2011 - %3, September

Southern Lights From Orbit

| Thu Sep. 22, 2011 10:12 AM PDT

 

 

From the NASA Multimedia Video Gallery:

Video of the Aurora Australis taken by the crew of Expedition 29 on board the International Space Station. This sequence of shots was taken September 17, 2011 from 17:22:27 to 17:45:12 GMT, on an ascending pass from south of Madagascar to just north of Australia over the Indian Ocean.

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NSA Surveillance Program Gets Tiny Setback

| Thu Sep. 22, 2011 10:08 AM PDT

Can ordinary Americans like you and me sue the government for illegally spying on them? When it comes to the NSA surveillance program, the government itself says the answer is no. After all, since it's a secret program you don't really know if you're being spied on. And if you don't know you're being spied on, you have no standing to sue.

If that logic makes your head spin, it should. But today Glenn Greenwald reports some modest good news. A few months ago a panel of judges on the 2nd Circuit Court decided that such a suit could indeed go forward. So the government appealed to the full court:

Yesterday, the full Second Circuit panel issued its ruling on the Obama DOJ's request. Six of the judges voted against a full review of the decision by the three-judge panel, while six voted in favor of reviewing it. Because a majority is needed for a full-circuit review, the 6-6 tie means that there will no further review, and the March decision of the three-judge panel — allowing the lawsuit challenging the FAA's constitutionality to proceed — will stand. This significant victory for the rule of law may well be temporary, as the unusual 6-6 vote (and the numerous contentious opinions accompanying the vote) makes it likely (though by no means guaranteed) that the Supreme Court will accept this standing dispute for resolution. But at least for now, this is a good and important development.

Actually, "modest" might be overstating just how good this news is. As a layman, I find it pretty shocking that any judge could rule that, effectively, no one ever has any standing to sue in a case like this, let alone six judges. And it gets worse. You really have to read the opinion of Dennis Jacobs, the Chief Judge of the Second Circuit, to believe it. Jacobs apparently can't even conceive that there might be a legitimate reason for anyone to object to the NSA program:

At the risk of being obvious, the purpose of this lawsuit is litigation for its own sake — for these lawyers to claim a role in policy-making for which they were not appointed or elected, for which they are not fitted by experience, and for which they are not accountable. As best I can see, the only purpose of this litigation is for counsel and plaintiffs to act out their fantasy of persecution, to validate their pretensions to policy expertise, to make themselves consequential rather than marginal, and to raise funds for self-sustaining litigation.

That's just staggering. Hell, it would seem over the top coming from Rush Limbaugh, let alone an appellate judge. What rock did this guy crawl out from?

CIA Keeps Its Climate Work Under Wraps

| Thu Sep. 22, 2011 9:45 AM PDT

As I reported last month, the CIA's Center on Climate Change and National Security has been keeping a low profile—probably because Republican members of Congress have been trying to ax the program. But apparently the CIA is going so far as to keep all information about the program classified, Secrecy News reported.

The CIA categorically denied a request under the Freedom of Information Act for copies of studies or reports from the center on climate change impacts. Jeffrey Richelson, an intelligence historian with the National Security Archive, filed the FOIA request. And while it's conceivable that some of the work the center is doing should be classified, it seems rather unreasonable that all if their work should be secret.

Steven Aftergood of Secrecy News summed up the problem with this approach:

The CIA response indicates a fundamental lack of discernment that calls into question the integrity of the Center on Climate Change, if not the Agency as a whole. If the CIA really thinks (or pretends to think) that every document produced by the Center constitutes a potential threat to national security, who can expect the Center to say anything intelligent or useful about climate change? Security robots cannot help us navigate the environmental challenges ahead. Better to allocate the scarce resources to others who can.

This is an issue that came up repeatedly in my reporting on the center. Several people in the national security community raised the question of whether our traditional intelligence-gathering programs are really the best way to deal with climate change and national security, for a lot of good reasons. Climate change is a threat much different than traditional security concerns, and the agency's experts might not be the best suited for looking at it. It's an international problem, and addressing it will require more openness, cooperation, and transparency with other nations and stakeholders, not less of it. And the sea level rise, droughts, famines, and extreme weather events associated with climate change aren't exactly secrets.

