associated force and participants in an attack on the United States or its coalition partners for the course of hostilities authorized by Congress in 2001—and dispose of those suspects under laws of wars. American citizens are excluded. Thanks to a compromise negotiated by Armed Service Committee Chair Carl Levin (D-MI) and Ranking Member John McCain (R-AZ), the section now allows the secretary of defense, after consulting with the secretary of state and director of national intelligence, to keep the suspect in civilian courts by informing Congress that doing so serves national security.

The administration objects to 1032 largely because it undercuts their discretion. However, as Levin and McCain note in a recent op-ed, the administration still “determines whether a detainee meets the criteria for military custody.” The president could presumably just decline to label a detainee as someone fitting the requirements of military detention in the first place and try him in civilian court without getting a waiver from the secretary of defense.

The provision’s main relevance is as a talking point. Republicans already fond of castigating the president for allowing alleged terrorists to have their day in court can pretend that he is ignoring this law when he does so.

The real trouble with the bill is the preceding section, 1031. It “affirms” that the authorization of military force passed prior to the invasion of Afghanistan allows the president, through the military, to detain without trial al-Qaeda members, Taliban fighters, associated forces engaged in hostilities against the United States and those that support those groups. Nothing excludes American citizens.

The section says that it does not expand presidential war powers, but that contradicts its other language and common sense. By explicitly endorsing constitutionally dubious powers that the president already claims, Congress makes those claims more likely to survive legal challenge.

The 2001 Authorization of Military Force allows the president to make war on “nations, organizations, or persons” that he determines to have been involved in or aided the September 11 attacks and those that harbored these groups. Effectively, that meant al-Qaeda and the Taliban. Our last two presidents have used that authority to claim the right to kill or indefinitely detain anyone, anywhere that they decide is associated with some arm of al-Qaeda. The courts have trimmed these powers in ways that remain uncertain, particularly as applied to U.S. citizens. In Hamdi v. Rumsfeld, the Supreme Court held that the U.S. military has the power to detain without trial Americans captured on foreign battlefields but that the detainee can challenge the detention in court. Contrary to Carl Levin’s assertions, the ruling did not say that people seized in the United States fit that category.

This defense bill’s expansive list of enemies strengthens the president’s claim that he can detain almost anyone without trial in the name of counterterrorism. Future White House lawyers will cite it to justify those powers. Courts may tell Americans that challenge their detention on constitutional grounds that Congress’s endorsement of the president’s claims to detention powers makes them sounder.

The bill may even strengthen the president’s case for using other war powers, like killing citizens with drone strikes. That interpretation is bolstered by the detainee language’s similarity to the reauthorization of force contained in the House’s defense bill. That legislation explicitly gives the president the power to make war on al-Qaeda, the Taliban and associated forces. By using nearly identical language to describe who the president can detain under his war powers, the Senate bill may stealthily achieve the same end.

Liberalism means minimizing the exercise of war powers. To say, as backers of this legislation do, that the constitution allows our government to kill and detain people without trial is not an argument that we should do so often. Because those powers so offend liberalism, those that advocate them should have the burden of explaining why they are necessary, even if they are constitutional.

Instead, advocates of these extraordinary powers take it as nearly self-evident that military detention is somehow safer than criminal trials. But criminal proceedings, because they are adversarial, produce better information than military interrogations. That information makes the public better consumers of counterterrorism policies. Public debate does not always make better public policy, but it often helps.

You can see how by looking at the footnotes of books about terrorism, like the 9-11 report. Many of sources are records of criminal trials of terrorists. Had all those suspects been held without trial, their testimony and the government’s claims about them might have remained secret. What did become public would be less trustworthy because it would not have been vetted by an institutional adversary, as in court.

Take the case of Umar Farouk Abdulmutallab, the Underwear Bomber, and its connection to the killing of Anwar al-Awlaki, the jihadist propagandist killed earlier this year in Yemen. Both before and after getting a Miranda warning, Abdulmutallab apparently told his FBI interrogators a great deal of information about his trip to Yemen to prepare the explosives he tried to detonate in plane over Detroit. Had he not plead guilty on the first day of trial, prosecutors were set to argue that Awlaki had aided the plot. The government would have had to substantiate its claim that Awlaki, an American citizen, had graduated from being a propagandist to plotting attacks and therefore become a combatant they could legally kill—something they still have not done. The trial would have shed light on how the White House decides which of its citizens it can kill in the name of counterterrorism. That information would at least inform debate.

Civil liberties are a sufficient reason to oppose handing the executive the power to detain more or less whomever it wants. But our system of government does not divide powers simply for fairness. Unilateral decisions are more likely to be foolish ones.

