Mojo - January 2011

Confirmed: Gulet Mohamed In The Air, On His Way Home

| Thu Jan. 20, 2011 3:29 PM PST

Gulet Mohamed, the 19-year-old from Virginia who spent weeks in detention in Kuwait and says he was subjected to beatings and threats, perhaps at the behest of the US government, is on his way home. Mohamed boarded United Airlines Flight 981 from Kuwait to Dulles International Airport, outside Washington, DC, around 4:45 p.m. EST on Thursday. He's scheduled to land around 6:00 a.m. on Friday. 

Mohamed's impending return to the US marks a victory for his family and his lawyer, Gadeir Abbas. On Tuesday, Abbas filed suit in federal court, alleging that the US government was violating Mohamed's rights by using the no-fly list to prevent Mohamed from returning to his home in Alexandria, Virginia. The judge in the case seemed inclined to agree, and scheduled an immediate hearing in which Justice Department lawyers promised to have Mohamed on his way home shortly. They appear to have kept that promise. Shortly after 5:00 p.m. EST on Thursday, Abbas sent a text message to Mother Jones: "Plane is in the air and Gulet is on it." The air travel tracking site FlightAware.com confirms that UA 981 took off from Kuwait at 5:12 p.m. EST (1:12 a.m. local). 

There's still a chance that the plane could be turned around or diverted, but that's unlikely—government lawyers have repeatedly told the court that Mohamed should have no trouble getting home this time around.

If you want to learn more, you came to the right place. Mother Jones has been covering Mohamed's story since the first reports of his alleged beating and confinement emerged in early January. Our first story examined allegations that the US government was behind his initial detention and alleged brutal interrogation. Since then, we've covered his charges that the FBI was illegally interrogating him; his family's first, abortive attempt to work with the Kuwaitis to deport him back to the US; his lawsuit against the US government (filed this Tuesday); and his legal team's swift and decisive victory in that lawsuit.

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White House: Not Developing Post-Tucson Gun-Control Measures

| Thu Jan. 20, 2011 2:31 PM PST

The Tucson massacre has prompted gun-control advocates to promote several measures to regulate certain firearms or ammo. But it has not moved the Obama White House to propose any such initiatives. And the White House appears to have no plans to do so.

At the daily press briefing on Thursday afternoon, press secretary Robert Gibbs was asked if the president and his aides have been thinking about crafting or suggesting any gun-related measures. He replied that he had "not heard anything particular in here." That came across as a "no." Gibbs did say that the White House was "looking through different proposals" that have been suggested by pro-gun-control lawmakers on Capitol Hill, but he didn't mention any specific measures. Asked if if Obama, given his previous support of gun control, would be amenable to legislation being introduced by Rep. Carolyn McCarthy (D-NY) and Sen. Frank Lautneberg (D-NJ) to ban the manufacture and sale of high-capacity ammunition magazines, such as the one used by suspected gunman Jared Lee Loughner, Gibbs was decidedly non-committal. He displayed no enthusiasm for this measure—or for pushing any gun-control initiative.

Since the Tucson tragedy, Obama has said nothing explicitly about guns. He did not address the issue in his much-praised address at the memorial service. This is no surprise. As president, Obama has placed a silencer on his past backing of gun control. For instance, as a presidential candidate Obama called for reinstating the ban on assault weapons. Though Attorney General Eric Holder early in the Obama administration cited the reinstatement of the assault weapons ban as an administration priority, the White House has not pursued that goal, and Obama has side-stepped the matter when questioned about it. At a press conference last year with Mexican President Felipe Calderon, Obama declined to even discuss reviving this ban. The message has been clear: Obama may think gun regulation is good policy but he also has concluded taking any action that could enrage gun owners and the gun lobby is lousy politics.

The Tucson shootings places this calculation in the spotlight. Any political or media focus on gun-control measures does pose a challenge for Obama and the White House. After all, a person who endorsed banning assault weapons at least ought to favor banning high-capacity magazines. In the immediate aftermath of Tucson, the White House can plausibly say it is reviewing the various gun-control (or ammo-control) measures being proposed. But can the president escape having to declare whether or not he supports the McCarthy-Lautenberg measure forever (that is, until after the 2012 election)?

