2012 - %3, November

The Senate Voted to Outlaw Indefinite Detention...or Did It?

| Fri Nov. 30, 2012 1:09 PM EST

"If you don't have a right to trial by jury, you do not have due process," Sen. Rand Paul (R-Ky.) said as he urged passage of Senator Dianne Feinstein's (D-Calif.) amendment blocking indefinite detention of US citizens and legal residents captured on US soil Tuesday night. "You do not have a Constitution. For goodness' sakes, the trial by jury has been a long-standing and ancient and noble right. For goodness' sakes, let's not scrap it now." 

The Senate seemed to have concurred as it passed Feinstein's amendment in a 67-29 vote, with mostly Republicans voting no. After a year of trying, Feinstein had gotten her colleagues to agree that any American apprehended on US soil should have the right to a trial.

Or had she? Consider this: Senators Carl Levin (D-Mich.), Lindsey Graham (R-S.C.) voted for the Feinstein amendment, though they were among the most vocal supporters of indefinite military detention for US citizens in the past. According to their floor speeches, the Feinstein amendment actually legalizes indefinite detention rather than blocking it. 

The question of what the Senate actually did hinges on language in the amendment that reads: "An authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States unless an Act of Congress expressly authorizes such detention" (emphasis mine). It's that "unless" that the supporters of indefinite detention latched onto.

"Senator Feinstein's amendment…does not prohibit military detention if it is expressly authorized by law," said Levin, "which I read as a statute authorizing the use of military force itself or some other act of Congress." Since Congress did authorize the use of military force against Al Qaeda in 2001, Levin argued, Feinstein's amendment expressly allows military detention without trial of US citizens, even if captured on US soil. (An opponent of indefinite detention, Rep. Justin Amash (R-Mich.), actually had a similar interpretation.)

"That was strange indeed," said Raha Wala of Human Rights First, who isn't buying Levin's interpretation despite having opposed the Feinstein amendment because it didn't protect all persons in the United States. "I don't think that argument works."

Levin's Republican allies seemed to think otherwise. Ayotte, delivering her remarks in front of a large poster of the US-born radical Anwar al-Awlaki holding a bazooka, said she agreed with Levin's interpretation (though she did vote against the amendment). "I wanted to add my support for [Levin's] interpretation of the current Feinstein language," Ayotte said. "Would we want to tell a member of someone who had committed an act like 9/11 against us, an act of war against our country, the first thing they hear is you have the right to remain silent?" Ayotte asked, perhaps unaware a French national named Zacarias Moussaoui was tried and convicted in federal court for his part in the 9/11 attacks without ever being held in military detention. Graham also called Levin's take "incredibly sound."

Feinstein spoke shortly after Levin, Graham, and Ayotte. She thanked the chamber for a spirited debate, particularly Graham, for expressing himself "in a very spicy way." But Feinstein said that the Levin interpretation was incorrect, and that based on a federal court decision in the case of Jose Padilla (the only American accused of terrorism to be held in military detention in the US) the 2001 AUMF doesn't count as an authorization to detain US citizens captured on American soil indefinitely. 

One thing might explain Levin, Graham, and Ayotte's insistence that Feinstein doesn't understand what her own amendment does: They may be hoping that if an American citizen apprehended on US soil is detained without trial, and that detention is challenged in court, judges will take their remarks as evidence of Congress' true "legislative intent" and decide that the law does authorize domestic indefinite detention. Ironically, conservatives generally frown on that kind of legal interpretation

That seems like a long shot, however, which means that despite the flaws of the Feinstein amendment, if it makes it into law, it may mark one of the few times since 9/11 that Congress has acted to protect the due process rights of American citizens rather than narrowing them. 

This post has been edited for content since publication.

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Factlet of the Day: The World's Best-Paid Clerks

| Fri Nov. 30, 2012 12:53 PM EST

Clerical workers are on strike at the Port of Los Angeles. They aren't striking over pay or benefits, but this claim still made me sit up a little straighter over my morning corn flakes:

Stephen Berry, lead negotiator for the shipping lines and cargo terminals, said the clerical workers have been offered a deal that includes "absolute job security," a raise that would take average annual pay to $195,000 from $165,000, 11 weeks' paid vacation and a generous pension increase.

