Mojo - October 2010

Manchin Targets Climate Bill. Literally

| Tue Oct. 12, 2010 6:08 AM PDT

Last week, we saw West Virginia's Democratic Governor and Senate candidate Joe Manchin taking aim at the Environmental Protection Agency's efforts to regulate coal mining. This week, we find him taking aim at the administration's climate policy of choice, cap and trade. Literally.

Manchin's latest ad shows him using cap and trade legislation for target practice, as he pledges to "take on Washington and this administration and get the federal government off our backs and out of our pockets." The ad is titled "Dead Aim" and also touts his membership in the NRA.

Manchin has been a popular governor in the state, but the race to fill seat of the late Sen. Robert Byrd is quite tight at this point. Recent polls have shown Manchin as much as five points behind his Republican opponent, John Raese. The Democrat has, in turn, fought to distance himself from Obama—particularly on environmental issues. But the coal-hugging isn't new for Manchin; after all, he named coal the state rock last year and has never been shy about being a "friend of coal."

Byrd made significant shifts on energy and environmental issues late in his career, but I can't imagine we'd see the same in Manchin if he does emerge victorius in November.

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Why We Need a Consumer Protection Bureau

| Tue Oct. 12, 2010 3:00 AM PDT

At last count, dozens of congressmen and numerous state attorneys general have demanded investigations into or have already begun scrutinizing the nation's largest mortgage companies amid allegations of deception and fraud in the foreclosure process. Several major banks—JPMorgan Chase, Bank of America—have announced freezes on foreclosures. Then, on Monday, Bloomberg reported that attorneys general in 40 states were poised to unveil a sprawling joint investigation into the use of dubious foreclosure paperwork—crucial legal filings carelessly signed in such a way that allegedly violates federal rules—at multibillion-dollar institutions like JPMorgan, B of A, and Ally Financial, formerly GMAC.

What these investigations will surely lay bare, and what consumer advocates and legal aid attorneys have described for years, is the broken, fragmented system of regulation and protection that's allowed this massive foreclosure fraud to occur. To be clear, the current debacle involves the practices of companies and/or subsidiaries called mortgage servicers, the middlemen of the housing industry who take your payments, provide customer service, and handle foreclosures when a borrower defaults on his or her loan. As I've reported before, there are few cops on the beat when it comes to regulating mortgage servicers. Which is why, more than ever, the country needs the new Bureau of Consumer Financial Protection, a single watchdog to oversee not just one link but the entire complex chain of events for consumers involved with the mortgage industry.

Here are some statistics for you. In 2009, the Department of Housing and Urban Development received almost 2,500 complaints about mortgage servicers, a 379 jump from two years earlier. Yet HUD's record of enforcement against servicers is mediocre at best. It doesn't help that a trio of other agencies—the Federal Trade Commission (FTC), Office of the Comptroller of the Currency, and Office of Thrift Supervision—claimed oversight of this checkered industry. The OTS and OCC's regulatory records are even worse: At the time I wrote my story, "Always Be Foreclosing," last summer, an OTS spokesman could name only one enforcement—ever—against a servicer; an OCC spokesman couldn't name any at all. (The OTS, I should add, will soon be folded into the OCC, limiting the regulatory clutter somewhat.) "This is a very underregulated part of the system," Jack Guttentag, a professor emeritus of finance at the Wharton School in Pennsylvania, told me. "It shouldn't be, because it's the part where the consumer has no place to protect themselves."

The FTC has done a better job cracking down on servicers, winning multimillion-dollar settlements against abusive servicers. But even the commission's actions are reactionary, sporadic, and ultimately of little help to screwed-over homeowners.

This lackluster and balkanized oversight of the servicing industry helps to explain why companies passed off bogus paperwork and allegedly committed fraud on the court for as long as they did. Looking to state attorneys general or Congress to fix the industry's oversight gaps is naive at best—they might penalize mortgage servicers, but before long they'll have moved onto their next cause celebre. This is where a consumer protection bureau dedicated to proactively safeguarding American consumers comes into play. Odds are, the kinds of assembly line-like foreclosure processes that've landed banks in hot water would never have lasted so long nor grown to such size (one Chase employee, or "robo signer," describes 18,000 legal filings passing through her department every month) with an independent consumer watchdog in place. If you needed any more evidence why a tough consumer watchdog was needed, the ongoing foreclosure mess—to which there's no solution that won't either screw homeowners or further sink the housing market (or both)—is your case in point.

