That is all.
Cross-posted at Asymptosis.
That is all.
Cross-posted at Asymptosis.
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.”
by Linda Beale
Max Baucus announced to his fellow Senators today that he will not seek re-election to the Senate in 2014. He has been the top Democrat on the Finance Committee since 2001. See Senate Finance Chairman Max Baucus Won’t Run Again in 2014, Bloomberg.net (Apr. 23, 2013).
As someone who thinks that Baucus has been a hindrance to progressive reform of the tax code and financial regulation, I must admit that I do not find his retirement a loss. His chairmanship of the Finance Committee has been marked by a failure to understand the most important issues related to federal income and estate taxation and by adoption of positions that are too favorable to Big Money and Big Business (especially Big Banks). He has been tone-deaf, in other words, to the class warfare waged by the right against the middle class and the resulting growth in inequality in the country that has been worsened by the current tax provisions that support redistribution upwards to the very wealthiest owners of financial assets and businesses. In particular, he has failed to use his position to push for reasonable reform of the capital gains preference and the wealth-favoring versions of the estate tax passed by the Bush administration. He has refused to consider a reasonable financial transactions tax. In fact, Baucus was too willing to go along with the initial passage of the Bush tax agenda in 2001-2004, and he did nothing to ensure that the Bush tax cuts would fade into oblivion on the sunset date. In fact, he worked to make permanent almost all the Bush tax cuts and supported the corporate-friendly “extension” of the broad menu of corporate tax cut provisions (including a retroactive extension of the R&D credit, which cannot possibly serve the purpose it is claimed to serve when enacted retroactively). The tradeoff provided only token items on the progressive menu.
by Mike Kimel
GW is a Smart Man
A few days ago, Keith Hennessey, who worked in GW Bush’s administration, wrote that the former president is a very smart man.
Now, a smart person doesn’t have to be smart at everything. There are plenty of examples of very smart people doing very stupid things, particularly outside their field. However, since living creatures don’t like negative outcomes, smart people, people capable of reasoning out the consequences of their actions, will tend to minimize the number of things they do that have negative outcomes. Sure, sometimes choices are limited, as many circumstances might remain outside a person’s control.
But GW was President of the United States. For much of his term, he had a supportive Congress behind him. For his entire term, he had a supportive Supreme Court behind him. And he had a very compliant Federal Reserve at his side. By definition, he was the most powerful person in the world, and he had very few constraints on his actions.
Which raises the question… why were outcomes so negative during the Bush administration? One doesn’t have to be a political supporter of say, Ronald Reagan or Bill Clinton to point to notable successes that occurred in those administrations. But I’m having a hard time coming up with nontrivial things that went as well or better than the GW administration expected or promised.
Once again, Congress has demonstrated that it notices mostly what affects rich people and can’t quite identify with ordinary Americans. And that it will not pass either spending laws or tax laws (which include a wealth of spending laws through the tax expenditure mechanism) that equitably deal with the misallocation of resources between the wealthy few and the rest of us. Tax policies operate for the high and mighty: once again, inequality is the real characteristic that matters.
The sequestration–a response to the GOP-led desire for austerity, shrinking government, and otherwise ensuring that rich people and major businesses don’t have to pay much in taxes–was ridiculous from the outset because it cut programs across the board, at a time of significant unemployment, without prioritizing programs that support the safety net or ensure education (like Head Start) or protect critical infrastructure or other needs. The only reasons it made some sense was that (1) it would finally lead to some cuts in our engorged military spending and (2) it should have permitted Congress to develop enough spine to refuse to make the Bush tax cuts permanent for anybody but those ordinary Americans making $100,000 or less.
But we all know that latter wise move didn’t happen. Congress made the ridiculous-when-they-were-enacted and more-ridiculous-still-when-they-were-made-permanent Bush tax cuts permanent for the vast majority of Americans, leaving only a smattering of wealthy Americans subject to imperceptibly higher taxes. Businesses got another extension of the equally wasteful Bush tax cuts enacted in the Bush Administration’s giveaway mode–the R&D credit (often enacted retroactively like this extension was, whose ostensible purpose is to incentivize US-based research, which a retroactive credit by definition cannot do), the active financing exception for the Banksters that got us into the Great Recession to start with, and all the rest.
