Lessons Of The Christmas Bombing Plot

National Journal

Dick Cheney has it backward. The problem with President Obama’s counter-terrorism policy isn’t its (rather limited) divergence from the Bush-Cheney approach. The problem is Obama’s emulation of one of the biggest Bush-Cheney mistakes.

That is relying too much on unilateral presidential power and judicial improvisation rather than seeking new legislation — as two notable judicial opinions have recently urged — to legitimize and regulate the detention and interrogation of terrorism suspects outside the ordinary criminal process.

The case of the Nigerian who authorities say tried to blow up an airliner over Detroit on Christmas Day has helped expose two reasons why this presidential unilateralism is intolerable.

First, treating terrorism suspects captured in America as ordinary criminal defendants from the moment of arrest unnecessarily rules out aggressive, incommunicado interrogation that might disrupt other plots and thus save lives. New legislation could legitimize questioning such people without lawyers for a limited period (maybe 10 days, or longer in exceptional cases) before launching the criminal process.

Second, Obama’s January 5 suspension of the transfer of Guantanamo Bay prisoners to Yemen — where the Christmas bombing plot was hatched — is the latest sign that he will perpetuate for years the George W. Bush-created regime of long-term detention without trial. Obama acted even though he has recognized this approach to be inconsistent with "our values and our Constitution" unless legitimized by careful congressional, as well as judicial, oversight.

The attacks by Cheney and other conservative critics on the administration’s handling of the case of would-be bomber Umar Farouk Abdulmutallab focus on the decision to treat him as an ordinary criminal defendant, with the usual Miranda rights, lawyers counseling silence, and all the rest.

The Rot At Duke — And Beyond

National Journal

You might think that a university whose students were victims of the most notorious fraudulent rape claim in recent history, and whose professors — 88 of them — signed an ad implicitly presuming guilt, and whose president came close to doing the same would have learned some lessons.

The facts are otherwise. They also suggest that Duke University’s ugly abuse in 2006 and 2007 of its now-exonerated lacrosse players — white males accused by a black stripper and hounded by a mob hewing to political correctness — reflects a disregard of due process and a bias against white males that infect much of academia.

In September, far from taking pains to protect its students from false rape charges, Duke adopted a revised "sexual misconduct" policy that makes a mockery of due process and may well foster more false rape charges by rigging the disciplinary rules against the accused.

Meanwhile, none of the 88 guilt-presuming professors has publicly apologized. (Duke’s president, Richard Brodhead, did — but too little and too late.) Many of the faculty signers — a majority of whom are white — have expressed pride in their rush to judgment. None was dismissed, demoted, or publicly rebuked. Two were glorified this month in Duke’s in-house organ as pioneers of "diversity," with no reference to their roles in signing the ad. Three others have won prestigious positions at Cornell, Vanderbilt, and the University of Chicago.

(Disclosure: I co-authored a 2007 book on the case, Until Proven Innocent, with historian KC Johnson of Brooklyn College and the City University of New York’s Graduate Center. His scrupulously accurate blog details the events summarized here.)

The two stated reasons for the revised sexual-misconduct rules, as reported in the student newspaper, The Chronicle, almost advertise that they were driven by politically correct ideology more than by any surge in sexual assaults.

Is A Health Care Mandate Constitutional?

National Journal

A healthy 20-something might ask: Can the government really order me to spend more than $5,500 a year to buy comprehensive health insurance just because I live in the United States, even though the most I might need or want is catastrophic coverage costing less than $800?

Can they really force me to pay a big penalty "tax" if I won’t buy government-approved insurance? And can they use my money to subsidize people who are twice my age, and obese or sick, even if they have more money than I do?

The answers are yes, yes, and that’s the point! according to most of the experts who have weighed in on whether the Supreme Court would uphold a mandate for individuals to buy comprehensive health insurance unless they’re already covered by employer-based plans. They cite the justices’ very broad reading since the New Deal of Congress’s powers to regulate interstate commerce and to tax and spend.

But a hardy band of libertarian and conservative lawyers and scholars has been attacking the mandate’s constitutionality with gusto, as have congressional Republicans led by Sen. Orrin Hatch, R-Utah. He made a forceful case in leading off a December 9 Heritage Foundation panel.

Never in the history of the nation, these experts stress, has Congress adopted a law requiring people to buy a product or service simply because they exist and live in the United States. Nor has the Supreme Court held that Congress can penalize inactivity in the name of regulating interstate commerce.

Such a law would offend the libertarian streak in many Americans. It seems a stretch to see it as within Congress’s power to "regulate commerce … among the several states."

Polarized Pols Versus Moderate Voters?