Wow.

Chart of the Day: Prescription Drug Prices are Skyrocketing

| Fri Nov. 30, 2012 12:18 PM EST

Obviously prescription drugs cost more than generics. But prices are also diverging dramatically. Via Austin Frakt, the chart below tells the story. While the price of generic drugs has fallen significantly over the past four years, the price of prescription drugs has skyrocketed, outpacing inflation by more than 50 percent. You're paying a lot for those name brands.

"Killing Them Softly": A Hitman Movie—That's Actually About the Financial Crash

| Fri Nov. 30, 2012 10:44 AM EST

Killing Them Softly
The Weinstein Company
97 minutes

Along with Steven Soderbergh's Magic Mike, Killing Them Softly is so far the best Great Recession movie to emerge out of the film industry. (Sorry, Margin Call.)

The story is set in a decayed corner of New Orleans in 2008, at the dawn of the financial crisis. Toward the beginning of the movie, two amateur crooks—both wearing yellow dishwashing gloves, one brandishing a sawed-off shotgun—knock over a small mob-operated casino. As the pair raid the safe and force gamblers to empty their pockets and shoes, a televised address by George W. Bush echoes in the background. The president speaks calmly but deliberately about public panic and market meltdown, as hardened gangsters sit quietly while their wallets are emptied at gunpoint. The thieves then abscond with their bag stuffed with grime-smeared cash. And just like that, they trigger a total "economic collapse" of the local illicit-gambling/mobster economy.

Get it?

If the parallel isn't coming into astoundingly clear focus just yet, here's Aussie writer/director Andrew Dominik, talking about adapting George V. Higgins' 1974 novel Cogan's Trade into the screenplay for Killing Them Softly:

As I started adapting [the novel], it was the story of an economic crisis, and it was an economic crisis in an economy that was funded by gambling—and the crisis occurred due to a failure in regulation. It just seemed to have something that you couldn’t ignore. I always feel that crime films are about capitalism...

App Rates 2012's Most Loved and Hated Attack Ads

| Fri Nov. 30, 2012 7:08 AM EST

Thanks to several smartphone apps created just for the 2012 election, TV viewers could fact check attack ads from the comfort of their couches. One of these programs, the Super PAC App, allowed viewers to hold up their iPhones when a TV ad aired and—provided the phone could pick up the audio—get a report back with links to articles that addressed the ad's claims and data about the group behind it. Viewers could also opine on the spot by selecting one of four ratings: fail, fair, fishy, or love.

Earlier this week, Glassy Media, the maker of the Super PAC App, uploaded the results of the more than 38,000 votes cast from its app. We dug into the data to determine the top vote-getters for each of the four ratings (as selected from the 40 ads that were tagged the most by app users):

Fail: "Join Our Fight to Repeal Obamacare"
Restore America's Voice is a PAC that spent nearly $3.4 million against Democrats in 2012. None of that money is evident in this amateurish, low-budget ad, in which Mike Huckabee urges viewers demand the repeal of Obamacare. Of the 179 Super PAC App users who voted on the ad, 66 percent gave it a "fail." The Super PAC App links to a CNN article that backs up the ad's claim that Democrats introduced a $940 billion health care plan, but it also points to PolitiFact posts that dispute the claim that Obamacare will eventually cost $1.76 trillion and say Huckabee's claim that Obamacare is the "largest tax increase in American history" is pants-on-fire false.

 

Fair: "Romney/Ryan Bromance: You Complete Me"
About 35 percent of the 360 viewers who voted on this ad from the liberal super-PAC American Bridge 21st Century thought it was fair. It features Mitt Romney repeatedly saying that his budget policy is identical to Paul Ryan's. The Super PAC App links to articles that back up the ad's implication that Romney incorporated his running mate's idea to privatize Medicare into his campaign and shed a few details on Ryan's budget plan. (American Bridge spent $8.7 million during the election.)

