Kevin Drum

ACORN Strikes Back

| Wed Sep. 23, 2009 8:30 PM EDT

ACORN has filed a lawsuit against James O'Keefe and Hannah Giles, the two undercover filmmakers who taped ACORN workers providing advice about how to smuggle underage sex workers into the country from El Salvador:

The lawsuit asserts that neither O'Keefe nor Giles obtained consent from ACORN workers for videotaping them, as state law requires.

ACORN executive director Bertha Lewis told reporters in a conference call that ACORN, the Association of Community Organizations for Reform Now, does not support criminal activity and believes the filmmakers should have obeyed Maryland laws.

Points for chutzpah, I guess, but this is a bad idea on so many levels it hurts just to think about it.  All they're doing is extending the news cycle on this whole debacle, making fools of themselves with transparently petty arguments, and just generally showing less common sense than your average mafia don caught on a 60 Minutes sting.  At this point, ACORN needs to take their lumps, finish their internal investigation, and clean up their act.  In the meantime, the least they can do is avoid handing the Glenn Beck crowd free additional ammunition.  Fair or not, shooting the messenger isn't helping their cause.

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Roving Wiretaps

| Wed Sep. 23, 2009 6:29 PM EDT

Via Atrios, here's Al Franken giving one of Obama's assistant attorney generals a hard time over the question of whether to extend a provision of the PATRIOT Act that's due to expire at the end of the year:

Franken, who opened by acknowledging that unlike most of his colleagues in the Senate, he’s not a lawyer, but according to his research “most Americans aren’t lawyers” either, said he’d also done research on the Patriot Act and in particular, the “roving wiretap” provision that allows the FBI to get a warrant to wiretap an unnamed target and his or her various and changing cell phones, computers and other communication devices.

Noting that he received a copy of the Constitution when he was sworn in as a senator, he proceeded to read it to [David] Kris, emphasizing this part:  “no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

“That’s pretty explicit language,” noted Franken, asking Kris how the “roving wiretap” provision of the Patriot Act can meet that requirement if it doesn’t require the government to name its target.

Great stuff.  So liberals, who normally believe in a living constitution that changes with changing times etc. etc., are now hauling out black letter critiques of longstanding federal law.  (Roving wiretaps have been legal for several decades.  The PATRIOT Act merely extended them to national security cases.)  At the same time, you can revel in, for example, Peter Thomson of the Federalist Society, blandly affirming that a Ninth Circuit Court (!) opinion was "based on solid legal ground" when it reasoned

that the particularity requirement of the “place” to be searched may be substituted with that of the “person” in a roving wiretap setting. Thus, a roving order authorizing a wiretap over all telephones used by a subject does particularly describe the “places” or telephones to be searched, albeit in an unconventional manner.

Italics mine.  Not the sort of reasoning the Federalist Society usually approves of, but any port in a storm, I suppose.

Personally, I'm inclined to stick to basic principles on this.  I really do believe in a constitution that adapts in obvious ways to changing times and technologies, and the framers pretty clearly didn't anticipate wiretaps of any sort, let alone wiretaps on mobile phones or worldwide packet networks.  "Place" has one meaning when the state of the art in communication technology is paper and quill pen, which can exist only in specific, well-defined locations, but quite a different meaning when you're tracking electronic signals through a globally distributed network and the access point to that network is entirely arbitrary and can exist literally anywhere on the planet.  Adapting to that reality doesn't strike me as constitutional overreach.  (Conversely, warrantless wiretaps are fundamentally corrosive regardless of type, but that's not an issue in this case.  Roving or not, these taps all require a judge's permission.)

There are some obvious safeguards that ought to be in place with roving taps, and I don't have any problem with tightening up the language if that needs to be done.  But given the reality of how technology has evolved, my instinct is that roving taps are a reasonable and constitutional response.  If I'm wrong, feel free to school me in comments.

UPDATE: It looks like I screwed up here.  Franken's issue is apparently not with roving wiretaps per se, but with "John Doe" wiretaps aimed at individuals who are described but not specifically named.  Sorry about that.

Chart of the Day

| Wed Sep. 23, 2009 5:02 PM EDT

From the CDC, here are the latest estimates about the accessibility of healthcare in America.  The share of the population that was forced to go without needed medical care during the past year because of cost has gone up from 4.5% in 1997 to 7.3% so far this year.  USA! USA!