The agency's strategy, in light of attacks from climate skeptics, seems to be to lay low and hope no one notices them. (Trust me, I tried desperately to get info about the program for my story last month, to no avail.) But that makes it practically impossible to publicly justify the program's existence, given that we have no idea what they're up to over there.

Rick Perry Wants You to Think He's the Gipper

| Thu Sep. 22, 2011 8:58 AM PDT

Your mission tonight: watch Rick Perry's debate performance and decide if it's really Reaganesque. Pollster Matt Towery, a former national debate champion, says he's sure trying to make it look that way:

"Every time someone says something, he cocks his head with a little smile on his face," Towery said. "Reagan would always move his head to one side and act as if he couldn't quite believe what the other person was saying. I guarantee that's what he's trying to do."

OK. I'll keep my eyes open for that. And as long as we're talking about debates, let's also explode a myth. Here's the conclusion of the article:

By now it's a faded memory, but the first televised presidential debate in 1960, between John F. Kennedy and Richard Nixon, signaled the dawn of a new age of judgment on the part of debate watchers, one that launched a thousand image-consultant careers.

Nixon, sweating under the hot TV lights, his five o'clock shadow visible, seemed nervous and shifty compared with Kennedy, who bore an easy smile and suave demeanor. People remember that Kennedy won the debate. That was true for TV viewers. Radio listeners, immune to Kennedy's visual appeal, gave the win to the sweaty guy.

This myth was seriously called into question a long time ago. The polling evidence is extremely thin to begin with — basically a single small survey that showed radio audiences with a better opinion of Nixon — and it's unclear whether even that survey can be trusted. By 1960, TV was so widespread that its audience was fundamentally different from the radio audience, which by then was mostly rural, conservative, Protestant, and — quite likely — predisposed to like Nixon in the first place. Nixon's sweaty brow and pale demeanor might have hurt him with the TV audience, but the evidence on this score is close to nonexistent.

Do Low Capital Gains Taxes Spur Investment?

| Thu Sep. 22, 2011 8:17 AM PDT

From Ezra Klein:

Eric Jackson, a former employee of PayPal and now the CEO of the online-investing platform CapLinked, worries that implementing the “Buffett rule” would hurt the pool of investment money available to tech start-ups. His logic on this point is unimpeachable: If the Buffett rule means taxing capital gains more like normal income, then it will, on the margin, hurt investment of all kinds, including investment in tech start-ups.

Hmmm. "On the margin" is doing a lot of heavy lifting here. I've never seen any compelling evidence that higher capital gains rates have more than a minuscule effect on investment. Changes in rates can have short-term effects as investors rush to sell assets before new rates takes effect, and high rates can also produce a modest "lock-in" effect, in which investors hold on to assets in order to avoid taxation.

But the long-term effects appear to be very small, and low rates have a serious drawback: they spur a huge amount of unproductive tax sheltering as wealthy taxpayers spend time trying to figure out how to redefine ordinary income as capital gains. This is not just useless, it's positively damaging. What's more, capital gains already get favorable tax treatment just by virtue of the fact that gains can accumulate year after year tax free. You only have to pay taxes when you sell, and the net effect of this is a low effective tax rate compared to income that you have to pay taxes on as it's earned.

My own take is that capital gains rates should, perhaps, be a bit lower than ordinary income rates, but only a bit. Maybe 30% or so, compared to 35% or 40% for ordinary income. I'd sure like to hear the case that a lower rate really has any significant long-term negative effects on investment or capital formation.

The Countrywide Subprime Mortgage Debacle Lives On

| Thu Sep. 22, 2011 7:40 AM PDT

Countrywide Financial, Ameriquest, and the other infamous subprime mortgage lenders that helped scuttle the housing market in 2006 and 2007 have all but disappeared from the news, leaving you to think there was nothing left to report about the former home-loan titans. Hardly. Today, iWatch News' Mike Hudson published the first installment of a two-part expose of how Countrywide, once the king of US lenders, allegedly condoned and encouraged fraud by its employees, and intimidated and sometimes fired internal whistleblowers who sounded the alarm about the lender's shady practices.

