Relevant and even prescient commentary on news, politics and the economy.

Medicare Claim Costs Growth Under 1% in 2013??? Why?

All nine of S&P Healthcare Economic Indices showed slower annual growth rates for February 2013 compared to January 2013. As measured by the S&P Healthcare Economic Commercial Index, healthcare costs covered by commercial insurance plans rose by 4.62% in February, down from +5.41% reported for January. Annual growth rates in Medicare claim costs increased by 0.78%, according to the S&P Healthcare Economic Medicare Index, down from +1.40% recorded last month.” Annual Growth Rates Decelerate in February 2013;  https://www.spice-indices.com/idpfiles/spice-assets/resources/public/documents/11477_sphealthcare-press-release.pdf?force_download=true

heathcare

When economists such as Tyler Cowen and Congressional leaders such as Ryan and McConnell are calling for cuts in Medicare, and Medicaid;  one has to wonder what the basis is for doing so. Medicare and its associated programs have dropped below 1% cost claims growth in 2013. According to Glen LaFollette and Louise Sheiner, healthcare in the US is sustainable at 1% growth and will not crowd out the other necessities. “An Examination of Health-Spending Growth in the United States: Past Trends and Future Prospects”  http://www.bancaditalia.it/studiricerche/convegni/atti/fiscal_sustainability/session_3/Follette%20Sheiner.pdf

 

What gives?

For partisan and give-Barrack Obama-no-quarter-reasoning, politicians claim the PPACA will have no or little impact on healthcare costs. Hoping for pie-in-the sky universal health care today, some rather reasonable writers and blogs have also joined the bandwagon of claims against the PPACA (or Barrack Obama) and are advocating the same lack of impact. Train-wreck Baucus successfully scuttled single payer healthcare insurance (with the help of Lieberman) and kept prominent advocates away from the bargaining table having  protestors arrested. Baucus now advocates backing away from the PPACA. Then what has made government healthcare programs decrease in cost? Maybe the last couple of years of decreasing cost growth are the result of the healthcare industry and the healthcare insurance companies taking heed to the needs of the population and developing a heart??? Naaaawwwwwww, I don’t think so. It is still the same industry; but as a result of the PPACA, the industry is rapidly preparing for the implementation of the PPACA.  Some answers PPACA:

hard times or recession, accounted for only about 1/3 (37 percent) of slower growth in the nation’s health care bill.  My guess is that most of the effect was felt in the private sector.

“During 2009–11 per capita national health spending grew about 3 percent annually, compared to an average of 5.9 percent annually during the previous ten years. job loss and benefit changes that shifted more costs to insured people. We found that these enrollees’ out-of-pocket costs increased as the benefit design of their employer-provided coverage became less generous in this period. We conclude that such benefit design changes accounted for about one-fifth of the observed decrease in the rate of growth. However, we also observed a slowdown in spending growth even when we held benefit generosity constant, which suggests that other factors, such as a reduction in the rate of introduction of new technology, were also at work.” The Independent Payment Advisory Board and Medicare Spending: New Research Suggests a Change in Our Medical Culture; Maggie Mahar, Healthbeat Blog, http://www.healthbeatblog.com/2013/05/the-independent-payment-advisory-board-and-medicare-spending-new-research-suggests-a-change-in-our-medical-culture/

and the chief Actuary for Medicare?

“Paul Spitalnic, sees the recent past as prologue – at least to the near future. On April 30, he sent a letter to Marilyn Tavenner, acting Medicare administrator, saying that based on the most recent numbers, the projected 5-year average growth in Medicare per capita spending ia 1.15% , and the 5-year average growth target is 3.03 percent.” As a result, he advised Tavenner that we won’t need the IPAB until 2016—at the earliest.”  The Independent Payment Advisory Board and Medicare Spending: New Research Suggests a Change in Our Medical Culture

If Spitalnic’s and the S&P Healthcare Indice projections prove true over the next few years; Medicare will not be growing faster than GDP and healthcare costs would not be adding to the deficit or crowding out spending on education, infrastructure or the environment as predicted. There is no evidence the trend will not continue and Medicare cost growth is at the lowest level since its beginnings.

Health Beat Blog: “Michael Chernew, a Harvard health policy professor and co-author of the paper, told Modern Healthcare that slower growth was due to more than the weak economy or increases in out-of-pocket spending as employers shifted costs to employees. Instead, the results appear to point to a shift in culture and physicians who have who have grown more focused on greater efficiency in the last five years.” Economy Less of a Factor for Healthcare Spending, New Studies Say“; Melanie Evans; Modern Healthcare;  May 6, 2013

Or perhaps it is what many have said with the advent of the PPACA, a change has and is being brought about in how we are being treated. The overall cost model is moving from a services for fees treatment scenario to a better outcomes and efficiencies for fees scenario.