Saving the Planet

| Wed Sep. 23, 2009 2:36 PM EDT

Via Brad Plumer, Fiona Harvey of the Financial Times gets an early look at the upcoming World Energy Outlook report:

In the first big study of the impact of the recession on climate change, the IEA found that CO2 emissions from burning fossil fuels had undergone "a significant decline" this year — further than in any year in the last 40.

....Falling industrial output is largely responsible for the plunge in CO2 , but [...] for the first time, government policies to cut emissions have also had a significant impact. The IEA estimates that about a quarter of the reduction is the result of regulation, an "unprecedented" proportion. Three initiatives had a particular effect: Europe's target to cut emissions by 20 per cent by 2020; US car emission standards; and China's energy efficiency policies.

Europe's cap-and-trade system didn't start out very strongly, but the fact is that nobody really expected it to.  Phase 2, however, is working better, and Phase 3 will be better still.  If we learn from their experience, we can avoid the early stumbles and put in place a decent (and steadily improving) program right out of the gate.  Ten years ago would have been a good time to start, but failing that, this year will have to do.

Saving the Frogs

| Wed Sep. 23, 2009 1:46 PM EDT

Whenever a week is dominated by things like UN opening sessions, G20 meetings, senate markup sessions, and the like — well, you just know that's going to be a slow week.  When was the last time something genuinely interesting happened at a UN opening session, after all?  Thirty years ago when Yasser Arafat demonstrated his revolutionary cred by giving a speech with a gun holster at his hip?  (They made him leave the gun itself at the door.)

Meh. So let's pass some time talking instead about James Fallows' great obsession: boiling frogs.  To start, here's an excerpt from a piece Paul Krugman wrote a couple of months ago:

I'm referring, of course, to the proverbial frog that, placed in a pot of cold water that is gradually heated, never realizes the danger it's in and is boiled alive. Real frogs will, in fact, jump out of the pot — but never mind. The hypothetical boiled frog is a useful metaphor for a very real problem: the difficulty of responding to disasters that creep up on you a bit at a time.

Italics mine.  And Krugman is right: even though it's untrue that frogs will mindlessly poach themselves to death if you're careful to turn up the temperature on them slowly, it's a useful metaphor.  Still, it's not true.  So we should find another one.

But here's the thing: Fallows issued a worldwide call for good substitute metaphors two years ago.  Four days later he promised that winners would be announced in a couple of days.  And then....nothing.

So here's what I'm interested in.  The boiling frog cliche is untrue.  But it stays alive because, as Krugman says, it's a useful metaphor.  So why aren't there any good substitutes?

This is very strange.  Most useful adages and metaphors not only have substitutes, they have multiple substitutes.  "Look before you leap" and "Curiosity killed the cat."  "Fast as lightning" and "Faster than a speeding bullet."  Etc.  Usually you have lots of choices.

But in this case we don't seem to have a single one aside from the boiling frog.  Why?  Is it because it's not really all that useful a metaphor after all?  Because the frog has ruthlessly killed off every competitor?  Because it's not actually true in any circumstance, let alone with frogs in pots of water?  What accounts for this linguistic failure?

UPDATE: Hoo boy.  If Glenn Beck wasn't on Jim's shit list before, he sure is now.  He's also an idiot, of course.

The Rise of Glenn Beck

| Wed Sep. 23, 2009 12:32 PM EDT

From Vinnie Penn, Glenn Beck's partner in the late 90s, when both were Top 40 jocks at KC101 in New Haven, Connecticut:

He always knew how to work people and situations for attention. He could pick the most pointless story in the news that day and find a way to approach it to get phones lit up. That was his strong point — pissing people off. He was very shrewd on both the business and entertainment sides of radio. He's built his empire on very calculated button pushing.

This is from part 3 of Alexander Zaitchik's terrific profile of Beck at Salon.  If you're looking for an antidote to the Beck dreck that Time magazine recently passed off as journalism, this is it. Read part one here and part two here.

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The Real Cost of Medmal

| Wed Sep. 23, 2009 11:41 AM EDT

In his column today, David Leonhardt makes a point about medical malpractice that doesn't get enough attention:

The fear of lawsuits among doctors does seem to lead to a noticeable amount of wasteful treatment. Amitabh Chandra — a Harvard economist whose research is cited by both the American Medical Association and the trial lawyers’ association — says $60 billion a year, or about 3 percent of overall medical spending, is a reasonable upper-end estimate. If a new policy could eliminate close to that much waste without causing other problems, it would be a no-brainer.

