Korematsu and Warrantless Eavesdropping

I had my first experience with the new editorial page editor, who took my suggestion for a headline--his predecessor never did--but who decided he didn't like my lede and rewrote mine. He changed the first two paragraphs to read thusly: "For the Bush administration and its supporters, the Constitution is like the "Pirates' Code:" more like guidelines. Nice, but if the law gets in the way of doing what they claim is necessary, then it becomes irrelevant -- permanently." I like my version better, so I changed it back. But you can see the newspaper version here. He also inserted the two internal headlines, which I've added.

The Bush quote is from a transcript available on the White House website. Hat tips: Kevin Drum for the Schlesinger quote, Timothy Noah for the link to the White House transcript.

So I'm quoting from Justice Robert Jackson, Arthur Schlesinger, Eugene Rostow, and Pirates of the Caribbean in this column. Just another week at the East Valley Tribune.

We Always Regret It In The Morning
East Valley Tribune, Dec. 25, 2005

There’s little danger of the Constitution becoming a suicide pact, because the Bush administration (and its supporters) don’t consider the Constitution an actual “pact.”

Instead, the Constitution is like the “Pirates’ Code”: more like guidelines. Nice, but if the law gets in the way of doing what they claim is necessary, then it becomes irrelevant -- permanently.

Because (cue theme music) September 11 changed everything, forever. People who used to worry about FBI files and jack-booted thugs now willingly trade their freedom -- and yours -- for “security.” They’re more than happy, as one ‘winger blogger put it, “to give up a portion of ‘privacy’ that I didn’t realize I had in order to more effectively combat the people who have declared war on us and are trying to kill us.”

Never mind Benjamin Franklin, who said that “those who would give up essential liberty for temporary safety deserve neither.” Franklin got tossed overboard, along with the Bill of Rights.

Government of Laws?

Here’s what it now means to be a “conservative”: Supporting warrantless searches and eavesdropping. Supporting an overseas network of secret prisons, and cruel and inhumane treatment. Supporting broad executive powers that can be reviewed by, or known to, only the executive -- including the right to hold U.S. citizens indefinitely without charge and without trial. And all because you “trust” the current president, because Sept. 11 gave us a government of men, not laws, and if I don’t agree, then I’m a traitor.

President Bush called the 2004 elections his “accountability moment.” We now learn that he thinks the election gave him approval for things he’s kept secret from most of Congress and the American people. Now that’s accountability!

Here’s Bush, in April of 2004: “Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so. It’s important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.”

Exactly. We value the Constitution -- except when we don’t. Who needs the terrorists to hate us for our freedom, when the Bush administration and its supporters are doing such a terrific job already?

Inspired Argument

In law school, I took my first-term Constitutional Law course from the late Eugene Rostow. Prof. Rostow was nearing retirement, and any thrill of explaining basic concepts to another group of wet-behind-the-ears law students had worn pretty thin by then. I grew increasingly disenchanted with the class until the day I stumbled across Rostow’s 1945 law review article, “The Japanese American Cases -- A Disaster.”

It was the law school equivalent of seeing Willie Mays in his prime. Rostow mercilessly tore apart the shoddy logic and abdication of thought in the Supreme Court decisions upholding the wartime internment of Japanese-Americans. He attacked the court for blindly accepting assertions by government officials as sufficient to detain citizens, largely based on race and ethnicity, without limit and without remedy: “Unless the courts require a showing, in cases like these, of an intelligible relationship between means and ends, society has lost its basic protection against the abuse of military power.” And -- in 1945! -- he presciently attacked the court for approving those detentions, for converting “a piece of war-time folly into political doctrine, and a permanent part of the law.”

History has shown that there was no good reason to intern Japanese-Americans; we abandoned our principles unnecessarily, to our shame. It’s easy to scare people into abandoning some freedoms permanently for a threat that turns out to be overblown, often fancifully. But as Arthur Schlesinger once said, whenever America does things like this, we always regret it in the morning.

Professor Rostow knew that America had gone overboard and made a permanent mistake, one that every serious historian recognizes today. Aren’t there any “principled conservatives” willing to take up Rostow’s mantle today?