“The cost saving measures within the PPACA appear to be keeping medical expenses flat during the implementation of efficiencies. For example, in 2012, the average price paid for medical care, doctor visits, operations, glasses, etc. rose at about the same rate as other prices in the economy or less than 2%. Healthcare share of the economy in 2011 shrank from 17.12% to 17.04% due to other aspects of the economy growing faster. BEA Analysis; USA Today; Health Care Spending is Transferred Out of ICU

“‘Until now, the government has paid on volume. Now, it’s trying to pay more on quality,’ says Person, a doctor of internal medicine, as well as CEO of Essentia, which has 18 hospitals and 68 clinics.” For example: “Essentia now provides 300 of the sickest congestive heart failure patients with electronic home scales that relay information, such as weight and symptoms, to a nurse several times a week. The steady monitoring of small things has cut 30-day admissions to less than one-tenth of the national average and saved millions of dollars.”  Health Care Spending is Transferred Out of ICU; USA Today; March 4, 2013;  http://www.usatoday.com/story/news/health/2013/03/04/health-care-spending-growth-slows/1963165/

This is precisely what was provided to me by the Great Lakes Home care nurses. Each morning I would weigh in and take my blood pressure three weeks after my open-heart surgery. The nurse would come once per week to my home to which I was confined and check on me. These type of visits by nurses also gave me an early exit from the hospital initially even though the visits were 2-3 times per week and at a far lower cost than keeping me confined to the hospital (I was bouncing off the walls and wanted out).

“One big change is the government’s revived push toward managed care. The government wants to pay a lump sum for a patient or diagnosis, demand higher standards and expect the medical provider to get the job done for that cost. Rather than cutting reimbursement rates, the government is raising the bar for what it expects for every dollar it spends.” Health Care Spending is Transferred Out of ICU

says Person, the hospital chief: It is now the law, and it has teeth. We’re getting paid less,” he says. “We have to be more productive and efficient.” Health Care Spending is Transferred Out of ICU. USA Today; March 4, 2013

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In the Short Run, We Are All Dead. At Least According to That New Oregon Medicaid Study.

Well, we AB types–readers and writers, alike–are familiar with John Maynard Keynes’s famous line that “In the long run, we are all dead.”  By which he either meant that economists, if they are to be useful, must try to predict and recommend short-term government policies that avoid or help end current, severe economic downturns, rather than just predicting long-term economic results, or instead he meant that since he was gay and had no children, he didn’t care about the long-term economy and wanted economic policy to concern itself only with the here-and-now and never with the long run.

It’s a fielder’s choice, if you ask me.  Which is why you shouldn’t ask me.  And you shouldn’t ask Niall Ferguson either.

Conveniently, in the very same week in which high-profile economists are debating what Keynes meant, we learned that a study of the effects of access to healthcare insurance (in that case, through Medicaid) shows that access to healthcare does not reduce cholesterol levels, blood pressure, or blood-sugar levels, over a two-year period among people who have elevated levels of one of another of these ailments and who were not previously receiving medical treatment for them because they had no insurance. At least it did not in Oregon, where the study took place, for the sampling involved.

The study is being widely interpreted as showing that healthcare insurance does not improve actual health, and has lead some people to suggest that this means that we should not have healthcare insurance at all, whether publicly or privately financed.

But that’s ridiculous. Or at least it’s insufficient as a response.  What the study obviously shows is not simply that we shouldn’t have healthcare insurance but that we shouldn’t have healthcare. We should not have medical care.  At all.  No doctors, no hospitals, no prescription drugs, no medical devices.  None of it.  We’re spending huge amounts of money on healthcare, and now we know that it doesn’t improve health!

In the long run, we are all dead.  And if you have no access to healthcare and have, say, a heart attack, a stroke, cancer, a diabetic coma, or a serious physical injury, you may well die without medical attention even if you would have lived if you’d had medical attention. In the long run, we are all dead, and in the short run those who have a life-threatening illness or injury and no access to medical care may be too, even if access to medical treatment might have lengthened that run quite a bit.*

So we need to end the medical-industrial complex, because, after all, how much difference is there, really, between the long run and the short run?  Lipitor, insulin, and blood pressure medications are okay, I guess, if you have nothing better to spend your money on.

