Republicans Tell America: Trust Us with Your National Security Again

The Republican Party hasn’t been doing well as of late.  A botched governing majority, a lost reputation, two lost legislative elections, two lost congressional majorities, a lost presidential election, a lost Pennsylvania senator, and no relief in sight.  So what does the GOP congressional leadership do?  Play the national security card.

Reports the New York Times:

Stymied in so many of their efforts to put President Obama and Democrats on the defensive, Republicans are returning to national security, an issue that has served the purpose well for them in the past.

Trying to raise doubts about Mr. Obama’s ability to protect the nation, they have raised the specter of terror suspects transferred from the detention facility at Guantánamo Bay, Cuba, to prisons in American communities, issued warnings that the release of memorandums detailing secret interrogation methods has put Americans at risk, and presented a video montage ending with the Pentagon in flames on Sept. 11, 2001, and the question, “Do you feel safer?”

“I think what I’m trying to do here,” Representative John A. Boehner of Ohio, the Republican leader, said in defending the video he and fellow Republicans have been circulating, “is push the administration to tell us, What is the overarching strategy to take on the terrorists and defeat them and to help keep America safe?”

I have a lot of bad things to say about both parties on foreign as well as domestic policy.  But it’s hard for me to imagine the previous eight years of Republican governance as a golden era for national security.  First there was 9/11.  Perhaps it is too much to expect the Bush administration to have prevented the terrorist atrocity, but the administration did nothing over the Clinton administration to improve American defenses to prevent such attacks.

Then there was diverting troops and attention from Afghanistan before that war was finished, to invade Iraq.  The Iraq debacle occupies a category all its own.  Policy towards North Korea was spectacularly misguided and incompetent:  refusing to talk to the North for years as it generated nuclear materials, before rushing to embrace Pyongyang while offering few immediate benefits to entice the North to change its behavior.  The results of this strategy were, unsurprisingly, negligible.

Refusing to talk to Iran had similar consequences.  Washington refused to engage Syria, even though Israel was willing to talk to Damascus.  The Bush administration further tightened the embargo against Cuba, again achieving nothing.  The administration also continued the Clinton administration’s policy of estranging Russia by expanding NATO ever closer to Moscow, incorporating countries that are security black holes, offering geopolitical conflicts with no corresponding military benefits.

In the midst of all this, the GOP in both the executive and legislative branches led a sustained assault on civil liberties and limited, constitutional government even when doing so did nothing to forestall another terrorist attack.

Given all this, is should surprise no one that the Republicans are no longer in control of government.

The Democrats may prove to be worse on all counts. I’ve long learned not to assume that things could not get worse.  Still, it is hard to take seriously Republican demands that the American people trust them with the nation’s security.  After all, look at what the Republicans did when they actually held power.

Like FDR — In a Really Bad Way

President Barack Obama based his candidacy in part on the promise to set a new tone in Washington.  But we saw a much older tone emerge with his demonization of hedge funds over the Chrysler bankruptcy.  Reports the Washington Post:

President Obama’s harsh attack on hedge funds he blamed for forcing Chrysler into bankruptcy yesterday sparked cries of protest from the secretive financial firms that hold about $1 billion of the automaker’s debt.

Hedge funds and investment managers were irate at Obama’s description of them as “speculators” who were “refusing to sacrifice like everyone else” and who wanted “to hold out for the prospect of an unjustified taxpayer-funded bailout.”

“Some of the characterizations that were used today to refer to us as speculators or to say we’re looking for a bailout is really unfair,” said one executive who spoke on condition of anonymity because of the sensitivity of the matter. “What we’re looking for is a reasonable payout on the value of the debt … more in line with what unions and Fiat were getting.”

George Schultze, the managing member of the hedge fund Schultze Asset Management, a Chrysler bondholder, said, “We are simply seeking to enforce our bargained-for rights under well-settled law.”

“Hopefully, the bankruptcy process will help refocus on this issue rather than on pointing fingers at lenders,” he said.

I won’t claim any special expertise to parse who is responsible for what in the crash of the U.S.  (meaning Big Three) auto industry.  However, attacking people for exercising their legal rights and trashing those who make their business investing in companies hardly seems like the right way to get the U.S. economy moving again.

During the Depression, FDR’s relentless attacks on business and the rich almost certainly added to a climate of uncertainty that discouraged investment during tough times.  Why put your money at real risk when the president and his cohorts seem determined to treat you like the enemy?  While President Obama need not treat gently those who contributed to the current crisis by acting illegally or unscrupulously, he should not act as if those who simply aren’t willing to turn their economic futures over to the tender mercies of the White House are criminals.

We’ve just lived through eight years of bitter partisan warfare.  The president shouldn’t replace that with a jihad against businesses that resist increased government direction of the economy.

Vetting the Future Supreme Court Justice

In choosing a Supreme Court nominee to replace Justice Souter, President Obama will have an opportunity to avoid the partisanship he promised to reduce on the campaign trail, which his legislative agenda has thus far only exacerbated.

But given the way Bush nominees were treated by Senate Democrats, it won’t be easy. After the stormy confirmation hearings for Judges Bork and Thomas, President Clinton’s nominations of Judges Ginsburg and Breyer sailed through the confirmation process with little opposition and even less acrimony. With the return of Republican nominees after the election of George W. Bush, however, Senate Democrats resumed their scorched earth practices, starting with appellate court nominees and continuing to the nominations of Judges Roberts and Alito to the High Court.