He and his aides might believe that is indeed possible. They have managed to steer clear of gun-related political trouble during the first two years of Obama's presidency. (Recall the storm that ensued when candidate Obama said that "bitter" unemployed small-town Americans "cling to guns.") Judging from Gibbs' remarks, the Tucson episode—even if it entailed the near-assassination of a House member and the murder of six bystanders—has not changed the president's strategy. He is still holding his fire.

Obama Administration Fires Up the Military Commissions (Again)

| Thu Jan. 20, 2011 10:30 AM PST

The New York Times' Charlie Savage reports that with the midterms in the rearview mirror, the Obama administration is once again firing up the Guantanamo Bay military commissions:

Charges would probably then come within weeks against one or more detainees who have already been designated by the Justice Department for prosecution before a military commission, including Abd al-Rahim al-Nashiri, a Saudi accused of planning the 2000 bombing of the American destroyer Cole in Yemen; Ahmed al-Darbi, a Saudi accused of plotting, in an operation that never came to fruition, to attack oil tankers in the Straits of Hormuz; and Obaydullah, an Afghan accused of concealing bombs.

All three men are among the thirty-plus detainees the Obama administration has decided can be tried. As the task force recommended, the administration also plans to continue holding nearly 50 other detainees indefinitely without charge or trial.

These latest plans appear to represent a full-on embrace of the commissions process by the Obama administration. Any charges against al-Nashiri, al-Darbi, and Obaydullah would be the first brought since Obama was inaugurated. Nashiri, if tried, would be the first so-called "high-value detainee" to face the military commissions, the first Gitmo detainee to face the death penalty in a military commission trial (17 US military personnel were killed in the Cole attack), and the first confirmed subject of waterboarding to face trial. 

As Savage notes, part of what would be at stake in a al-Nashiri trial is the very definition of the war on terror. The Cole bombing happened in 2000, before the September 11, 2001 attacks and the subsequent Authorization for the Use of Military Force (AUMF). That would seem to present a problem for prosecuting Nashiri for war crimes: how could he have committed war crimes if we were not at war?

The Clinton, and later Bush administrations, didn't initially treat the Cole bombing as a wartime attack when it happened. In fact, both administrations considered the Cole bombing a "peacetime terrorism crime." The FBI was sent to investigate, the commanding officer of the ship was investigated for his compliance with peacetime rules, and sailors who committed conspicuous acts of courage and heroism during the attack were deemed ineligible for combat-related medals. The attack on the Cole is one of the only major terrorist attacks on a US target in modern history that the US never retaliated for militarily. 

Now the Obama administration claims that we were actually in an armed conflict with Al Qaeda since 1996, when Osama bin Laden issued his declaration of war against the United States. The administration seems to believe that this allows it to properly prosecute Nashiri for war crimes—if we weren't at war, he'd theoretically have to be prosecuted in federal court.

Even if you buy the argument that we've been at war since 1996, it's still hard to accuse al-Nashiri of a war crime under a traditional law of war framework. In naval warfare, approaching the enemy in disguise is what's considered a "permissable ruse." If you've ever read any novels about 17th- and 18th-century naval combat, you'll know that it happened all the time. Moreover, the Cole was indisputably a military target. If we were at war, it's hard to see how attacking a warship is a war crime. Either way you slice it, the government comes out looking silly.

But that's beside the point. The military commissions are the product of politics, and (barring an unprecedented court ruling), there's no way for anyone to force the US government to comply with law of war tradition or international precedent. Congress has decided that things like conspiracy, material support for terrorism (which can be as simple as giving someone a cell phone), and even "murder in violation of the laws of war" can be war crimes—making just about anything an Al Qaeda or Taliban belligerent does a "war crime."

The new American understanding of the law of war isn't consistent or logical or even necessarily coherent. But the Military Commissions Act made it the law of the land. Let's hope that the next time we're in a shooting war with an actual nation-state, that country doesn't decide to point to the military commissions as precedent and start trying American GIs for "murder in violation of the laws of war." That would be bad.

UPDATE: The American Civil Liberties Union's blog has a useful post on a potential al-Nashiri trial. It offers a good summary of how he was interrogated:

U.S. officials waterboarded al-Nashiri. They bent him over backwards in a stress position until one of his interrogators worried that his arms would become dislocated. He was naked, hooded, shackled, and deprived of sleep. His "debriefers" blew smoke in his face, stood on his ankle shackles, and scrubbed his naked body with a stiff wire brush. His torturers hung him from the ceiling by his arms, while they were tied behind his back. And if these medieval torments were not enough to render a subsequent capital trial problematic, his torturers also revved a power drill next to his naked, hooded body. And racked a handgun near his head. "Once or twice".