But even if you don’t, why throw your money away on stuff like that, when those things don’t even improve your health?  And, as for the government and Medicaid, and Obamacare, and Medicare, and all that: Well, what’s that line about, families are tightening their belts, so the government should, too?

At least now we’ve finally found the way to stop healthcare inflation.  End healthcare itself.

*Paragraph rephrased and clarified after initial posting, to avoid possible misinterpretation.

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UPDATE:  This post, though obviously satire targeted at the rightwing’s conclusions about the study, also is intended to raise what seems to me a critical medical question that, to my knowledge, no one else has asked: Does the study indicate that the treatments for high cholesterol, high blood pressure, and early-stage diabetes are ineffectual?

It may be that the diet recommendations given to these new Medicaid patients–less salt, low sugar, lower-cholesterol diets, respectively–weren’t adhered to by most of the patients.  Or it might mean that, once diagnosed with one or another of these illnesses, those in the study who did not get Medicaid nonetheless changed their diet somewhat in light of the diagnosis.  Or it might mean that the medications that were prescribed for the Medicaid recipients who did obtain medical treatment are less effective than thought–which strikes me as something that should have been the headline takeaway, but obviously was not.

If there’s some other possible meaning to the study’s results, what is it?  Seriously.  If these treatments are medically ineffective, isn’t that something that the public should be told?  And if the treatments are effective in the general population, then why would these very same treatments–specifically, the medications–not work with the Medicaid recipients in the study? And, why aren’t these the questions that the pundits are asking?

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Is Margaret Thatcher Responsible for Silicon Valley, As David Brooks Claimed Recently?

[T]he myth of the welfare state fostering a lazy citizenry just doesn’t hold water. A group of small nations (combined population: about 25 million) that came up with Linux, Skype, Ikea, H&M, and Lego — to say nothing of well-written television shows and mystery novels, innovative designers and brilliant architects from Alvar Aalto to Bjarke Ingels — can’t be that lazy.

— George Blecher, participant in today’s New York Times’ Room for Debate discussion about Denmark’s welfare state, apparently the most generous in the Western world.

The New York Times has been running a sequence of pieces in the last month about Denmark’s uniquely generous public-welfare laws, a categorization that includes tax laws and spending programs that apply to all that country’s citizens, not just certain economic classes of citizens.  I hadn’t read the articles until today, when the Times made them (and their subject) the topic of its Room for Debate discussion.

Which reminded me that last month, in a column paying his respects to Margaret Thatcher after she died, David Brooks attributed the existence of Google, Facebook, Twitter, and all those other successful Silicon Valley companies started since the Thatcher/Reagan revolution began, to … Margaret Thatcher.  To whom he expressed gratitude for saving the Western democracies from adopting Swedish-style welfare-state policies, and–he said, in his trademark unexplained ergo-conclusory-declaration fashion–therefore preventing the end of technological innovation of the Silicon Valley variety.

Yes, Brooks really made that claim, if I understood him correctly.  And I think I did.

My immediate reaction upon reading that column was: Well, maybe some other prominent journalist will pick up that gauntlet and go right to the horses’ mouths, and ask some of these tech innovators whether a few of those Swedish-style benefits would in fact have caused them to forego inventing what they invented, and starting their startups or continuing to innovate and invent through their ongoing companies.

Steve Jobs is gone, so he can’t be asked whether he would have ditched the idea for the iPhone a decade ago, had this country had universal single-payer healthcare insurance, access to quality preschools, and guaranteed decent pensions.  But still alive and active are Andy Grove, Bill Gates, Marc Andreessen, Jerry Yang, David Filo, Sergey Brin, Larry Page, Sean Parker, Jack Dorsey, Mark Zuckerberg, Kevin Systrom, Mike Krieger, and almost all of the inventors of all those apps available to anyone with a computer or a smartphone.

Brooks could have asked a few of them before he made his claim, except that he, well, doesn’t do fact vetting before he makes representations of fact. He just uses his perch as a tenured New York Times columnist to make ever-more-outlandish declarations of what he represents as fact. And receives a huge salary, as per his unquestioningly-renewed contracts.  At a time when his own paper, and most others that continue to practice this pundit-star brand of commentary journalism, are dramatically reducing or outright decimating their actual newsroom staffs, because of severely declining revenues.