National Journal

What explains the ever-more-bitter ideological polarization that roils our politics today? Is it a reflection of an ever-more-bitterly polarized public? Or are most Americans relatively moderate and thus poorly represented by their immoderate political parties and elected representatives?

These questions have been the subject of lively debate among political scientists in recent years. Now comes Morris Fiorina, a scholar at Stanford University and the Hoover Institution, with a new book announcing its thesis in the title: Disconnect: The Breakdown of Representation in American Politics.

Fiorina is the leading exponent of the view that the public is no less moderate and no more polarized than in the past, and thus is ill-served by fervently liberal and conservative elected representatives and political activists.

The Fiorina book will not end the debate about what he has called "the myth" — and other political scientists insist is the reality — of a deeply polarized electorate. But the author does cite new evidence that our elected representatives cleave more dramatically to the left and right ends of the political spectrum than those they purport to represent. He also helps illuminate the causes of the undoubted polarization of political elites over the past generation while adding some insights, such as why many self-described conservative voters are less conservative than you might think.

No Need To Fear A Manhattan Terrorist Trial

National Journal

The heated second-guessing by conservatives of Attorney General Eric Holder’s decision to hold a civilian trial in Manhattan for Khalid Shaikh Mohammed and four others charged as co-conspirators in the 9/11 mass murders is to some extent understandable.

Of course, it’s fatuous to rant, as some Republicans do, that a law enforcement response to terrorist war crimes is some kind of illegitimate Democratic invention. The Bush administration combined war-on-terrorism rhetoric with civi-lian criminal prosecutions of would-be shoe-bomber Richard Reid, would-be hijacker Zacarias Moussaoui, and scores of lesser terrorist wannabes. Congress has given the government the options of trying such people in civilian federal courts or by military commissions, or detaining them without charge as enemy combatants. The circumstances dictate which approach makes the most sense in any specific case.

The best choice in this instance is "a tough call," as Holder testified on November 18 to the Senate Judiciary Com-mittee. That’s because removing these five defendants from the military commissions where their cases began to a civi-lian federal court in Manhattan will have real costs, as former Attorney General Michael Mukasey and some other se-rious analysts argue.

Specifically, a civilian trial will increase the risk that sensitive national security secrets will spill out. It will give defendants a bigger stage on which to rail about CIA "torture" and demonize America. It will make the judge, prosecu-tors, jurors, and the courthouse targets for terrorists. It could theoretically lead to acquittals or dismissals of charges on technical grounds. And it plays into the loud complaints by human-rights activists that the administration is relegating to second-class justice the terrorist defendants who are still to be tried by military commissions.

America’s Prison Spree Has Brutal Impact

National Journal

The November 9 Supreme Court arguments on whether it is cruel and unusual to impose life in prison without parole on violent juveniles who have not killed anybody understandably got prominent media coverage.

But a far more important imprisonment story gets less attention because it’s a running sore that rarely generates dramatic "news." That is our criminal-justice system’s incarceration of a staggering 2.3 million people, about half of them for nonviolent crimes, including most of the 500,000 locked up for drug offenses.

Forty percent of these prisoners are black, 20 percent are Hispanic, and most are poor and uneducated. This has had a devastating impact on poor black families and neighborhoods, where it has become the norm for young men — many of them fathers — to spend time in prison and emerge bitter, unemployable, and unmarriageable. (These numbers come from studies cited by Marc Mauer, executive director of the Sentencing Project, a reform group.)

America imprisons seven times as many people as it did in 1972, several times as many per capita as other Western nations, and many more than any other nation in the world.

Yes, violent criminals should be locked up for long enough to protect the rest of us. But the mass, long-term imprisonment of nonviolent, nondangerous offenders in recent decades and excessive terms for others has made us no safer while ruining countless lives and converting potentially productive citizens into career criminals.

Troubling Signals On Free Speech

National Journal

It was nice to hear Secretary of State Hillary Rodham Clinton say on October 26, "I strongly disagree" with Islamic countries seeking to censor free speech worldwide by making defamation of religion a crime under international law.

But watch what the Obama administration does, not just what it says. I’m not talking about its attacks on Fox News. I’m talking about a little-publicized October 2 resolution in which Clinton’s own State Department joined Islamic nations in adopting language all-too-friendly to censoring speech that some religions and races find offensive.

The ambiguously worded United Nations Human Rights Council resolution could plausibly be read as encouraging or even obliging the U.S. to make it a crime to engage in hate speech, or, perhaps, in mere "negative racial and religious stereotyping." This despite decades of First Amendment case law protecting such speech.