"Disemvoweling" the GOP Coalition

The Tribune has a new editorial page editor; Bob Schuster leaves to oversee the Arizona Republic's Southeast Valley edition editorial pages, and will be replaced by Bob Satnan, who had been the Scottsdale editor. The "New Bob" seems to be a hard news guy (here's a 1998 article describing Thomson's purchase of the Tribune papers, which mentions him and which of course is now ancient history as it's a Freedom paper now; in 1993, he was promoted to Scottsdale Editor. His nickname is "Big Dog." I have no idea what this means for the Tribune's editorial stances, but I suspect that the Freedom people will make sure that it doesn't mean all that much. (Vouchers! Tax cuts! Less government except we're cool with warrantless wiretaps!)

In his last encounter with my stuff, the outgoing editor took out "la visas Bush" in the 8th paragraph and "Clintonesque? That's got to hurt." at the end of the 9th paragraph. It doesn't appear to be a space issue. I've put them back in.

TODAY'S COLUMN BROUGHT TO YOU BY THE LETTER "I"
East Valley Tribune, Dec. 18, 2005

I’d rather argue religion with strangers than try to fix U.S. immigration law, but as a connoisseur of political disasters, I plan to enjoy watching this year’s wedge issue divide the Republicans for a change.

Normally, the GOP and its media allies carefully select bogus “cultural” issues that discomfort only Democrats. School prayer, Merry Christmas vs. Happy Holidays, flag burning, “freedom fries” -- there’s nothing too insignificant to deserve a constitutional amendment and the constant focus of Bill O’Reilly.

But immigration is different. First, it’s a government issue, whose solution can’t be “outsourced” to India or the private sector. Suddenly, it matters that Republicans totally control all three branches. They can try blaming Ted Kennedy, but nobody’s buying that.

Second, usually all Republicans either robotically repeat the talking points or get well out of the way. Even so-called “maverick” John McCain, who once derided George W. Bush as a “Pat Robertson Republican” and called Jerry Falwell a “peddler of intolerance,” now hobnobs with both reverends and endorses teaching “intelligent design.”

But the GOP base has definite ideas on immigration that don’t fit with the administration’s political plans. The Bush administration had developed a carefully-calibrated scheme, one that really wouldn’t do anything to resolve the immigration and border messes, but one that pretended to give something to each key part of the GOP coalition. There’s tough-sounding border enforcement for the base, and there’s a guest-worker program, key for both big business and Hispanic outreach.

It should have worked, because the Bush guest-worker program is designed as precisely (and as fraudulently) as the Medicare drug benefit. As UCLA law professor Jonathan Zasloff wrote, no rational illegal alien would take Bush’s offer of a three year permit. Most undocumenteds are here for a better life, for themselves and their families; that’s nearly impossible to manage with only three years at lower-end wages.

The real beneficiaries of the guest-worker proposal would be big business, particularly agriculture. Currently, they keep the workers in line by threatening them with deportation. Under Bush’s plan, they’d have to fire troublesome employees first, but as soon as they lose their job, they’re deportable again. For the cost of a photocopy, agribusiness keeps its supply of low-wage, no-rights workers.

But a guest-worker program sounds good (especially in Spanish: “las visas Bush”) to Latino voters the GOP covets -- who turned California solidly blue in reaction against Pete Wilson and Prop. 187. That it’s a crummy deal for the illegals, and that it’s actually designed to avoid employer screening and sanctions, are beside the point, which was to make the GOP seem sensitive to Hispanic concerns.

As Prof. Zasloff notes, unfortunately the GOP base didn’t get the memo. They are screaming bloody murder because they view this doomed-to-failure guest-worker plan as an amnesty that would reward to those who came here illegally. It’s too generous for the angry, angry base: Rep. Tom Tancredo’s spokesman called President Bush “Clintonesque” for advocating amnesty under a different name. Clintonesque? That’s got to hurt.

Meanwhile, it’s caused Arizona’s congressional delegation to overdose on turning nouns into verbs. Rep. Jeff Flake complains that Rep. J.D. Hayworth “has gone Tancredo on us,” while Hayworth demurs: “I have not been Tancredoed. I’ve been Arizonaed.” Neither is helping the cause of the English language.

Usually staunch GOP allies, like the U.S. Chamber of Commerce, the National Restaurant Association, and the Associated General Contractors, are vehemently opposed to the House GOP immigration bill. These groups claim they will consider it a “key vote” for determining future support. Will the GOP will cave to the lobbyists, or will the lobbyists cave to the GOP? I’m betting on the latter, because what lobbyist can’t be bought with a couple hundred million of unrelated tax cuts?