Cross-posted from the Skeptics at the National Interest.

Ed. Policy Reality Check (Now with More Reality!)

The Orlando Sentinel published an article over the weekend titled “Education: Big reforms haven’t yet produced big results.” It seems to have been meant as a reality check, and certainly it does contain a few relevant facts, but it also leaves this statement from “critics” unchallenged: “schools won’t get better without more money.”

Slight problem: Florida’s k-12 scholarship tax credit is raising academic achievement at less than half the per pupil cost of the traditional state-run schools. That’s according to academic studies commissioned by the state of Florida and by the state’s own spending and enrollment data.

Figlio and Hart, 2010, found that the scholarship tax credit program improves academic performance in public schools; and Figlio, 2011, found that students using the scholarships to attend independent schools are also benefiting academically. As for cost, the average scholarship is about $4,000. For comparison, the state’s public school districts spent $27 billion in 2009-10 (bottom of page 21, first column), for 2.6 million students, for per pupil spending of just over $10,000.

Revised DSM-5 Could Open Up Wider Legal Claims

The American Psychiatric Association is revising its highly influential Diagnostic and Statistical Manual, currently known as DSM-IV (the fifth version will be “DSM-V” or, since a switch to Arabic numbering is planned, “DSM-5”). Nearly 8,000 persons have signed a petition, sponsored by the Society for Humanistic Psychology, Division 32 of the American Psychological Association, which challenges the revision’s proposed widening of the definitions of mental disorder. The letter associated with the petition warns that the revision proposes to lower diagnostic thresholds for many categories of disorder without good reason, as well as introducing new constructs such as “Internet Addiction Disorder” that have “no basis in the empirical literature.” The expansion could lead to inappropriate medical treatment as well as other ill effects.

David Foley at Labor Related spells out some of the legal implications for the workplace:

Among others, the changes in the DSM-V could impact Americans with Disabilities Act claims (is the plaintiff disabled, what is a reasonable accommodation, etc), Family Medical Leave Act claims (does plaintiff suffer from a serious illness) and workers compensation laws (does plaintiff have an illness and was it caused by work).

Introducing a new category of Mild Neurocognitive Disorder, for example, could entitle workers to begin claiming job-related accommodation for cognitive deficits often associated with advancing age – perhaps especially significant since federal law has made it unlawful for most private employers to set policies of automatic retirement at any particular age. As Foley notes, the task force is also planning to reduce the diagnostic threshold for two disabilities that generate many ADA claims already: Attention Deficit Disorder and Generalized Anxiety Disorder.

Employers already face serious legal risks under existing law if they decline to accommodate employees with mental and behavioral deficits (which may include substance abuse, at least if the worker has entered rehab). As I noted the other day at Overlawyered, a hotel chain has agreed to pay $132,500 for dismissing an autistic front desk clerk rather than working with a state-paid “job coach” to remedy his deficiencies. The EEOC sued an insurance company that rescinded a job offer as an agent to an applicant after he tested positive for methadone. An Iowa jury awarded $1.1 million against a university for failing to accommodate an employee’s request for a lighter work load and other changes after she was diagnosed with depression, post-traumatic stress disorder and anxiety. And HR lawyers have warned employers that administering personality tests to new workers could violate the law by improperly revealing protected conditions such as “paranoid personality disorder.”

Earlier posts on the ADA and mental/behavioral deficits here (trucking firm sued for avoiding drivers with drinking history), here and here.

Drug War Update

When a war is not going well, one response is to escalate.  There has been a lot of escalation in the drug war.  Here are two recent examples:

1.  Federal agent loses his job for questioning the wisdom of the drug war.  Some government officials do not like the fact that the group “Law Enforcement Against Prohibition” (LEAP) has a growing membership.

2.  Police agents tell judge in a warrant application that DVDs that educate citizens about their constitutional rights make certain organizations  suspicious.   Really.  Since the film in question, “10 Rules for Dealing with the Police” premiered at Cato, maybe undercover officers are now attending our events.  Neill Franklin, executive director of LEAP, spoke at Cato about the 10 Rules educational DVD and he says that film ought to be used in police training–to show agents how to respect the constitutional rights of people in the community.

Ethan Nadelmann recently spoke at Cato on the prospects for drug policy reform.  And the NYT had a good piece on the militarization of police tactics yesterday.

For more Cato work on drug policy, go here.

Will You Be Able to Protect Your Family if Politicians Destabilize Society?

About a week ago, I wrote that people in western nations need the freedom to own guns just in case there are riots, chaos, and social disarray when welfare states collapse.

