Columnist.
Do you see a problem with a law that authorizes indefinite military detention of anyone the president identifies as an enemy of the state? For President Obama, the problem is clear: The law does not give him enough discretion. Obama has threatened to veto the National Defense Authorization Act if the final version includes a provision approved by the Senate last week that requires military detention of some terrorism suspects. Obama, like his predecessor, wants the leeway to keep them in civilian custody and maybe even give them a trial, if he so chooses. Those of us who are not the president are apt to be more concerned about the unchecked power the bill gives him to lock us up and throw away the key.
"I don't believe in amnesty," Mitt Romney said in 2006, but "I don't believe in rounding up 11 million people and forcing them at gunpoint from our country." Although Romney is loath to admit it, the underlying reality remains the same. While mass deportation of everyone illegally residing in the United States is unacceptable for both practical and humanitarian reasons, Republicans are afraid to suggest an alternative, lest it be tagged with the a- word. Last week, Romney's campaign highlighted that danger by pouncing on Newt Gingrich for taking essentially the same position that Romney himself has repeatedly enunciated.
Clearly what we need is a super-duper committee. Instead of six Republicans and six Democrats, it will have three members from each party, and its deficit reduction plan will go directly to the president for his signature, bypassing Congress entirely. This time for sure! The recurrent fantasy that Congress can delegate difficult fiscal decisions to an autonomous body -- whether a commission or, as in the case of the Joint Select Committee on Deficit Reduction, a subset of itself -- speaks volumes about the abysmal failure of our elected representatives to do the work they were hired to do. Now that the latest attempt to reassign the power of the purse has collapsed in ignominy, it hardly seems likely that Congress will rise to the task, especially since it has not managed to pass an actual budget (as opposed to continuing resolutions) in more than two and a half years.
A couple of months ago, Deputy Assistant Attorney General Beth Brinkmann was standing before the U.S. Court of Appeals for the D.C. Circuit, defending the federal law requiring Americans to buy government-approved health insurance, when Judge Laurence Silberman asked her about broccoli. Specifically, he wanted to know whether a law requiring Americans to buy broccoli would exceed the federal government's authority to regulate interstate commerce. "No," Brinkmann said. "It depends," she added.
Presenting his fiscal plan in USA Today last week, Mitt Romney said he wants to "eliminate every government program that is not absolutely essential." That sounds good until you realize that Romney's goal of cutting $500 billion from projected federal outlays in 2016 would, at best, leave the budget about 8 percent higher than it is now and only 11 percent lower than it would be without any attempt to restrain spending. The implication: Mitt Romney thinks 89 percent of what the federal government does is "absolutely essential." And that's what he says when he is trying to appeal to the fiscally conservative Republicans whose votes he will need to win his party's presidential nomination. Who knows what he really thinks, assuming he has any firm convictions at all on this crucial question.
When he took office, Barack Obama promised "an unprecedented level of openness in government." As a major part of that commitment, he pledged fidelity to the Freedom of Information Act (FOIA), which he called "the most prominent expression of a profound national commitment to ensuring an open government." It is hard to reconcile these lofty memos with the Justice Department's proposed rule instructing federal agencies to falsely deny the existence of records sought under FOIA. But at least the Obama administration is open about its desire to mislead us.
Why is Newt Gingrich running for president? Two words: "under God." I exaggerate only slightly. "One of the major reasons that I am running for president," the former House speaker said at this month's Value Voters Summit, "is the Ninrth Circuit Court decision in 2002 that 'one nation under God,' in the Pledge of Allegiance, was unconstitutional. That decision to me had the same effect that the Dred Scott decision extending slavery to the whole country had on Abraham Lincoln."
Next month, the Joint Select Committee on Deficit Reduction, a 12-member subset of Congress that Congress created to make the hard fiscal choices Congress itself has failed to make, is expected to propose $1.2 trillion in cuts from projected spending during the next decade. This week, Rep. Ron Paul, R-Texas, who is seeking the Republican presidential nomination, unveiled a plan to cut nearly that much in 2013 alone, followed by similar cuts in the next two years, yielding a balanced budget by 2015. The contrast between the so-called supercommittee's goal and Paul's plan shows how pathetic official Washington's gestures of fiscal responsibility are, even in these supposedly straitened times. Paul's detailed numbers refute the myth that the budget cannot be balanced without raising taxes while challenging his opponents -- none of whom has offered anything nearly as specific -- to put up or shut up.
