Nick Baumann

Nick Baumann

Senior Editor

Nick is based in our DC bureau, where he covers national politics and civil liberties issues. Nick has also written for The Economist, The Atlantic, the Washington Monthly, and Commonweal. Email tips and insights to nbaumann [at] motherjones [dot] com. You can also follow him on Facebook.

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Obama's Judge Problem

| Fri Sep. 9, 2011 6:00 AM EDT

President Obama is learning why judicial nominations matter—the hard way.

On Thursday, the 4th Circuit Court of Appeals dismissed two lawsuits challenging the Democrats' health care reform law. Four of the twelve judges on the 4th Circuit are Obama appointees, and the three-judge panel that made the decision included two of them. But last month, in the 11th Circuit, a differently constituted panel came to a very different decision on the constitutionality of health care reform. The contrast between the two decisions shows just how important the judicial nomination process is—and how, by moving slowly on nominations, the Obama administration has imperiled its signature legislative accomplishment.

On August 12, a three-judge panel of the 11th Circuit Court of Appeals struck down the portion of the health care law that requires Americans to either purchase health insurance or pay a fine. The decision was 2-to-1, with Joel Dubina, whom George H.W. Bush nominated to the appeals court, and Frank Hull, a conservative Bill Clinton nominee, voting that the health insurance requirement is unconstitutional. Stanley Marcus, a judge who was originally appointed by Ronald Reagan but was elevated to the appeals court by Clinton, provided the lone dissenting vote. 

Many legal experts (and several other courts, including the 4th and 6th Circuits) think the 11th Circuit panel was wrong, and argue the individual mandate is constitutional. But that's not the point: In an important sense, the 11th Circuit decision and future decisions like it are the Obama administration's own fault.

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Quote for the Day: "Political Matters"

| Tue Sep. 6, 2011 4:10 PM EDT

On Wednesday, the Obama Justice Department filed an antitrust suit to block AT&T's merger with T-Mobile. On Thursday, the New York Times reported that the telecom giant was "caught off guard" by the government's decision to sue. The Times' Michael de la Merced interviewed  law professor Susan Crawford for his story on the lawsuit. Here's what she told him:

"Justice has done a thorough job," said Susan Crawford, a professor at the Benjamin N. Cardozo School of Law. "AT&T's surprise shows they took this as political matter and not a legal matter."

Determining whether the AT&T/T-Mobile merger is anti-competitive is a legal matter, however AT&T "took" it. There is a whole body of case law on these sorts of issues and the courts will use that, along with the facts in this particular case, to decide whether the merger violates anti-trust rules. In Crawford's telling, AT&T execs thought that if they could win the political fight, the law wouldn't matter. The telecom honchos were wrong, but the fact they convinced themselves that winning the political fight is all they would have to do says a lot about just how much power corporations think they wield (and often do wield) in Washington.

One Amusing Tidbit from the CIA Rendition Lawsuit Documents

| Fri Sep. 2, 2011 11:02 AM EDT

The Washington Post, the Associated Press, and the Guardian reported Thursday on a court fight between two firms involved in the Central Intelligence Agency's extraordinary rendition program. These sorts of billing disputes between CIA contractors happen occasionally, but they don't normally make it far enough to reveal anything—usually, the government steps in and invokes the state secrets privilege and the case gets thrown out of court. But this time, someone messed up, and the case went forward, leading to the creation of hundreds of pages of almost entirely unredacted records that touch on many previously unrevealed aspects of the CIA program. (The international human rights group Reprieve first discovered the documents.)

The two firms involved in the court battle are Richmor Aviation, a New York-based company that operated charter planes, and Sportsflight Air, which served as a middleman between charter firms like Richmor and companies that needed planes—in this case, the government contracting giant DynCorp.

