State Secrets, State Secrets Are No Fun

Despite Barack Obama’s frequent paeans to the value of transparency during the presidential campaign, his Justice Department has incensed civil liberties advocates by parroting the Bush administration’s broad invocations of the “state secrets privilege” in an effort to torpedo lawsuits challenging controversial interrogation and surveillance policies. Though in many cases the underlying facts have already been widely reported, DOJ lawyers implausibly claimed, not merely that particular classified information should not be aired in open court, but that any discussion of the CIA’s “extraordinary rendition” of detainees to torture-friendly regimes, or of the NSA’s warrantless wiretapping, would imperil national security.

That may—emphasis on may—finally begin to change as of October 1st, when new guidelines for the invocation of the privilege issued by Attorney General Eric Holder kick in. Part of the change is procedural: state secrets claims will need to go through a review board and secure the personal approval of the Attorney General. Substantively, the new rules raise the bar for assertions of privilege by requiring attorneys to provide courts with specific evidence showing reason to expect disclosure would result in “significant harm” to national security. Moreover, those assertions would have to be narrowly tailored so as to allow cases to proceed on the basis of as much information as can safely be disclosed.

That’s the theory, at any rate. The ACLU is skeptical, and argues that relying on AG guidelines to curb state secrets overreach is like relying on the fox to guard the hen house. And indeed, hours after the announcement of the new guidelines—admittedly not yet in effect—government attorneys were singing the state secrets song in a continuing effort to get a suit over allegations of illegal wiretapping tossed. The cynical read here is that the new guidelines are meant to mollify legislators contemplating statutory limits on state secrets claims while preserving executive discretion to continue making precisely the same arguments, so long as they add the word “significant” and jump through a few extra hoops. Presumably we’ll start to see how serious they are come October. And as for those proposed statutory limits, if the new administration’s commitment to greater  accountability is genuine, they should now have no objection to formal rules that simply reinforce the procedures and principles they’ve voluntarily embraced.

Evidence, Please?

A couple of days ago the Common Core State Standards Initiative released a new draft of its national, “college- and career-readiness” math and English curricular standards. The content of the standards isn’t of huge interest to me – the biggest dangers are in the implementation of standards, not the drafting – but what is of great interest is determining whether having national standards makes sense in the first place. Unfortunately, it appears that many standards fans couldn’t care less about that little concern.

To satisfy my interest, I’ve been delving into empirical work that might back claims that national standards are necessary for educational success, or just that they improve academic outcomes. And what have I found? As I laid out in a recent National Review Online op-ed, and argue today on the New York Times“Room for Debate” blog, there’s hardly any such evidence. There is scant good research on national standards, and what there is largely ignores serious questions about the confounding impact of such factors as culture and changing educational attitudes.

This dearth of research explains why national standardizers are almost totally silent about evidence and instead defend their proposals with soundbites about high expectations for all kids, or the ”craziness” of having 50 state standards.  It also explains why they seem to be in a big hurry to get standards drafted, and why the Obama administration is already dangling billions of dollars in front of states to get them to “voluntarily” adopt whatever the CCSSI produces. Quite simply, were the public to find out that national standards are essentially an untested drug being slipped down their throats, they might object. And nothing, it seems, is more important to the national standards crowd than ensuring that that doesn’t happen.

Curb Your Enthusiasm: Americans Should Not Expect Much from Obama’s Visit to the UN

Barack Obama speaks at the UN general assembly. Photo: Jeff Zelevansky/GettyPresident Obama’s address to the United Nations General Assembly this morning, and his chairing of the UN Security Council on Thursday, is a grand attempt to tell the world–after eight years of George W. Bush–that the United States will no longer go it alone.

The president has a very difficult task, however, if he expects to invest the United Nations with renewed credibility. The UN is a weak and fractured institution, whose limited power and authority has been steadily undermined by a progression of U.S. presidents, both Democrats and Republicans. We should not forget that President Bill Clinton explicitly circumvented the UN Security Council when he chose to intervene militarily in Kosovo in 1999. Clinton’s evasion of the UNSC established a precedent for future military intervention that the Bush administration happily capitalized upon to send troops into Iraq in 2003.

Susan Rice, our current UN ambassador, endorsed this approach in 2006 when she called for U.S. military action against Sudan. Prior UN approval of such a mission was unlikely, but ultimately unnecessary, Rice argued at the time, because of the precedent set by President Clinton in Kosovo.

For American policymakers who have demonstrated such disdain for the UN in the past to now profess great respect for the institution should not surprise us. The UN is only as relevant as the member states wish it to be. In areas of common concern, the desire to cooperate and compromise may temporarily trump concerns over protecting state sovereignty and preserving freedom of action to deal with urgent security threats. In most cases, however, we can expect the member states, with the United States in the lead, to pursue policies that they believe (not always correctly, as we learned in Iraq) will advance their security. And if the UN weakly sanctions such actions after the fact, or refuses to do so, that will only reveal its irrelevance.

The Return of the Boogie Man, Zelaya

Manuel ZelayaManuel Zelaya’s return to Honduras is clearly intended to disrupt that country’s presidential election scheduled for late November. The political campaign was taking place in a calm and orderly manner, in full accordance to Honduran law. Panama had already announced that it would recognize the election as legitimate, and it was apparent that sooner or later more countries would make the same decision. Unfortunately, a peaceful and lawful election process in Honduras is not in Zelaya’s interest.