To be sure, the provisions to which I refer were a compromise, stopping short of the flat ban on defamation of religion sought by Islamic nations, and they could also be construed more narrowly and innocuously. It all depends on who does the construing.

Is it "negative stereotyping" to say that the world’s most dangerous terrorists are Islamists, for example? Many would say yes.

I sketch below how the resolution could be construed to require prosecuting some offensive speech and how it could be used in the long run to change the meaning of our Constitution and laws, based on doctrines developed by legal academics including Obama appointee Harold Koh, the State Department’s top lawyer.

Selective Concern On Sex Imbalances

National Journal

Women now claim more than 57 percent of all bachelor’s degrees, 61 percent of all master’s degrees, and half of all professional and doctoral degrees, according to Education Department data cited by University of Michigan economist Mark Perry and others. They also earn more Ph.D.s than men in the humanities, education, health sciences, and social sciences, in-cluding two-thirds of new psychology doctorates.

Such data might find a principled administration and academic establishment busy documenting and attacking discrimination against or cultural hostility toward underrepresented males.

After all, it is an article of faith in the Obama administration, Congress, and much of the academic establishment that there are no innate differences between females and males in interests or cognitive capacities. From this dubious premise, they conclude that only pervasive, ongoing sexism and stereotypes can explain the huge gender disparities in academic fields — hard sciences, engineering, and mathematics — that are still male-dominated.

But advocates of this disparity-proves-discrimination dogma apply it quite selectively. They have shown virtually no concern about the small and shrinking percentages of males in colleges generally and in most academic fields.

Instead, the interest — self-interest, in many cases — of the gender-equity cops is in pushing for spending programs, hiring goals, and other preferential treatment for women and girls over men and boys in hard sciences, engineering, and math.

Administration officials and others are "promising to litigate, regulate, and legislate the nation’s universities until women obtain half of all academic degrees in science and technology and hold half of the faculty positions in those areas," as my colleague Neil Munro detailed in the July 4 National Journal.

Detainees: Obama’s Missed Opportunity

National Journal

The 221 mass murderers, wrongly imprisoned innocents, and possibly dangerous in-betweens still at the Guantanamo Bay prison camp (at this writing) rank among the most vexing messes that President Obama inherited from his predecessor.

But this mess also presented Obama with the opportunity to seek detailed legislation to put on a sound legal footing the long-term, noncriminal detentions of the many at Guantanamo who are provably dangerous enemy fighters but cannot be convicted of crimes.

Obama should also stop dragging his feet on releasing those detainees who are clearly innocent or at least not provably dangerous. Some of those men continue to languish at Guantanamo despite federal court decisions over the past year finding no evidence to justify their detention and ordering their release.

The president commendably said in May that he would "work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution." But he reversed himself last month, thereby perpetuating a Bush-created detention process that is neither fair nor credible.

Based on palpably biased military hearings, the Bush team classified all of these men as "enemy combatants" — a phrase that the Obama team ostentatiously rejected while adopting the underlying legal concept.

The fundamental flaw in the Bush policy was reliance on unilateral presidential power rather than detailed legislation, which could have crystallized a national consensus on how to guard against mistaken detentions while also ensuring the fairness of the military commissions that Bush created to prosecute detainees accused of war crimes.

Health Reform And Truth-Telling

National Journal

President Obama is rightly concerned that our health care system leaves many Americans without insurance when they need it most and is hugely inefficient, with costs soaring toward crisis proportions unless something changes.

Few of Obama’s Republican critics have signed on to any credible plan of their own to address these inexorably growing problems. Some have reneged on earlier support for mandating that individuals buy insurance. And many hurl demagogic accusations that the president would usher in "death panels" and overheated alarums ("You lie!") about peripheral issues such as whether illegal immigrants or abortion-seekers would benefit.

As for voters, most seem satisfied with their own health care — still the world’s best in important ways — and unwilling either to pay more to help less fortunate people or make even small sacrifices to control costs. They also seem oblivious to the real problem underlying the "death panel" demagogy, which is the unavoidable need to hold down the 30 percent of Medicare spending that goes to sometimes-unwanted, often-not-very-beneficial treatments for chronically ill patients in the last two years of life.

So it would be unrealistic to expect complete candor from any president about the costs and risks of extending health insurance to 30 million more Americans. If Obama can meet the truthfulness test applied by Huckleberry Finn to his creator Mark Twain — "There was things which he stretched, but mainly he told the truth" — that would be good enough for me.

But can he? Despite Obama’s good intentions, I can’t help thinking that the deviations from truth-telling identified by various critics go to the heart of his plan, compromise his credibility, and could accelerate health-cost inflation with ruinous consequences for the economy. Examples: