“Tell Me How This Ends”
This week’s Examiner column argues that we should start withdrawing from Afghanistan:
Each year of the war brings greater violence than the last, with 2008 the deadliest yet for U.S. soldiers and Afghan civilians. Civilian deaths dropped somewhat in 2009, but coalition casualties continue to rise–up 62 percent from last year.
Army chief of staff George Casey recently told reporters that the situation will get worse before it gets better, and that “anything you put [in Afghanistan] will be in there for a decade.”
No surprise there: Nation-building is extraordinarily hard. The good news is that it’s almost always unnecessary–and especially so in Afghanistan.
Gen. Colin Powell’s famous “Pottery Barn” principle–”you break it, you own it”–doesn’t apply in this case. We didn’t “break” Afghanistan. We went to war to disrupt Al Qaeda and demonstrate that no government could get away with sheltering a group that killed nearly 3,000 Americans–goals we achieved more than seven years ago.
If Al Qaeda operatives are foolish enough to set up new training camps in Afghanistan, we won‘t need boots on the ground to destroy them. Thanks to advances in Unmanned Aerial Vehicle technology, we’re no longer limited to Clintonian gestures like lobbing cruise missiles at empty tents. Since 9/11 we’ve repeatedly used UAVs to kill Al Qaeda operatives in countries we’re not occupying, like Yemen and Pakistan….
Mad love to the Cato foreign policy crew for sources and suggestions on this one.
Look, Ma
I was on TV again.
Wait a Minute
Ignore that post below. I just started reading the actual speech in question, and it appears I’m totally wrong. It looks like she’s defending/apologizing for the government’s position in the Padilla case. Even for March of ‘03, that’s egregious.
Update: Or is she? I’m perplexed. Phrase in question is–in the context of Padilla–”one can certainly justify that type of detention under precedents and current law.” And it’s in the midst of a pretty noncommittal discussion of issues raised by the WoT that will be percolating through the courts. And later, she asks “how long will we hold people without any judicial review….” she follows up with the mealy-mouthed declaration that “when I ask this question, it is not intended to suggest that either the President, Congress, or the courts have done anything unconstitutional or bad.” One thing’s for sure: if you can be this confusing and noncommittal on core constitutional questions, you’re tailor-made to make it through the confirmation process.
More Soto on Executive Power
Charlie Savage, your go-to source on this issue, has an article in the NYT on the subject today, paying particular attention to a speech Sotomayor gave in March 2003.
Judge Sonia Sotomayor expressed skepticism in March 2003 about the expanded government surveillance powers in the USA Patriot Act, citing what she referred to as its broader authority “to impose nationwide wiretaps with little judicial supervision” and to monitor Internet use in search of terrorists.
On the other hand,
Judge Sotomayor did seem to indicate that some policies were on firmer legal footing. For example, she said that “one can certainly justify” detaining enemy combatant suspects “in secret” and giving them different legal rights than criminals “under precedents and current law.”
All in all, recognizing that the speech was given in March ‘03 (Iraq War month, a time when crazy hung heavy in the air) I still see some reasons for cautious optimism on this issue.
Panic on the Streets of Wichita
Here’s yesterday’s Examiner column on terrorism panic, liberal edition:
The liberal overreaction to the crimes of two despicable “lone nuts” demonstrates that the Left is just as susceptible to terrorism panics as the Right. But maybe liberals are right that there’s a “teachable moment” for conservatives here, even if it isn’t the lesson Rich and Kos intend.
It’s worth thinking about how much worse off we’d be in the midst of a burgeoning “militia panic,” had the Bush administration’s radical view of executive power become the law of the land.
After 9/11, George Bush and Dick Cheney argued that the president could do what he deemed necessary to fight terrorism, and any laws to the contrary could be nullified by his Magic Scepter of Inherent Authority. Most conservatives backed the president, insisting that civil liberties at home wouldn’t suffer if we allowed him unlimited power in foreign affairs.
But the Bush team always maintained that those powers could be used on the home front as well. In congressional testimony in 2006, then-attorney general Alberto Gonzales suggested that the president had inherent authority not only to wiretap international calls without a warrant, but also to listen in onAmericans’ domestic communications.
….
Conservative defenders of so-called “enhanced interrogation” are rarely able to identify the “ticking time bomb” scenarios they insist make torture necessary. But last week, Scott Roeder, Dr. Tillman’s murderer, told reporters that “similar events” were being planned even now. Might a little waterboarding loosen his tongue?
Disrespecting the Cult
..in which the Motorhome Diaries crew visits a weird, Easter-Island looking roadside Rushmore, and with Megadeth blaring, express their disapproval.
