Archive for November, 2009
A Preemptive Word on “Lone Wolves”
As Marcy Wheeler notes, the press seem to have settled on the term “lone wolf” to describe Fort Hood gunman Nidal Malik Hasan, which means it’s probably only a matter of time before we encounter a pundit or legislator who is cynical or befuddled enough (or both) to invoke the tragedy in defense of the PATRIOT Act’s constitutionally dubious Lone Wolf provision. (A “matter of time” apparently meaning the time it took me to write that sentence: We have a winner!) Though the Senate Judiciary Committee has approved a bill that would renew the measure, their counterparts in the House wisely—though narrowly—voted to permit it to expire last week.
To spare anyone tempted by this argument some embarrassment: The Lone Wolf provision is totally irrelevant to this case. It could not have been used to investigate Hasan, nor would it have been necessary.
The Lone Wolf provision permits the targeting of non-U.S. persons when there is probable cause to believe they’re preparing to engage in acts of international terrorism. Even if we assume the statutory definition of “international terrorism” could be stretched to cover the Fort Hood attack—and perhaps it could—the provision would have been inapplicable to the Virginia–born Hasan.
So were investigators powerless? Of course not. PATRIOT’s Lone Wolf clause relates only to whether the tools available under the Foreign Intelligence Surveillance Act can be invoked. Shooting people, however, is a crime even when committed for reasons having nothing to do with jihad, and the standard for obtaining a warrant—probable cause—is the same. The chief advantage of FISA tools is that they tend to be both highly secret and, in certain respects, broader than criminal investigative tools—features that are vital when dealing with trained terror agents who are working with an international network it’s important not to tip off, but not so much for “lone wolves,” who by definition lack any such network.
In fact, though, even if the most ambitious reforms proposed by Democrats had been in place, PATRIOT powers could have been brought to bear on Hasan had investigators chosen to do so. We are told, for instance, that investigators months ago became aware of Hasan’s efforts to contact al-Qaeda affiliates abroad. That alone would have provided grounds—again, under current law and under the most civil-liberties protective modifications being considered—for the issuance of National Security Letters seeking his financial and telecommunications records.
The truth is that the Lone Wolf provision didn’t help—and couldn’t have helped—stop this “lone wolf.” Indeed, it’s hard to imagine what additional powers would have been useful here given what it seems investigators already knew. As our recent history makes all too clear, what typically makes the difference between intelligence success and failure is not how much information you can get, at least past a certain point, but knowing what to do with the information you’ve got. But of course, that’s difficult to do, and doesn’t tend to be the kind of thing that can be fixed with a couple crude statutory provision you can brag about in press releases to your constituents. So pundits and legislators see a delicate information processing system failing to flag the right targets and conclude, every time, that the right solution is more juice! Turn up the voltage! Try that troubleshooting strategy with your laptop sometime and let me know how it works out.
Fed Opposed by Left and Right
On its front page today, the Washington Times reports that expanded powers for the Federal Reserve are being opposed by “odd allies.” The Fed’s imperial over-reach for additional regulatory powers is being opposed by Democrats and Republicans, and liberals and conservatives alike. As well it should be. As Senator Shelby observed, “Anointing the Fed as the systemic-risk regulator will make what has proven to be a bad bank regulator even worse.”
The regulation of financial services failed conspicuously to prevent the worst financial crisis since the Great Depression. The Fed failed most conspicuously as it was charged with oversight of all the major banks, including notably Citigroup and Bank of America. Bank regulation now functions to insulate banks from the consequences of their own bad acts. The regulatory system enables banks to engage in excessive risk taking.
The Obama Administration and Chairman Barney Frank of the House Financial Services Committee propose that an expanded role for the Fed and generally more of the same will improve matters. Instead, the proposed legislation will worsen the situation by codifying the status of the major financial institutions as “too-big-to-fail.” It would thereby provide them with special legal status. We have all seen this movie and how it ends. Fannie Mae and Freddie Mac had such a status and collapsed. Do we need 20 more such disasters?
Three cheers for all those opposing this destructive piece of legislation. End “too-big-to-fail” instead.
It All Began In Poland, 1939-1989
The fall of the Berlin Wall twenty years ago today is rightly being celebrated in Germany as a momentous historical event that led to a huge increase in human freedom around the world. The wall was indeed the most visible physical symbol of an inhumane system that divided Germany and Europe, holding captive hundreds of millions of people.
