16 March 2010

Today’s Tabbloid
PERSONAL NEWS FOR lgn@limitedgovernmentnetwork.com

FISCALLY CONSERVATIVE BLOG FEEDS

Obama’s Education Proposal

Still a Bottomless Bag [Cato at
Liberty]
MAR 15, 2010 05:17P.M.

By Neal McCluskey

This morning the Obama Administration officially released its proposal

for reauthorizing the Elementary and Secondary Education Act (aka, No
Child Left Behind). The proposal is a mixed bag compared to the status
quo, and still one with a gaping hole in the bottom.

Among some generally positive things, the proposal would eliminate
NCLB’s ridiculous annual-yearly-progress and “proficiency”
requirements, which have driven states to constantly change standards
and tests to avoid having to help students achieve real proficiency.
It would also end many of the myriad, wasteful categorical programs that
infest the ESEA, though it’s a pipedream to think members of Congress
will actually give up all of their pet, vote-buying programs.
On the negative side of the register, the proposed reauthorization would
force all states to either sign onto national mathematics and language-
arts standards, or get a state college to certify their standards as “college
and career ready.” It would also set a goal of all students being college
and career ready by 2020. But setting a single, national standard makes
no logical sense because all kids have different needs and abilities; no
one curriculum will ever optimally serve but a tiny minority of students.
As long as such asymmetrical power distribution is the case — and it’s
inherent to “democratic” control of education — no proposal, no matter
how initially tough, is likely to make any long-term improvements. As
the matrix below lays out, no matter what combination of standards and
accountability you have, politics will eventually lead to poor
outcomes. It’s a major reason that the history of government schooling is
strewn with “get-tough” laws that ultimately spend lots of money
but produce no meaningful improvements, and it’s a powerful argument
for the feds complying with the Constitution and getting out of
education.
When all is said and done, you can throw all the great things you want
into the federal education bag, but as long as politicians are making the
decisions you’ll always come up empty.

Also, on the (VERY) negative side of the register, Obama’s budget

proposal would increase ESEA spending by $3 billion from last year —
for a total of $28.1 billion — to pay for all of the ESEA
reauthorization’s promises of incentives and rewards. That’s $3 billion
more that the utterly irresponsible spenders in Washington simply do
not have, and that would do nothing to improve outcomes.

Even if this proposal were loaded with nothing but smart, tough ideas, it
would ultimately fail for the same reason that top-down control of
government schools has failed for decades. Teachers, administrators,
and education bureaucrats make their livelihoods from public schooling,
and hence spend more time and money on education lobbying and
politicking than anyone else. That makes them by far the most powerful
forces in public schooling, and what they want for themselves is what
we’d all want in their place if we could get it: lots of money and no
accountability to anyone.