At the same time, though, the current system appears to treat actual malpractice too lightly. Trials may get a lot of attention, but they are the exception. Far more common are errors that never lead to any action.

After reviewing thousands of patient records, medical researchers have estimated that only 2 to 3 percent of cases of medical negligence lead to a malpractice claim.

This deserves more attention.  We can argue about the costs of defensive medicine forever. But I'm willing to tentatively accept $60 billion as a conversation starter.  It's never going to be possible to get a precise answer anyway since, as Leonhardt says later, virtually every incentive in our medical system is to do more.  Trying to isolate and quantify the blame for each particular unnecessary test just isn't possible.

Still, $60 billion is a reasonable enough guess, and trying to reduce that cost is, as Leonhardt says, a no-brainer.  Unfortunately, the real problem with our medical malpractice system isn't that it costs too much.  The real problem is that it's a lottery.  Some people get money they don't deserve because it's cheaper to settle with them even if their claims are frivolous.  But far more people who are victims of genuine malpractice never sue and never get a dime.  A genuinely fair reform, one that cut frivolous malpractice suits but also did a better job of compensating everyone who was genuinely injured, would almost certainly end up costing us more, not less.

Here's a little-known fact that helps to make this clearer.  If you're injured in a hospital, how do you know if you're the victim of malpractice?  After all, not every surgery has a positive outcome.  If yours didn't work out, that doesn't mean the doctor was negligent.

The answer is: you don't.  Unless you sue.  Most hospitals refuse to release their internal records unless you sue them and force disclosure via discovery or a subpoena.  This means two things.  First, lots of suits that look frivolous (because they're dropped quickly) aren't.  They were merely attempts to see the actual records of a case.  If there were an easier way to do that, the suit would never have been filed in the first place.

Second, despite our famously litigous nature, suing is a lot of work.  Most people don't want to do it just on the chance that there might have been some malpractice.  And most people don't.  Which means that lots of cases of malpractice are never discovered.

We could fix this pretty easily by making it much easier for patients to see the records of their own cases.  If we did, that would cut down on "frivolous" lawsuits and it would increase the number of justified lawsuits.  That would be fairer for everyone, but it probably wouldn't cut medical malpractice costs.  It would increase them.  That's why the medmal warriors never talk about this.  They like the idea of cutting back on frivolous suits, but they're much less keen on admitting that there's also a lot of genuine malpractive that goes completely unnoticed.

Even if we eliminated medmal suits entirely, the cost savings would be pretty modest.  Genuine reform, on the other hand, would likely cost us money.  That's why you never hear much about it.

State Secrets

| Wed Sep. 23, 2009 1:40 AM EDT

The Department of Justice is planning to roll out new standards that would make it tougher for the government to unilaterally throw out lawsuits by asserting the state secrets privilege:

The new policy requires agencies, including the intelligence community and the military, to convince the attorney general and a team of Justice Department lawyers that the release of sensitive information would present significant harm to "national defense or foreign relations." In the past, the claim that state secrets were at risk could be invoked with the approval of one official and by meeting a lower standard of proof that disclosure would be harmful.

...."What we're trying to do is . . . improve public confidence that this privilege is invoked very rarely and only when it's well supported," said a senior department official involved in the review, who spoke on the condition of anonymity because the policy had not yet been unveiled. "By holding ourselves to this higher standard, we're in some way sending a message to the courts. We're not following a 'just trust us' approach."

....The Justice Department officials said Tuesday that their agency would give regular reports on their use of the state secrets privilege to oversight committees on Capitol Hill and that the attorney general would pass along "credible" allegations of wrongdoing by government agencies or officials to watchdogs at the appropriate agencies, even if the administration had decided to invoke the legal privilege in sensitive cases.

I'm all for this, but unless it's backed by the force of law we're still just trusting the government to do the right thing.  Maybe they will, maybe they won't.  Maybe this administration will and the next one won't.  Who knows?  So I hope Pat Leahy keeps beavering away on legislation to codify this stuff.  DOJ can't have any objection to Congress making sure they do what they say they're going to do anyway, can they?

