Kevin Drum - August 2013

Defense Attorneys Plan to Fight NSA Evidence in Drug Cases

| Fri Aug. 9, 2013 12:20 PM EDT

Can the DEA get secret tips based on NSA surveillance evidence and then invent new stories about where their evidence came from when the case comes to trial? Yes they can. But now that defense lawyers know about this, they're going to try and do something about it:

Defense lawyers said that by hiding the existence of the information, the government is violating a defendant's constitutional right to view potentially exculpatory evidence that suggests witness bias, entrapment or innocence.

"It certainly can't be that the agents can make up a 'parallel construction,' a made-up tale, in court documents, testimony before the grand jury or a judge, without disclosure to a court," said Jim Wyda, the federal public defender in Maryland, in an email. "This is going to result in a lot of litigation, for a long time."

....[David Patton, executive director of the Federal Defenders of New York] said information about how an investigation began may be highly relevant in certain cases because it bears on the credibility of government witnesses.

"Informants lie. They lie a lot," he said. "You can't competently or fully challenge the basis for a stop or search if the government's hiding information about the real reason for the stop and search."

Presumably, Patton is suggesting that once investigators get an NSA tip, they can then go dig up an "informant" willing to recycle the tip, thus giving them probable cause for a warrant. But if the court knew the real source of the tip, jurors might be a little more skeptical of the informant.

Will this get anywhere? Hard to say, since the usual Catch-22 is at work here: How do you know whether to demand NSA evidence if you have no idea whether it was used in your case in the first place? Unfortunately, that's never bothered the Supreme Court before, which happily tosses out cases when plaintiffs can't prove they were the subjects of secret surveillance. But maybe this kind of case, which doesn't involve terrorism or national security, will finally change their minds. Maybe.

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Time to Retire the R-Word

| Fri Aug. 9, 2013 11:18 AM EDT

Mother Jones has joined the ranks of publications that refuse to utter the name of Washington DC's pro football team. In fact, that's now what our style guide calls them: "Washington's pro football team." Personally, I'd prefer the Victorian era affectation of using initials. I never quite understood why old novels were littered with things like Mr. K---- or Bishop M-----, but why not make use of it anyway? We could refer to Washington's pro football team as the R-----s. This has the added advantage of automatically giving it the veneer of vulgarity. Dan Snyder's team would be the R-word, to go along with the N-word and the C-word and all the others.

But here's a question: Is there a similar movement afoot to change the name of Cleveland's pro baseball team and Atlanta's pro baseball team? It's true that the I-word and the B-word are less offensive than the R-word, but on the other hand, the team logo in Cleveland sure beats Washington for offensiveness. And that hatchet thing in Atlanta is just plain annoying. I know that both those teams have taken some heat for their names, but not as much as Washington. Anyone know if that's changing?

Nobody Likes the 30-Hour Rule. So Why Can't We Fix It?

| Fri Aug. 9, 2013 12:00 AM EDT

Under Obamacare, large employers are required to provide health insurance for every employee who works more than 30 hours a week. This provides an unfortunate incentive to cut worker hours so that they're just under the 30-hour limit, but Brad DeLong doesn't think this is likely to be a big problem:

I am confident that as ObamaCare is implemented we will see some firms reconfigure themselves to rely more on part-time and less on full-time workers—and that this distortion will be one of the costs of ObamaCare. But I don't expect this to be a large effect. And I do not believe that we are seeing it yet. The rise in the relative number of part-time workers looks to be, so far, due 100% to the depression plus statistical noise due to the small sample of the Current Population Survey.

I think this is right. There are several anecdotes making the rounds of Fox News about companies who are cutting worker hours in response to the Obamacare mandate, and some of them may even be true. But so far, the evidence suggests that the effect is very, very small. A CEPR study last month looked at the number of people working 26-29 hours per week, figuring that if hours were cut back, they'd probably be cut back to just under 30. If Obamacare were having an effect, we'd expect to see a rise in the number of workers in the 26-29 hour bucket, but that's not what CEPR found. The percentages turned out to be essentially identical between 2012 and 2013. What's more, the total number of people working that many hours is so small that even if the change were fairly large, it would be barely noticeable.

