2010 - %3, February

What Happened to John Yoo's Emails?

| Thu Feb. 25, 2010 9:00 PM EST

Hmmm. "Most of" John Yoo's emails from his stint writing torture memos for the Justice Department were deleted before he left. You know, it takes a pretty deliberate effort to delete emails and make them nonrecoverable. CREW wants an investigation.

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Healthcare Summit Wrapup II

| Thu Feb. 25, 2010 6:35 PM EST

A quick followup on my previous healthcare summit posts.

First, Obama's big closing issues were covering 30 the million uninsured and doing something about preexisting conditions. Those are smart choices because (a) they're popular issues with the public and (b) they're poison for Republicans. Their plans simply don't (and can't) cover a substantial number of the uninsured because you can't do this in a private system without federal subsidies, and that requires tax increases. Likewise, solving the preexisting condition problem within a private system leads you inevitably to a mandate and subsidies, which requires a tax increase. They're stuck.

Second, his basic message was a promise to consider some changes to his current position and a challenge to Republicans to do the same instead of merely insisting on starting over from scratch. "If we saw movement, significant movement, not mere gestures, we wouldn't have to start over," he said. In other words: cut the talking points and get serious about addressing real problems.

Will it work? It depends on what you think "work" means. There's no chance of Republicans making any concessions, of course, but Obama's stated willingness to consider their ideas might help win over public opinion and stiffen some Democratic spines. But that largely depends, I think, on how the press ends up playing this. Stay tuned.

EPA Block Bad for Auto Industry, Says DOT

| Thu Feb. 25, 2010 6:27 PM EST

Efforts underway to block the Environmental Protection Agency from regulating greenhouse-gas emissions would "profoundly" harm the already-ailing auto industry, warned the Department of Transportation in a letter.

A measure from Lisa Murkowski (R-Alaska) to block the EPA’s finding that greenhouse gases threaten public health puts in peril a deal on automobile emissions made between state governments, the Obama administration, and the auto industry, both the DOT and EPA administrator Lisa Jackson warned this week. The EPA, DOT, and the White House last year worked out a deal to unify the higher state auto standards, first adopted by California, and the federal standard into one program that takes into account both miles per gallon of gasoline and the amount of emissions from a vehicle.

The deal was significant, as the auto industry had been a major opponent of the tougher state rules. The Auto Alliance and others in the industry have been supportive of the endangerment, as it would eventually subject other companies to rules it is already preparing to follow.

A federal plan is better than “the pre-existing patchwork of standards that would have required companies to build separate fleet for different states,” wrote O. Kevin Vincent, chief counsel at the National Highway Traffic Safety Administration, in a letter to the office of Sen. Dianne Feinstein (D-Calif.) provided to Mother Jones. The EPA is expected to announce the first rules for vehicles by the end of next month for model year 2012 vehicles, but that announcement is rooted in the finding that Murkowski’s effort intends to block.

Murkowski maintains that her effort is a response to fears that EPA rules will be economically catastrophic. But DOT's argument is that her block will be problematic for at least one major industry, too.

The Al Qaeda-Harmonica Link

| Thu Feb. 25, 2010 6:25 PM EST

On Tuesday, the Supreme Court heard oral arguments on a pair of cases that challenge the existing federal ban on providing "material support" to terroristson account of the fact that "material support," as you might expect, can be taken mean almost anything. Including, it turns out, teaching a terrorist to play the blues. Let's check the transcript (pdf):

JUSTICE SOTOMAYOR: Under the definition of this statute, teaching these members to play the harmonica would be unlawful. You are teachingtraining them in a lawfulin a specialized activity. So how do wethere has to be something more than merely a congressional finding that any training is bad. [emphasis mine]

Solicitor General Elena Kagan, quick on her feet, told Sotomayor that such a scenario was unlikely. Terrorists, as anyone with even an elementary education knows, hate bluegrass: "Now you say well, maybe training aplaying a harmonica is a specialized activity. I think the first thing I would say is there are not a whole lot of people going around trying to teach Al Qaeda how to play harmonicas."

But Justice Antonin Scalia, for one, was unconvinced: "Well," he retorted, "Hamid Hatah [note: I think he means Mohammed Atta] and his harmonica quartet might tour the country and make a lot of money. Right?" 

Healthcare Summit Wrapup

| Thu Feb. 25, 2010 6:00 PM EST

So what will be the basic Obama/Gibbs media takeaway from the healthcare summit? I figure there are three main possibilities:

  1. "I'm disappointed that Republicans just fell back on the same old talking points instead of having a serious discussion."
  2. "Our differences turned out to be pretty fundamental after all: we want to tackle real problems and Republicans just want to tinker around the edges. But I'm convinced the American people prefer something to nothing."
  3. "I'm grateful that Republicans had some good ideas, but they fell far short of addressing our real problems."