We're Still at War: Photo of the Day for October 12, 2010

Tue Oct. 12, 2010 2:30 AM PDT

U.S. Soldiers assigned to the 18th Combat Sustainment Support Brigade perform a platoon mounted and dismounted live-fire exercise at Grafenwoehr Training Area in Germany Oct. 6, 2010. DoD photo by Gertrud Zach, U.S. Army

ACLU to Obama: You Can't Just Kill Citizens Whenever

| Mon Oct. 11, 2010 2:11 PM PDT

For months, the news media has been full of reports that the Obama administration plans to kill Anwar Al-Awlaki, an accused terrorist who also happens to be a US citizen. This summer, two human rights groups sued on Al-Awlaki's behalf. Despite the possibility that Al-Awlaki could be killed at any moment, the court battle over his fate has already dragged on for weeks without even touching on the government's evidence against him. Instead, the Obama administration has been trying to have its cake and eat it—or rather keep its secrets and kill its alleged terrorist—too. 

The lawsuit pits the American Civil Liberties Union, the Center for Constitutional Rights, and Anwar Al-Awlaki's father, Nasser, against the full force of the Obama administration. In the government's first response to the case, filed late last month, Justice Department lawyers deployed a number of tough legal arguments—including their trump card, the so-called "state secrets" privilege, which allows the government to argue that even hearing the case could pose a dire threat to national security. 

By invoking state secrets, the Obama administration wasn't just arguing that it can kill its citizens. It was also saying that it doesn't have to explain the legal or factual basis for the killing. That's a bold assertion. But the state secrets doctrine is a powerful tool, and the government really doesn't want to lose this case. 

Late Friday, the rights groups filed their response [PDF] to the government's brief. On state secrets, the plaintiffs note that if Al-Awlaki had been charged with a crime, the government wouldn't be able to cite the state secrets privilege. (The Supreme Court has unambiguously ruled that the privilege is unavailable in criminal cases.) This is the having cake and eating it too bit. "The government is trying to impose the ultimate penalty without trial while claiming a secrecy privilege that would be unavailable with trial," the rights groups argue. "It would be an odd and remarkable rule that would permit the government to avoid all judicial scrutiny simply by electing to bypass trial in favor of summary execution." Indeed it would! But that's how the state secrets privilege seems to work: it allows the government to avoid scrutiny of all sorts of things. The Bush and Obama administrations successfully invoked the privilege to block suits over torture. So it wouldn't be a major surprise if the judge in the Al-Awlaki case could be persuaded to dismiss this suit on similar grounds.

The Al-Awlaki case may not even get to that point. The plaintiffs' lawsuit is perhaps most vulnerable on "standing," or right to sue, grounds, and dismissing the suit on that basis would be the easiest, and least controversial, option for Judge John Bates, who's hearing the case. 

Another hurdle is the government's argument that the court cannot tell the executive branch whether to apply the law of armed conflict (which might make it easier to kill Al-Awlaki) or constitutional law, and that the court cannot review presidential decisions such as whether to kill an accused terrorist. This directly relates to the argument that bloggers Glenn Greenwald and Andrew Sullivan have been having over the past several weeks over whether we're "at war" with people like Al-Awlaki. There's some common ground here. After all, the ACLU/CCR lawsuit is not necessarily arguing that the government doesn't have the right to kill Al-Awlaki. Here's CCR's description of its own suit:

The lawsuit asks a court to rule that using lethal force far from any battlefield and without judicial process is illegal in all but the narrowest circumstances and to prohibit the government from carrying out targeted killings except in compliance with these standards. It also asks the court to order the government to disclose the legal standard it uses to place U.S. citizens on government kill lists.