Sotomayor on International Law
Charlie Savage has unearthed some remarks by Sonia Sotomayor that reveal her take on international law, and bolster the case that she’s an executive power skeptic:
in April 2009, Judge Sotomayor delivered a speech on how federal judges look at foreign and international law that suggested she might take a more conservative position on that topic than Justice Souter.
She said that individuals had no right to file a lawsuit to enforce a treaty and that ratified treaties were not legally binding unless Congress separately passed a statute to do so. Treaties usually have effect, she said, only if the president and Congress choose to respect such obligations as a matter of politics, not law.
“Even though Article IV of the Constitution says that treaties are the ‘supreme law of the land,’ in most instances they’re not even law,” she said.
That principle, she said, explained the outcome of a high-profile 2008 Supreme Court ruling, Medellin v. Texas, which involved an International Court of Justice ruling that some Mexican inmates on death row in Texas should get new sentencing hearings because the authorities failed to help them get help from the Mexican Consulate, contrary to a treaty the United States had ratified.
But the Supreme Court ruled that the international court’s decision had no legal force and that the treaty was not binding, because Congress never passed a statute explicitly making it domestic law.
The ruling, Judge Sotomayor said, “surprised many human rights groups and civil liberties groups” but was “premised on very traditional American law principles.”
So she would have ruled against the Mexican inmates, disappointed the human rights groups and upheld a limited view of the treaty power. It’s almost like she’s not some kind of crazy left-wing radical.
Sotomayor: Presidential Power Skeptic?
…that’s my DC Examiner column for this week. Excerpt:
The Second Circuit, Sotomayor’s home for the last 11 years, gets few national security cases. But what we can glean from three key cases she’s participated in suggests she agrees with former Justice Sandra O’Connor that the War on Terror “is not a blank check for the president.”
A Justice Sotomayor is unlikely to move in lockstep with the ACLU in this area. In Cassidy v. Chertoff (2006), she rejected a Fourth Amendment challenge to post-9/11 security searches conducted by a ferry operator acting at the behest of the Bush administration.
But in 2008’s Doe v. Mukasey, she joined two colleagues to strike down provisions of the Patriot Act related to National Security Letters (NSL). NSLs allow the FBI to seize private customer information from ISPs and other businesses, and place the recipient under a “gag order,” preventing disclosure of the demand.
Still before the Second Circuit is the case of Maher Arar, a Canadian citizen sent to Syria under the U.S. government’s extraordinary rendition program and tortured there. At oral argument last December, Sotomayor questioned the administration’s lawyer sharply: “So the minute the executive raises the specter of foreign policy, it is the government’s position that that is a license to torture?”
A thin record, but one more promising on these issues than Roberts’ or Alito’s. Incidentally, Clarence Thomas–who’s otherwise libertarians’ favorite Justice, and for pretty good reasons–is the worst of the worst on executive power issues. His dissent in Hamdi alone puts Scalia ahead of him as “least bad Supreme Court Justice.”
Tweet Back in Anger
Pres Obama while u sightseeing in Paris u said ‘time to delivr on healthcare’ When you are a “hammer” u think evrything is NAIL I’m no NAIL
–Senator Chuck Grassley’s “angry tweet” from yesterday
Idiocracy, like Spinal Tap, undershot.
Jenkins on Carter
I’ve written before than Jimmy Carter’s pious, sanctimonious, and off-putting public persona may have caused conservatives to miss the fact that he wasn’t that godawful a president. Holman Jenkins has a column in today’s WSJ, “If Obama Had Carter’s Courage,” that provides a point of evidence in Carter’s favor.
In Mr. Carter’s day, bankruptcies were scything through the railroad sector, hurtling toward a rendezvous with nationalization. Conrail, an amalgam of failed Northeastern lines, had already been taken over and analysts foresaw a $300 billion bill (in today’s dollars) in the likely prospect that Washington would soon have to operate the rest of the nation’s freight railroads….
comprehensive federal regulation had only distorted the industry’s pricing, driven away investment, and made competitive adaptation impossible. But the argument had a new ring now that Washington would have to bear the political risk of operating and subsidizing the nation’s rail services.
It still took some doing on Mr. Carter’s part. When the bill stalled, a hundred phone calls went from the White House to congressmen, including 10 by Mr. Carter in a single evening. The bill essentially no longer required railroads to provide services at a loss to please certain constituencies. It meant going up against farmers, labor, utilities, mining interests, and even some railroads — whereas Mr. Obama’s auto bailout tries to appease key lobbies like labor and greens, which is why it can’t work.
I should note also, that in his updated, libertarian ranking of the presidents, Ivan Eland ranks Jimmy as one of the least bad modern presidents.