Brad himself looks at the raw number of people employed part time and sees nothing beyond the effect of the Great Recession. He also points us to Evan Soltas, who crunched the numbers and produced the chart on the right, which simply doesn't show any noticeable shift toward part-time work. Soltas thinks we'll probably see an effect on full-time work eventually, and I agree, but it's likely to be very small.

There's a moral to this story. Two morals, really. First, conservatives are going to trumpet every employer who announces some kind of cutback, regardless of whether they ever follow through on it. But as with most Obamacare doomsaying, it should be taken with a whole shaker of salt. Second, a lot of liberals agree that the 30-hour rule is bad policy, and should either be repealed or reformed. If conservatives were interested in making good policy, it would be pretty easy to team up with a bunch of Democrats and pass something that would improve the way the law works. But they aren't. They want horror stories, not good policy.

Finally, a Blowhard Cable Host Gets What's Coming to Him

| Thu Aug. 8, 2013 5:25 PM EDT

I'll confess that I don't really understand why anyone wants to go on TV with a cable blowhard like Bill O'Reilly, Lawrence O'Donnell, or Chris Matthews. What's the point of putting up with their ranting? Is appearing on television really that important?

But that's just me. I get that plenty of people enjoy being on TV more than I do. (Actually, pretty much everyone probably enjoys it more than I do.) Different strokes and all that. That said, I sure did enjoy finally, finally seeing a mistreated guest tee off on a blowhard host. Julia Ioffe's post today is one I've been waiting a long time to read.

Grover Norquist Almost Comes Up With a Clever Plan to Fight Obamacare

| Thu Aug. 8, 2013 5:00 PM EDT

Dave Weigel alerts me today to a "smarter" version of the conservative obsession with repealing Obamacare. It comes from Grover Norquist and a supporting cast of about a dozen right-wing luminaries. Here it is:

  1. Mandates. The president has already delayed the mandate for the biggest corporations unilaterally....Congress should lift the legal cloud on that delay and extend the same relief to individuals and small businesses by delaying the individual mandate.
  2. Subsidies. Without a complete, workable verification system to protect taxpayers it would be reckless to allow tens of billions of taxpayer dollars to flow in subsidies....The money should not flow when the law’s verification provisions are not ready to be enforced.
  3. Taxes. The American people should not be forced to pay higher taxes for a system that isn’t ready.

Um, what? How is this smarter? Instead of simply repealing Obamacare, this plan proposes repeal of the individual mandate, the subsidies, and the taxes that pay for it. But that's practically the whole bill. Aside from the Medicaid expansion, the only thing left is the guarantee of private coverage for people with preexisting conditions.

(And why is that one provision left alone? Hard to say. The charitable explanation is that it's very popular, so Norquist doesn't want to oppose it. The less charitable explanation is that keeping it around without the subsidies or the mandate would be a disaster for insurance companies, which would turn them into enemies of Obamacare. Take your pick.)

The problem is that politically, this is as much a nonstarter as full repeal. So it's only smart if it makes a dent with the public. But I don't see how. It's too complicated for most people to understand or care about.

Actually, I think Norquist came close to a winner with this proposal, but then whiffed. What he should have proposed is a flat one-year delay for the whole bill. That's easy to understand and easy to defend, and it's the perfect complement for all the horror stories conservatives are ginning up about problems with implementation. It's still a nonstarter politically, but at least it would force Democrats to defend the law more vigorously than they are right now, and maybe even to overreach and make promises they can't keep. Unfortunately for Norquist, I suppose the true believers never would have gotten behind it. It would have seemed like too much of a sellout. Live by the sword, die by the sword.

It's Not Just People Who Are Getting Fatter

| Thu Aug. 8, 2013 2:16 PM EDT

Alex Tabarrok has a pretty interesting post today about the peculiar obesity epidemic among animals. It turns out that both pets and feral animals (like sewer rats) have been steadily gaining weight over the past few decades. But before you jump in and take a guess at why, it also turns out that lab mice used as controls in experiments are getting heavier too. This is hard to explain, since researchers have done their best not to change the way they treat control mice:

Control mice are typically allowed to feed at will from a controlled diet that has not varied much over the decades, making obvious explanations less plausible. Could mice have gained weight due to better care? Possibly although that is speculative.