As that description demonstrates, the rights groups acknowledge that in some circumstances, even far from the battlefield, even without judicial process, the government can still sometimes kill people. The plaintiffs want the courts to play a role in hashing out the rules, and for there to be some oversight and public debate about these issues. Anwar al-Awlaki may well be—in fact, he probably is—the terrorist that the government says he is. But the Obama administration seems absolutely determined to keep the details of its targeting criteria under wraps. (Perhaps, as Marcy Wheeler has suggested, because it targeted him at Yemen's request.) It may well have a good legal case for killing al-Awlaki. It just doesn't want to make it. "At a minimum, the government has to make public legal standard under which it's going to take its citizens lives," ACLU lawyer Ben Wizner told me a few weeks ago.

The courts really should be able to handle this kind of case. In Israel, a country where targeted killings of suspected terrorists are legal, human rights activists took to the courts to hash out the rules. In 2006, the Supreme Court of Israel upheld the use of targeted killings—but also laid out ground rules for when such assassinations were legal. There's a big separation of powers issue at stake here. Is this a country where the courts have a say on the most important civil liberties questions of the day? Or is it a country where the executive makes all the decisions and doesn't have to justify or explain them?

'School of Shock' Op-Ed Omits Some Details

| Mon Oct. 11, 2010 12:52 PM PDT

The founder of a school that treats some disabled and emotionally troubled students with punitive electric shocks recently published an Op-Ed in the Washington Post about its benefits. The private school, Judge Rotenberg Center (JRC), has been criticized by disability rights activists like Laurie Ahearn, who wrote a negative op-ed about the school in the Washington Post the week previous. State legislators in Massachusetts, where the school is located, have been trying to ban the electric shocks for years, but recently have gotten some momentum behind their movement with an international complaint and a federal investigation by the Department of Justice. Mother Jones first covered the JRC, nicknaming it the School of Shock, in a 2007 investigative feature.

In his op-ed, JRC founder Matthew Israel talks about students whose self-mutilating behaviors have been curbed by the shock device, but he doesn't mention that many students on the shock pack are not such severe cases. One former student, Rob Santana, talked with our reporter in 2007 about his experience with the school's punitive electric shocks. Rob was out of control, no doubt, but he wasn't chomping on his own arm or blinding himself. He was cursing, yelling, and dealing with compound diagnoses of ADHD, bipolar disorder, PTSD, and OCD. Rob wore a backpack containing the device's 10-lb batteries and electrodes 24-7, even while showering, so he could be shocked at any moment. And while Israel insists the shock feels like a "hard pinch", Rob says it "hurts like hell" and even our reporter said it was significantly more painful than a pinch: 2 seconds never felt so long, she said. The painful shocks have been applied for bites and hits, yes, but also for minor infractions like failing to "maintain a neat appearance" and "nagging." At the JRC, a shockable offense is a shockable offense. When our article was published three years ago, the school had shock packs on about half of its 234 students. Now, the number is 27 of 145.

In Defense of the US Chamber of Commerce (Sort Of)

| Mon Oct. 11, 2010 8:46 AM PDT

Democrats, including the president, spent the weekend ramping up their attacks on the US Chamber of Commerce, the big business lobbying group that's spending tens of millions of dollars of corporate money to elect Republicans this election cycle. But the Democrats, as usual, are missing the point. Instead of focusing on the plain facts—that big corporations make huge, secret, unregulated donations to the chamber to elect Republicans and evade accountability for it—the Dems are seizing on the idea, first explained in a ThinkProgress report, that some of the money is coming from overseas. US subsidiaries of foreign companies can participate in US politics, but the companies themselves cannot. So the legal experts ThinkProgress spoke to suggested that "the Chamber is likely skirting longstanding campaign finance law that bans the involvement of foreign corporations in American elections."

Mother Jones has criticized the Chamber's pratices in the past (see our full coverage here), but, in this case, there are a number of problems with the Dems' "foreign money" attacks. If the Chamber is indeed funelling foreign money into campaigns (and that remains an open question), it's a relatively small amount—perhaps several hundred thousand dollars. That's a tiny percentage of the Chamber's overall ad spending—the group aims to spend $75 million this cycle. But there's also an accounting issue here. Kevin Drum hinted at this in a post this weekend, when he asked whether foreign donations to the Chamber go into the group's general fund. The Chamber has said that it has a "system in place" to prevent foreign money from being used to fund political ads. It has also said that "No foreign money...is used to fund political activities." That's pretty explicit, and it suggests that the Chamber almost certainly has some sort of accounting scheme in place to segregate funds from foreign and domestic sources. 