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Today’s Tabbloid PERSONAL NEWS FOR lgn@limitedgovernmentnetwork.com
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Drug Violence in Mexico [Cato
at Liberty]
MAR 15, 2010 04:53P.M.
By Ian Vasquez
The apparent drug gang killings of U.S. consular employees this weekend
in Juarez, Mexico are a bloody reminder that President Obama is getting
the United States involved in yet another war it cannot win. Drug gang
killings also occurred in Acapulco, with a total of 50 such fatalities
nationwide over the weekend.
Unfortunately, Obama has responded to the latest incident by following
the same failed strategy as his predecessors when confronted with drug
war losses: a stronger fight against drugs.
Though the deaths are the first in which Mexican drug cartels appear to
have so brazenly targeted and killed individuals linked to the U.S.
government, illicit drug trade violence has killed some 18,000 people in
Mexico since President Calderon came to power in December
2006—more than three times the number of American military
personnel deaths in the Iraq and Afghanistan wars combined.
The carnage only shot up after Calderon declared an all-out war on drug
trafficking upon taking office. After more than three years, the policy has
failed to reduce drug trafficking or production, but it is weakening the
institutions of Mexican democracy and civil society through corruption
and bloodshed, which are the predictable products of prohibition.
The 29 people killed in drug-related violence this weekend in a 24 hour
period in the state of Guerrero sets a dubious record for a Mexican state.
And an increasing number of Mexicans, including former Mexican
Foreign Minister Jorge Castañeda, are calling for a thorough rethinking
of anti-drug policy in Mexico and the United States that includes
legalization. Legalization would significantly reduce drug cartel revenue
and put an end to an enormous black market and the social pathologies
that it creates.
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16 March 2010
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New Poll: Strong Opposition to
ObamaCare [The Club for
Growth]
MAR 15, 2010 04:48P.M.
A quite the trifecta. Seven in 10 would vote against a House member who
votes for the Senate health-care bill with its special interest provisions.
That includes 45% of self-identified Democrats, 72% of independents
and 88% of Republicans. Three in four disagree that the federal
government should mandate that everyone buy a government-approved
insurance plan (64% strongly so), and 81% say any reform should focus
first on reducing costs. Three quarters agree that Americans have the
right to choose not to participate in any health-care system or plan
without a penalty or fine.
FISCALLY CONSERVATIVE BLOG FEEDS
John Berry: Angry about
Federal Pay [Cato at Liberty]
MAR 15, 2010 04:42P.M.
By Chris Edwards
The head of the federal Office of Personnel Management, John Berry,
has become unhinged by a few recent critiques of federal worker pay.
Berry is an Obama appointee who apparently views his role as being a
one-sided lobbyist for worker interests, rather than a public servant
balancing the interests of taxpayers and federal agencies.
Here is an 11-minute audio interview with Berry on Federal News Radio
on Friday, where he lashes out at USA Today, Washington Times, and
the Cato Institute. Berry is defensive, emotional, and unwilling to accept
that new data might indicate a possible problem with the underpaid
federal worker thesis that is constantly pushed by the unions.
What do I mean when I say he is unhinged? An investigation by the USA
Today found that in 83 percent of 216 occupations examined, federal
workers earned more than comparable private-sector workers. Here is
Berry’s response when asked whether he thinks the USA Today analysis
is a good one: “It is absolutely not! It comes straight out of the Cato
Institute!” But, believe it or not, the nation’s largest newspaper is not
part of some libertarian plot.
The most troubling aspect of Berry’s performance is his deliberate effort
to wrap himself in the flag and deny that anyone should even ask
questions about federal workers during a time of national security
concerns. It is strange that an Obama administration official would so
vigorously use the Bush administration tactic of “waving the bloody
Today’s Tabbloid PERSONAL NEWS FOR lgn@limitedgovernmentnetwork.com
shirt.”
Here are excerpts from the interview starting at 1:48 minutes and then
5:54 minutes (my transcription):
Interviewer: “There was a line in this [Washington Times] editorial,
one of the first lines, it was the first line of the second paragraph, and
that is: ‘Consider how much money a bureaucrat can make for
successfully sitting at his desk for a year.’
Berry: …You know, this is the kind of, it’s just a denigration of public
service and, and it is, there should be no place for it in our country… And
to be denigrated and say that they’re bureaucrats sitting at a desk
pushing paper there should be no place in American society for such
hyperbole.
Interviewer: I wonder if this is something that comes because of the
economy. Where is this upswell of anger coming from?
Berry: …And that’s why I just get steamed when I read something like
this because it denigrates that incredible motivation, and like I said to
denigrate those who even put their lives on the line day in and day out so
that the rest of us and our children can be safe, there should be no place
for it. And I think my hope is that a lot of people, not just me, will rise up
and respond to this with the anger and the facts that it deserves. Because
as long as people can get away with denigrating that level of service, then
we are putting at risk the future of our country.”
Have you got Berry’s message? We simply cannot allow people to use
their free speech rights to question the operations of government
because that will undermine national security. So people need to “rise
up” and get “angry,” grab their pitchforks, and head to the homes of
anyone who dares question high government worker pay because it puts
“at risk the future of our country.”
Good grief!
More from me on federal worker pay here.
(Thanks to Solomon Stein and Justin Logan)
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16 March 2010
FISCALLY CONSERVATIVE BLOG FEEDS
The Executive Summary of the
Executive Summary [Cato at
Liberty]
MAR 15, 2010 03:19P.M.
By Jim Harper
In a highly symbolic gesture, the Federal Communications Commission
published the executive summary of its “National Broadband Plan” in
one of the most opaque formats going: It’s a PDF scan of a printed
document.
This means you can’t cut and paste the bullet point that says:
“Increase civic engagement by making government more open
and transparent, creating a robust public media ecosystem
and modernizing the democratic process.”
Can an agency that publishes documents in inaccessible formats be
relied on to deliver transparency? Did you know that this is Sunshine
Week?! Let’s segue from symbolism to substance . . .
That bullet and the many that accompany it explode the FCC’s proper
authority and propose an industrial policy fit for . . . well, the industrial
age—not that industrial policies were any good then.
The executive summary is 56 bullets broken into four sections, and six
“goals” carefully crafted to avoid measurement with nebulous concepts
like “affordable.” (We all want it, but affordability is subjective. Nothing
is universally “affordable” while it bears a price tag.)
The one goal that is measurable is telling in its own way:
“Goal No. 6: To ensure that America leads in the clean energy
economy, every American should be able to use broadband to
track and manage their real-time energy consumption.”
(Why should it take broadband to monitor your energy consumption?
Does the FCC plan to send out scanned PDFs of photos of your electric
meter?)
Whether we should have a network-managed energy system or not, note
how the Federal Communications Commission’s “broadband” plan
would make it a player in the energy business. It would also be a player
in health care. And education. And “economic opportunity.”
As to the latter, maybe the FCC has a leg to stand on. Expanding the
current “universal service” tax-and-subsidy scheme would provide
economic opportunity of a sort to the better lobbied firms in the
telecommunications industry.
Today’s Tabbloid PERSONAL NEWS FOR lgn@limitedgovernmentnetwork.com 16 March 2010