 

Fishy: "Failing American Workers"
The Super PAC App wasn't foolproof: It still reports that "no specific claim [was] found in this ad," a Romney campaign spot that claims that 582,000 manufacturing jobs have been lost under Obama and that the president failed on seven occasions to "stop China's cheating." But according to PolitiFact, the country has actually gained half a million manufacturing jobs under Obama. PolitiFact ranks the ad's claim that Obama failed to stop China's cheating as half true. Yet 24 percent of the 226 viewers who voted on this ad deemed it fishy.

 

Love: "Pants on Fire"
This ad from the Democratic Governors Association's super-PAC, which spent $1.6 million on the election, juxtaposes clips of Republican governors allegedly lying about health care with a cartoon of Yosemite Sam inadvertently blowing himself up. The Super PAC App fact-checks Virginia Gov. Bob McDonnell's pants-on-fire claim about a Medicaid mandate and Florida Gov. Rick Scott's false assertion that Medicaid would cost his state $1.9 billion a year with the same PolitiFact articles that the ad cites. The app links to a different PolitiFact article in response to Sarah Palin's death panel claim; this one doesn't call it the "lie of the year," but it still gives it a pants-on-fire rating. Viewers enjoyed the ad: Of the 155 who voted on it, 66 percent gave it a "love."

 

4 Reasons Britannia Rules the Waves (and Wind and Solar)

| Fri Nov. 30, 2012 7:08 AM EST

There's a reason that American environmentalists might be green with envy this week: The Brits are racking up some notable environmental karma.

While the mere utterance of the words "climate change" in the US gets cheered by climate journos like me (and jeered by politicians still struggling with the science), the UK this week released a comprehensive (if complicated and controversial) new energy bill that triples subsidies for non-carbon energy, and opened a new green bank that will rush cash to alternative energy projects. All this against the backdrop of baby-stepping Doha talks, and the four-year anniversary of the UK's historic Climate Change Act... and the Brits appear to be glowing a deeper shade of green.

Here are four ways in which Britannia rules the waves (and the wind, and the sun...).

1. False Balance in Climate Change Reporting Called Out By Official Media Inquiry

US journalists hoping to penetrate the polarized world of climate reporting with fact can find a friend this week in Lord Justice Brian Leveson, the head of a wide-ranging inquiry into the UK's media practices. While phone-hacking and other press malarky takes up the majority of the near-2000-page Leveson report, a small part looks at "false balance", the idea that too much air time is given to minority opinions in the misguided pursuit of both sides of the story.

Leveson argues that "further consideration should be given to the need to provide balanced reporting without giving unjustified credence to minority views," and sites a specific example: The Daily Express's article 100 reasons why global warming is natural which Leveson says "resulted in a misleading and inaccurate piece of science reporting." (Hat tip to The Carbon Brief blog, which has a terrific round up of all the mentions of science journalism from the sprawling report).

Leveson argues that any future press regulator should set out strict science reporting guidelines [PDF]. Worth a read. The one I like the most: "When reporting a link between two things, indicate whether or not there is evidence that one causes the other."

2. Tripling renewable investment by 2020

UK's renewable energy industry is mostly hailing a deal that will see more than £7.5 billion invested in non-carbon energy generation by 2020. RenewableUK, the leading trade association for wind, wave and tidal energy, predicts a (cough) windfall of jobs and investment: 88,000 jobs in the sector they represent by 2021.

But that's the icing on a cake some groups are having difficulty swallowing for other reasons. Most notably, the new energy bill puts off making any carbon reduction decisions for the power sector until after the next election—a kind of "fiscal cliff" for the low-carbon economy. Friends of the Earth has called it a "reckless dash for gas" that has "banged the final nail in the coffin of Cameron's pledge to lead the greenest government ever." Despite Energy Secretary Ed Davey's assurances to the contrary, the government has been accused of shoveling the cost burden to the consumers while exempting big, energy-intensive industries.