That Zelaya has been aided by Venezuela and its populist allies in the region in his return to Tegucigalpa is unsurprising. What is astounding is Brazil’s deep involvement–allowing its embassy to be used as a base of political operations by Zelaya, counter to international norm. Even more startling U.S. Secretary of State Hillary Clinton’s assessment of Zelaya’s return as a positive development, despite the possibility of violence. The international community is inexcusably crossing the boundaries of diplomacy in dealing with Honduras.

Wednesday Links

  • Signals indicate that the market just might be on the rebound. That’s great,  but it’s important not to get ahead of ourselves, says Johan Norberg.  “We must never forget that the light at the end of the tunnel can be an approaching train.”
  • Michael Cannon continues his debate in the LA Times: The dirty little secret is that “Obama-care” isn’t about reducing health care costs or making coverage more secure. It’s about robbing Peter to pay Paul.

An Open and Honest Debate About Drug Policy in El Paso, Texas

El PasoLast January, the city council of El Paso, Texas, unanimously approved a resolution urging the federal government to support “an honest, open, national debate on ending the prohibition on narcotics.” Soon afterwards, the mayor of El Paso received a call from Washington, DC demanding that he veto the resolution, otherwise his city would be cut off from some federal money. He did. However, the city council approved a new resolution calling for a conference assessing U.S. drug policy and the War on Drugs.

That led to the University of Texas at El Paso (UTEP) organizing a two-day conference on the 40th anniversary of the War on Drugs with leading experts from all over the world in the field of drug policy. The event was heavily attended by students, journalists and people interested in the subject. I had the chance to speak on the first panel, addressing the “History, Successes and Failures” of the War on Drugs. Not surprisingly, I failed at pointing out a single success from the current prohibitionist approach to drug policy. A summary of that first panel is available here.

Unfortunately, two Obama czars (on border and drugs) called off their participation just days before the conference. It was a missed chance to find out if there’s any change going on with the new administration regarding drug policy. In his opening remarks, Beto O’Rourke, the city councilman who introduced the original resolution that was later vetoed, said that he never imagined that calling for an “open and honest debate” on drug policy was going to be so controversial.

El Paso is at the crossroads of the War on Drugs. One of the safest cities in the Unites States, it’s just across the Rio Grande from one of the most dangerous cities in the world, Mexico’s Ciudad Juárez, where so far this year more than 1,000 people have died in drug related violence. El Paso is not isolated from this carnage. Both cities are deeply intertwined economically, culturally and by blood ties. “Todos somos juarences” (we are all Juarezians) was the most common phrase from residents of El Paso expressing concern about the situation in their sister city.

Needless to say, the participants at the conference were highly critical of the War on Drugs. Some speakers focused on the empirical evidence coming from countries with flexible drug laws, such as the Netherlands and more recently Portugal. Luis Astorga, a professor at the Autonomous University of Mexico (UNAM) gave an interesting presentation on the history of drug cartels in Mexico. Other presentations dealt with the social consequences of prohibition, and how the War on Drugs is affecting communities in Mexico and the United States.

As I’ve written earlier, in Latin America there have been growing calls in recent months to reconsider the War on Drugs. It is about time that this discussion also takes place in the United States. Kudos to UTEP and the city of El Paso for taking that step.

The President’s Health Care Tax

As Michael Cannon discussed in an earlier post, the White House is trying to claim that health care “reform” does not mean higher taxes. This is a two-pronged issue. First, there is a mandate to purchase health insurance. Second, there is a tax (the White House calls it a fee) on people who fail to purchase a policy.

The White House claims this mandate is akin to state-level requirements for the purchase of health insurance, and that the newly-insured people will be getting some value (a health insurance policy) in exchange for their money. These assertions are defensible, but that does not change the fact that a tax is being imposed.

It might be plausible to argue that the mandate is not a tax if the value of the insurance policy to the individual was equal to the cost. But since these are people who are not buying policies, their behavior reveals that this obviously cannot be true. So this means that they will be worse off under Obama’s plan and that at least some of the cost should be considered a tax.

The Social Security payroll tax allows a good analogy. Labor economists correctly argue that the payroll tax functions, in part, as a “premium” for what can be considered a government-provided annuity. As such, when we try to measure the disincentive effect of the payroll tax, it is appropriate to include the perceived value of future Social Security benefits (for most Americans, especially with average or above-average incomes, the “rate of return” is very low or negative, so a substantial share of the payroll tax is a tax both in the legal sense and economic-distortion sense). The same is true of a mandatory health insurance policy (even if the money does not go through the government’s hands).

On the broader issue of paying money and getting something of value in return, another analogy is helpful. A share of the gasoline excise tax is used for road construction and maintenance. We all benefit from roads, even if we don’t drive (let’s set aside issues such as whether the benefits equal the costs, whether the federal government should be involved, etc). Does that somehow mean the gasoline excise tax is not a tax? Of course not.

Turning now to the excise tax, the Administration’s argument that this is a fee is even less defensible. The Baucus legislation in the Senate Finance Committee explicitly references an excise tax. Equally revealing (and even more ominous), the IRS is charged with collecting the fee. The White House can argue that the tax - in the economic sense - is lower than the fee if something of value is exchanged. But the tax is still there.

Rather than play games, the White House should make an open argument for bigger government. The fact that the Administration prefers to be deceptive says a lot about the underlying merits of their proposal.