ThinkProgress has suggested that such accounting tricks don't matter, because money is fungible. The idea is that every dollar the Chamber gets from foreign sources and uses to say, pay salaries, represents a domestic dollar that doesn't have to be spent on salaries—and can therefore be used for attack ads. But I remember the health care debate, when almost everyone on the Left was singing a very different tune about the fungibility of money. Back in February, Republicans were attacking Democrats for the "accounting gimmick" in the health care bill that allowed Dems to claim the bill didn't pay for abortions. (Here's the Center for American Progress Action Fund's Jessica Arons, blogging on WonkRoom, ThinkProgress' sister blog, back in February.) Basically, under the Nelson amendment (and current law), people who want to buy health plans that include abortion coverage will have to write two separate checks—one to cover the bulk of the policy and another to cover abortion and related services. But some of those folks will be receiving subsidies for their insurance from the government. That's where the accounting gimmick comes in—the "abortion check" will have to come entirely from the customer's own funds. If you believe in the absolute fungibility of money, that's a ridiculous distinction. But it's the distinction that the White House and Democrats relied on to claim that the bill wouldn't fund abortion. The Stupak amendment, of course, relied on a similar "accounting gimmick"—separate policies as opposed to separate checks.

Here's the point: people believe in "accounting gimmicks." They're used in politics (and business) all the time. They're even used in non-profits: the Center for American Progress, which is organized under section 501(c)3 of the tax code, shares staff with its sister organization, the Center for American Progress Action Fund, a 501(c)4.

If Democrats really want to criticize the Chamber of Commerce, they should stop harping on accounting and focus on the larger issue: the vast sums of money that domestic corporations are spending, without any disclosure or accountability. It's easy to pick on scary foreigners. But if Democrats don't want to get buried under a tidal wave of corporate cash, they're going to have to toughen up and focus their criticisms on the US-based companies that are trying to take them out. If Dems don't have the stomach for that, they had better get used to the new landscape.

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Sharron Angle's Pork Amnesia

| Mon Oct. 11, 2010 8:20 AM PDT

Over the weekend, Sharron Angle, Nevada's conservative and divisive candidate for US Senate, illustrated once more her tenuous grip on reality and the truth. Angle held forth at a Las Vegas rally on Saturday, the Las Vegas Sun reported, bashing her opponent, Senate Majority Leader Harry Reid, as a pork-peddling Beltway insider. Referring to Reid's deal brokering and arm-twisting that helped to pass the health insurance reform bill earlier this year, she said, "We don't need some kind of favor-buying pork...Harry Reid isn't just another vote. He pushed it, he promoted it, he made the deals."

Now, accusing Reid of carrying the water for big industry isn't the kicker here; after all, Mother Jones' Josh Harkinson exposed Reid's cozy ties with the gold mining industry, writing, "Reid's loyalty to mining has increasingly put him at odds with other Democrats, who have sought to end more than a century of giveaways to the nation's dirtiest industry." The real issue is Angle's cariacature of Reid as wedded to special interests and as the architect of inside dealing, when in fact Angle herself was recently exposed trying to broker a back room deal offering a rival access to Capitol Hill politicos.

A couple weeks ago, Angle was caught on tape quietly attempting to third-party Senate candidate Jon Scott Ashjian to endorse her campaign and drop out of the race. Angle's campaign fears Ashjian could peel off votes that she would otherwise win. In exchange for Ashjian's support, Angle offered Ashjian access to the biggest conservatives on Capitol Hill, the recording revealed. "Whatever juice I have, you have as well. You want to see (US Sen. Jim) DeMint (R-SC), I have juice with DeMint. I go to DC and say "I want to see Jim DeMint,' he's right there for me."