More generally, there are specific explanations for the weight gain in each of the animal populations, just as there are for humans. Each explanation looks plausible taken on its own but is it plausible that each population is gaining weight for independent reasons? Could there instead be a unifying explanation for the weight gain in all populations? No one knows what that explanation is: toxins? viruses? epigenetic factors? I am not ready to jump on any of these bandwagons and in some cases the author’s samples are small so I am not yet fully convinced of the underlying facts, nevertheless this is intriguing and important research.

So what's going on? So far, it's a mystery, though I agree with Tabarrok's skepticism that lots of different populations (humans, pets, wild animals, control mice) are all getting fatter and all for different reasons. It just seems a little too pat. But you never know.

As an aside, I wonder if this kind of weight gain has been observed in any non-mammal populations?

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Electric Cars Are Great in Vermont, Not So Great in Kentucky

| Thu Aug. 8, 2013 1:02 PM EDT

Climate Central has some bad news for all of us eco-sensitive folks: figuring out the best car to drive is harder than you think. For starters, you need to take into account which state you live in. If you live in, say, Washington or Vermont, where most of your electricity comes from hydropower or nuclear, an electric car is pretty carbon friendly. If you live in Kentucky, where your power mostly comes from coal, an electric car isn't such a good choice.

But there's more. You also need to account for the carbon emissions it takes to build the car in the first place. And since battery manufacturing is pretty carbon intensive, a car with a big battery starts out with a big carbon deficit to make up. Their conclusion:

In 26 states, a plug-in hybrid is the most climate-friendly option (narrowly outperforming all-electrics in 11 states, assuming 50:50 split between between driving on gas and electric for the plug-in hybrids), and in the other 24 states, a gas-powered car the best. All-electrics and plug-in hybrids are best in states with green electrical grids with substantial amounts of hydro, nuclear and wind power that produce essentially no carbon emissions. Conventional hybrids are best in states where electricity comes primarily from coal and natural gas.

The table on the right shows Climate Central's total lifecycle ranking of various cars based on 50,000 miles of driving and U.S. average electrical emissions. All-electric cars do better if you live in a state with lots of hydropower, and they also do better if you drive more, since that provides more time to make up the carbon deficit from manufacturing the battery.

You can read the whole report for more details, including rankings for each state. In Vermont, the all-electric Honda Fit comes in first. In California, a plug-in Prius is the top choice. In Kentucky, a regular gasoline-powered hybrid Prius is number one. The lovely Tesla S, sadly, does poorly pretty much everywhere.

The NSA Is Reading Every Email Sent To and From the United States

| Thu Aug. 8, 2013 11:34 AM EDT

Charlie Savage reports today that the NSA doesn't just monitor communications between Americans and terrorist suspects overseas. It monitors every communication sent overseas, searching for keywords linked to foreigners already under surveillance:

The N.S.A. is not just intercepting the communications of Americans who are in direct contact with foreigners targeted overseas, a practice that government officials have openly acknowledged. It is also casting a far wider net for people who cite information linked to those foreigners, like a little used e-mail address, according to a senior intelligence official.

....To conduct the surveillance, the N.S.A. is temporarily copying and then sifting through the contents of what is apparently most e-mails and other text-based communications that cross the border. The senior intelligence official, who, like other former and current government officials, spoke on condition of anonymity because of the sensitivity of the topic, said the N.S.A. makes a “clone of selected communication links” to gather the communications, but declined to specify details, like the volume of the data that passes through them.

....The official said that a computer searches the data for the identifying keywords or other “selectors” and stores those that match so that human analysts could later examine them. The remaining communications, the official said, are deleted; the entire process takes “a small number of seconds,” and the system has no ability to perform “retrospective searching.”

The official said the keyword and other terms were “very precise” to minimize the number of innocent American communications that were flagged by the program.

The justification for this revolves around a close parsing of the word "target": As long as no Americans are specifically targeted, NSA can trawl through our email as much as it wants. After all, the keywords it's looking for may come from emails we send, but they're targeted at foreigners:

The rule they ended up writing, which was secretly approved by the Foreign Intelligence Surveillance Court, says that the N.S.A. must ensure that one of the participants in any conversation that is acquired when it is searching for conversations about a targeted foreigner must be outside the United States, so that the surveillance is technically directed at the foreign end.