I keep wondering whether these folks actually bring in substantial revenues, or whether instead they simply continue indefinitely because, y’know, that’s they way it’s always been.  If the latter, it shouldn’t matter any more than that having good-sized staffs of actual professional reporters and editors was the way it had always been, too, at most mainstream newspapers–until it no longer was.  So, why does it, if it does?

Brooks’ Thatcher-Saved-Us-From-the Fate-of-Sweden column was titled “The Vigorous Virtues.” A headline writer, not Brooks himself, titled the column.  The headline writer, a journalist who had enough vigor to read the column and enough virtue to sum up its claim accurately–and who as of a month ago remained employed at the Times albeit at a salary surely a small fraction of Brooks’s–might also have some refreshing takes on government fiscal policies. Thoughts that aren’t mindless statements of ideology transparently masquerading as fact.  But no matter.  He or she, after all, is not a star.

Much better to have Brooks, who is one, reiterate generically yet again that central and northern Europe are innovation wastelands than to require tangible fact as foundation for declarations inferentially based upon supposed fact. There is a difference between opinion and fact (actual fact and false fact, both), although you can routinely switch out opinion for false fact if you’re a big-name pundit under recurring contract with a big-name media organization.

Poetic license is fine when limited to art, but when published in the New York Times as fact–and these statements, by their nature, are, notwithstanding that they’re made in op-ed pieces–they should come with an explicit disclaimer.  They really should.

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UPDATE: Reader Jack posted a comment saying:

Why do intelligent people waste their time and attention discussing anything about David Brooks. Look in the dictionary under either toady or sycophant and you will likely find a picture of Mr. Brooks. As to why he is paid by the NY Times, or any other media company, to regurgitate his gruel? I can only suggest that is easily controlled by those who sign the checks and will produce what he is directed to do so.

I wasn’t sure he was referring to me, since he did specifically reference intelligent people, but I responded nonetheless, explaining:

My intended point wasn’t just about Brooks, or even just about the NYT, Jack. It was about these venerable media companies.  Their finances are really stretched, and they keep sacrificing actual news gathering by relentlessly cutting reportorial and editorial staff.  Yet they keep these big-name pundits under contract, paying them outsized compensation, without giving any apparent thought to whether these people, as individuals, often say anything enlightening or informative.  Mostly, their columns read like Facebook pages.

This isn’t to say that any of these people never has anything insightful or genuinely informative to say.  Thomas Friedman, for example, after years of writing columns that were so clearly just “phoned in” thoughtlessly, became a joke; people started doing hilarious parodies of his columns.  But he’s an actual expert on something important–the Middle East–and his columns on that subject are worth reading because they do provide information and some semblance of insight on that topic, irrespective of whether the actual opinion he advances in one or another column, based on that specialized knowledge, is convincing.

And I do NOT mean to suggest that it is a matter of the age or generation of the columnist.  By far the most important pundit right now is Paul Krugman, because of WHAT he writes, based on his extensive specialized knowledge coupled with his his political leanings. Former Slate writer Tim Noah, who wrote a well-received book called “The Great Divergence,” on the reasons for the rapidly escalating inequality in this country, and to a much lesser extent in Western Europe, detailing his own extensive research for the book, is in his mid-50s.  He was fired recently from the New Republic.  He’s a thoughtful analyst of important socioeconomic issues, and I’d love to see him write periodically for the Times.  He’s unemployed now probably because of his age, yet Brooks and Ron Fournier, both of them baby boomers, have regular gigs and get actual attention–lots of it, apparently–for the truly mindless things they keep saying and saying and saying.

There just doesn’t seem to be any filter through which the people who run these media entities sift what–actually, who–they publish in their oped pages.  It appears to be on autopilot.

I do think the issue of whose political and economic commentary gets fairly widespread attention is important.

 

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Solar Power

Last year I had solar panels installed on my roof under a deal where I pay nothing up front for the installation and pay the solar company for the power I produce at a rate about 75%   of  what I pay the electric utility.

I just got my April bill from the electric company.

It was a credit for $15.54, so I actually produced more electricity than I consumed in April.

Over the winter months I met about half of my electric needs from solar.

I thought that was pretty good for the Boston area.

So it will be interesting to see what happen this summer when solar production should be maximized.

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Ron Fournier Says Abraham Lincoln Wasn’t a Great President

Great presidents rise above circumstance. Not Obama, at least not yet. At a news conference Tuesday marking the 100th day of his second and final term, the president seemed unwilling or unable to overcome stubborn GOP opposition.