And this from a woman who's denounced backroom deals and the insider culture here in Washington. Angle's own supporters ripped her for the offer: Nevada tea party activist Debbie Landis told the Sun, "I don’t know what she hoped to accomplish. I’m very distressed at the credibility that lying, duplicitous fraud has right now."

Not that the Ashjian gaffe has dented Angle's public backing. According to a recent Rasmussen poll, Angle leads Reid by 4 percentage points. We'll have to wait to see if her latest flip-flop hurts her in the race's home stretch.

Do Anti-Government Voters Still Love Pork?

| Mon Oct. 11, 2010 7:41 AM PDT

More voters are opposing government spending in the abstract, but they apparently still favor it when it benefits them personally and on a local level. New polling from the Washington Post and the Kaiser Family Foundation reveals the public's schizophrenia on the role of government. While Americans have "a more negative view of government today than they did a decade ago," they still want the government to be involved in their own lives, the Post reports:

[M]ost Americans who say they want more limited government also call Social Security and Medicare "very important." They want Washington to be involved in schools and to help reduce poverty. Nearly half want the government to maintain a role in regulating health care.

Chris Cilizza also flags the finding that a strong majority want their own member of Congress to bring home the bacon:

Fifty-seven percent of those polled said they wanted their own Congressman to "fight for more government spending in your congressional district, in order to create jobs" while 39 percent said they preferred their member of Congress to "fight" government spending even if it means fewer jobs in their district. A majority of independents (52 percent) said they preferred their congressman to focus on local spending to create jobs.

Such attitudes could have given Democrats an opportunity to undercut the tea party right's wide-ranging, anti-government animus, by drilling down to the specifics of how their major legislative milestone—the stimulus, health care reform, the Wall Street overhaul—actually help local districts and voters. But only in recent weeks have the Democrats even begun to hammer their Republican opponents on issues like Social Security, having spent most of the election cycle trying to distance themselves as much as possible from their own accomplishments.

Choose Your Own Abduction, Army Edition

| Mon Oct. 11, 2010 7:40 AM PDT

Pop quiz, hotshot. You're a mid-career Army officer. Your bosses have (finally) issued some guidelines condeming human trafficking by soldiers and contractors. And they want you to develop the training curriculum for the troops. What do you do? What do you do?

Do you: 

A) Stick to the military M.O. and make a dry, dull, text-heavy, official-sounding PowerPoint slide? Or, do you:

B) Make it hip and toss in some stuff soldiers dig, like Choose Your Own Adventure books, shady foreign nightclubs, heavy drinking, and ethnic stereotypes?

US Army: Army Knowledge OnlineIt's true, somebody in the Army's got a peculiar sense of humor. In late 2005, media reports began to highlight the federal government's inability to enforce the anti-trafficking guidelines at its installations abroad. (Such reports continue to this day; they include stories about foreign women pressed into service as prostitutes for contractors and soldiers in Iraq). As the attention grew, the Army issued its first human trafficking policy in 2006 to cover soldiers and DOD civilians. "Trafficking in Persons is the third largest and fastest growing criminal activity in the world," the policy states. "A grave violation of human rights, it is a world-wide criminal threat to security, civil rights, and stability—and a direct threat to our national foreign policy goals."

Translation: Human trafficking is no laughing matter. And yet the screenshot above shows how the Army trains its uniformed personnel to be vigilant against trafficking in persons, via an online module at the password-protected Army Knowledge Online (AKO) portal. Soldiers are told to picture themselves in a seedy foreign bar with a "petite and attractive Asian" bartender. Do you answer that call on your cell phone, or ask her if she's in danger? When that last beer makes you queasy and you can't find the bathroom, do you make for the exit, or do you head to the kitchen? When there's a misunderstanding, how do you tell the proprietor: "I just thought you were offering lap dances...I...have to go."* (Note: That's an actual quote from the Army's training.)

To be fair, the Army issues a caveat to the training:

WARNING: This training deals frankly and candidly with the realities of trafficking in persons (TIP), which capitalizes on human misery and exploitation. To some people, being exposed to the details about trafficking in persons (TIP) may be considered distasteful. This TIP training addresses what some may see as an upsetting look at the realities of the problem. For all, that is the nature of the problem. This training is intended to increase everyone's awareness of that issue and to help serve to end it.