Blame the Voters
That’s the thrust of this week’s column in the DC Examiner:
There’s no end of finger-pointing in our Red-Team/Blue-Team battles over fiscal incontinence. But there’s one group that rarely gets the blame it merits. That’s us. When you look at the positions embraced by the ordinary American voter, you start to suspect that we’re getting the government we deserve.
Sixty percent of Americans say the federal government has too much power and too much money, according to a Rasmussen poll released last month. And they’re right. But what are they willing to do about it?
In 2007, the Harris polling firm looked into that question, and the answer was “not much.” Very few of us are willing to support the spending reductions necessary to get our fiscal house in order. Harris reports that “hardly anyone would cut Medicaid (4%)… Social Security (2%) or Medicare (1%)”–among the biggest chunks of the federal budget.
Of course, due to public choice dynamics, it’s too simplistic to say (and I don’t say) that Americans are getting precisely the size of government they want. But the polls cited show the difficulty of reducing or even slowing the growth of government.
On a related note, I found this post from Chris Bowers (from whom I got the link to the Harris poll) pretty interesting:
The mainstream of the American left-wing (represented by the Congressional Progressive Caucus), and the mainstream of the American right-wing (represented by the Republican White House / Congress trifecta from 2003-2006), are only proposing a difference in social investment spending (health care, pensions, education, transportation, unemployment, and new energy), of 3.21% of gross domestic product. That is, the left and right-wings of the American political mainstream are only arguing over whether to increase social investment spending by, at most, 3.21% of GDP. That is the entire difference. This is a grand ideological argument that isn’t.
If that’s right, then, as Bowers suggests, 3 percent of GDP is a lot of money, but it hardly seems like the difference between freedom and “socialism.”
Sotomayor
The Sotomayor nomination isn’t a week old yet, and I’m already bored with reading about it. I don’t see what people are so exercised about, pro or con. Yeah, I don’t like the comment about “wise Latina woman” making better decisions, and I don’t think it’s defensible (or at least I haven’t read any compelling defenses of it). Otherwise, I can’t see why this particular choice merits all the screeching. (Also, conservatives whose favorite justice is Clarence Thomas shouldn’t be heard to complain about Sotomayor’s lack of qualifications. No doubt her ethnicity was, as with Thomas, a but-for cause of her selection, but she has more experience on the bench and a more distinguished academic record than Thomas did).
As Ezra Klein points out “the Sotomayor fight” is a misnomer:
The last nominee to actually be defeated — Harriett Miers was withdrawn, remember, and withdrawn due to conservative unrest — was Robert Bork. And he was a conservative choice facing a Senate with 55 Democrats. Sotomayor is a Democratic president’s nominee who will come before a Democratic Senate. She won’t be “Borked” because, where Bork began 5 votes down, she begins 10 votes up. If Bork had enjoyed 15 more easy votes, he’d be Justice Bork today.
As such, there are certain safe predictions we can make: Barring imperfect vetting on the part of the majority, the final nominee will be pro-choice. Will be sympathetic to labor. Will be sympathetic to the federal role in regulation. Will be, in sum, the sort of Justice you’d expect from a left-of-center president and a left-of-center Senate.
I don’t like any of that stuff. And Richard Epstein provides reason to believe she may be worse than the average Democratic judicial nominee on property rights. That aside, the numbers in the Senate make it clear that, no matter what, we were always going to end up with a Justice who’d make conservatives and libertarians unhappy.
But there are other areas on which the average Democratic nominee is likely to be better than the average Republican, areas like criminal procedure and executive power. In those areas, from a libertarian perspective, maintaining a 5-4 conservative/liberal balance on the Court, is a good thing. I always thought that “getting more judges like Roberts and Alito” was a lousy reason to pull the lever for the Rs in November, particularly if you care about checks on executive power.
In his terrific book Takeover, Charlie Savage suggests that there was method behind the apparent madness of the Miers nomination:
why did Bush nominate Miers? The conventional wisdom was that the fiasco was simply the result of Bush’s feckless enjoyment of the power his office gave him to reward his friends. But in fact, Miers was a sound pick by the Bush-Cheney administration on an issue about which they cared deeply: executive power. Bush needed to pick a female justice for political reasons, but executive branch experience was almost nonexistent in the resumes of the female conservative appeals court judges and state supreme court judges favored by conservative legal activists. Miers, however, could be counted on to embrace Bush’s expansive view of presidential powers.