None of this makes al-Nashiri innocent. But it would present serious problems for a federal court trial, and the military commissions are a way to get around that.

A Quick Note on the "No Taxpayer Funding for Abortion Act"

| Thu Jan. 20, 2011 10:29 AM PST

Politico notes that House Republicans plan to follow up on health care reform repeal with a "more targeted attack": the "No Taxpayer Funding for Abortion Act", which Reps. Joe Pitts (R-Penn.), Chris Smith (R-N.J.), and Daniel Lipinski (D-Ill.) reintroduced this morning.

Politico says the bill aims "to prevent federal funding for abortion procedures" by codifying the Hyde Amendment, the restriction that has been attached to Health and Human Services appropriations every year since 1976, which prevents the use of federal funds to pay for abortions in programs like Medicaid. But almost every outside observer believes the bill (or at least the version of it that was introduced last Congress—I'm assuming there will not be significant changes) would do far more than that. Abortion rights advocates even say that the legislation could lead to the end of private insurance coverage for abortion. As I reported in a story last month:

Susan Cohen, the director of governmental affairs for the pro-abortion-rights Guttmacher Foundation, argued in a policy brief this fall that "the Smith bill would go...into uncharted territory" by preventing employers from taking a tax deduction for offering an insurance plan that covered abortion. (Like most other benefits, health insurance costs are generally tax-deductible for employers.) Analysts at NARAL Pro-Choice America and Planned Parenthood, the leading abortion rights advocacy groups, agree. According to abortion-rights advocates, Smith's bill would create a huge incentive for employers to only offer health insurance that doesn't cover abortion. Insurers would respond to what their customers wanted, and the percentage of health plans offering abortion coverage—currently 86 percent—would undoubtedly plummet.

While experts agree that Smith's bill would have some impact on tax policies, not everyone buys the abortion-rights groups' analysis. Timothy Jost, an expert in health law at Washington and Lee University Law School, says he agrees with the abortion-rights groups that the tax provisions in the Smith bill would mean that self-employed people and people with health savings accounts (HSAs) wouldn't be able to treat abortions as medical expenses. But he doesn't agree that the bill would prevent employers from deducting the costs of insurance plans that include abortion coverage. Nevertheless, Jost believes that "going after the tax subsidies that affect abortion" would represent a "substantial victory for the pro-life movement in America."

Read the whole thing.

Could Repeal Hurt Vulnerable Republicans in 2012?

| Thu Jan. 20, 2011 8:51 AM PST

House Republicans passed their health care reform repeal bill 245 to 189 Wednesday evening. Only three Blue Dog Democrats crossed over to join the GOP, while ten Dems who had voted against health reform last year refused to support repeal. Less noticed, though, were the Republicans from moderate districts who voted for repeal, a move that some liberal groups are hoping could make them more politically vulnerable.

The Public Campaign Action Fund, a left-leaning watchdog group, is already planning to run ads in the districts of three Republicans who voted for repeal on Wednesday, the National Journal reports via its morning politics newsletter:

PCAF's initial ads target Reps. Jim Renacci, R-Ohio, Jon Runyan, R-N.J., and Tim Walberg, R-Mich. "New year, new Congress, same old Washington corruption," the ads begin, going on to point out that each freshman took campaign contributions from health care and insurance interests so that "they can deny you coverage for preexisting conditions, kick your kids off your plan, and jack up premiums. Is this the change we voted for?"

Other Republicans could be singled out as well. The Washington Post flagged two freshmen House Republicans from moderate districts who could end up being hit on health care, Rep. Sean Duffy (R-Wis.) and Rep. Richard Hanna (R-NY). Neither pushed for full repeal of health reform during their campaigns, yet both fell in line and voted for the GOP's repeal bill. "Unlike a lot of Republicans, [Duffy] has actually pointed to some of the good things contained in the law," the Post writes, and he comes from a district that swung for Obama by 56 percent in 2008. Similarly, Hanna's district also leans blue, and he's similarly taken care to describe the parts of the law that he likes.