Hearings were never held, filibusters were threatened and reputations were tarnished.

The question now for Senate Republicans will be, is turnabout fair-play?

The answer may turn on just who President Obama selects. At the least, given this recent history, there is no reason Senate Republicans need to be unduly deferential to the president’s nominee. We will need to know both the judicial philosophy and the constitutional philosophy of the nominee.

That will require respectful but sharp questioning by members of the loyal opposition. Their duty under the Constitution requires nothing less.

Justice Scalia Makes Sense; Law Professor Responds by Instructing Class to be a Collective Jerk

In January, Justice Antonin Scalia made some remarks about privacy at the Institute of American and Talmudic Law. The AP reported:

Scalia said he was largely untroubled by such Internet tracking. “I don’t find that particularly offensive,” he said. “I don’t find it a secret what I buy, unless it’s shameful.”

He added there’s some information that’s private, “but it doesn’t include what groceries I buy.”

In response to this commonsensical provocation, Fordham University law professor Joel Reidenberg had his class compile a 15-page dossier on Scalia, “including his home address, the value of his home, his home phone number, the movies he likes, his food preferences, his wife’s personal e-mail address, and ‘photos of his lovely grandchildren.’”

Reidenberg apparently sent the file to Justice Scalia, eliciting this response:

I stand by my remark at the Institute of American and Talmudic Law conference that it is silly to think that every single datum about my life is private. I was referring, of course, to whether every single datum about my life deserves privacy protection in law.

It is not a rare phenomenon that what is legal may also be quite irresponsible. That appears in the First Amendment context all the time. What can be said often should not be said. Prof. Reidenberg’s exercise is an example of perfectly legal, abominably poor judgment. Since he was not teaching a course in judgment, I presume he felt no responsibility to display any.

Being a jerk to Justice Scalia didn’t help Professor Reidenberg make his point, whatever it may be.

According to the Above the Law blog, Reidenberg believes that “technological constraints should be built into the infrastructure of online networks in recognition of users’ privacy rights.” He may also think the Nile should flow the other direction, but having his students dig up graves in Egypt won’t advance that cause.

You Don’t Have to Be a Nuclear Engineer to…

…support market solutions in education, but apparently it helps.

Keith Yost, a grad student in MIT’s Department of Nuclear Science and Engineering and the Engineering Systems Division, has a great piece in his school’s newspaper. He explains that public schools have enjoyed a dramatic increase in per-pupil resources over the past 40 years, but ultimately failed to improve student achievement. He also explains why: resources are misallocated because of a lack of systemic incentives for their proper allocation — incentives that are inherent in the free enterprise system.

Unfortunately, Yost’s rationalist, systems approach is very different from that of most policymakers — perhaps because so few policymakers were trained as engineers. So maybe one way to accelerate the process of effective reform of American schools is to encourage more of our engineers to go into state politics. Think about it, Keith.

Alternatively, as Mothers’ Day is around the corner, perhaps the trick is for moms to encourage their kids to pursue science and engineering rather than go into that one career field that produces so many of our politicians (apologies to Waylon Jennings):

Mamas, don’t let your babies grow up to be lawyers.
Don’t let ‘em pick gavels or watch 12 Angry Men.
Buy ‘em some Lego and a protector for pens…

Republican Strategy on the Supreme Court Vacancy

President Obama is not the only one with a difficult decision to make in the face of mounting pressure from various groups.  The Republicans will have to decide what posture to take: combative or deferential, political or analytical.

With Obama still at the height of his popularity, and with solid Democratic control of the Senate (even without Arlen Specter and Al Franken), the GOP is unlikely to sustain a filibuster or generate significant opposition to any but the most extreme nominee — such as the radical transnationalist Harold Koh, whose nomination to be the State Department’s head lawyer is currently pending.

What Republicans should do instead is force a full public debate about constitutional interpretation and judicial philosophy, laying out in vivid detail what kind of judges they want.  Instead of shrilly opposing whomever Obama nominates on partisan grounds, now is the time to show the American people the stark differences between the two parties on one of the few issues on which the stated Republican view continues to command strong and steady support nationwide.  If the party is serious about constitutionalism and the rule of law, it should use this opportunity for education, not grandstanding.

Al-Marri Pleads Guilty

Ali Saleh Kahlah al-Marri pleaded guilty to conspiring with al Qaeda leaders to commit acts of terrorism yesterday.  He could be sentenced up to 15 years in prison, though he has spent nearly half that awaiting trial and may get credit for the time already served.

Al-Marri was an exchange student who arrived in the United States on September 10th, 2001 as an al Qaeda sleeper agent.  Read the government’s declaration of facts used to detain him.  This is the stuff of movies; the FBI took a dangerous man off the streets when it arrested him.

Unfortunately, the government took him out of the criminal justice system and asked that the charges against him be dismissed with prejudice (meaning that they cannot be re-filed in the future).  He became a domestically detained enemy combatant and the test case for future domestic military detentions.  Just as attorneys seek sympathetic plaintiffs to overturn unjust laws, the government can find unsympathetic defendants to justify overbroad claims of power.  Al-Marri is about as unsympathetic as you can get.

The real tragedy is that al-Marri will serve a relatively short sentence.  Had the government prosecuted him on the seven charges alleged the first time around, he would have been put away for decades.  Related posts here, here, here, and here.