As I wrote before, in an even more summary way, “The Federal FISCALLY CONSERVATIVE BLOG FEEDS
Communications Commission should be shuttered.” That’s still the gist
of what I have to say about the “National Broadband Plan.” Monday Links [Cato at Liberty]
MAR 15, 2010 01:41P.M.

By Chris Moody
FISCALLY CONSERVATIVE BLOG FEEDS
• Alan Reynolds: The truth about health insurance premiums and
More on the Last-Shot Strategy profits.

[Cato at Liberty] • An overview of the many hurdles the health care bill still faces in
MAR 15, 2010 02:51P.M. the House.

By David Boaz • Study: Public schools dishonest about the true cost of education.
This video explains it all in less than three minutes.
Related to my post below on whether last-second shots with time
expiring, while good for basketball, might be bad for governance, Steven • Will conservatives ultimately oppose the war in Afghanistan? Join
Horwitz offers a compelling hypothetical in academic governance at us for a lively discussion this Thursday at Cato featuring Joe
Coordination Problem: Scarborough, Grover Norquist, Rep. Tom McClintock (R-CA) and
more. Registration free. Will be broadcast online live Thursday at
…Nonetheless, the leadership insists this curriculum change the link.
is crucially important to the future of the institution and if
only the Faculty Senate would pass it and put it in place, the • Podcast: “Documenting Human Rights Abuses in Venezuela”
faculty and students would then realize just how good it is. In featuring Ian Vásquez. (Don’t tell Sean Penn.)
fact, the faculty leadership, working with the clear approval of
the president and VPAA, are now scouring Roberts Rules of
Order to find a series of sure-to-be controversial
parliamentary maneuvers to get the Faculty Senate to FISCALLY CONSERVATIVE BLOG FEEDS
approve the new curriculum without it ever going to the full
faculty, and possibly without the Faculty Senate ever actually On Tonight’s Kudlow Report
taking a clean vote on it. The president, meanwhile, is going
around to students and alumni telling them how important [Larry Kudlow’s Money
this new curriculum is and, in the process, criticizing the
faculty opponents by charging they have self-interested Politic$]
reasons for defending the status quo, even as the new MAR 15, 2010 01:08P.M.
curriculum proposal contains the aforementioned special
deals for some of the faculty supporters.

The faculty as a whole and the student body continue to

oppose the new curriculum by a consistent majority.

Having considered this hypothetical scenario, here are my

questions for you my friends:

Would you consider this a legitimate way to pass a new

This evening at 7pm ET:
curriculum? If the faculty leadership in conjunction with the
administration were to ram this through by questionable
DODD FINANCIAL REGULATION: WHAT WILL BE THE
parliamentary procedure and over the objections of a clear
IMPACT ON BANKS, BANK LOANS, MARK TO MARKET?
majority, do you think this new curriculum would have any
legitimacy? …
NBC’s Steve Handelsman reports from Washington.

- Ron Kruszewski, Stifel, Nicolaus Chairman & CEO

- Mark Calabria, Director of Financial Regulation Studies at the Cato
Institute

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Today’s Tabbloid PERSONAL NEWS FOR lgn@limitedgovernmentnetwork.com 16 March 2010

- Frank Sorrentino, North Jersey Community Bank performance verified in testing.