In their Oct. 7 press release announcing "coordinated enforcement actions" against medical marijuana dispensaries, California's four U.S. attorneys use the adjective "commercial" to describe their targets eight times and refer to "profit" nine times, not counting two mentions of "money" and one of "moneymaking." You might surmise from these clues that nonprofit organizations supplying marijuana to authorized patients need not worry about raids, forfeiture and prosecution -- but only if you are unfamiliar with the Obama administration's weaselly ways. Barack Obama promised a more tolerant approach to medical marijuana, saying he would not "circumvent state laws on this issue." Instead, he has delivered a crackdown more aggressive than anything seen under George W. Bush, featuring more-frequent raids, threats to landlords and banks, and ruinous IRS audits. Although his underlings occasionally pretend they are respecting state law, they clearly have no intention of doing so.
After FBI agents took custody of Umar Farouk Abdulmutallab, the Nigerian charged with trying to blow up a Northwest Airlines flight on Dec. 25, 2009, they told him he had the right to remain silent. For Anwar al-Awlaki, the American-born cleric who allegedly helped plan Abdulmutallab's mission, that right was more like an obligation, enforced by Hellfire missiles fired at his car from remotely controlled CIA aircraft in northern Yemen last week. President Obama's policy regarding people linked to terrorism is clear: They are to be treated like criminal defendants with constitutional rights, except when they are treated like enemy soldiers in the heat of battle, subject to summary execution from a distance. Although this flexibility has obvious advantages in waging the never-ending war on terrorism, it threatens to transform the elected executive of a republic into a dictator with the power of life and death over his subjects.
On Jan. 13, 2009, Michael Allison brought a digital recorder to the Crawford County Courthouse in Robinson, Ill., where he was contesting a citation, because he had been told there would be no official transcript of the proceedings. He was immediately confronted by Judge Kimbara Harrell, who accused him of violating her privacy and charged him with eavesdropping, a felony punishable by up to 15 years in prison. Because Allison had recorded conversations about his legal situation with police and other local officials, he soon faced four more eavesdropping charges, raising his possible sentence to 75 years. The case against Allison vividly shows how the Illinois Eavesdropping Act, the target of a constitutional challenge that was recently heard by a federal appeals court, undermines transparency, civil liberties and legal equality.
When Solyndra went belly up last month, less than a year after it started making solar arrays in Fremont, Calif., an Energy Department spokesman insisted that the $535 million the federal government had loaned the company was well spent. "The project that we supported succeeded," he said. "The facility was producing the product it said it would produce." That rather short-sighted definition of success exemplifies the loopy logic of President Obama's "green jobs" agenda, which justifies subsidies based on good intentions and employment opportunities rather than profitability or cost-effectiveness. This policy is rooted in the broken planet fallacy, which treats global warming not as an environmental threat to be handled as expeditiously as possible but as an economic opportunity to be milked for all the jobs it can provide.
At the Republican presidential debate in Tampa, Fla., on Monday night, Mitt Romney said Rick Perry has needlessly "scared seniors" by calling Social Security "a Ponzi scheme." Romney, more sensitive to the anxieties of retirees, prefers to say "the American people have been effectively defrauded out of their Social Security" (as he puts it in his 2010 book "No Apology") because Congress has spent the program's surplus revenue instead of saving it to pay for future benefits -- the sort of crime for which bankers "would go to jail." See the difference? Neither do I. Both the former Massachusetts governor and the current Texas governor understand that Social Security is a transfer program disguised as a retirement plan and that its frequently mentioned "trust fund" does not actually exist. Their spat over how exactly to characterize that situation is illuminating not because it reveals substantive differences between the candidates but because it shows how often these simple truths are overlooked.
