Cato Supreme Court Review on the Road

With last week’s Constitution Day conference behind us (watch it here) – and the release of the 2008-2009 Cato Supreme Court Review – I can finally escape the office where I’ve been holed up all summer.  Yes, it’s time to go on the road and talk about all these wonderful legal issues we’ve learned about over the past year, as well as previewing the new Supreme Court term.

To that end, below the jump is my fall speaking schedule so far.  All these events are sponsored by the Federalist Society (and in some cases co-sponsored by other organizations) and all are open to the public.

If you decide to attend one of the presentations after learning of it from this blog post, please feel free to drop me a line beforehand, and do introduce yourself after the event.

Sept. 24 at 11:50am - DePaul Law School, Chicago - Debate on the Second Amendment post-Heller

Sept. 24 at 4:30pm - Chicago-Kent School of Law - Panel on Rule of Law in Iraq

Sept. 29 at 5:00pm - University of Cincinnati Law School - Rule of Law and Economic Development

Sept. 30 at 12:00pm - Capital University Law School (Columbus, OH) - Review of October Term 2008/Preview of October Term 2009

Sept. 30 at 3:30pm -  Ohio Northern School of Law (Ada, OH) - Debate on Ricci and Affirmative Action in Employment

Oct. 1 at 12:00pm - University of Toledo Law School - Debate on Ricci and Affrimative Action in Employment

Oct. 1 at 5:00pm - Thomas M. Cooley Law School (Auburn Hills, MI) - Immigration and the Constitution

Oct. 5 at 12:00pm - University of Pennsylvania Law School - Debate on the Use of Foreign Law in Constitutional Interpretation

Oct.6 at 5:30pm - Blank Rome LLP in Philadelphia (Federalist Society Lawyers Chapter; small admission fee) - Panel on Rule of Law in Iraq

Oct. 8 at 1:00pm - Penn State-Dickinson Law School (University Park) - October Term 2009 Preview

Oct. 13 at 5:15pm - George Mason University Law School (Arlington, VA) - October Term 2009 Preview

Oct. 26 at 12:00pm - Florida International University Law School (Miami) - Topic TBA

Oct. 27 at 12:30pm - University of Miami Law School - Topic TBA

The Tire Tariff and the Invertebrate President: A Fable

Anyone still inclined to minimize the meaning of President Obama’s Chinese tire tariff decision should read George Will’s column today.

It is not only the direct costs of this particular decision, which are numerous and tallied in the article (and in this paper), that should concern us. Will’s bigger concern is the foreshadowing of more protectionism from a president who has proven to have no qualms about looking straight into other people’s eyes and claiming that his administration opposes protectionism, favors free trade, and is working to advance pending trade agreements through Congress, all while remaining “invertebrate as he invariably is when organized labor barks.”

Is this a sign of schizophrenia? No, it’s worse. What we have here is a president who views trade policy as nothing more than a tool to advance his own political standing with groups that are hostile to commerce. Since groups on the left have grown disenchanted that some of the most socialist elements of the health care debate might be left on the cutting room floor, why not try to placate them with anti-business, anti-consumer, anti-globalization protectionism? Will makes the link between tire tariffs and the health care debate in his concluding sentence.

A president who fancies himself economically enlightened and internationalist would treat trade policy as a means to promoting economic growth and sound foreign relations. This president, regrettably, views trade policy as a sacrificial pawn in the service of politics as usual.

The Crystal Ball

Some comforting news regarding the Obama administration’s approach to the war in Afghanistan:

Among the alternatives being presented to Mr. Obama is Mr. Biden’s suggestion to revamp the strategy altogether. Instead of increasing troops, officials said, Mr. Biden proposed scaling back the overall American military presence. Rather than trying to protect the Afghan population from the Taliban, American forces would concentrate on strikes against Qaeda cells, primarily in Pakistan, using special forces, Predator missile attacks and other surgical tactics.

I’m an analyst, not a fortune teller, so anyone’s guess is as good as mine as far what course Obama will choose to take in Afghanistan. I will say, however, that I will not be surprised if the president decides to send more troops. For once I actually hope that he listens to Biden.

McCarthy’s World

The NYC/Denver terrorism investigation has Andy McCarthy all riled up.

In this article at National Review, McCarthy says that the risks associated with terrorism require a domestic preventive detention regime where investigators can go to a court with something less than probable cause and detain individuals without charge until they can gather the evidence for an indictment.

This is a pretty bold proposition, given the fact that he lays out in this post on The Corner the power that investigators already have to detain material witnesses while gathering evidence. Not to mention the power to detain allegedly dangerous individuals picked up on relatively minor charges such as lying to federal agents, the current disposition of the NYC/Denver suspects.

Then McCarthy comes full circle in this post, claiming that if this is the fault of a “law enforcement” mindset in counterterrorism, it may be time to consider a domestic intelligence agency akin to Britain’s MI-5. He also blasts the use of non-coercive interrogation “that the Left insists are just as reliable in a ticking-bomb situation as the CIA’s coercive methods.”

There are several problems with this take on domestic counterterrorism.

The first is that the decision to involve a New York imam in the investigation, a step that compromised the operation and forced investigators to make early arrests before all of the co-conspirators could be identified, was made by an intelligence organization, the NYPD’s Intelligence Division. This is not the cops of the Counterterrorism Bureau, the law enforcement officers that work with the FBI in the Joint Terrorism Task Force, but a separate intelligence department run by a former CIA official who is openly hostile to the Bureau. The same type of folks that McCarthy wants to put in charge of domestic counterterrorism.