— Ron Fournier, National Journal, yesterday (h/t Jonathan Chait, New York magazine, today)

Fournier’s right, of course. About Abraham Lincoln, that is.  Lincoln was unwilling or unable to overcome stubborn Southern opposition to his agenda of ending slavery and keeping the Union whole.

Personally, I think it was the former.  Unless you count that declaration-of-war thing.  Although if you do, then you also have to count that victory at Appomattox.  Which would mean Lincoln was able to overcome stubborn Southern opposition to his agenda of ending slavery and keeping the Union whole, after all.  And that would mean that he must have been willing to do so, unless that victory was an accident.

Although, under the new definition of the word leadership, that kind of thing doesn’t count, because persuasion just didn’t work in that case.

Take me to your leader, Mr. Fournier.  Once you find one who isn’t a hypnotist or the head of a parliamentarian government. Unless, of course, by rising above circumstance, you mean military coup de tat.

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Who Do You Think Can ‘Do A Better Job of Handling’ Political Poll Semantics?

Dems hold small edge in Congressional ballot matchup: A new Quinnipiac poll finds that voters support the Dem candidate in their district over the Republican by 41-37. Sixty seven percent disapprove of the Congressional GOP, versus 60 percent who disapprove of Dems. Sixty two percent say Republicans don’t care about their needs and problems; 54 percent say that about Dems. Republicans hold a small edge on the deficit and gun policy.

— Greg Sargent, Washington Post, this morning

A longtime pet peeve of mine is that so many major political polling organizations routinely phrase policy-preference questions so that the question can mean two separate, often conflicting, things, yet the results of the poll questions are reported as though the question had only one, surely-understood, meaning.

And, first and foremost among that type of question is of the “which party is better on” guns/taxes/the deficit/fill-in-the-blanks variety.  These questions almost always actually are phrased to appear to be asking which party talks more about the particular issue, or seems to care more about the issue.  Yet inevitably the pollster’s PR release represents the poll-question result as indicating the poll respondents’ preference for that party’s policy, rather than the poll respondents’ perceptions of the respective parties’ level of interest in the subject, and the news media dutifully treats it that way.

So the result from a poll question, Question 19 in the Quinnipiac Poll, that asked, “Who do you think can do a better job of handling – the federal budget deficit, the Democrats in Congress or the Republicans in Congress?,” is reported by the polling organization as indicating that voters “prefer the Republicans on the budget deficit.”  The result from a question, Question 21, in that poll, that asked “Who do you think can do a better job of handling – gun policy, the Democrats in Congress or the Republicans in Congress?” is represented by the organization as showing that voters “prefer the Republicans on … gun policy.”

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Soooo … Eric Posner’s Angling to Ghostwrite David Brooks’s Columns. Or At Least to Fully Shed That John-Yoo-and-I Stigma. Fine, But Don’t Stigmatize ME In the Process. [FORMAT-CORRECTED AGAIN]

When Dzhokhar Tsarnaev was arrested Friday night, the celebration was instantly overtaken by an ideologically charged debate. Liberals argued that the government must respect Tsarnaev’s constitutional rights, by which they meant that he should be treated the same as any ordinary criminal suspect—informed of his Miranda rights, supplied with a lawyer, presented to court as soon as possible. The subtext was that the treatment of Tsarnaev would refute yet again the hated Bush administration’s claim that it needed expansive war powers to fight terrorists. Conservatives by contrast, notably Republican Sens. John McCain and Lindsey Graham, argued that the government should classify Tsarnaev as an enemy combatant, and thus deprive him of the rights of ordinary criminal suspects. For the left, the Tsarnaevs are examples of “vulnerable Muslims” driven to extremes by President Obama’s immoral drone war; for the right, they are foot soldiers in a civilizational war. …

Neither the knee-jerk liberal nor the knee-jerk conservative response appreciates all of these underlying dilemmas. For liberals, the constitution is a fetish to be stroked at times of peril; it will protect us, whatever the stakes. They forget that criminal procedural rights were cobbled together over decades by fallible judges, who were responding to the needs of the time. What might have been appropriate during the civil rights era, when police used criminal law to suppress protesters and torment African-Americans, may not be appropriate for an age of terror. …

The isolation of terrorist suspects is hardly a new idea; it was used effectively in the 1970s by Germany, Italy, and other European democracies to defeat terrorist groups like the Red Army Faction and the Red Brigade. Here and now in the U.S., there are several advantages to this approach. It treats in the same manner anyone who engages in terrorism or mass killing and does not single out Muslims, who are burdened by the legacy of the declaration of war against al-Qaida. It gives the police broad powers to deal with cases of extraordinary violence without granting them similar powers for ordinary criminal investigations. It avoids any reference to war or martial law, skirting the massive legal and political complexities associated with war powers. And because Congress would make the rules, and judges would oversee the system, the courts would likely hold it constitutional.