While neither freshman was expected to buck the party on repeal, their vote could end up making their re-election bids harder. Health reform is gradually growing more popular in the polls and could become a less toxic issue in the 2012 elections. If Democrats succeed in building the support for the legislation and the GOP overplays its hand, the Republican attempts to blast health reform could end up backfiring—at least in the districts that have traditionally swung for Democrats.

The GOP's Health Care Plan: Blame the Lawyers

| Thu Jan. 20, 2011 4:00 AM PST

Do Republicans really have a plan for fixing the health care system? They've insisted, even as they've pushed to repeal last year's health care reform law, that they have some new ideas for reducing health care costs and expanding access to the uninsured.

So far, though, the Republicans' new ideas look a lot like their old ones. On Thursday, Rep. Lamar Smith (R-Texas), the new GOP chairman of the House judiciary committee, will hold a hearing entitled, "Medical Liability Reform—Cutting Costs, Spurring Investment, Creating Jobs." Judging from Smith's comments, and the subject of the hearing, one of the Republicans' big ideas for fixing the health care system is simply to keep people from suing the doctors who injured them.

Better known as "tort reform," such proposals are Republicans' one and only health care policy. They have been offering this same proposal now for about two decades, often as their sole contribution to the national debate over what should be done to help rein in medical spending.

The GOP was especially driven during the Bush administration to advance bills that would severely limit the amount of money people could be awarded by a jury for injuries sustained during medical care. No matter how badly someone was hurt, or how drunk the surgeon was when he amputated the wrong leg, Republican proposals would have capped the amount a doctor's insurance company would have to pay to compensate the victim. Republicans then, as now, insisted that limiting lawsuits would save billions in health care costs and cure all that ails the system, despite mountains of research clearly showing that it would not.

Those bills never went anywhere, even with a Republican in the White House who had virtually made his political name campaigning for restrictions on lawsuits—and for good reason. Few lawmakers proved impervious to the horror stories of medical malpractice victims, those poor kids whose trips to the ER for minor injuries left them brain damaged or the girl whose plastic surgeon set her face on fire while removing a mole, leaving her scarred for life. And of course, it was hard to ignore the myriad tales of incompetent or drug-addicted doctors who went on mangling people for years, undisciplined by their colleagues or state medical boards, who were only put out of business when their malpractice insurers got sick of paying all their claims and dropped their coverage.

Nonetheless, Republicans have decided to revive the old fight against medical malpractice lawsuits. Presumably Thursday's hearing will focus on how doctors are so afraid of lawsuits that they order way more tests than necessary in order to protect themselves from potential lawsuits. But the data shows that there actually isn't much of a crisis in the lawsuit department. According to a recent report from the National Center on State Courts, medical malpractice lawsuits accounted for single-digit percentages of all state civil caseloads. NCSC concludes, "Despite their continued notoriety, rarely does a medical malpractice caseload exceed a few hundred cases in any one state in one year." NCSC data shows that medical malpractice lawsuits plummeted by about 15 percent between 1999 and 2008, according to the most recent data available. And that's without any help at all from Congress.

Smith will also have a hard time defending the notion that keeping injured people out of court will reduce health care costs. His state could serve as Exhibit A, in fact, of just how wrong that premise is. In 2003, Texas enacted draconian restrictions on medical malpractice lawsuits that all but eliminated such cases (a move that made the state a magnet for bad doctors who now can't be held accountable for killing and maiming people).

Yet the state still boasts some of the most expensive health care in the country. McAllen, Texas, as New Yorker writer Atul Gawande pointed out in 2009, is infamous for having Medicare costs that are twice the national average. As Gawande recounted, the major driver of health care costs in McAllen were doctors who referred patients for tests and other treatment at facilities where they had a financial stake. Lawsuits had nothing to do with that.

The doctors in McAllen, in fact, lobbied hard to get their own hospital exempted from restrictions in the health care bill that would limit the growth and development of new physician-owned hospitals, precisely because such facilities have been ID'd as a major driver of health care cost increases. The Texas doctors and their hospital investors have donated heavily to both parties, but of late, they've mostly contributed to Republicans. (Lawrence Gellman, the CEO of the hospital profiled by Gawande, Doctors Hospital at Renaissance, has even become something of a tea partier, giving large contributions recently to the Tea Party Express and candidates like Nevada's Sharron Angle and Rep. Michele Bachmann, a big proponent of repealing the health care law.) This largesse has no doubt ensured that Republicans won't hold hearings about physicians' financial conflicts of interest. Instead, they will focus on medical malpractice lawsuits, a favorite Republican ploy largely because it allows them to counter the greedy physician argument with the greedy trial lawyer argument.