Second, McCarthy’s plug for coercive interrogation is the path advocated in the early years of the Bush administration. This has the deleterious effect (beyond statutory bans on torture and constitutional rights prohibiting the same) of making anything you get from the “third degree” inadmissible in court. To get around this you would have to ask courts to generate a doctrine that allows for evidence collected as a result of coercive interrogation to be admitted in spite of clear constitutional violations. I don’t see any way that this does not seep into general law enforcement, where any potential future crime justifies beating information or confessions out of suspects. This is rolling back civil liberties a hundred years or so.

Third, a domestic prevention regime is destined to run into the problems that the British encountered in Northern Ireland. IRA detainees that were subjected to “special interrogation techniques” and held without charge staged a hunger strike to protest being treated as criminals instead of detainees; their jailers had taken away their civilian clothes and made them wear prison uniforms. As former FBI Agent and counterterrorism expert Mike German says in his book, Thinking Like a Terrorist:

The reasons for the hunger strike reveal much about the IRA and about terrorists in general. They didn’t strike over the anti-Catholic discrimination that led to the civil rights movement. They didn’t strike over the RUC’s police abuse or the stationing of British troops in Northern Ireland. They didn’t strike over being arrested without charges, interned, and tortured. They didn’t strike over indefinite detentions or even over Bloody Sunday. They knew all those things helped their cause. They went on hunger strike because the British government was going to make them look like criminals.

If you fear Islamic terrorists, let investigators do their job and find the people who would harm the public. This is a problem that will be solved over decades of diligent investigation, sitting on wiretaps, infiltrating cells, and prosecuting dangerous people. Distorting the domestic criminal justice system out of hysteria over potential attacks will make martyrs out of detainees and torture victims and encourage a broader spectrum of people to violence.

Waiter, Cancel That Order of Crow

Ruth Marcus of the Washington Post writes today that she feels compelled to “eat at least a spoonful of crow.”

Her menu selection is driven by her assessment of President Obama’s “education reform” accomplishments to date.

The term “education reform” is meaningless. All it implies is that, in whatever small way, things will be done differently from the way they have been done in the past. Not necessarily better, or worse, just differently. Even the president’s painfully vague campaign message (“Hope and Change”) at least indicated that the sought-after change was supposed to be in a positive direction. “Reform” doesn’t even convey that – let alone giving any indication of the nature, rationale or evidence for the change.

So, yes, the president is “reforming” certain aspects of education. But whether it’s higher-ed, pre-k, or the qualified expansion of charter schools, the new form does not seem noticeably better than the old one.

Breaking: Economics 101 Still in Effect

Dairy farmers are working lobbying hard to ensure they get their hands on more of your money.  Apparently, changes made last year to the Milk Income Loss Contract – mainly to take account of rising feed costs – were not enough to stem the losses.

The Senate recently voted to give the USDA an extra $350 million for dairy farmers’ support. The House left dairy support out of its appropriations bill, so the two chambers are working on the compromise now (prediction: the taxpayer will get screwed).

Here’s an ironic quote from a Brownfield news post yesterday (linked to above). It’s Missouri Dairy Association Chairman Larry Purdom on how to bring prices back up:

“Our feeling is that if [USDA] would buy some cheese and product that’s in storage…hanging over our heads, depressing prices,” Purdom tells Brownfield from his farm at Purdy, Missouri, “we feel like the prices would start moving on their own if we didn’t have this surplus.”

More on U.S. dairy policy here.

This Is Your Brain on Torture

We’ve all heard the argument that a subject under torture—or whatever this week’s euphemism is—may begin fabricating whatever they believe the interrogator wants to hear just to get the agony to stop.  Now neuroscientists are suggesting that inflicting too much pain and stress on a subject may not just induce them to lie; it may cause them to lose track of what’s true and false altogether:

Fact One: To recall information stored in the brain, you must activate a number of areas, especially the prefrontal cortex (site of intentionality) and hippocampus (the door to long-term memory storage). Fact Two: Stress such as that caused by torture releases the hormone cortisol, which can impair cognitive function, including that of the prefrontal cortex and hippocampus. Studies in which soldiers were subjected to stress in the form of food and sleep deprivation have found that it impaired their ability to recall personal memories and information, as this 2006 study reported. “Studies of extreme stress with Special Forces Soldiers have found that recall of previously-learned information was impaired after stress occurred,” notes O’Mara. “Water-boarding in particular is an extreme stressor and has the potential to elicit widespread stress-induced changes in the brain.”

Stress also releases catecholamines such as noradrenaline, which can enlarge the amygdale (structures involved in the processing of fear), also impairing memory and the ability to distinguish a true memory from a false or implanted one. Brain imaging of torture victims, as in this study, suggest why: torture triggers abnormal patterns of activation in the frontal and temporal lobes, impairing memory. Rather than a question triggering a (relatively) simple pattern of brain activation that leads to the stored memory of information that can answer the question, the question stimulates memories almost chaotically, without regard to their truthfulness.

In brief, the subject may lose genuine memories, and come to believe that their confabulations are authentic ones. The full literature review, from Trends in Cognitive Science, can be downloaded in PDF form here.