At a seminar in Wroclaw, Poland hosted by the Polish Adam Smith Center last month, I was reminded that the Poles correctly view their country as playing a central role in the 20th century drama of totalitarian aggression and eventual liberation. As the title of a book I was given suggests—It All Began In Poland—the country’s invasion by Nazi Germany, which sparked World War II, and the invasion and partial occupation by the Soviet Union almost immediately thereafter signaled what was in store for much of Europe. Similarly, the peaceful revolution of freedom that culminated in the collapse of communism was symbolized and pushed forward early on by Poland’s heroic Solidarity movement.
People from all parts of the former Soviet empire deserve recognition and admiration for their efforts and sacrifices in promoting freedom. As we reflect on this momentous day, let’s remember the special role the Poles played in making the world a better place.
It Could Happen Here Too
The Washington Post reports that China’s ‘netizens’ are holding authorities to new standard.
Mr. Obama, Tear Down This Wall
On his personal blog, Bottom-Up, Cato adjunct scholar Timothy B. Lee compares the Berlin Wall to the wall along the southern border of the United States. There are differences, of course, but important similarities too.
[I]t’s jarring that less than 20 years after one Republican president gave a stirring speech about the barbarity of erecting a wall to trap millions of people in a country they wanted to leave, another Republican president signed legislation to do just that. Conservatives, of course, bristle at analogies between East Germany’s wall and our own, but they seem unable to explain how they actually differ.
Judging by its ‘wall’ policies, the United States appears to value the freedom of Europeans more than Americans.
Remembering the Wall
This morning, Politico Arena asks:
Is it a “tragedy” (Newt Gingrich) that Obama did not go to Berlin to commemorate the fall of the wall?
My response:
There are many ways to characterize President Obama’s failure to appear personally today, on behalf of the American people, to commemorate the fall of the Berlin Wall. None does him credit. Yet to criticize his decision is to invite the derision of his apologists, as we are seeing already here at Politico Arena. It is as if the Cold War never ended. And at a fundamental level, it hasn’t.
The Berlin Wall fell for many reasons, ranging from the internal contradictions of communism to the moral clarity and courage of communism’s opponents. Above all, however, the Cold War marked a fundamental clash of ideas. And nothing symbolized that clash more starkly than the Berlin Wall. It was erected not to keep West Germans out of the “workers paradise” but to keep East Germans trapped behind the wall, many of whom were mercilessly shot as they tried to flee their brutal captors. What greater symbol could there be of the difference between freedom and oppression.
Yet for all that time there were apologists and temporizers in the West. “Detente,” “moral equivalence,” “convergence” — “we are now free of that inordinate fear of communism,” President Carter said in 1977, even as Aleksandr Solzhenitsyn, Vladimir Bukovsky, Natan Sharansky, and others were documenting the horrors of communism. And only two years before the wall fell, as the Wall Street Journal notes editorially this morning, we heard CBS’s Dan Rather say, “Despite what many Americans think, most Soviets do not yearn for capitalism or Western-style democracy.”
Which brings us to President Obama. What does he think? Where does he stand on this fundamental clash of ideas? What meaning is to be drawn from his decision to forgo the commemoration in Berlin today? One can only speculate from what he has said and done, but the record does not inspire. To be sure, several of his speeches suggest that he is a man of freedom — but his actions contradict those words. Where has he been on the great human rights issues of our day? When reformers were being brutalized in Iran, both over the summer and last week, he was slow, at best, to find a voice. When the Dalai Lama visited last month, Obama declined to see him — the first time, in 10 visits since 1991, that a U.S. president has done so. He’s had us join the U.N. Human Rights Council, the main mission of which seems to be to criticize the U.S. and Israel while lending credibility to its own oppressive members. There’s more, but on balance it’s a sorry record. He’s no Ronald Reagan.