- Thomas Harrison, Michigan Ladder Co. CEO
In our March 2009 report, we again noted development cost
AIG BONUSES increases, additional delays in manufacturing and testing
- Richard Blumenthal, CT Attorney General schedules, and the government’s increased financial risk from
plans to increase procurement in advance of testing.
HEALTHCARE HOMESTRETCH SECTORS
-THE WINNERS & LOSERS The GAO reports that just since 2007 the “total estimated acquisition
costs have increased $46 billion and development extended 2 ½ years.”
CNBC’s Hampton Pearson reports from Washington. Incredibly, the GAO says that the Pentagon still “does not have a full,
comprehensive cost estimate for completing the program.”
CURRENCY PROTECTIONISM: SHOULD U.S. GET TOUGH
WITH CHINA? In private industry, it would be hard to imagine that a company and its
contractors would put in such a poor performance, at least as a matter of
- David Goldman, Senior Editor First Things Magazine routine, which it is with weapons procurement.
- Peter Navarro, “The Coming China Wars” Author’ Univ Of CA/Irvine
Business Professor Bungled weapons procurement is not just the Pentagon’s fault. Congress
is often at fault as well, as a Cato essay on cost overruns points out:
FED MEETING PREVIEW
-WHY IS FED STILL AT A ZERO INTEREST RATE? Still, Congress, not the Pentagon, deserves the main blame
-HOW ARE THEY GOING TO TIGHTEN IF THEY’RE REGULATING? for cost overruns since it holds the purse strings. Rather than
looking out for taxpayer interests, most members of Congress
- Bob McTeer, CNBC Contributor; Fmr. Dallas Federal Reserve Bank fight attempts to reduce defense spending in their districts,
Pres. & CEO including spending on weapons that the Pentagon doesn’t
- Jack Ablin, Harris Private Bank Executive VP & Chief Investment even want.
Officer
Defense contractors exploit this parochial self-interest of
Please join us. The Kudlow Report. 7pm ET. CNBC. legislators, and they skillfully spread out research and
production work across many states and districts to maximize
congressional support. The $70 billion F/A-22 fighter
program provides an example. The Washington Post noted in
FISCALLY CONSERVATIVE BLOG FEEDS 2005 that the F/A-22 “is an economic engine, with 1,000
suppliers — and many jobs — in 42 states guaranteeing solid
Joint Strike Figher Cost support in Congress.” In 2009, Defense Secretary Robert
Gates wanted to cancel further orders of the aircraft, but
Overruns [Cato at Liberty] hundreds of lawmakers and state governors lobbied President
MAR 15, 2010 12:50P.M. Obama to keep the production lines going to preserve the
95,000 related jobs.
By Tad DeHaven

The Pentagon has informed Congress about another of its procurement

projects that is plagued by cost overruns. In other news, the sun will rise
and set today, and the pope is Catholic.

Pentagon officials told the Senate Armed Services Committee on

Thursday that costs for the F-35 Joint Strike Fighter have jumped more
than 50 percent since the program began in 2001. Testifying before the
committee, the Government Accountability Office noted that it has
reviewed the JSF effort five times and the findings haven’t been positive:

We have consistently reported on the elevated risk of poor

program outcomes from the substantial overlap of
development, test, and production activities and our concerns
about the Government investing in large numbers of
production aircraft before variant designs are proven and