Trial lawyers, one of the Democratic Party's most loyal donor bases behind unions, will no doubt play a role in the theatrics of this week's health care debate, as Republicans not so subtly insist that the reason Democrats won't restrict lawsuits is because they are in the pocket of the trial bar. Republicans will try to single out lawyers for ginning up frivolous lawsuits that end up boosting the cost of health care. As Smith said earlier this month when he announced his intention to focus on medical malpractice lawsuits:

Democrats' health care plan ignores common sense solutions to skyrocketing health care costs. According to the Harvard School of Public Health, 40% of medical malpractice suits filed in the US are 'without merit.' The threat of these lawsuits forces doctors to conduct tests and prescribe medicines that are not medically required. The widespread practice of 'defensive medicine' drives up the cost of health care.

 As with the health care repeal bill, any effort to restrict medical malpractice lawsuits is likely to die in the Senate. In theory, even if it did make it past the Senate, it should die on the president's desk, given Democratic loyalties. But Obama is not Bill Clinton, who vetoed several Republican bills that would have restricted other kinds of lawsuits.

Obama has sympathized with doctors complaining about lawsuits, and even authorized the Department of Health and Human Services to fund a few pilot projects that would experiment with different ways to reduce malpractice litigation. But he has rejected the favored Republican blunt instrument of capping damage awards at an arbitrary number, so he may still serve as the last check on Republicans' efforts to keep regular people from seeking justice in the courts. In the end, though, the Republicans aren't likely to care one way or another whether their tort reform proposals become law. Just as their vote on repealing the health care bill is mostly symbolic, their focus on lawsuits isn't really about fixing anything. It's just political theater, and tired theater at that.

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We're Still at War: Photo of the Day for January 20, 2011

Thu Jan. 20, 2011 3:30 AM PST

Sgt. 1st Class Jeffrey Cesaitis walks through an abandoned building in the Shahr-e Safa, Afghanistan, bazaar during a site assessment, Jan. 19. Members of Provincial Reconstruction Team Zabul visited the bazaar to assess future projects and speak to elders about issues within the village. (U.S. Air Force photo/Staff Sgt. Brian Ferguson)(Released)

Issa Cools to Global Warming Investigation

| Wed Jan. 19, 2011 12:35 PM PST

Is Darrell Issa planning to investigate climate science, or isn't he?

Last September, before Republicans had even won the House and posted Issa atop the chamber's main oversight committee, the California GOPer drafted a list of issues he believed should be investigated, and climate science made the cut. Issa specifically referred to a desire to investigate the so-called "ClimateGate" scandal and the scientific evidence underpinning climate regulations at the Environmental Protection Agency.

Shortly after the election, Issa downplayed his interest in the subject, citing "limited resources and limited time." But the subject came up again in Ryan Lizza's lengthy treatment of Issa in this week's New Yorker. From the piece:

It’s easy to imagine, however, that some of Issa’s investigations could end up as acrimonious party struggles, if only because Republicans and Democrats now seem to deal with different sets of facts. Issa seems unconvinced about the science behind climate change, and the investigation that he seemed most passionate about when we spoke involved U.S. government funding for the University of East Anglia’s Climate Research Unit. This is the organization behind the so-called Climategate controversy, in which a batch of e-mails were published, showing, Issa claimed, that there had been fraud involving “the base numbers” underlying our understanding of climate change. However, three separate investigations have cleared the Climate Research Unit of manipulating research, and its work does not form the basis for our understanding of the issue.

Now Issa's spokesman is vehemently denying any interest in the matter. From Politico's Morning Energy today:

"As has already been stated numerous times, the Oversight and Government Reform Committee has no plans to investigate 'Climate-Gate,'" Issa spokesman Kurt Bardella told POLITICO yesterday. "There is a substantial difference between a reporter editorializing and something actually being a legitimate priority to this Committee."