It’s on the domestic front, however, that questions loom especially large. His every move is that of a government man. True to his roots as a “community organizer,” he sees government as the solution to our problems. On autos, he has converted a bailout into ownership, fired the head of GM, and told the auto companies what kinds of cars to build, despite what the market might say. He has appointed a “pay czar” — among many other “czars,” not to go unnoticed on this day — and empowered him to set executive pay scales. He is promoting a union organizing scheme that effectively eliminates the secret ballot, environmental policies that fall most heavily on the poor, and tax and spend policies that penalize ambition and thrift while indebting us for generations to come. And his health care policy will in time make us all dependent on government. Those policies, like so much else on his agenda, will restrict rather than expand our choices. If enacted, we will all be less free.
It is the siren song of government “beneficence” that Obama seems most to hear, oblivious to the lessons of the 20th century. The tragedy would be that we ourselves forgot that the fundamental clash of ideas will always be with us, even when the Berlin Wall is a distant memory.
Monday Links
- Today marks 20 years since the fall of the Berlin Wall. Full round-up of commentary on that historic day, here.
- The heroes who helped bring down the Wall.
- One size does not fit all: How the federal health care overhaul will disrupt progress in states that are already addressing problems at home.
- Move over Fox News: The Obama administration takes aim at climate scientists.
- Podcast: “ObamaCare: A Bad Deal for Young Adults“
Health Care: Not Close to Over
The fat lady hasn’t even started to warm up yet.
The narrow 220-215 victory in the House on Saturday night was a step forward on the road to a government takeover of the health care system. But as close and dramatic as that vote was, that was the easy part. The Senate must still pass its version of reform—which will not be the bill that just passed the House. Nancy Pelosi was, after all, able to lose the votes of 39 moderate Democrats. Harry Reid cannot afford to lose even one. A conference committee must reconcile the two vastly different versions. And then, Pelosi must hold together her 3 vote margin of victory (if it gets that far). Yet several House Democrats who voted for the bill on Saturday said they did so only to “advance the process.” Their vote is far from guaranteed on final passage. And, House liberals are almost certain to be disappointed by the more moderate bill that may emerge from the conference.
Among the more contentious issues:
Individual Mandate: This should’ve been low-hanging fruit. Democrats agreed on a mandate early in the process. But it became increasingly plain that a mandate would hit those with insurance as well as the uninsured — forcing people who are happy with their plan to switch to a different, possibly more expensive plan. With this mandate now being seen as a middle-class tax hike, qualms have developed. The House bill contains a strict mandate, with penalties of 2.5 percent of income backed up by up to five years in jail. The Senate Finance Committee, on the other hand, watered down the mandate’s penalties and delayed the mandates implementation.
Employer Mandate: The House bill also contains an employer mandate, a requirement that all but the smallest employers provide insurance to their workers or pay a penalty tax of up to 8 percent of payroll. The Senate, looking at unemployment rates over 10 percent, seems unlikely to include an employer mandate.
The Public Option: The House included, if not a “robust” public option, at least a semi-robust one. But moderate Democrats in the Senate are clearly not on board. Joe Lieberman (I-CT) says that he will join a Republican filibuster if the public option is included. Harry Reid is trying various permutations: a trigger, an opt-in, an opt-out. But as of now there is not 60 votes for any variation.
The Sheer Cost: Fiscal hawks like Sen. Evan Bayh (D-IN) say they will not support a bill that adds to the deficit or spends too much. But the house bill cost a minimum of $1.2 trillion.
Taxes: The House plan to add a surtax on incomes of $500,000 or more a year has no support in the Senate. At the same time, the Senate plan to slap a 40 percent excise tax on “Cadillac” insurance plans is unacceptable to key Democratic constituencies like labor unions.
Abortion: Conservative Democrats insisted on a strict prohibition on the use of government funds for abortion. The bill could not have passed without the inclusion of that provision. House liberal swallowed hard and voted for the bill, despite what they called “a poison pill” anyway with the expectation that it will be removed later. If the final bill includes the prohibition at least a couple liberals could defect. If it doesn’t, conservative Democrats won’t be on board.
Immigration: The Senate Finance Committee included a provision barring illegal immigrants from purchasing insurance through the government-run Exchange. The House Hispanic Caucus says that if that provision is in the final bill, they will vote against it.
As if these disagreements among Democrats wasn’t bad enough, public opinion is now turning against the bill.