3. UK Green Investment Bank Open for Business

The £3 billion bank that opened this week will invest in green energy projects. Its first project will generate energy from waste through anaerobic digesters. The bank is hoping to attract a further £15 billion of private investment by 2015. Green groups have welcomed the bank, but say it should be able to borrow money above and beyond its stipulated £3 billion budget so it can start forking out larger amounts of cash right away.

4. Happy Fourth Birthday, UK Climate Action

While the US watches tumbleweeds, the UK is cueing confetti: this week marks four years since the UK introduced the Climate Change Act, a world-first that included legally binding targets to cut greenhouse gas emissions by at least 34 percent by 2020. And while most commentators foreground their ambivalence about how far the UK has come, at least they are not scrambling for ways to circumvent their legislature in the hope of securing any kind of climate action. And for that, we say Happy Birthday.

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Reining in the Drone War

| Fri Nov. 30, 2012 7:08 AM EST

Last weekend the New York Times reported on a promising development: the Obama administration is working to develop "explicit rules for the targeted killing of terrorists by unmanned drones." Needless to say, explicit rules can also be bad rules, so this is no guarantee of progress. Still, there's some value in publicly agreeing that drone strikes shouldn't literally be approved solely at the whim of the president.

Unfortunately, there was a catch: the administration's newfound dedication to rules was prompted primarily by the possibility that they might lose the election:

“There was concern that the levers might no longer be in our hands,” said one official, speaking on condition of anonymity. With a continuing debate about the proper limits of drone strikes, Mr. Obama did not want to leave an “amorphous” program to his successor, the official said. The effort, which would have been rushed to completion by January had Mr. Romney won, will now be finished at a more leisurely pace, the official said.

But it was never Mitt Romney that we needed to worry about. Last month the Washington Post wrote about the Orwellian-sounding "disposition matrix," a rapidly growing database of targets for a drone fleet operated almost entirely in the shadows:

Although the matrix is a work in progress, the effort to create it reflects a reality setting in among the nation’s counterterrorism ranks: The United States’ conventional wars are winding down, but the government expects to continue adding names to kill or capture lists for years....That timeline suggests that the United States has reached only the midpoint of what was once known as the global war on terrorism. Targeting lists that were regarded as finite emergency measures after the attacks of Sept. 11, 2001, are now fixtures of the national security apparatus. The rosters expand and contract with the pace of drone strikes but never go to zero.

And if you think that at least we're lucky that Barack Obama can be trusted with this kind of power, think again. As Micah Zenko wrote about the Post's revelations:

Having spoken with dozens of officials across both administrations, I am convinced that those serving under President Bush were actually much more conscious and thoughtful about the long-term implications of targeted killings than those serving under Obama....Recently, I spoke to a military official with extensive and wide-ranging experience in the special operations world, and who has had direct exposure to the targeted killing program. To emphasize how easy targeted killings by special operations forces or drones has become, this official flicked his hand back over and over, stating: “It really is like swatting flies. We can do it forever easily and you feel nothing. But how often do you really think about killing a fly?”

The truth is that it shouldn't be the president making these rules in the first place. It should be Congress. And outside of war zones, there ought to be serious judicial review as well. Nobody should have the unchecked, unilateral power to kill anyone, anytime, anywhere in the world. And the lesson of history about this is pretty plain: this is a more important principle for people you trust than for people you don't.

Congress has ducked its responsibilities here for far too long. President Obama, like any president, should be required to follow rules that Congress has set and that the president can't change with the stroke of a pen. This is something, at long last, that you'd think Republicans would actually agree with.

Erick Erickson Mulling Whether to Be Next Todd Akin (UPDATE: He Won't)

| Fri Nov. 30, 2012 7:08 AM EST
RedState founder Erick Erickson.

Update: On Friday morning Erickson announced that he had decided not to challenge Chambliss. As he explained"Were I to run for the Senate, it would be a terribly nasty campaign. It’d actually be really awesome, but it’d be really nasty. I have a seven year old, a soon to be four year old, and a wife who does not like being anywhere near a stage. I’m not putting my family through that when the best outcome would mean a sizable pay cut in pay and being away from my kids and wife all the time huddled in a pit vipers often surrounded by too many who viewed me as a useful instrument to their own advancement." But, he added, Chambliss shouldn't rest easy: "We will find someone to catapult into the arena."