Hudson tracked down 30 former Countrywide employees who claim the company's brass not only let fraud run rampant under their noses—they even fueled it. What's more, Hudson cites 18 employees who say they were demoted or terminated for alerting higher-ups to sketchy behavior including using scissors, tape, and Wite-Out to churn out fake bank statements; inflating home appraisals; and cutting and pasting the address of one property onto the appraisal of a completely different one. On one occasion, when Countrywide's then-chief fraud investigator, Eileen Foster, a key player in Hudson's story, went hunting for more dubious behavior, an executive called her and said, "I'm goddamned sick and tired of these witch hunts."

It's a sordid tale, one that might never have seen the light of day had Hudson, who literally wrote the book on the subprime disaster, not kept digging long after the rest of the business press went home. Here's more from Eileen Foster's story:

Foster told the agency that instead of defending the rights of honest employees, Countrywide’s employee relations unit sheltered fraudsters inside the company. According to the Labor Department, Foster believed Employee Relations "was engaged in the systematic cover-up of various types of fraud through terminating, harassing, and otherwise trying to silence employees who reported the underlying fraud and misconduct."

In government records and in interviews with iWatch News, Foster describes other top-down misconduct:

  • She claims Countrywide's management protected big loan producers who used fraud to put up big sales numbers. If they were caught, she says, they frequently avoided termination.
     
  • Foster claims Countrywide's subprime lending division concealed from her the level of "suspicious activity reports." This in turn reduced the number of fraud reports Countrywide gave to the U.S. Treasury's Financial Crimes Enforcement Network.
     
  • Foster claims Countrywide failed to notify investors when it discovered fraud or other problems with loans that it had sold as the underlying assets in "mortgage-backed" securities. When she created a report designed to document these loans on a regular basis going forward, she says, she was "shut down" by company officials and told to stop doing the report.

In Foster's view, Countrywide lost its way as it became a place where everyone was expected to bend to the will of salespeople driven by a whatever-it-takes ethos.

The attitude, she says, was: "The rules don't matter. Regulations don't matter. It's our game and we can play it the way we want."

The entire piece is worth a read. And watch for part two when it lands tomorrow.

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Rick Perry's Florida Co-Chair: Gays Cause Tornadoes

| Thu Sep. 22, 2011 7:20 AM PDT
Does this tornado look gay?

Earlier this week, Texas Gov. Rick Perry announced his leadership team for the "Presidency 5" straw poll in Florida, scheduled for October. Although most of the other major candidates have decided to skip the event, Perry is hoping a strong showing there will give him a boost ahead of the state's important early primary. So what's his strategy for voter outreach? It looks a lot like The Response, the prayer and fasting festival he organized in August at a football stadium in Houston.

Take, for instance, his new co-chair: Pam Olsen, founder of the Tallahassee House of Prayer (dubbed the "prayer lady" in her home state for reasons that should be self-evident) and a leading anti-abortion activist in the state. As Right Wing Watch notes, though, Olsen also believes that gay marriage, and its increasing acceptance among American Christians, is causing destructive natural disasters across the country. Here's what she said back in July:

God is shaking. If anybody looks at the news and has just seen what's been happening recently with the floods, the fires, the tornadoes, God is shaking. Yeah I think you have God shaking, sure you have the Enemy shaking, you have both and I don't want to say oh that's the judgment of God or that's the Enemy. But the reality is God is judging us, and I think it's going to get worse.

It's somewhat unclear why Texas, whose governor supports criminalizing gay sex, would be punished with raging wildfires for having too high a tolerance for gay rights. But Olsen's view is wholly consistent with Perry's other allies on the religious right. The Response, you'll recall, featured a number of controversial pastors who believed that, among other things, 9/11 was God's way of punishing America for tolerating homosexuality and the blackbirds that died suddenly in Arkansas last winter were a harbinger of the End Times.

We're Still at War: Photo of the Day for September 22, 2011

Thu Sep. 22, 2011 2:57 AM PDT

Soldiers from Battery A, 1st Battalion, 82nd Field Artillery Regiment fired the howitzers on their M109A6 Paladins during the first-ever firing of the Modular Artillery Charge System in the combat zone by an entire Paladin battery March 13, 2011 on Camp Taji, Iraq. The MACS is a newly refined propellant that pushes projectiles out of the barrel of the howitzers. US Army photo by Staff Sgt. Jon Cupp, 1st BCT, 1st Cav. Div. Public Affairs.