President Obama has called for a bill to be on his desk before Christmas—the latest in a series of deadline that are so far unmet. It is hard to see how Congress can meet this one either. The Senate has not yet received CBO scoring of its bill and is not prepared to even begin debate until next week at the earliest. That debate will last 3-4 weeks minimum, assuming there are 60 votes for cloture. That means, the bill cant’ go to conference committee until mid-December, even if everything breaks the way Harry Reid wants. Privately, Democrats are now suggesting late January, before the State of the Union address, is the best they can do.
The fat lady can go back to sleep—this isn’t over yet.
How to Flunk the Taliban
An interesting story in the San Francisco Chronicle highlighting how private schools are outcompeting both radical madrasas and government schools in the hearts and minds of a great many Pakistanis. Sounds a little bit like this.
The Right to Speak in Non-Government-Approved Ways
School officials denied student Pete Palmer the right to wear a shirt supporting John Edwards’s presidential campaign at his Dallas-area high school. They cited the district’s dress code, which prohibited messages on student clothing except for those that supported school activities or district-approved organizations, clubs or teams.
The U.S. Court of Appeals for the Fifth Circuit agreed with the school district that this was a reasonable “time, place and manner” speech restriction. Applying the test from United States v. O’Brien, the court found that the dress code was content- and viewpoint-neutral, and served an important governmental purpose. Palmer now seeks Supreme Court review, citing seemingly contradictory precedents from the Second and Third Circuits and arguing that the regulation here flies in the face of the protection afforded to student speech by the famous case of Tinker v. Des Moines Independent Community School District.
Cato, joined by the Institute for Justice, the Becket Fund for Religious Liberty, the Christian Legal Society, and the National Association of Evangelicals, filed an amicus brief supporting Palmer’s petition and urging the continued use of Tinker. We argue that the Court should clarify its jurisprudence in this area to stop schools from applying broad restrictions in an attempt to avoid controversy and debate—and thereby threaten the very political and religious speech at the First Amendment’s core.
To prevent the chilling of student speech, the Court should solidify Tinker’s central tenet, reaffirming that so long as speech doesn’t “materially and substantially disrupt” the educational process, students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
The case is Palmer v. Waxahachie Independent School District. The Court will be deciding early in 2010 whether to hear it.
The Slippery Slope Goes Vertical
In the Obama era, the slippery slope has gone vertical. Instead of “eventually,” the feared extensions of government power come immediately.
When President Obama decided to convert George W. Bush’s bailout of General Motors Corp. and Chrysler L.L.C. into effective government ownership, critics warned that this could lead to political intrusion into the management of automobile companies, with decisions being made for political instead of economic reasons. The companies would get less efficient. The government might try to preserve jobs or engage in political grandstanding rather than build sound companies that serve consumers – eventually.
But there was no “eventually” about it. Before he had even secured government control, Obama fired the chief executive officer of General Motors. He decided what the ownership structure of the companies should be. He insisted that the companies build “clean cars” rather than cars that consumers want to buy. And as soon as a deal was concluded, members of Congress started trying to block the closing of inefficient dealerships and to require the companies to buy their palladium in Montana, use unionized trucking companies, remove mercury from scrapped cars, and so on. Politics reared its ugly head in the first moments of government control.
Now we have the federal government’s unprecedented intrusions into executive-pay decisions at seven bailed-out banks and automobile companies….
Read more at today’s Philadelphia Inquirer.
The Pelosi Bill’s High Water Mark
Democrats are having difficulty corralling 218 votes for the Pelosi bill because Americans do not want government to be as big and as powerful as the House leadership does. Pro-life Democrats do not want a government so big that it can force taxpayers to fund abortions. Pro-choice Democrats do not want a government so big that it uses subsidies to restrict access to abortion coverage. Other Democrats don’t want a government so big that it turns the United States into a welfare magnet.
The American people don’t want the Democrats’ approach to health care generally. The more time the public has to digest ObamaCare, the more they dislike it:
And the Pelosi bill is the most expensive and extreme version of ObamaCare. Opposition will climb higher when the public learns the bill costs some $1.5 trillion more than Democrats claim.
Even a majority vote would not necessarily indicate majority support for the Pelosi bill. Rep. Jim Cooper (TN) and other Democrats are voting aye only because they want to keep the process moving – i.e., because this isn’t the vote that counts.
Win or lose, tonight’s vote will be the high water mark for the Pelosi bill.
(Cross-posted at Politico‘s Health Care Arena.)
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