Maybe so. But if you send an email to a pal in Berlin, be careful. Mention the wrong name or talk about the wrong subject, and you could end up in the NSA's dragnet.

How the Paint Industry Escapes Responsibility for Lead Poisoning

| Thu Aug. 8, 2013 10:49 AM EDT

The main focus of my story in January about the link between lead and crime was on leaded gasoline. That was mainly because the rise and fall of leaded gasoline following World War II tracks the rise and fall of crime between the 60s and 90s. However, lead is lead, and the lead in leaded paint has all the same ill effects when small children are exposed to it: it reduces IQ, increases learning disabilities, and affects parts of the brain linked to impulse control. Despite that, activist groups haven't had much luck holding the paint industry accountable. Lilly Fowler reports for us today on what happened:

Apart from one settlement, the industry has successfully fended off roughly 50 lawsuits by states, cities, counties, and school districts over the past quarter century. Now, in a trial under way in San Jose, California, industry lawyers are seeking a final victory in a case brought by 10 agencies, including the cities of San Francisco, Oakland and San Diego, and the counties of Los Angeles and Santa Clara. The agencies want the industry to cover the cost of eliminating lead paint from all the homes in their jurisdictions; the price tag could exceed $1 billion.

....Defense lawyers have argued in a brief that the companies weren't aware when they promoted lead paint that it would someday cause harm. "Scientific knowledge concerning lead exposure evolved over the decades," it reads. What's more, they claim there is no longer any widespread danger from lead. Today's blood lead levels, according to their court filings, do not present "a current public health crisis" but rather "a public health success story."

What's more, they argue, California already has a well-funded lead poisoning prevention program that collects annual fees primarily from the gasoline industry, but also from makers of paint and other lead-containing products.

Unfortunately, the research linking lead to crime has probably come too late to have an impact in this case. Read the whole thing to learn how the paint industry has managed for decades to avoid responsibility for the catastrophic effects of their products.

Seniors Aren't Very Happy With the Republican Party These Days

| Wed Aug. 7, 2013 9:36 PM EDT

Erica Seifert writes that polling evidence suggests that seniors are turning against the Republican Party in big numbers. Here are three of her bits of evidence:

  • In 2010, seniors voted for Republicans by a 21 point margin (38 percent to 59 percent). Among seniors likely to vote in 2014, the Republican candidate leads by just 5 points (41 percent to 46 percent.)
  • Seniors are now much less likely to identify with the Republican Party. On Election Day in 2010, the Republican Party enjoyed a net 10 point party identification advantage among seniors (29 percent identified as Democrats, 39 percent as Republicans). As of last month, Democrats now had a net 6 point advantage in party identification among seniors (39 percent to 33 percent).
  • On almost every issue we tested — including gay rights, aid to the poor, immigration, and gun control — more than half of seniors believe that the Republican Party is too extreme.

I'm not sure how seriously to take this. Comparing attitudes on Election Day in 2010 to attitudes today, 15 months before an election, strikes me as a stretch. And the fact that you think the GOP is too extreme on an issue or three doesn't mean you're going to vote against them. On the other hand, there's also this:

  • When Republicans took control of the House of Representatives at the beginning of 2011, 43 percent of seniors gave the Republican Party a favorable rating. Last month, just 28 percent of seniors rated the GOP favorably. This is not an equal-opportunity rejection of parties or government — over the same period, the Democratic Party’s favorable rating among seniors has increased 3 points, from 37 percent favorable to 40 percent favorable.

I dunno. I'd want to know why the party's approval ratings have dropped. If it's because tea-partyish seniors think the GOP leadership isn't conservative enough, that certainly doesn't suggest much of a pickup opportunity for Democrats. So color me unconvinced for now. At the same time, this does suggest that there's at least an opportunity here for Democrats. If they can goad Eric Cantor and his pals into spending the next year jabbering about cuts to entitlements—i.e., Medicare and Social Security, which 89 percent of seniors want protected—then who knows? Maybe seniors really will bolt.