So we ended up with across-the-board cuts that could not reasonably be expected to work out well for the economy–especially when Keynesian theory (the only kind of economic theory that hasn’t been roundly disproven by actual facts) suggested that we should be continuing to increase government spending to make up for the gaps in the economy from MNE hoarding of their cash offshore and consumers drawing back because of the steady decline of their spending power from job cuts and real salary decreases. IN fact, these damaging cuts were never actually expected to go into effect–Dems hoped (rather naively) that the sequester would force Republicans to support more reasonable tax increases. Repubs hoped (rather reasonably, in retrospect) that they could blame any problems on the Dems and claim credit for protecting ordinary Americans by not increasing taxes, and of course they’ve been claiming for the last months that any complaints about the problematic impact of the sequestration cuts are “exaggerated,” and “they have relished the success of forcing visible spending cuts on a Democratic administration.” Alex Pareene, Senate fixes the (part of the) sequesteration (that affects rich people)!, Salon.com (Apr. 26, 2013).
Few in Congress were ever willing to stop the gravy trains for the rich–carried interest for private equity, publicly traded “master limited partnerships” for oil and gas pipeline companies that are excepted from the ordinary treatment of publicly traded partnerships conducting businesses as corporations subject to an entity level tax; so many tax expenditures that favor Big Business that very few companies actually pay any tax on their huge profits; the assignment of income benefit of a stuck in the last century transfer pricing tax system that allows some of today’s biggest companies (Google, Microsoft, etc.) to transfer their indispensable intangible properties offshore to avoid US taxation of profits attributable to the support provided by this country, while nonetheless retaining 100% ownership and control; and of course the biggest boondoggle of them all, the preferential rate for capital gains coupled with an absurdly lenient estate tax, that together allow the rich to live richly during their lifetimes and then pass their estates with negligible tax cost and substantial tax benefits (from the “step up in basis at death” that, for example, allows heirs of master limited partnership interests to restart the perpetual tax-free profits machine).
But hark, what is this? The reductions caused by the sequester affected the ease with which rich people can get on a plane and fly to their business and vacation destinations! Such suffering. So incomprehensible how we could allow it. The Senate swiftly moves into action–this was something they hadn’t anticipated–that the sequester could actually bother some of their own class. Suddenly, They acted. In just a short time last night, with unanimous consent, the Senate voted to “let the FAA transfer some money from the Transportation Department to pay air traffic controllers.” See Alex Pareene, Senate fixes the (part of the) sequesteration (that affects rich people)!, Salon.com (Apr. 26, 2013). The House was expected to act today.
At the beginning of the sequester, most of the Republican politicians who had pressed for even much larger cuts, insisting there was much dross in the federal government, pooh-poohed any complaints that the sequester was leading to real pain for ordinary Americans. That story changes only when the rich feel any squeeze at all. As Pareene implies in his story, the media is too much of the time an unquestioning go-along in this conning of the American people:
the story of Congress hurriedly making sure the well-off minority of Americans who fly regularly don’t get briefly inconvenienced — while ignoring the costs of brutal cuts on programs for low-income Americans facing housing or hunger crises — is treated as a wonderful and encouraging display of bipartisanship.
cross posted with ataxingmatter111
Yves Smith will be on Harry Shearer’s Le Show today (Sunday), originating at 1 pm ET live on many public radio stations, and aired on many others throughout the day. Good streams are available all day, each hour, at publicradiofan.com. The topic is the Independent Foreclosure Review fiasco.
(check local listings here…)
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.
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.***
*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.
**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.
***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.
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.
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.
Re-posted from last year is Dan Becker’s post:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury,… nor be deprived of life, liberty, or property, without due process of law;
It’s all one sentence. Any questions?
The lyrics of Grand Funk Railroad’s Paranoid
Did you ever have that feeling in your life
Reader Matthew McOsker sends a note pointing us to 2004 and reading for context:
Who are the Boston Marathon terrorists? Some early reports state the men are Chechen. So where does Chechnya fit into global terrorism? I found the following piece that gives a nice summary:
” On September 1, 2004, a group of Chechen terrorists took hostage and two days later murdered at least 335 schoolchildren and parents in Beslan, a town in the Russian republic of North Ossetia. The atrocity focused world attention on Chechnya. The Russian government used the event to reiterate its arguments that Chechen terrorists and foreign jihadists supporting them have ideological, financial, and operational ties with Islamist terrorist organizations such as Al-Qaeda. Although President Vladimir Putin and top Russian security officials provided evidence of links between Chechen fighters and Al-Qaeda, European politicians and mainstream Western journalists focused instead upon the Russian army’s brutality and dismissed Putin’s claims as an attempt to gain sympathy in the West and deflect criticism of Russia’s handling of a nationalist insurgency. ”