Distasteful, sure. But does the module provide a "look at the realities of the problem"? Army officer Crispin Burke, who edits the milblog Wings Over Iraq, took the entire training session on AKO. Then he provided Mother Jones with additional screenshots of the module, which would be funny if they weren't so sad (see them all below). Burke also used WOI to express his misgivings over the training:

Don't get me wrong:  I applaud the US Army's efforts in combating human trafficking, a racket which rakes in $32 billion annually. Yet, developing a choose-your-own adventure which features prostitutes, child laborers, and strippers probably isn't the best way to encourage troops to combat trafficking. If there's one thing I've learned about video game culture, it's that incorporating these elements into video games only encourages otherwise law-abiding citizens to unleash their Jungian dark side in a virtual, consequence-free environment.

There's no question military culture and video game culture are converging in interesting ways. But Burke makes an interesting point: Could the Army's human-trafficking awareness program ironically aid in dehumanizing the crimes and their victims? Whatever the service's good intentions were, "I just found it bizarre that the Army would make its point with an interactive game," Burke says. "With graphics."

Rove Falsely Accuses Obama on "Enemies List"

| Mon Oct. 11, 2010 7:35 AM PDT

This past weekend, Karl Rove accused President Barack Obama of creating an "enemies list." The former George W. Bush strategist did so after the president and the Democratic National Committee attacked the efforts of Rove, Ed Gillespie (another former Bush aide), and the Chamber of Commerce to exploit the Supreme Court's controversial Citizens United Supreme Court decision by pouring tens of millions in secret campaign cash into dozens of House and Senate races to help Republican candidates. But as David Corn points out in a PoliticsDaily.com column, Rove is mugging history to score a political point.

Calling out political opponents is not equivalent to drafting "an enemies list." For younger readers who may not be familiar with the term, it comes from Richard Nixon's heart of darkness. When Nixon was in the White House, his aides compiled what was officially known as the "Opponents List" or the "Political Enemies List." It was a secret roster. Its first iteration listed 20 names, including top Democratic fundraisers and strategists, the managing editor of The Los Angeles Times, two liberal Democratic members of Congress (Ron Dellums and John Conyers), CBS newsman Daniel Schorr, and actor Paul Newman. A subsequent list expanded Nixon's official enemies to several hundred people, including Ted Kennedy, Bill Cosby, Gregory Peck, football great Joe Namath, and the entire New York Times and Washington Post. A White House memo detailed the purpose of the list: "how we can use the available federal machinery to screw our political enemies." Think IRS audits.

By pointing a finger at Rove, Gillespie, and the Chamber of Commerce, Obama is not crafting a covert list of people to screw. He is trying to shame them into disclosing who is financing their multimillion-dollar campaigns to elect Republicans. Obama is correct when he decries the broken campaign finance system, which is easily swayed by special interests and wealthy folks. Under Citizens United, a billionaire industrialist who hates environmental regulations can flood a House or Senate race with ads (true or false) denouncing the candidate who supports environmental safeguards. The ads don't have to state who's behind them. The billionaire could hide behind a perfectly pleasant-sounding name: say, Citizens for Restoring American Progress. One sad truth of U.S. politics is that money and ads usually (though not always) do influence outcomes in congressional races. Consequently, secret funders have much clout and can shape American democracy. (Earlier this year, the House passed Obama-backed legislation that would force disclosure of contributions, but Republicans blocked it in the Senate.)

It is unlikely that Rove, Gillespie, the chamber, and others engaged in this covert politics will indeed be shamed by Obama and his Democratic allies into making their money men and women public. We can expect this debate to continue as Election Day nears. So if Rove wants to defend this practice of secret-cash politics, he should do so openly and not duck behind a canard. That is, let him explain why he shouldn't be on a list of the enemies of transparency and open and accountable government.

By falsely tagging Obama with a Nixon-like tactic, Rove, who came of age as a young GOP activist during the Tricky Dick years, is himself acting in a very Nixonian fashion.