If I were president, I'd choose #1. Luckily, I'm not, and I figure Obama will pretty much choose #3. The initial reaction of the press, however, appears to be "Jesus, what a waste of time."

Which it pretty much was.1 As an aside, this is why I wasn't very excited about the idea of holding regular versions of the "question time" that Obama held with congressional Republicans last month. They got taken by surprise then, but there was never any chance that would happen a second time. And it didn't. They were armed with every talking point in the book this time, and some of those talking points resonate pretty well. What you saw today is about what any future question time would look like.

1Just to be clear, I mean a waste of time substantively. In terms of its impact on the politics and public opinion of healthcare reform, we'll have to wait and see.

Financial Link Dump

| Thu Feb. 25, 2010 4:44 PM EST

Looking for something to do instead of watching more healthcare bloviating? Mike Konczal has a bunch of good posts up:

Go read. It's all good stuff.

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Feb Madness: the NCAA, CBS, and Focus on the Family

| Thu Feb. 25, 2010 3:30 PM EST

Just weeks after CBS came under fire for airing a pro-life Focus on the Family ad staring Heismann-Trophy-winning quarterback Tim Tebow, the National Collegiate Athletic Association—CBS' broadcast partner for college men's basketball's upcoming March Madness tournament—is now taking heat for a FOF ad on NCAA.com, reports Inside Higher Ed's Doug Lederman. 

The ad featured an image of a grinning father holding his baby boy next to the words "Celebrate Family. Celebrate Life." Beneath the photo: "All I want for my son is for him to grow up knowing how to do the right thing." Though the message may seem benign at first, if you know anything about Focus on the Family and its mission, then its clear the "family" the ad references is a traditional, heterosexual one and the "right thing" the ficticious father hopes his son will come to understand is that women should not have abortions. Internet turmoil over the ad erupted Monday when professor-turned-blogger Pat Griffin first noticed it on NCAA's site. Other blogs and organizations that support gay and lesbian athletes picked up on Griffin's post, a Facebook group formed, and by midday Tuesday, the ad had been removed from the NCAA's site. Did the NCAA really not know what it was getting itself into after the fracas over Focus' Superbowl spot? It must have.

NCAA spokesman Bob Williams told Chronicle of Higher Ed reporter Libby Sander that its officials work "closely" with CBS to approve and schedule online advertisements, "regularly" review the content of those ads, and "make adjustments as appropriate." And according to Lederman, the controversial Super Bowl ad and this NCAA.com ad are both part of a larger advertising deal struck between CBS and FOF which may mean more controversial commercials are to come during March Madness TV timeouts.

Pat Griffen nailed the crux of this problem on her blog: "The issue here is not the right of CBS, a for-profit organization, to set their own advertising standards around so-called 'advocacy' ads, even if we don’t like them. The issue is the involvement of the NCAA, a non-profit educational organization made up of hundreds of member institutions across the USA, allowing itself to be associated with advertising that is in contradiction to the NCAA’s own written standards and organizational mission." The NCAA's core values includes "an inclusive culture that fosters equitable participation for student-athletes" and "respect for philosophical differences," values that are compromised when it promotes advertisement of an organization like FOF.

New Torture Memos Mystery

| Thu Feb. 25, 2010 3:00 PM EST

When Office of Professional Responsibility's long-awaited report on the torture memos was released last week, it noted that the nearly 5-year investigation had not been "routine." The inquiry was hampered by a number of factors, including an "unprecedented" case load, but the most eyebrow raising impediment was this:

OLC initially provided us with a relatively small number of emails, files, and draft documents. After it became apparent, during the course of our review, that relevant documents were missing, we requested and were given direct access to the email and computer records of [REDACTED], Yoo, Philbin, [Assistant Attorney General Jay] Bybee, and [Assistant Attorney General Jack] Goldsmith. However, we were told that most of Yoo's email records had been deleted and were not recoverable. Philbin's email records from July 2002 through August 5, 2002—the time period in which the Bybee Memo was completed and the Classified Bybee Memo...was created—had also been deleted and were reportedly not recoverable.

On Thursday, Citizens for Responsibility and Ethics in Washington (CREW) requested that Attorney General Eric Holder launch in investigation into the deleted emails. CREW notes that at the very least the destruction of the emails flouts the Federal Records Act (FRA). But if the emails were deep-sixed intentionally, CREW says, there may be criminal implications.

