Reflexive Militarism

Some have charged that President Bush’s plan to deploy 6,000 National Guardsmen to support roles along our border with Mexico constitutes “militarizing the border.” Well, sort of. But “security theater” is probably a better term. It’s a highly visible move designed to provide the appearance of increased security without actually increasing it, much like the use of guardsmen at the airports following September 11th.

In this case, the troops will be “operating surveillance systems, analyzing intelligence, installing fences and vehicle barriers, building patrol roads, and providing training,” according to the president’s speech Monday night. They will be under the command of the state governors, they will not have arrest authority, and they will not be involved in direct law enforcement activities, which means that there’s no objection based on the Posse Comitatus Act, the longstanding federal statute that restricts use of federal troops to “execute the laws.” On the whole, this is a far cry from some of the proposals for hard-core border militarization floating around on the right.

Yet the Bush administration does have a tendency, when faced with political trouble, to reach for the military. Trying to look decisive in the wake of Katrina last fall, the president asked for major revisions to Posse Comitatus twice in the space of a month, once to fight hurricanes and once to order military quarantines for Avian flu. Monday’s proposal is merely the latest iteration of the administration’s reflexive militarism, and it’s a comparatively mild one at that.

But here’s something a little more troubling than the upcoming exercise in security theater at the border. In the administration’s internal legal analysis, the Posse Comitatus Act may be vulnerable to going “poof,” as yet another statute touched by the Magic Scepter of Inherent Authority. There are a lot of bad ideas floating around about domestic militarization of the war on terror. If there’s another serious terror attack, that legal theory could be used to make some of those bad ideas happen.

GOP Proposes $1.7b More for Medicare Rx

A couple of days ago, I blogged that Republicans are thinking about eliminating the late enrollment penalty for Medicare Part D. Reneging on that penalty would (1) defeat the only sensible aspect of Part D, (2) increase the tax burden of Part D by $1.7 billion over five years, and (3) ruin the credibility of future cost-containment efforts that hinge on changing seniors’ behavior.

Lo and behold, the drive to eliminate the late enrollment penalty has begun. Front and center is the Republican chairman of the Senate Finance Committee—Chuck Grassley of Iowa. Co-sponsors of Grassley’s bill include such conservatives as Jon Kyl (R-AZ) and Rick Santorum (R-PA).

And the Republican campaign to expand the federal government marches on…

Our Reckless Diplomacy

Some observers in Washington seem to think that the Bush administration can simultaneously browbeat Russia over its domestic politics and ask for its cooperation on matters like the Iranian nuclear issue. Britain’s Telegraph sheds light on the fact that it may not be that easy:

The American secretary of state, Condoleezza Rice, and her Russian counterpart, Sergei Lavrov, traded barbs during bad-tempered talks at a foreign ministers’ summit in New York on Iran’s nuclear programme.


One official in Washington said: “It was a pretty extraordinary session and everyone’s been talking about it in private since. It was certainly quite an introduction to the rough and tumble of the new job for [new British foreign secretary Margaret] Beckett.”

Mr Lavrov arrived at the Waldorf for the meeting seething about a speech on Kremlin policies delivered by Dick Cheney, the vice-president, the previous week in Lithuania. The Russian repeatedly complained about the comments and then threatened to veto a Security Council resolution, drafted by Britain and France and backed by the US, that would force Iran to abandon enrichment of uranium.

Although Moscow has made clear that it opposes any use of mandatory powers, the other ministers were left in no doubt that Mr Lavrov’s approach reflected fury over the Cheney speech. As the mood worsened, Mr Lavrov accused the Americans of seeking to undermine efforts by Britain, France and Germany to solve the crisis.

He singled out Nicholas Burns, the State Department’s number three, for particular flak, complaining about his criticism of Russian involvement in Iran’s Bushehr nuclear plant. Already frustrated, Ms Rice, a Russia expert, took exception to his remarks about Mr Burns and curtly told her guest: “This meeting isn’t going anywhere.” The gathering in Ms Rice’s suite had been intended as a 30-minute chat before dinner but turned into a two-hour session. By the time the foreign ministers sat down to eat at 10.30pm, their sea bass was shrivelled and, to Mrs Beckett’s surprise, the bickering continued in front of senior officials.

From the Telegraph’s reporting, Rice may have been blindsided by Cheney’s confrontational rhetoric in Vilnius:

Last week’s developments also underscore tensions between Ms Rice and the men who effectively ran US foreign policy during George W Bush’s first term - Mr Cheney and Donald Rumsfeld, the defence secretary. Ms Rice was annoyed that talks on Iran with Mr Lavrov were complicated by the vice president’s remarks but Mr Cheney and other hardliners want to send a tough message to Russia and also oppose US overtures to Iran and North Korea.

This is a reckless, unsophisticated form of diplomacy. Of course it would be better if Russia were more liberal. But that doesn’t change the fact that issuing very public condemnations of the Russian leadership is going to irritate the Russian leadership, making Russian cooperation on other (more important) American foreign policy objectives even more elusive. Right now, we need to put all of our efforts into making a serious attempt at peacefully denuclearizing Iran. Poisoning our relationship with Russia would be, as they like to say at the State Department, “unhelpful.”

But it appears that even the disaster in Iraq has not punctured the belief of some that the US is all-powerful and does not need to prioritize its foreign policy goals at all. If Mr. Cheney and his fellow-travelers continue undermining the (already feeble) US efforts at diplomacy, the prospects for a peaceful resolution of the Iran issue will get worse and worse.

Are Three Federalist Society Lawyers Threatening the Supreme Court?