So too with Chief Justice Roberts. Savage reviewed an enormous trove of documents prepared by Roberts when he worked in the Reagan Justice Department, and found that Roberts was an even more enthusiastic supporter of executive power than one would naturally expect to find in Reagan’s DOJ. Tasked with analyzing the Presidential Records Act, the post-Nixon reform establishing that presidential documents are the people’s property, and allowing public access to such documents, Roberts “made clear that he loathed [the Presidential Records Act], believing it to be an unconstitutional infringement on the presidency’s power to keep information secret.” Savage writes that Roberts also
pressed to expand the president’s ability to govern in secret, pushing to roll back the Federal Advisory Committee Act… [and] warn[ed] against even appearing to endorse the idea of ‘freedom of information,’ lest it be construed as suggesting that the Freedom of Information Act was a good thing. He opposed issuing any presidential documents in connection with the War Powers Resolution that were worded in such a way as to concede that Congress had a role in deciding when military hostilities could begin or end.
There’s no denying that from a libertarian/constitutionalist perspective, McCain’s prospective nominees would have been better on some issues than either Obama’s or Clinton’s. McCain’s judges would likely have been better on campaign finance reform and the thus-far fruitless effort to restore limits on Congress’s power to regulate using the Commerce Clause. Despite Roberts’s vote in the Oregon Right-to-Die case, they would probably be better on federalism, depending on whose ox is getting gored.
There is little question however, that they would have been far worse than Democratic appointees on questions like, can the president carry out a wiretapping program in defiance of federal law, and forever shield the details of that program behind the State Secrets doctrine?
As Robert Schlesinger points out, the latter issue may well end up before the Supreme Court. We don’t know where Sotomayor stands on that issue, but I’m guessing she won’t be as bad on it as another Roberts or Alito.
Please, Mess with Joe
In Tuesday’s Examiner column, I argue that if the current veep’s gaffetasticness leads to a rift between POTUS and VPOTUS, that would be a good thing. Excerpt:
A new book by Newsweek’s Richard Wolffe reports that President Obama is dismayed by “his vice president’s indiscipline.” Who can blame him? At the height of the Swine Flu panic, our excitable veep fanned the fear on NBC’s Today Show, squeaking that, “If one person sneezes, it goes all the way through the aircraft!”
A month before, at a dinner with journalists, Biden apparently let slip the location of the secret bunker used by Dick Cheney after 9/11. Last week, the Christian Science Monitor offered this sardonic headline: “Biden Speaks at Wake Forest—does not disclose nuclear launch codes.”
“Between brain and mouth there is no interlocutor,” Sopranos character Hesh Rabkin once said of matriarch Livia Soprano, and so it is with Joe. Are Biden’s gaffes leading the president to keep VPOTUS at arm’s length? We should hope that’s the case, and not just because of this particular vice president’s verbal incontinence.
The modern conception of the vice-presidency—where the veep serves as chief advisor and virtual copresident—is a dramatic departure from the veep’s constitutional role. Worse, it clouds responsibility and makes accountability more difficult. After eight years of Dick Cheney, the last thing America needs is another Imperial Vice Presidency.
The Pogo Principle
The public wants to fend off our impending fiscal apocalypse by (1) cutting the space program (less than $18 billion) and (2) raising taxes on booze and cigarettes. That’ll cover it.
That’s the Spirit
I recently noticed this anecdote from NRO’s Jay Nordlinger:
A reader pointed me to a treasurable fact. It can be found in an obituary of Ralph J. Perk, the mayor of Cleveland from 1972 to 1977. “President Richard M. Nixon invited Mr. Perk and his wife, the former Lucille Gagliardi, to a dinner at the White House. But Mrs. Perk sent word that she could not attend because it was her night to go bowling.”
The spirit of Lucille Perk lives on in the Steelers’ James Harrison:
Linebacker James Harrison told reporters earlier this week he’d be a no-show at the White House. He denied any political motivation for his decision. “This is how I feel — if you want to see the Pittsburgh Steelers, invite us when we don’t win the Super Bowl. As far as I’m concerned, he would’ve invited Arizona if they had won,” said Harrison, who later joked that he was staying away because the White House was located in a “bad neighborhood.”
This isn’t the first time Harrison has declined an invitation to visit 1600 Pennsylvania Avenue — he turned down an invite from former President Bush after the Steelers won Super Bowl XL. “Let me ask you a question,” he said Wednesday, according to the Pittsburgh Post-Gazette. “Why is it a big issue now that I’m not going if it wasn’t a big issue the last time?
“…Hey, James ain’t changed. I guess my profile did, but I didn’t change. I’m not going because I don’t want to go,” he said. “They’re making a big deal out of this: ‘Oh, my, James Harrison is not going to the White House; he must be a devil worshipper!’”
H/T Chuck Katz