In a statement, CREW executive director Melanie Sloan said:

Given the disappearance of millions of Bush White House emails, we shouldn’t be surprised that crucial emails also disappeared from the Bush Justice Department. The question now is what is the Attorney General going to do about it? Even if Mr. Yoo and Mr. Philbin did not violate their professional obligations by writing the torture memos, they—or others seeking to hide the truth—may have broken the law by deleting their emails.
 

Obama's Hole Card: Preexisting Conditions

| Thu Feb. 25, 2010 2:45 PM EST

Here's my idiosyncratic halftime take on the White House's goal at today's healthcare summit. The one topic that Democrats keep hammering on over and over is the problem of insurance companies refusing to cover people with preexisting conditions. "This is an area where we can come together," Obama says. Republicans, in contrast, have been relentlessly trying to talk about everything but this. They've barely acknowledged the preexisting conditions problem at all.

For Obama, this is the ballgame. My guess is that he wants to maneuver Republicans into either (a) admitting that they're unwilling to regulate this, which would be highly unpopular, or (b) admitting, however grudgingly, that the practice needs to be banned. Because if they admit it has to be banned he can make the following argument:

  • If insurance companies are forced to take on all comers, then people can game the system by buying insurance only when they get sick. This would obviously decimate the private insurance industry.
  • So you have to require everyone to buy insurance at all times. It's the only way to have a broad pool that keeps costs down (another frequent Obama talking point.)
  • But obviously you can't force poor people to buy insurance they flatly can't afford. So if you mandate coverage, then you have to subsidize low-income families that can't afford insurance, and you have to provide incentives for small businesses so that they can cover their employees.
  • And if you do that, you have to have a funding source. Preferably one that also helps rein in premium costs. Like, oh, an excise tax.

This seems to be the direction he's trying to push things. The question is (a) can he force Republicans to address this? and (b) can he then make the rest of the argument in plain enough terms that it makes sense to everyone?

This is, basically, a debating trick, and Republicans obviously want to avoid getting sucked into it. This is why they try to mumble a bit about high-risk pools and then quickly move on. But the preexisting conditions problem is one of the few issues that almost universally resonates as unfair with the public, and Obama's job is to get everyone to understand what it takes to fix it. If he does, he'll come out of today's summit in better shape than he went in.

Don't Call Me Madoff!

| Thu Feb. 25, 2010 2:30 PM EST

Citing safety concerns, Bernie Madoff's daughter-in-law Stephanie has legally petitioned to change her name—and those of her young children—to "Morgan," the New York Post reports. It's unlikely, of course, that anyone would hurt a couple of toddlers (the children are one and three). But more than a few who lost their life savings to history's biggest swindler probably fantasize about taking a broken bottle to Stephanie's husband, Mark Madoff, who filed an affadavit in support of the name change.

In our January/February issue, reporter Erin Arvedlund, the first non-trade journalist to question Madoff's unusually consistent returns, provided a still-current update on the status—legally and otherwise—of Madoff's inner circle, including his two boys, Mark and Andrew. Here's one snippet from our report, "Meet the Madoff Minions." (Picard is Irving Picard, the court-appointed trustee in the Madoff bankruptcy case.)

Papa Madoff claimed his boys, who codirected trading at the firm, learned of the fraud only when he told them, days before his arrest. Alternate theory: Madoff knew the jig was up and took the fall to protect his family. Mark Madoff withdrew nearly $67 million from company accounts over the years, trustee Picard alleges, and divides his time between a $5.6 million Manhattan apartment, a $6.6 million Nantucket home, and a $2.2 million pad in Greenwich, Connecticut. All told, Mark got more than $29 million in salary and bonuses, and racked up $797,000 in personal expenses on the corporate AmEx. Andrew Madoff received more than $31 million in compensation, Picard claims, and used another $32 mil to cover expenses such as a $300,000 investment in Blow Styling Salon, LLC, and a $75,000 payment to Lock and Hackle, a members-only fly-fishing and hunting club. And waiter beware: After dropping more than a grand on the corporate card at Manhattan's swank Per Se, Andrew left a miserly $60 tip. Picard is suing Mark and Andrew, along with Bernie's brother Peter and his niece Shana, to recover some $199 million. But their assets are not frozen, and none of them has yet been charged with any crime.

Arvedlund, whose book about the Madoff affair is titled, Too Good to Be True, similarly details the exploits of Bernie's wife, older brother, niece, right-hand man, and key enablers—including the keystone cops at the SEC who ignored enough red flags to supply a Soviet political rally. As for the grandchildren, the Madoff name isn't so much a safety issue as one of shameful notoriety. If you happen to live in New York City and your name happens to be Madoff, well, best of luck in your future prospects.