The New Law We Need in Order to Deal With Dzhokhar Tsarnaev: Congress should authorize the isolation and detention of suspected terrorists., Eric Posner*, Slate, yesterday

After reading that article this afternoon, I posted the following comment to it:

For the left, the Tsarnaevs are examples of “vulnerable Muslims” driven to extremes by President Obama’s immoral drone war; for the right, they are foot soldiers in a civilizational war? Really? For the entire left, Prof. Posner?

I’m a regular writer on a blog called Angry Bear, a left-of-center economics/politics/legal-issues blog, and yesterday, at the request of the guy who runs the blog, I posted a lengthy piece on these issues, at [this link; link corrected 4/25]. I began writing for that blog three years ago at the request of the guy who runs it, and a few of my pieces have been linked to or tweeted by some heavy-hitters. Including Paul Krugman (once), Brad DeLong, several times, and Naked Capitalism, also several times. (And occasionally by non-ideological blogs and tweeters as well, although that doesn’t matter here.) Suffice it to say that I’m of the left. Have been all my life. Almost literally; by the age of about six, I knew about McCarthyism, courtesy of my parents!

So I’m a good test case, and I invite Prof. Posner to read my blog post (if he can bear the thought and expend the time to read something written by a no-name) and point out where exactly I said or implied that I view the Tsarnaev brothers as examples of vulnerable Muslims driven to extremes by President Obama’s immoral drone war. And, since he won’t, I invite all you readers here to do that. I wish you luck.

Posner spent the early and mid 2000s angling (I think) to join his father as a judge on the Seventh Circuit Court of Appeals, an effort that included co-authoring with that well-known civil libertarian John Yoo (google him, folks, if you don’t know who he is and therefore don’t get the reference and characterization). Posner has spent the time since his dalliance with Yoo trying to salvage his own reputation, fairly successfully, and this article is, I think, another piece in his ongoing attempt to rid himself of the Yoo-association taint; you never know when a Republican might win the White House next, and anyway, well, y’know.

But the next presidential inauguration is nearly four years away, and so to bide his time he’s apparently now auditioning as David Brooks’ ghostwriter. Brooks really, really does need one, and Posner has that sweeping-generalizations-and-categorizations thing down pat, which is a good start. All he needs now is to practice up on the faint-correlation-equals-definitive-causation thing. Or at least the a-series-of-statements-of-fact-invites-a-non-sequitur-conclusion technique, a David Brooks special. And no one will be the wiser that the columns are ghostwritten.

As a liberal, I can also attest, by the way, that it is not a characteristic of ours to forget that criminal procedural rights were cobbled together over decades by judges. Nor to forget, or not to, um, notice, that judges are fallible. We notice that; trust me. Some of us even think that some judges are deliberately fallible. In fact, some of us are pretty sure of this.

As for what’s appropriate for an age of terror, one thing that I’m pretty sure is not is that any statute passes constitutional muster because Congress would make the rules, and judges would oversee the system. Congress sort-of-normally makes the rules in detailed statutes, and judges sort-of-normally oversee the system that statutes establish, at least since Marbury v. Madison. So I don’t know why the courts would likely hold it constitutional because Congress would make the rules, and judges would oversee the system. At least until Professor Posner becomes a member of one of those courts.

And just to be clear, I do not consider the Tsarnaev brothers examples of vulnerable Muslims driven to extremes by President Obama’s immoral drone war. This even though that may well have been why the older brother was able to gain the younger brother’s assistance. And even though I, too, believe that the drone war is immoral. And that there is no legitimate reason for this country to be involved in Afghanistan militarily, and that there has been no reason for a decade or so. It already looks likely that the younger brother was vulnerable to his older brother’s manipulations, probably mainly concerning the drone wars, but that the older brother had an agenda apart from the drone wars.***

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*Eric Posner is a longtime professor at the University of Chicago Law School and a son of Seventh Circuit Court of Appeals judge Richard Posner.

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**I had to fully edit the format of this piece once and then still make another formatting correction, because I’m still having trouble getting used to our new platform.  After the second edit, the title disappeared, so I had to edit this a third time. Aaargh.