Quote of the Day

| Wed Sep. 23, 2009 12:06 AM EDT

From the reliably hawkish Michael O'Hanlon, suggesting that his fellow hawks ought to cut Barack Obama some slack on Afghanistan:

Here we are less than six months after [the] first strategy review was completed and military commanders are now saying that the exact same strategy they proposed back in March, they need [...] well above and beyond what they thought they needed.  And so Mr. Obama is entitled to think twice about that. He is entitled to wonder just how precise is this military arithmetic? Just how promising is this counter-insurgency strategy anyway?

Let's get clear about something.  Gen. McChrystal, in his leaked assessment, drew a spectacularly grim picture of events on the ground in Afghanistan and made it very plain that more troops alone won't have much effect on that.  Fred Kaplan interprets:

McChrystal's point is that it's not simply "resources," not just U.S. and NATO troops, that will settle the war. It's also whether the Afghan government earns the trust of its people — whether the Afghan president and his entourage of ministers, governors, and warlords are willing — or are willing to be lured — to clean up their act, end their corrupt practices, and truly serve their people.

When Obama says he needs to review the strategy before he decides on troop levels, he almost certainly means that he needs to assess whether a counterinsurgency strategy makes sense if the Afghan government — the entity that our troops would be propping up and aligning themselves with — is viewed by a wide swath of its own people as illegitimate.

So how do we change that?  This is the place where comparisons to Vietnam become hard to avoid.  Diem was never a legitimate leader of South Vietnam, and after his assassination none of his successors were either.  That made the war impossible to win.

Now we're in a different country but the same situation, and there's little reason to believe that we're any better at installing credible puppet governments today than we were 50 years ago.  More troops won't change that, as McChrystal concedes, but it's not at all clear that a change in strategy will either.  Certainly not the relatively modest changes McChrystal favors and certainly not in the timeframe he suggests.  We've screwed up monumentally in Afghanistan, and rearranging the deck chairs just isn't enough to turn things around.

The problem, of course, is that withdrawing from Afghanistan (a) would be a PR victory for the bad guys and (b) might lead to some genuinely dangerous fallout.  Nobody wants to take the blame for that.  It's always a lot safer and a lot easier to keep on fighting, never quite winning but never quite losing either.  The real danger, then, isn't that Obama might spend too much time asking tough questions of the Pentagon (an aspect of being commander-in-chief that Mitt Romney jejunely refers to as playing "Hamlet in the White House"), but that he might succumb to political pressure to "support the generals" too quickly.  Peter Baker and Elisabeth Bumiller in the New York Times today suggest that he gets this:

President Obama is exploring alternatives to a major troop increase in Afghanistan, including a plan advocated by Vice President Joseph R. Biden Jr. to scale back American forces and focus more on rooting out Al Qaeda there and in Pakistan, officials said Tuesday.

....Instead of increasing troops, officials said, Mr. Biden proposed scaling back the overall American military presence. Rather than trying to protect the Afghan population from the Taliban, American forces would concentrate on strikes against Qaeda cells, primarily in Pakistan, using special forces, Predator missile attacks and other surgical tactics.

....A shift from a counterinsurgency strategy to a focus on counterterrorism would turn the administration’s current theory on its head....But the Afghan presidential election, widely marred by allegations of fraud, undermined the administration’s confidence that it had a reliable partner in President Hamid Karzai. Mr. Obama and Mr. Biden already had raised doubts about Mr. Karzai, which were only exacerbated by the fear that even if he emerges from a runoff election, he will have little credibility with his own people.

After eight years, the burden of proof is no longer on the skeptics.  It's now on those who think we can turn things around in Afghanistan.  If McChrystal's team can come up with a genuinely credible plan to make counterinsurgency work, that's fine.  But please: no more wishful thinking and no more demands from knee-jerk hawks that we fight forever no matter what.  It's time for a reality check and some tough decisions.

The Cost of Cultural Imperialism

| Tue Sep. 22, 2009 7:31 PM EDT

Matt Yglesias wants to know why Diet Coke Coca-Cola Light is so expensive in Europe.  Beats me.  But I can say that this has been the case for a very long time.  Back in 1980, after my junior year in college, I spent a few months traveling in Europe with friends and it seemed as if Coke got more expensive with every new country we visited.  As I recall, we finally just stopped drinking the stuff after paying five francs for a can in Paris once and having it finally occur to us just how much that was.  Adjusting for the then-current exchange rate and 30 years of inflation, that can cost me a little over $3.

But expensive though it might still be, fizzy sugar water won't set you back $3 a can these days.  So that's the good news: Coke may still be overpriced in Europe, but not by as much as it used to be.  Progress!