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FISCALLY CONSERVATIVE BLOG FEEDS
Comcast-NBC Universal:
Everybody Loves a Fight! [Cato
at Liberty]
MAR 15, 2010 11:53A.M.
By Jim Harper
If you haven’t been paying attention to the Comcast-NBC Universal
merger, here’s a reason to: A good fight has broken out!
It starts with Mark Cooper, Director of Research at the Consumer
Federation of America, who testified against the merger to the House
Commerce Committee’s Subcommittee on Communications,
Technology, and the Internet on behalf of CFA, Free Press, and
Consumers Union.
The merger has so many anti-competitive, anti-consumer, and anti-
social effects that it cannot be fixed,” says Cooper.
Cato Adjunct Scholar Richard Epstein lays into Cooper’s testimony with
aplomb: ”Dr. Cooper has achieved a rare feat. The evidence that he
presents against this proposed merger suffices to explain emphatically
why it ought to be approved.”
And in a second commentary, Epstein ladles out another helping of
humble pie to Cooper, concluding:
The cumbersome Soviet-style review process that Mr. Cooper
advocates does no good for the consumers who he purports to
represent. It only shows how far out of touch he is with the
basics of antitrust theory as they relate to the particulars of
the telecommunication market.
Maybe Cooper will have a rejoinder. But until then, I’ll just note that the
best fights are the ones that your guy wins.
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16 March 2010
FISCALLY CONSERVATIVE BLOG FEEDS
Call Your Representative Now!
[The Club for Growth]
MAR 15, 2010 11:20A.M.
The fight to defeat ObamaCare begins and ends this week. Today, the
House Budget Committee will mark up the bill. Call your lawmaker now!
FISCALLY CONSERVATIVE BLOG FEEDS
More Questions for Thoughtful
ObamaCare Supporters [Cato at
Liberty]
MAR 15, 2010 11:14A.M.
By Michael F. Cannon
Last week, I posted a series of questions that I hoped would get
supporters of ObamaCare thinking.
I received a brief response from the Center for American Progress’ Matt
Yglesias on Twitter. The Guardian’s Sahil Kapur provided a thorough
response, and even posed a question in return.
I appreciate Kapur’s effort, and plan to respond. But before I do, I
wonder if he (or any other thoughtful ObamaCare supporter) would
answer just a few additional questions:
• What does it say that Democrats are having this much trouble
getting their health care legislation through Congress even after
hiding 60 percent of its cost?
• What does it say that Virginia’s legislature, including its
Democratically controlled Senate, has approved legislation
blocking the Obama plan’s centerpiece? Or that 31 other states are
considering legislation or amending their constitutions to do the
same?
• What does it say that veteran and centrist health economist Alain
Enthoven writes, “The American people are being deceived...the
bills in Congress…do little or nothing to curb [health care]
expenditures. When the American people come to understand that
‘reform’ was not followed by improvement, they are likely to be
disappointed.”
• What does it say that some Democratic pollsters are in open revolt
against ObamaCare?
Today’s Tabbloid PERSONAL NEWS FOR lgn@limitedgovernmentnetwork.com
• What do you make of Yuval Levin’s observation that, in order to
enact ObamaCare, Democrats must “amend a law that doesn’t exist
yet by passing a bill without voting on it“?
• What does it mean if Democrats decide that ObamaCare will die if
it faces a simple, up-or-down, majority vote in the House?
FISCALLY CONSERVATIVE BLOG FEEDS
Axelrod: ‘Louisiana Purchase’
Somehow Not One of Those
Corrupt, State-Specific Bribes
[Cato at Liberty‘Louisiana
Purchase’ Somehow Not One of
Those Corrupt, State-Specific
Bribes]
MAR 15, 2010 10:21A.M.
By Michael F. Cannon
The House leadership plans to hold a vote, more or less, on the Senate
health care bill this week. President Obama says he wants to “ge[t] rid of
many of the provisions that had no place in health care reform —
provisions that were more about winning individual votes…than
improving health care.” White House spokesman Robert Gibbs says
Democrats will “take the pot-sweetening out of the process.” Yet
Democrats have decided to retain the Senate bill’s $300 million subsidy
for the state of Louisiana, commonly known as the “Louisiana Purchase,”
and other state-specific bribes pot-sweeteners.
On ABC News’s This Week yesterday, Obama advisor David Axelrod
argued that the “Louisiana Purchase” is not targeted solely at Louisiana:
The president does believe that state-only carve-outs should
not be in the bill. There are things in the bill that apply to
groupings of states…for example…what has been portrayed as
a provision relating to Louisiana says that if a state, if every
county in a state is declared a disaster area, they get some
extra Medicaid funds. Well, that would apply to any state…
Sure, in theory. But as ABC News reported in November, the bill speaks
of “certain states recovering from a major disaster” and “spends two
pages describing what could be written with a single world: Louisiana.”
Axelrod would have us believe that after Senate Majority Leader Harry
Reid (D-NV) wrote the best darned bill he could, he slapped his head and
said, “Omigosh! The way I worded this one subsidy provision, it would
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16 March 2010
only apply to Louisiana — the home state of a senator whose vote I need!
Gee whiz, what are the odds??” Using Axelrod’s rationale, if Reid had
included a $10 billion pension for “all African-American former
presidents,” that would not be an Obama-only pot-sweetener because it
would apply to any African-American former president.
FISCALLY CONSERVATIVE BLOG FEEDS
Democrats Release 2,309-Page
Healthcare Bill [The Club for
Growth]
MAR 15, 2010 10:11A.M.
The battle is on. s healthcare bill along with the package of changes. The
Senate would then be expected to approve the package of changes under
budget reconciliation rules. Because the bill will be considered under
budget reconciliation rules in the Senate, GOP senators will not be able
to filibuster the package and Democrats will not need 60 votes to move
the legislation through the Seante. The House has demanded the Senate
approve changes to its healthcare bill in exchange for the House voting
for the Senate bill. House Democrats hope to complete their work by this
weekend, before President Barack Obama begins an overseas trip he
delayed for several days to focus on healthcare.
FISCALLY CONSERVATIVE BLOG FEEDS
Playing Chicken Again [Cato at
Liberty]
MAR 15, 2010 10:00A.M.
By David Rittgers
As I wrote in this post, Senators McCain and Lieberman proposed a
broad piece of anti-terrorism legislation. The Enemy Belligerent,
Interrogation, Detention, and Prosecution Act of 2010 would use
military detention to incapacitate suspected domestic terrorists,
including American citizens. This is a sea change in counterterrorism
policy and a break from American principles that mandate a day in court.
This bill is a bad idea for several reasons. First, for the points that I made
in my previous post, the civilian criminal justice system successfully
incapacitates domestic terrorists. Our laws are built to do that — it’s the