Erick Erickson has the itch. After years of backing conservative primary challenges to moderate GOPers, the RedState founder and CNN contributor is mulling a primary challenge of his own. He's thinking of taking on Sen. Saxby Chambliss, the Georgia Republican who last weekend took the occasion of the fiscal cliff debate to publicly criticize anti-tax activist Grover Norquist. "Saxby Chambliss is waffling around like a dog off its leash for the first time," Erickson wrote in a post for RedState on Tuesday, before speculating that "[a] conservative from metro-Atlanta could put Saxby Chambliss in peril and we should work to make that happen." By then, he was telling his radio show listeners that he just might be the man for the job: "I've been very adamant, I wasn't going to do it, but after a few conversations today with a few heavy hitters in Washington, D.C. and some here in Georgia, I should at least consider it."

From his perch at RedState, Erickson has scored a few big wins in his plan to make the Republican Party walk and talk a bit more like Erick Erickson. He beat the drum early on Marco Rubio, back when then-Gov. Charlie Crist was the toast of the Republican establishment. He backed Ted Cruz for Senate when the former Texas solicitor general was flailing in the polls.

But he's chosen jesters as often as he's picked kings—and it's cost the Republican party dearly. He endorsed Sharron Angle in Nevada. He was among the first prominent conservatives to back Richard Mourdock's campaign against Sen. Richard Lugar. He backed Christine O'Donnell in her primary against former Rep. Mike Castle.

The only way Republicans could possibly stand any chance of losing a Senate seat in Georgia in 2014 is if they they nominated someone with a history of degrading comments about women and inflammatory views on abortion. That is, someone like Erick Erickson.

To recap, Erickson:

  • Expressed his surprise that "feminazis" had complained about then-Denver Broncos quarterback Tim Tebow's pro-life Super Bowl ad in 2010. As he put it: "That's what being too ugly to get a date does for your brain." That was followed by this tweet: "Turned on Twitter today and there was a barrage of angry feminists upset with me telling them to get in the kitchen and learn to cook."
  • Once called Michelle Obama a "Marxist Harpy Wife."
  • Referred to the first night of the Democrat National Convention as the "Vagina Monologues."
  • Dismissed bullying of a presumed gay classmate as: "Mitt Romney cut a hippy's hair at his preparatory high school."
  • Argued that civil war may be unavoidable if Roe v. Wade is not overturned. As Erickson put it: "[O]nce before, our nation was forced to repudiate the Supreme Court with mass bloodshed. We remain steadfast in our belief that this will not be necessary again, but only if those committed to justice do not waiver or compromise, and send a clear and unmistakable signal to their elected officials of what must be necessary to earn our support."
  • Called for more Willie Horton ads, citing the invisible scourge of the New Black Panthers: "The Democrats are giving a pass to radicals who advocate killing white kids in the name of racial justice and who try to block voters from the polls. The Democrats will scream racism. Let them. Republicans are not going to pick up significant black support anyway."
  • Contemplated shooting bureaucrats:

At what point do the people tell the politicians to go to hell? At what point do they get off the couch, march down to their state legislator’s house, pull him outside, and beat him to a bloody pulp for being an idiot?

At some point soon, it will happen. It’ll be over an innocuous issue. But the rage is building. It’s not a partisan issue. There is bipartisan angst at out of control government made worse by dumb bans like this and unintended consequences like AIG’s bonus problems.

If the GOP plays its cards right, it will have a winning issue in 2010. But it is going to have to get back to "leave me the hell alone" style federalism where the national government recedes and the people themselves will have to fight to take their states back from special interests out of touch with body politic as a whole.

Were I in Washington State, I'd be cleaning my gun right about now waiting to protect my property from the coming riots or the government apparatchiks coming to enforce nonsensical legislation.