The plane that Richmor provided to SportsFlight, with the tail number N85VM, was just one of many used in the extraordinary rendition program. But N85VM, which was owned by Boston Red Sox co-owner Phillip Morse, was particularly notorious not only for being owned by Morse but also for being used in the case of Abu Omar, an Italian imam whose bungled 2005 rendition Peter Bergen covered for Mother Jones. (Afterward, the Italian judiciary sought to prosecute the CIA agents involved in the rendition. I interviewed Steve Hendricks, who wrote a book on the affair, last year.) The Post and the AP stories both note that the Richmor-Sportsflight records show N85VM traveling all over the world, with stops not just in Guantanamo Bay, but also in foreign countries famous for hosting secret CIA prisons or torturing prisoners on America's behalf.

The Associated Press uncovered one particularly interesting tidbit in the court records. When Richmor flew to foreign countries under the Sportsflight-Dyncorp contract, its pilots and crew were provided with letters from a State Department official, Terry A. Hogan, that said the flights entailed "global support for U.S. embassies worldwide." There's just one problem: Hogan doesn't appear to be a real person:

The AP could not locate Hogan. No official with that name is currently listed in State's department-wide directory. A comprehensive 2004 State Department telephone directory contains no reference to Hogan, or variations of that name — despite records of four separate transit letters signed by Terry A. Hogan in January, March and April 2004. Several of the signatures on the diplomatic letters under Hogan's name were noticeably different.

Lawrence Wilkerson, who was chief of staff for Secretary of State Colin Powell from 2001 to 2005 during the Bush administration, said he was not familiar with the Hogan letters and had not been aware of any direct State Department involvement in the CIA's rendition program. Wilkerson said the multiple signatures would have raised questions about the documents' authenticity.

This makes a lot of sense. The CIA is never especially eager to let other government agencies—especially the State Department—in on its most secret activities. So as ProPublica's Eric Umansky (a Mother Jones alum) notes, it's possible these documents were forged. (State declined to comment to ProPublica or the AP on the matter.)

There's some (darkly) funny stuff in the court documents, which are mostly incredibly banal. (I obtained copies of them yesterday.) When Richmor's president, Mahlon Richards, tells the judge, Paul Czaka, that Morse owned the plane used for the rendition flights, Czaka (presumably a Yankees fan) says, "I guess that concludes the case as far as you're concerned. We can go home now—or I should say, get the heck out of my courtroom."

But my favorite bit of the trial comes when William Ryan, one of the attorneys for Richmor, is questioning Richards, the firm's president. Throughout the case, all parties were fairly careful about describing exactly what Richmor was doing for SportsFlight (and for DynCorp, and ultimately for the government), referring to the passengers as "government personnel and their invitees." This bit of the trial centers around whether Richmor's ultimate client, the government, was happy with Richmor's performance. Some confusion ensues:

No, I imagine the government's "invitees" would not appreciate the service that Richmor was providing.

A Venn Diagram for Rick Perry: Social Security Is Not a Ponzi Scheme

| Mon Aug. 29, 2011 4:30 PM EDT

On Saturday, Texas Gov. Rick Perry told a group of voters that Social Security is a "Ponzi scheme" and a "monstrous lie" to younger Americans. It's not the first time the GOP presidential candidate has made such claims. The Texas governor also described Social Security as a Ponzi scheme in his 2010 book, "Fed Up!," and has argued the program is unconstitutional and could be handed over to the states.

When politicians make clearly false claims, reporters have an obligation to explain to readers why those claims are false—or at least quote someone who can. I would suggest political scientist Jonathan Bernstein:

Very simple: anyone who says that Social Security is a Ponzi scheme either misunderstands Social Security, misunderstands Ponzi schemes, is deliberately lying, or some combination of those...After all, a Ponzi scheme is a deliberate fraud. Saying that Social Security is financed like a Ponzi scheme is factually wrong, but saying that Social Security is a Ponzi scheme or is like a Ponzi scheme is basically a false accusation of fraud against the US government and the politicians who have supported Social Security over the years.

Andrew Sullivan's readers also have a number of good reasons why Social Security is not a Ponzi scheme. The Social Security Administration also has a good web page explaining why Social Security is not a Ponzi scheme. But I find that charts often make understanding things easier, so here's a Venn diagram I made that explains some of the differences and similarities between Social Security and a Ponzi scheme:

social security ponzi scheme venn diagram

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