international nature of al Qaeda and the necessity of military force in the
expeditionary conflicts we are fighting that make things different.
Second, I doubt that this policy will be seen as a bonanza for domestic
counterterrorism, and the agencies responsible tasked with using
military detention won’t actually have much use for it. Third, and most
importantly, detaining American citizens minus a suspension of habeas
Today’s Tabbloid PERSONAL NEWS FOR lgn@limitedgovernmentnetwork.com
is unconstitutional and will be held so in court.
The policy prescribed under this bill is to direct anyone apprehended and
suspected of terrorism into military custody for their initial
interrogation. The bill bars them from being read Miranda rights, directs
a high-value detainee interrogation group to determine whether or not
they fit the bill as an unprivileged enemy belligerent (Military
Commissions Act 2009 language for unlawful enemy combatant), and
further directs authorities to submit this information to Congress.
Anyone designated as an enemy belligerent can be detained until the
cessation of hostilities, which amounts to whenever Congress says that
the war on terrorism is over.
The kicker is that aliens detained domestically under this system must be
tried by a military commission. Citizens cannot be tried by military
commissions, and the jurisdictional language in the Military
Commissions Act (MCA) reflects this. Basically, the government would
collect a bunch of intelligence that is inadmissible in federal courts and
then hold American citizens indefinitely. Also, detaining large numbers
of Muslim aliens (who may have strong ties to local Muslim
communities) and prosecuting them in military commissions threatens
to radicalize citizens who are Muslims. The perceived double standard —
commissions for Muslims in America, civilian trials for everyone else —
is counterproductive when it comes to defeating terrorist recruiting.
I say that this won’t be a bonanza for the intelligence community because
I see this scenario playing out in three ways:
First, it might work as seamlessly as the bill’s sponsors describe. This
could be true if we already have a lot of evidence, the suspect is arrested,
temporarily transferred for a short session of non-admissible
interrogation, and then kicked back to the civilian criminal justice
system (true with citizens, not with aliens). There’s an argument that
traditional police interrogations could get the same (or more)
information that the military can, because military interrogators do not
have the bargaining tools such as snitching on co-conspirators for
reduced sentences, plea bargains and the like. I won’t belabor that, since
it’s not the point of this post.
Second, there’s the possibility that the military and the intelligence
community won’t want to get involved in a lot of these cases, essentially
nullification of what Congress would dictate with this bill. The FBI would
monitor the communications of someone like JihadJane, have
mountains of evidence against her, and have a case that supports the
arrest of her co-conspirators overseas. In this case military detention is
unwarranted, so the military investigator shows up, decides that the law
enforcement agents have the situation in hand, and high-fives them on
the way out the door. The bulk of terrorism suspects don’t have a wealth
of information about other plots, so mandating military detention is
tying the Executive’s hands by making counterterrorism agents jump
through additional bureaucratic hoops when they take people into
custody. I thought this was something that conservatives oppose.
Mandating military custody gets hairier in real emergencies. Imagine a
parallel to the 1993 WTC bombing where the FBI knows that a cell is
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16 March 2010
assembling a bomb but doesn’t sweep up the suspects before the bomb is
operational and in a truck bound for its intended target. Agents lose
track of the suspects, but quickly locate one of them and take him into
custody. The new law would mandate that they first get the guy into
military custody before asking him where the bomb is going. Besides
creating an incentive to put military investigators (CID, NCIS, or OSI) on
every Joint Terrorism Task Force in America (possible Posse Comitatus
and 10 U.S.C. 375 issues with this and the rest of the bill), this doesn’t
even guarantee that a military investigator is with the agents who
capture the suspect that we need information from right now. Under the
current “soft-on-terrorism law enforcement approach” the law
enforcement agents can question the suspect directly and be assured that
the exigency of the situation makes his statements admissible in court
via Quarles, where the Court created a “public safety” exception for the
post-arrest, pre-Miranda questioning of a rapist who had hidden his gun
in a supermarket. A bomb heading toward the federal building or a
shopping mall is a bigger threat than a revolver mixed in with the fresh
fruit, and courts get this. If the course of action dictated to the people on
the ground fails the “ticking bomb” scenario, it ought to be opposed by
all armchair counterterrorism experts who take their cues from 24.
The third possibility is a worst-case scenario. Suppose we have an
American citizen who gets taken into military custody, gives up a lot of
information, but then won’t repeat it when he is kicked back to the
civilian law enforcement system. Some will make the case that this is
justification for an honest-to-goodness preventive detention system to
keep such a person in custody.
This raises the question of constitutionality with regard to holding
American citizens as domestic enemy combatants. More to the point, it
resurrects the case of Yaser Hamdi with a differently-situated plaintiff.
Hamdi was a dual US-Saudi citizen who was captured on the battlefield
in Afghanistan. He was brought to the US and kept in a naval brig in
Charleston, South Carolina. The Supreme Court heard his case and the
plurality held that he could be detained as an enemy combatant, but that
some form of administrative hearing was required to balance his liberty
interest versus the government’s national security concerns.
Justices Scalia and Stevens dissented and got this case right (agreeing
with Cato’s brief). American citizens cannot be held without trial short of
suspending habeas corpus, and Congress has not supplied language to
comply with the Non-Detention Act when it passed the Authorization for
the Use of Military Force after 9/11.
After all, President Bush’s military order of November 13, 2001 directs
the Secretary of Defense to detain and try enemy aliens by military
commission. The Military Commissions Acts of 2006 and 2009 have not
deviated from this language.
The court challenge that results is a return to the Executive playing
“chicken” with the courts, and the Executive continuously losing.
Courts will distinguish domestic terrorism suspects from those who
participated in hostilities on the battlefield. This was the reasoning
behind Jose Padilla’s loss in the 4th Circuit. He had been on the
Today’s Tabbloid PERSONAL NEWS FOR lgn@limitedgovernmentnetwork.com 16 March 2010

battlefield and escaped, parallel to Yaser Hamdi and the Nazi saboteurs
of the Quirin case. This distinguished him from Lambdin Milligan, the
post-Civil War domestic terrorist who was ordered out of a military
commission and back into the civilian courts.

Even those who disagree with Scalia and Stevens can count votes on the
Court. The narrow circumstances in Hamdi are not present here, and the
battlefield/civil society distinction has the potential to sway all but two
or three of the justices. Kennedy indicated displeasure with the
jurisdictional shell game the Bush administration played with Jose
Padilla, along with Roberts and Stevens. Souter, Ginsburg, and Breyer
voted to hear his case even after he had been transferred from enemy
combatant status to federal court.

The bottom line is that this bill mandates treating all terrorist attacks as
acts of war and not criminal violations, when some are clearly both. It
isn’t bad policy because there is no justification for military force — there
is — it’s bad policy because it prohibits a pragmatic legal response to
terrorism. If the law enforcement paradigm gets results for the threat,
use it. The same goes for the military paradigm. But let’s not pick one
over the other for the sake of domestic politics.

FISCALLY CONSERVATIVE BLOG FEEDS

Last-Second Shots [Cato at

Liberty]
MAR 15, 2010 09:26A.M.

By David Boaz

On Sunday the University of Kentucky Wildcats saved their SEC

tournament championship on a second-chance shot with 0.1 seconds left
on the clock.

That’s a great way to win a basketball game, but not a good way for
Congress to impose 2000 pages of federal rules on one-seventh of the
American economy.