It’s “Sesame Street” politics. Today, we’re learning that nobody, in either political party, can trust Bush on things that start with the letter “I”: Iraq, intelligence, and now immigration. Welcome to the wedge!

The Latest Stupid Right-Wing Healthcare Idea

This column had an incorrect headline--I wrote about the brand new 'winger pipedream, South Carolina Medicaid reform, but my editor gave it the headline, "GOP Medicare reform: Pay more for less care." That's true, but that's not what I wrote about. He also left in the editorial italic cues ([ital] and [unital]). Must have been a busy week.

GOP MEDICARE REFORM; PAY MORE FOR LESS CARE
East Valley Tribune, Dec. 11, 2005

Social Security privatization died, and the Medicare drug benefit is a mess, so what’s the latest hot conservative idea? Combine and package them as “Medicaid reform”!

Right-wingers’ latest infatuation is South Carolina’s plan to give most Medicaid beneficiaries a “personal health account” to choose either a health insurance plan or a physician network to manage their care. Some beneficiaries (the healthiest and savviest, only 5,000 people by most local estimates) could even “self-direct” their care.

Unfortunately, this plan combines the worst of Social Security privatization (changing a defined-benefit program into a defined-contribution one, which never works well for the rank-and-file, even if those at the top benefit) and the Medicare drug benefit (with its increased administrative costs, confusion, and mandated inability to negotiate lower costs).

The plan also fundamentally misunderstands the statistical basis of insurance. Under managed care, Medicaid or a private insurer gives a provider a set amount per patient, and with a sufficiently large number of patients, ones that need less care than average help make up for patients who need more. But if you try to make each person meet the average, it just doesn’t work. That’s the South Carolina plan -- hoping that, just like children in Lake Wobegon, everybody’s above average.

Only people covered by really good group insurance (like the federal employee pool), or who never have gotten sick, could like this plan. Personal health accounts are, as one expert put it, umbrellas that melt in the rain. That may be economically interesting, but it’s not insurance -- as you’ll learn if, in healthcare terms, you’re forced to move from the desert to Seattle.

South Carolina’s plan also is based on several falsehoods. It’s not true that Medicaid costs more than private insurance. It’s not true that Medicaid encourages people to use more healthcare than necessary. And it’s not true that Medicaid has more administrative costs than private insurers.

Comparing Medicaid to private insurance is like the joke about the two hikers who stumble across a bear. One guy stops to put on running shoes, and his friend asks, “Why bother? You can’t outrun a bear.” The man replies, “I don’t have to outrun the bear. I just have to outrun you.”

According to the Bush administration’s Centers for Medicare and Medicaid Services, nationally Medicaid’s administrative costs are 6.9 percent of total program costs, while private health plans’ administrative costs average 13.9 percent, twice as much. In 2004, South Carolina’s administrative Medicaid costs were only 4.6 percent. South Carolina essentially plans to triple its administrative overhead and costs -- and that’s before any new costs of counseling beneficiaries on their options and managing the proposed home health networks.

Counseling for beneficiaries would be absolutely necessary. What South Carolina proposes is a Medicaid-based version of the new Medicare prescription drug benefit. You know how simple and easy-to-understand that’s been for your over-65 friends and relations? And how enjoyable you find reviewing dozens, even hundreds, of potential investment strategies for your 401(k) plan? That’s the South Carolina plan!

But the real point of what South Carolina proposes is to give politicians plausible deniability when hundreds of thousands of people pay more and get less care. It’s really about making the poor and working families pay for tax cuts for the rich, the same old story we’re seeing in Congress, too.

South Carolinians got a vivid example of this reality when a U.S. Senate subcommittee came to Charleston to support the plan. The GOP-controlled hearing had a half-dozen Republicans in support and one lone Democratic opponent. No current Medicaid recipient got to speak.

The State newspaper quoted Kimberly Snipes, a Medicaid recipient who sat through the hearing: “You mean they couldn’t find one person out of 850,000 on Medicaid that was educated enough to have any ideas or any thoughts about how money could be saved and how health care could be improved? And they say these are the people they want to empower?”

Medicaid needs fixing, but this plan isn’t it. This latest infatuation isn’t about empowerment, choice, or better care. Instead, it’s all about the Benjamins.