Steve Roth, Dan Crawford, and reader RJS have helped a lot via emails–thanks, guys!–but I’m still semi-clueless about it all.  Apologies, readers.  I think I finally got this one right. 4/23 at 3:04 p.m.

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***In light of my exchange with Woolley in the comments below, I just amended this paragraph in  my Slate Comment and here. 4/23/13 at 4:19 p.m.

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Wellll, as I learned the hard way from perplexed emails to me about this post, our format here in WordPress does not distinguish blockquotes clearly enough.  JazzBumpa, for example, said he wondered who had poisoned me–until he finally realized that that stuff was a blockquote.  [Poisoned me?  More like kidnapped me, and then waited for Stockholm Syndrome to kick in before he allowed me to post anything.]  The solution, for the moment anyway? Italics.

 

 

 

 

 

 

 

 

 

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Miranda Rights 101 and Enemy-Combatant Law 102. No, Make That 345 and 346 (Advanced Seminars).

The two immediate what-everyone’s-talking-about legal issues in the Dzhokhar Tsarnaev case concern his Miranda rights–that is, at what point must he be read his Miranda rights notifying him that he has the right to remain silent and to the counsel of an attorney–and whether he can, and if so should, be classified as an enemy combatant under post-9/11 laws.  Dan Crawford has asked me to post on the Miranda issue, and so I will, along with the somewhat overlapping but distinct enemy-combatant issue, but with the caveat that I have no great expertise in either Miranda-rights law or enemy-combatant law.

These issues concern three provisions in the multi-guarantee Fifth Amendment.  The Amendment reads:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Miranda issue concerns the self-incrimination clause, the clause that reads “nor shall be compelled in any criminal case to be a witness against himself.”  The enemy-combatant issue stems from the lengthy first clause, the one that requires presentment or indictment of a Grand Jury in capital or other infamous crime (now interpreted as all serious crimes, whether or not they’re infamous, although this crime certainly passes the infamy test, so the originalists and textualists should be happy), and also from the due process clause.

Okay, and also from the insistence of certain Republican Senate grandstanders that Tsarnaev be held as an enemy combatant.  At least if issue is an operative word in enemy combatant issue.  Which of course it is.

I’ve read several good news and blog analyses discussing these issues in the last couple of days, but the most comprehensive one on Miranda is a blog post by Orin Kerr (h/t Bill H), a law prof at Georgetown and a former clerk to Justice Kennedy, at The Volokh Conspiracy, a libertarian/right-leaning blog where he writes regularly.  (Kerr is the least right-wing of the several writers there, all of whom are law profs, most of them also former Supreme Court law clerks.)

The essence of Kerr’s post–and a key point made also by Katy Waldman at Slate, in another good article on the subject–is that under Supreme Court jurisprudence dating back about three decades, the issue of the constitutionality of a failure to give a Miranda warning arises only if, and then only when, the prosecution attempts to use the defendant’s pre-Miranda-warning statements at the trial.  Obvious examples are a confession, an acknowledgment that the defendant knows another of the defendants, an admission that the defendant was at a particular location at a particular time, or that the gun used in the crime belongs to him.

It is in some respects–and until now I had thought of it as, in essence–part and parcel of the more generic “exclusionary rule,” which prohibits prosecutors from using evidence at trial that was obtained unconstitutionally.  Usually (but, I believe, not exclusively), the formal exclusionary rule comes into play when evidence is seized in a search that violates the Fourth Amendment’s search-and-seizure provision–a warrantless search that does not fall within the Supreme Court’s seemingly-metastasising exceptions to that constitutional provision (freedom! liberty! originalism! textualism!)

The exclusionary rule was developed by the Supreme Court to effectuate the Fourth Amendment, rather than the Fifth Amendment, but to the extent that I had thought about them at all (which is somewhat, but mainly after a new Supreme Court case on one or the other was issued), I still had thought of them as essentially the same.  But Kerr and Waldman point out that under Supreme Court Miranda jurisprudence, prosecutors can use some tangible “fruits” of an improperly un-Mirandized statement; just not the statement itself; the prosecutor can use the gun that the defendant told them where to find, but the prosecutor cannot tell the jury that the defendant told them where he put the gun.

A more important distinction, though, both in the Tsarnaev case and, well, for you and me, is this: Law enforcement interrogators can ask the defendant questions during an improperly un-Mirandized interrogation but then cannot use the defendant’s statements at trial.  But law enforcement cannot just force their way into your home, or search your car, or search you, in violation of the Fourth Amendment provided that they don’t later try to use what they found as evidence at trial or try after the unconstitutional search to get a search warrant based on the what they found during the unlawful search.