I'm curious as to what prompted the change. (Issa's office has not responded to a request for comment.) Is it simply less of a priority because there are plenty of other things on Issa's agenda for the next two years? Or did the Issa team realize that rehashing climate arguments wasn't going to be the political winner that they'd hoped?

UPDATE: Oversight Committee spokesman Frederick Hill responded to a question about whether climate is still on Rep. Issa's agenda this year, via email: "The issue, as explained in the September report, is still a relevant concern. [Bardella's]  comment simply reflects the fact that the committee has not announced a hearing or specific investigation on the issue."

Why US Multinationals Love Currency Manipulation Almost As Much As Hu Jintao

| Wed Jan. 19, 2011 12:03 PM PST

During negotiations between Chinese President Hu Jintao and President Barack Obama at the White House today, one of the biggest sticking points will be China's longstanding manipulation of its currency, which Obama has bluntly called "an irritant." The artificially cheap Chinese renminbi translates into cheap Chinese exports that have fueled a gaping $250 billion US-China trade deficit and contributed to the loss of some 2 million US jobs. This afternoon, the two presidents were joined by 14 CEOs from US multinationals such as Microsoft, Goldman Sachs, and Coca-Cola. But how much backup will they give Obama on the currency issue?

Maybe not much.  According to the latest annual survey (WSJ sub req'd) by the American Chamber of Commerce in Shanghai, China's main commercial hub, more than half of US companies working there said that their businesses would be harmed by a 10 percent increase in the Chinese currency's value. In other words, US companies that have already outsourced production to China—which includes a huge portion of corporate America—now fear that their profit margins will shrink if their Chinese-made "American" products become more expensive in the US. 

So clearly, multinationals shouldn't be the only interests at the table. Small and midsize US businesses that actually produce all of their products here ("American" companies, in the true sense) should also be heard. 

They're definitely feeling snubbed. "The Obama administration has made clear, over and over again, that its heart is with the multinationals and that it does not really think America’s domestic manufacturing base matters," said Ian Fletcher, a research fellow at the US Business and Industry Council, a Washington think tank representing small and midsize manufacturers. "But as long as the U.S. keeps leaking $500 billion a year through the trade deficit, America will continue to struggle to create jobs." 

Updated at 1/19/11 at 1:36 pm Pacific

Steve King Attacks—Then Defends—Government Health Care

| Wed Jan. 19, 2011 11:41 AM PST

Rep. Steve King (R-Iowa), one of the GOP's biggest bomb-throwers, isn't known for his warm embrace of the nation's downtrodden—or the government institutions that support them. On Monday night, he told Fox News that "there will always be those who slip through the cracks" and won't have access to affordable health insurance. He asserted the next day that repealing Democratic health reform would leave "less than 4 percent" of the population uninsured—which, he insisted, wouldn't be the end of the world. "They still have access to health care, they just don't have a health insurance policy," King told reporters on Tuesday.

But when pressed to explain what he'd tell vulnerable citizens who'd lose invaluable protections if the GOP repealed reform, King relented—and even explained how he was responsible for creating a government program to help them. "We have SCHIP—the state children's health insurance program—and that's set at 300 percent of poverty," King said, adding later: "I helped put that policy in place when I was in the state senate."

The Iowa Republican did point out that he opposed raising the qualifying poverty rate for SCHIP to 400 percent, as some Democrats had proposed in 2007. But King admitted that there was, in fact, a definite role for government in providing health care for the nation's poorest. "There is at the lower level and the poverty level, and I've supported that in the past," he said.

With the GOP in full throttle against the "government takeover of health care" this week, it's easy to forget how integral Republicans were to the very creation of entitlement programs like SCHIP. While King was supporting the children's insurance program on the state level, Sen. Orrin Hatch (R-Utah) teamed up with Ted Kennedy (D-Mass.) to pass federal SCHIP in 1997. Since then, though, the GOP has become increasingly unwilling to support the program: President Bush vetoed the expansion of SCHIP twice, and it only passed in the early months of the Obama administration.

Meanwhile, Republican members like King have conventiently ignored their past support for government health care as they've ramped up incendiary attacks on such programs. In a recent interview with Human Events, King accused Democrats of possessing "an irrational leftist lust for socialized medicine." But when pressed to justify health care repeal to the most vulnerable members of society, even he seems to recognize the need for government support in certain instances.