In a monograph released yesterday—but not-quite-technically-endorsed by—the Federalist Society, leading NSA defenders Andrew McCarthy, David Rivkin and Lee Casey appear, Sopranos style, to issue veiled threats to the Supreme Court, warning the justices not put their dirty mitts on the NSA surveillance program, or else.

Here’s some of the evidence:

Page 44: MRC argue that the President has a duty to “fight back” against branches that encroach on his constitutional turf. Specifcially, they say:

the departments were not expected [by the Framers] to take intrusions [on their constitutional authority] lying down … . To the contrary, when the actions of one branch invaded another’s turf, the offended branch was expected to fight back – in truth, was obliged to do so if liberty and constitutional governance were to be vindicated.

Might that duty to “fight back” include a duty by the President (who is constitutionally “preeminent” and “supreme” in foreign affairs, they say) to fight against the incursions of the Supreme Court? Seemingly, the answer is yes, because …

Page 64: The Constitution “contemplates no role for the federal courts in connection with the political judgments whether to conduct surveillance to secure the nation against hostile outsiders.” If the President must “fight back” against other branches’ unconstitutional incursions, and courts have no constitutional authority over surveillance, then MRC seem to be saying the President must fight back not just against Congress but against the Supreme Court.

Page 89: That hint gains more force when MRC conclude by suggesting the Court is the enemy both of security and liberty: “[I]njecting unelected federal judges into the prototypically political arena of foreign intelligence collection,” where “the collective security of the Nation is paramount,” is the “antithesis” of “the protection of the individual and his liberties.” Indeed, (moving on to page 93) “it is not at all clear why Bush administration critics view federal judges as inherently more liberty-conscious than politically accountable executive branch officials.” That’s why, say MRC, “the notion that every single executive activity … has to be checked either by Congress or the judiciary, is absurd.”

In other words, they say, Court interference with the President is unconstituitonal, dangerous to public welfare, antithetical to the preservation of liberty, and simply absurd. The President, in turn, is “obliged” to fight back against other branches when constitutional principle, public welfare, and liberty is at stake. You can fill in the blank spaces: The tenor of the piece is a veiled threat, sotto voce, that the President has the right—indeed the constitutional and even moral duty—to ignore not just Congress but the Supreme Court in its conduct of NSA surveillance.

We are entering a new era of indefinite terrorist crisis. The stakes couldn’t be larger for the principle of judicial supremacy. The Supreme Court faces a tough fight to preserve its role to “say what the law is” and to maneuver the political branches into a settled, agreed-upon framework of twenty-first century security law—made all the more tough by the perilous anti-judicial atmosphere to which Andrew McCarthy, David Rivkin and Lee Casey have now added their own distinctive contribution.

Republicans Need to Relearn How to Govern; Democrats Need New Policy Ideas

Harold Meyerson (Washington Post, May 10) was wrong to conclude that “The emerging Republican game plan for 2006…(reflects) their bankruptcy of ideas.” The Republican problem is not their lack of ideas but that the Bush administration has confused the politics of governing with the politics of campaigning. In 2005, President Bush proposed or endorsed major reforms of social security, taxes, immigration, and tort law. Most of these proposed reforms have not yet been addressed because the Bush administration would not work with Democrats to find a common ground, and the Democratic leadership would not even acknowledge the problems of current law that these proposed reforms would address. The prospect for comprehensive immigration reform is better only because of substantial support among the Democrats.

For all that, it is the Democratic Party that has been bankrupt of appealing policy ideas for the past 30 years. Marty Peretz, the editor of the New Republic, recently remarked that

It is liberalism that is now bookless and dying. Who is a truly influential liberal mind in our culture? Whose ideas challenge and whose ideals inspire? There’s no one, really. What’s left is the laundry list: the catalogue of programs…that Republicans aren’t funding, and the blogs, with their daily panic dose about how the Bush administration is ruining the country.

The policy proposals that are now bubbling up from the congressional Democratic leadership are a grab-bag of old ideas, some of which are remarkably dumb. An increase in the minimum wage is dumb because it reduces the employment of the least-skilled members of the labor force with most of the benefits accruing to secondary workers in non-poor families. An increase in the fuel economy standards is dumb because it reduces the cost of driving and applies only to new vehicles. One proposal that merits serious bipartisan attention is to revive the pay-as-you-go rules on federal spending and taxation that expired in 2002.

In summary, the Bush administration needs to learn how to govern, and the Democrats need to generate some appealing new policy ideas.

Republican Lunacy on Energy

My colleague Peter Van Doren and I wrote an op-ed that was published this morning at National Review Online that rips the GOP for their ideas regarding energy policy. Just when you think the Republicans can’t get any worse, they manage to surprise.

For those tired of all the populist hysteria surrounding gasoline prices, we’ve also got a piece in the Investor’s Business Daily today (subscription only) that presents data on what we term “the hardship price” of fuel. We looked at gasoline prices from 1949 to the present and adjusted for inflation and changes in per capita disposable income. In essence, we ask: How long would a person have to work to pay for a gallon of gasoline today compared to any other year over the past 57? Turns out that gasoline at the moment is less expensive by that metric than it has been during most years over that time. A very nice graphic is provided with the piece.
We’ll have the IBD piece on the Cato website soon.

Sensenbrenner Wants Your Cache

James Sensenbrenner, the same congressman who gave us the “two years in jail for not snitching” bill, now wants to force Internet service providers to keep a database of all the websites their users have visited. The bill leaves it up to the U.S. Attorney General to determine just how detailed those databases should be, but it could include not only detailed logs of websites visited, but of email, encrypted information, and the contents of conversations over VOIP.