That’s because there is a difference between the very nature of the Fifth Amendment self-incrimination provision and the nature of the Fourth Amendment search provision, according to the Supreme Court.  The Court has interpreted the former as a bar to compelled self-incriminating trial testimony–against being a trial witness against yourself. The Fourth Amendment search clause protects against the actual search, independent of your rights at trial.

I think that’s a distinction that some commentators are missing in the Tsarnaev case, and in light of the unusual specifics of this case, it strikes me as as pretty important.  As in, calm down, fellow civil libertarians.  For now, anyway.

The purposes of most law enforcement interrogations are to try to solve the crime, to obtain enough evidence to gain a conviction, and (often, as part of solving the full crime, including learning its breadth) to identify others who participated in the crime.  In this case, though, there is unequivocally no additional evidence necessary to successfully prosecute Tsarnaev.  They even have the statement from the owner of the hijacked Mercedes SUV that the brothers confessed to him that they were the Marathon bombers–unnecessary icing on a very large, multi-ingredient cake.  They do not need a confession, nor any lesser acknowledgement or admission from Tsarnaev, in order to successfully prosecute him.  Nor to argue for the death penalty.

What they do need is to know with certainty that there are no explosives still stored somewhere, and that there are no other members of their terrorism conspiracy.  Both appear unlikely, it certainly seems.  They probably took all their explosives and guns with them on their wild ride late Thursday and early Friday (they had a lot with them).  The older brother reportedly was strongly disliked among the members of the Cambridge mosque he attended, and Muslim Causas separatists are, reportedly, just that: separatists at war with Russia.  So if the older brother learned his explosive-making craft overseas, it is almost certain that he wasn’t enlisted there to explode bombs at the Boston Marathon.  But law enforcement does need to try to set these issues to rest.

What law enforcement does not need is to try to use un-Mirandized statements by Tsarnaev at his trial.  If the Department of Justice does try, that would be an absolutely unnecessary attempt to distort and stretch Miranda jurisprudence, and the only conceivable purpose would be a decision by Obama (who presumably will be making politically-charged calls in the prosecution) to wave a red flag in the face of civil libertarians, as part of his ever-present quest to be viewed as a “centrist,” and the failure he shares with so many political pundits and other pols to recognize that 2002–like 2010–has passed.

The Marathon bombings are not 9/11.  They are instead the Oklahoma City Federal Building bombing, in which the two perpetrators held radical ideological views that they shared with many others, including members of large loosely-connected groups that advocate violence and that hold deep grudges against the American government.  But those groups, in this case including al Qaeda, likely were not a part of the acts of terrorism perpetrated by the two pairs of perpetrators.

Which brings me to the issue of enemy-combatant status, and of Lindsey Graham et al., who themselves think it’s still 2002 or, more likely, think voters do.  But as Rand Paul can attest, the public doesn’t.  Including much of the Tea Party public.  Even maybe in South Carolina, where Graham hopes to fend off a Tea Party primary challenger.

There are by now enough articles and blog posts published since Friday night, by people with extensive knowledge about enemy-combatant law–which I certainly do not have–that I think I should just say, in summary on this, that, according to those articles, the law does not permit Tsarnaev, a United States citizen charged with committing a crime on United States soil and apprehended not on an overseas battlefield but instead in Watertown, MA, from being declared an enemy combatant.

But to those who insist otherwise, I suggest that they beware of the double-edged sword that they want to manufacture.  Over the weekend, some Republican senator (I don’t remember which one) pronounced the United States “the battlefield”–terminology used by the Supreme Court in their post-9/11 enemy-combatant opinions–because the act terrorism occurred in the United States.  Any act of terrorism in the United States, he claimed, renders the United States a battlefield.

Which in turn requires a definition of “terrorism,” I would think.  And since there is no evidence that the Tsarnaev brothers were connected with any foreign group at all, much less one in which the enemy-combatant statute applies, this senator is proposing, if unwittingly, that anyone accused of, say, using a semi-automatic weapon loaded with a huge magazine could, and should, be declared an enemy combatant.  A designation whose purpose is to strip the defendant of constitutional due process rights and allow permanent detention without trial.

I say, bring it on.  Gitmo for anyone suspected of using a semi-automatic assault rifle with large magazines in the commission of crime!  That’ll have to do in lieu of Gitmo for silly, hypocritical politicians.

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