Writing in The Washington Post last March, former CIA Director Michael Hayden and former Attorney General Michael Mukasey said requiring the Justice Department's inspector general to evaluate the benefits of national security letters, which intelligence agencies use to demand private records, would "duplicate oversight already conducted by the Privacy and Civil Liberties Oversight Board." One crucial flaw in this argument: There is no Privacy and Civil Liberties Oversight Board. As 9/11 commission co-chairmen Tom Kean and Lee Hamilton noted last week, the board has been "dormant" since 2008 because neither George W. Bush nor Barack Obama has managed to appoint its five members. This failure is vivid testimony to the continuing disregard for civil liberties and the rule of law under a president who promised to revive respect for both.
In 1986, Tim Cole, a student at Texas Tech University in Lubbock, was sentenced to 25 years in prison for a rape he did not commit. He was exonerated in 2009, a decade after he died behind bars from a severe asthma attack at the age of 39. Like three-quarters of the defendants who are cleared by DNA evidence, Cole was convicted based on sincere yet inaccurate eyewitness testimony -- a problem the New Jersey Supreme Court highlighted last week when it revised the state's rules for pretrial hearings and jury instructions based on three decades of research exposing the fallibility of human memory. That decision, together with a case the U.S. Supreme Court will hear this fall, reminds us that the most powerful testimony jurors hear may also be the weakest, subject to hidden influences that can send an innocent man to prison if they remain unexposed.
After U.S.-backed Libyan rebels entered Tripoli on Sunday, The Washington Post noted that NATO "has been anxious not to be seen acting as the rebel air force in a coordinated strategy" because its "United Nations mandate is limited to the protection of Libyan civilians." Still, a "senior NATO official" admitted, the alliance's firepower and intelligence sharing helped bring about "the collapse of the regime and its capability to direct its forces," so "the effect of what we were doing was not dissimilar."
Opponents of the federal law requiring Americans to buy government-approved medical coverage face a daunting challenge. Because the U.S. Supreme Court has treated the power to "regulate Commerce ... among the several States" like Silly Putty since the New Deal, explaining why it cannot be stretched to cover the health insurance mandate is harder than you might think. But as last Friday's decision by the U.S. Court of Appeals for the 11th Circuit illustrated, the law's defenders have a corresponding problem. Because a limitless "commerce clause" contradicts a fundamental constitutional principle, they have to justify the mandate in a way that does not also justify every other conceivable congressional dictate regarding how we spend our money. So far, they have been unable to do so, which is the main reason the appeals court rejected this "wholly novel and potentially unbounded assertion of congressional authority."
Evidently Rick Perry is a Christian. But does he have to make such a big deal out of it? "As a nation," the governor of my state declared when he announced the prayer rally that attracted more than 30,000 people to Houston's Reliant Stadium on Saturday, "we must come together and call upon Jesus to guide us through unprecedented struggles and thank Him for the blessings of freedom we so richly enjoy." My response to The Response: No, thanks. My people have managed without Jesus for thousands of years. Why start now?
Two weeks ago, The New York Times reported that Republicans "want a vastly smaller government." Last week, the Times called the dispute about raising the federal debt ceiling "an epic clash over the parties' divergent views on the size and role of the federal government." This week, it said President Obama faces "a conservative movement seeking a wholesale redefinition of the proper role of government." The recent debt deal, widely portrayed as a victory for Republicans, suggests their goals are decidedly less ambitious. As always in Washington, the "epic clash" perceived by the Times is in fact a squabble between two parties that both favor big government.
New Jersey Gov. Chris Christie, a Republican and former U.S. attorney, has never been keen on his state's Compassionate Use of Medical Marijuana Act, which his predecessor, Jon Corzine, signed into law on the last day of his administration. But last week, Christie announced that New Jersey will proceed with plans to let six nonprofit organizations distribute marijuana to patients with "debilitating medical conditions" such as cancer, AIDS and multiple sclerosis, despite the risk of federal prosecution. In Arizona, meanwhile, the Medical Marijuana Act approved by voters last November remains on hold thanks to Gov. Jan Brewer, who worries that it conflicts with the federal Controlled Substances Act. Brewer, a Republican who proudly advocates a "new federalism" that "protects the States and (their) citizens against an overreaching federal government," in this case seems happy to let the Obama administration override the will of Arizona's voters.