  • Contemplated shooting bureaucrats again:

I'm not filling out this form. I dare them to try and come throw me in jail. I dare them to. Pull out my wife's shotgun and see how that little ACS twerp likes being scared at the door. They're not going on my property. They can't do that. They don't have the legal right, and yet they're trying."

On the plus side for Georgia Republicans, at least Herman Cain's not running.

Quick Reads: "Twentysomething" by Robin Marantz Henig and Samantha Henig

| Fri Nov. 30, 2012 7:08 AM EST

Twentysomething: Why Do Young Adults Seem Stuck?

By Robin Marantz Henig and Samantha Henig

HUDSON STREET PRESS

In one of the New York Times Magazine's most-shared articles of 2010, science writer Robin Marantz Henig examined the research on "emerging adulthood"—the notion that young adults are taking longer and longer to grow up. In this follow-up she collaborates with her 27-year-old daughter, Samantha (the Times Mag's online editor), to explore the myriad social factors—the student-loan crisis, the social-media revolution, the mainstreaming of fertility services—that make this slow-maturation process unique to millennials. The obvious critique, which the Henigs acknowledge but can't quite dispel, is that this falls into the category of a nice problem to have. Extended adolescence, after all, tends to be limited to those who can afford it.

This review originally appeared in our November/December issue of Mother Jones.

No, the Social Security Trust Fund Isn't a Fiction

| Fri Nov. 30, 2012 3:02 AM EST

Charles Krauthammer is upset that Dick Durbin says Social Security is off the table in the fiscal cliff negotiations because it doesn't add to the deficit:

This is absurd. In 2012, Social Security adds $165 billion to the deficit. Democrats pretend that Social Security is covered through 2033 by its trust fund. Except that the trust fund is a fiction, a mere “bookkeeping” device, as the Office of Management and Budget itself has written. The trust fund’s IOUs “do not consist of real economic assets that can be drawn down in the future to fund benefits.” Future benefits “will have to be financed by raising taxes, borrowing from the public, or reducing benefits or other expenditures.”

What Krauthammer means is that as Social Security draws down its trust fund, it sells bonds back to the Treasury. The money it gets for those bonds comes from the general fund, which means that it does indeed have an effect on the deficit.

That much is true. But the idea that the trust fund is a "fiction" is absolutely wrong. And since this zombie notion is bound to come up repeatedly over the next few weeks, it's worth explaining why it's wrong. So here it is.

Starting in 1983, the payroll tax was deliberately set higher than it needed to be to cover payments to retirees. For the next 30 years, this extra money was sent to the Treasury, and this windfall allowed income tax rates to be lower than they otherwise would have been. During this period, people who paid payroll taxes suffered from this arrangement, while people who paid income taxes benefited.

Now things have turned around. As the baby boomers have started to retire, payroll taxes are less than they need to be to cover payments to retirees. To make up this shortfall, the Treasury is paying back the money it got over the past 30 years, and this means that income taxes need to be higher than they otherwise would be. For the next few decades, people who pay payroll taxes will benefit from this arrangement, while people who pay income taxes will suffer.

If payroll taxpayers and income taxpayers were the same people, none of this would matter. The trust fund really would be a fiction. But they aren't. Payroll taxpayers tend to be the poor and the middle class. Income taxpayers tend to be the upper middle class and the rich. Long story short, for the past 30 years, the poor and the middle class overpaid and the rich benefited. For the next 30 years or so, the rich will overpay and the poor and the middle class will benefit.

The trust fund is the physical embodiment of that deal. It's no surprise that the rich, who didn't object to this arrangement when it was first made, are now having second thoughts. But make no mistake. When wealthy pundits like Krauthammer claim that the trust fund is a fiction, they're trying to renege on a deal halfway through because they don't want to pay back the loans they got.

As it happens, I think this was a dumb deal. But that doesn't matter. It's the deal we made, and the poor and the middle class kept up their end of it for 30 years. Now it's time for the rich to keep up their end of the deal. Unless you think that promises are just so much wastepaper, this is the farthest thing imaginable from fiction. It's as real as taxes.