Right-Wing Nutjob Turns Out To Be Corrupt Right-Wing Nutjob. But I Repeat Myself.

The newspaper version of this week's column is here. Meanwhile, I have now written the Fiesta Bowl out of my will (like they were there anyway) for choosing Notre Dame over Penn State. I have no specific expertise on whether we'll get a better or worse football game, but I can clearly state that the parties here just won't be as good with the Barash-Coppersmith-Fredman family going to the Orange Bowl instead.

GOP STALWART HID CORRUPTION IN 'BLACK BUDGET'
East Valley Tribune, Dec. 4, 2005

Funny how people who know so much about governing two countries (the U.S. and Iraq) had absolutely no clue Randy “Duke” Cunningham was thoroughly corrupt.

Cunningham was an 8-term California GOP congressman who -- after promising to fight the charges -- admitted taking bribes and resigned his seat. It was guaranteed to end badly when, as the initial charges became public, Cunningham was called a “hero” and “an honorable man of high integrity” by Tom DeLay. Takes one to know one.

Duke’s a crook -- and one who liked to impugn other people’s honesty and patriotism, like when he said House liberals should be “lined up and shot,” or made crude jokes about a gay colleague, or called Rep. Pat Schroeder a “socialist,” or said President Clinton was a “traitor” and that “Tokyo Rose had nothing over Clinton.”

Cunningham also sponsored the “No Frills Prison Act,” which was a sound-bite masquerading as a bill, pretending to do away with unnecessary prison amenities. He’ll now get examine the problem, from the inside, for up to five years per guilty plea.

With so many legal ways of taking money from lobbyists and government contractors, like funneling money to a foundation sponsoring “educational” trips to Scotland’s golf courses or hiring your wife as a lobbyist, it’s amazing that Cunningham just took out-and-out bribes. The story broke when newspapers reported that in 2003 Cunningham sold his home to Mitchell Wade, president of defense contractor MZM Inc., for $1.675 million. Wade then sold the house several months later, during a housing boom, for $700,000 less. A local realtor, who wrote a letter justifying the sale price, was a long-time Cunningham campaign contributor. To top it off, Wade also let Cunningham stay for free in D.C. on Wade’s 42-foot yacht, the aptly-named “Duke-Stir.”

There was more -- Cunningham made about $400,000 in profit selling a boat to businessman Thomas Kontogiannis, who had been convicted of embezzlement and who says he sought Duke’s advice about getting a presidential pardon. Another defense contractor, Brent Wilkes of ACDS Inc., gave Cunningham use of his boat. Duke also took payments to cover the capital gains tax he incurred when he sold his former house to Wade, to pay for his daughter’s graduation party, and for $30,000 for purchase and repairs to a Rolls-Royce he bought in 2002.

But that was just the cash. Cunningham also got some surprisingly frou-frou gifts: three antique nightstands, a leaded-glass cabinet, a washstand, four armoires, and one buffet. But my favorite is an antique 19th century Louis-Philippe commode, valued at $7,200. (For those not up on congressional corruption or French, a commode is a chest with drawers, not the other device.)

It all added up; according to the indictment, in 2004 Cunningham reported taxable income of $121,079, when his actual income (including bribes) was at least $1,215,458.

So what did Cunningham do to “earn” that money? He used his perches on the House Defense Appropriations and Intelligence committees to stuff money in appropriations bills that could be steered, then leaned on officials at the Pentagon to give contracts to MZM and ACDS. But how does just one congressman, even a well-placed senior one, manage to steer millions in contracts to people paying him bribes?

Part of the answer may be in the magic words “war on terror,” which can cloak a multitude of sins, including financial ones. The Defense Department’s classified budget has increased significantly (about 48 percent) since 9/11, to $26.9 billion this fiscal year. While any member of Congress can go to the secure room in the Capitol to study the secret spending, in practice nobody does -- so the “black budget” can be a wonderful place to hide things that can’t stand the light of day, like unnecessary contracts to companies paying bribes.

So the next time you hear members of Congress bloviate about rooting out waste, fraud, and abuse, ask how much time they’ve spent reviewing the black budget before approving $26.9 billion of spending. And ask how good a job they did in uncovering the blatant corruption of one of their colleagues, Duke Cunningham.