Palestinian Vote at UN May Be On Hold

| Wed Sep. 21, 2011 10:58 PM PDT

I haven't seen this anywhere else, but the Guardian is reporting that a UN vote on Palestinian statehood might get delayed after all:

The Palestinian leader, Mahmoud Abbas, is said to have told Barack Obama at a meeting on Wednesday evening that he would agree to delaying a security council vote by several weeks, although the Palestinians are maintaining the line in public that any delays will be "procedural not political".

....The Palestinians appeared to be pulling back from an immediate confrontation, having come under intense pressure from the Europeans as well as the Americans. Although [Nicolas] Sarkozy staked out a position sympathetic to the Palestinian cause in his UN speech, he has advised Abbas to hold off from the security council move.

Sarkozy wants to use the threat of a UN vote as a way of jumpstarting the peace process "without preconditions." But of course, there are always preconditions. After all, if there weren't there's a chance that negotiations might actually make some progress. And we can't have that, can we?

Troy Davis Executed in Georgia

| Wed Sep. 21, 2011 8:00 PM PDT

Despite evidence that threw into question the veracity of testimony that led to his conviction, pleas from a former president and the Pope, and even a last-minute review of the case by the US Supreme Court on Wednesday night, Troy Davis was executed by lethal injection shortly after 11 p.m. on Wednesday in Georgia.

Davis, whose case we wrote about in full detail here, was convicted on 1991 on charges that he murdered a Savannah police officer. Davis had put off eating his final meal in the expectation that he would be granted a stay of execution—as he had three times before in the past—but by Wednesday morning, he had exhausted all of his options, and a standing offer to submit to a polygraph test was rebuffed by the Georgia Board of Pardons and Paroles. The final lethal injection was delayed for more than three hours as the state waited to hear from the Supreme Court (which dismissed the appeal without dissent).

By now, you probably know the facts: Of the nine witnesses to the murder, seven have since recanted, and in doing so alleged that they were coerced into identifying Davis. Police tainted the identification process by pointing out Davis' face before he ever appeared in the lineup; new psychological research suggests that the officers went about identifying the suspect in exactly the wrong way. Ballistics evidence used to convict Davis has since been debunked. Another witness has since emerged as a plausible suspect in the murder trial. Three jurors on the case now say that if they knew then what they know now, they would not have voted to convict. Davis was quite possibly innocent, but that was hardly the point. As expressed by the popular Twitter hashtag, the problem was simply that there was #TooMuchDoubt.

Davis' case represented a perfect storm for death penalty opponents. He received support from world leaders and celebrities, including Pope Benedict XVI, Presidents Jimmy Carter and George H.W. Bush, former FBI Director William Sessions, Salman Rushdie, and Kim Kardashian. R.E.M., in one of their last acts as a band, asked supporters to sign a petition for clemency. Unlike Duane Buck, the Texas inmate whose sentence was temporarily stayed by the Supreme Court last week, Davis' guilt really was really a matter of debate. Unlike Cameron Todd Willingham, whose 2004 execution was based on debunked forensic science, he had an otherwise clean record and was a reputable character. And perhaps just as importantly, he fit the prototype: Davis, who was black, physically embodied the racial disparities that permeate the criminal justice system, from capital punishment on down to drug sentencing. It was no accident that Amnesty International made him the face of its push to end the death penalty.

Davis' execution is a setback for death penalty opponents—and more broadly, death penalty supporters who know a broken system when they see one. It's also a reminder that for all of the fervor generated by cases like Davis', the overwhelming majority of Americans still support the death penalty, and tellingly, the majority of Americans who believe that innocent people are sometimes executed still support the death penalty. In ruling against Davis, the Supreme Court affirmed what Justice Antonin Scalia stated in 2009: "[T]his court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is 'actually' innocent."

Public policy can be improved (and lives saved) without wading into the furious culture war dispute over capital punishment itself. As the Willingham fiasco led to a reconsideration of the use of forensic evidence, reformers now have another opportunity in the wake of Davis' execution to push more scientific, disinterested witness identification. They can fight split-jury sentencing and raise the threshold required to send someone to death row. (Georgia Gov. Nathan Deal supports ending the requirement in his state that juries be unanimous to secure death warrants; Florida and Alabama are the only two states that don't require unanimity to obtain a death sentence.)

Either way, the debate won't die down any time soon. Next week, the US Supreme Court will consider what course of action to take on the Duane Buck case in Texas.