Much to my surprise and pleasure, this resulted in an invitation to appear on the National Rifle Association’s webcast to discuss the issue.

As I noted in the interview, I’m just a fiscal policy wonk, but the right to keep and bear arms should be a priority for anyone who believes in freedom and responsibility. And even though I only have a couple of guns, you can see that I’m raising my kids to have a proper appreciation for the Second Amendment.

I don’t think we’ll ever get to the point where we suffer societal breakdown, but I won’t be too surprised if it happens in some European countries. We’ve already seen the challenges faced by disarmed Brits during recent riots in the United Kingdom.

In the NRA interview, I pointed out that law enforcement is one of the few legitimate functions of government, so it is utterly despicable when politicians fail to fulfill that responsibility and also deprive households from having the ability to protect themselves.

Last but not least, watch this video if you want to be inspired about protecting the Second Amendment. Pay close attention around the five-minute mark.

Consumer Finance Nominee Cordray to Get Floor Vote?

Rumor is that Richard Cordray might just get a vote on his nomination to head the new Consumer Finance Protection Bureau (CFPB), created by the Dodd-Frank Act.  Full Senate vote could come as early as Wednesday.

Given that 44 Republican Senators have said they will oppose his nomination, cloture on the motion to proceed seems likely to fail, dooming the vote.  But as Bloomberg makes clear, this vote isn’t about protecting consumers, it is about protecting President Obama’s job.

The President plans to use the vote to argue that Republicans are hacks for Wall Street, while he fights for the middle class.  Of course he never mentions that the new agency does NOT even cover Wall Street, which remains under the Securities and Exchange Commission.  And if he is being so tough on banks, then why is his Treasury Secretary Tim Geithner going around saying that having Cordray in place would be good for banks?  Which exactly is it?  But then the fact that Geithner is still Treasury Secretary offers plenty evidence on who is really the “front” for Wall Street.

The CFPB already has plenty of power to go after banks.  What it lacks is expanded authority over non-banks.  For some bizarre reason Geithner believes it was check-cashiers and payday lenders behind the financial crisis.  But then such a belief goes a long way in explaining his failed performance as NY Fed President.

I’ve written elsewhere on the structural changes Republicans are asking for, which would add some transparency and accountability to the new agency.  Republicans are right to fight for these changes, using the only leverage they have.  So far Republicans have only focused on the agency itself, saying little about Cordray.  Even if Republicans were successful getting their changes, they should still question Cordray.  During his thankfully short political career, Cordray showed himself to be a reliable friend of the trial bar.  His nomination exposes what the CFPB has been really about all along:  lining the pockets of the trial bar.

Did We Have Music, Art, and Books before the UN?

And would we have music, art, and books without the UN? The great jazz pianist Herbie Hancock suggests in a Washington Post op-ed that our cultural life would be barren without UNESCO:

I cannot imagine a world without music, art, film, dance, theater and books. It would be a dreary and colorless existence, with little cooperation and communication among citizens. The arts are the glue that holds us together, the cultural fabric of our lives, and they sow the seeds for inventive, universally shared experiences….

UNESCO helps ensure that our world remains soulful, spirited and full of life.

Case in point: UNESCO recently endorsed April 30 as International Jazz Day. This is an opportunity to spread the gospel of jazz, its message of peace and cooperation, and its unique American traits. …

Music is an essential ingredient of my life, and I am in awe of its power….

That is why U.S. engagement in UNESCO and the United Nations must continue….

During these crucial times, the work of UNESCO is needed more than ever.

Herbie Hancock is a great pianist and composer. But here he seems to have let UNESCO bureaucrats lead him into a ridiculous argument. Ridiculous enough to remind one of Hillary Clinton, who said when Republicans threatened to eliminate the National Endowment for the Arts, ”This is an ominous time for those of us who care for the arts in America. A misguided, misinformed effort to eliminate public support for the arts not only threatens irrevocable damage to our cultural institutions but also to our sense of ourselves and what we stand for as a people.” Oh, come on. The arts are a lot more important in our lives than anything that the NEA and UNESCO do. And they get far more “public support” than these modest government expenditures.

Supporters of government arts spending produce economic studies finding that nonprofit arts and culture institutions spend $63 billion a year. Americans donate $13 billion a year to arts and culture organizations. And of course those numbers are dwarfed by American spending on for-profit cultural activities: $443 billion in 2010 on entertainment and media, $28 billion on books.

Compared to such numbers, the National Endowment for the Arts’ annual budget of about $150 million and whatever portion of UNESCO’s $325 million annual budget is spent on arts are pocket change. If both of them disappeared, music, art, film, dance, theater and books would continue to thrive.