Mojo - November 2011

Gitmo Law Could Someday Apply to American Citizens

| Wed Nov. 30, 2011 5:30 PM EST

Defenders of the detention provisions in the defense funding bill currently under debate in Congress are arguing that they do not authorize the indefinite military detention of American citizens. They're saying the Supreme Court already did that. 

"There is no bar to this nation's holding one of its own citizens as an enemy combatant," Sen. Carl Levin (D-Mich.) said during his floor speech defending the detention provisions Tuesday. "That's not me, that's not Sen. Graham, that's not Sen. McCain. That's the Supreme Court of the United States recently."

Levin was referring to 2004's Hamdi v. Rumsfeld case, in which the Supreme Court ruled that Yaser Esam Hamdi, a US national captured during the 2001 invasion of Afghanistan, could be held in military detention but not without habeas review.

That case, however, involved an actual battlefield in an actual war. The current version of the defense funding bill—formally known as the National Defense Authorization Act, or NDAA—goes further. It says the military can detain anyone deemed to be "a part of" or deemed to have "substantially supported" Al Qaeda, the Taliban, or "associated forces." Terror suspects would not have to be on an actual battlefield or fighting in an actual war, as Hamdi was, to be detained by the military. And although Americans, unlike foreigners, are not required to be held in military detention if apprehended on American soil, the NDAA affirms that they can be, based on the 2001 Authorization to Use Military Force (AUMF) against Al Qaeda. (Levin said in his floor speech that despite its threat to veto the bill, the administration had approved that language.)

Benjamin Wittes, a Brookings Institution scholar who thinks the government should have the option to put Americans in domestic military detention under some circumstances, described Hamdi's capture as "a very traditional battlefield-type capture where they guy happens to be US citizen. It's very different from yanking someone out of the criminal-justice system or picking someone up at O'Hare airport."

Crucially, the Hamdi case didn't actually settle the issue of whether or not a US citizen apprehended domestically by law enforcement could be put into military detention. It's happened before: Twice, individuals captured in the United States were detained by the military. In both cases, one involving a citizen and the other a legal resident, the detainees were ultimately shunted into the criminal system for fear that the Supreme Court would find military detention unconstitutional. Perhaps more significantly, both examples, Jose Padilla and Ali Saleh al-Marri, occurred years ago, and until Obama took office there was no effort by Congress to force the executive branch to use the military to detain people suspected of terrorism. 

The shift toward using military detention authority means that Americans could someday be subject to the standards of proof crafted by Guantanamo Bay legal cases, standards that over the years have shifted substantially in the government's favor. Early on, detainees were winning many of their cases because the evidence the government was using to hold them was often based on intelligence reports judges found unreliable. So the courts simply shifted the standards so that judges would have to assume the government's evidence was true. 

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ACLU Cites Non-Islamophic Essay As Example of Islamophobia

| Wed Nov. 30, 2011 4:48 PM EST
Will McCants on CNN.

The White House recently ordered a review of anti-Muslim materials being used as counterterrorism training in government agencies. The materials, which were first revealed in a series of reports by Wired's Spencer Ackerman, portrayed mainstream Muslims as being supportive of terrorists, and Islam itself as inherently violent. 

The American Civil Liberties Union has been one of the organizations challenging the presence of anti-Muslim materials in counterterrorism training, but this morning a blog post by the ACLU's Josh Bell cited as an example of Islamophobia an essay in a textbook published by the Counterterrorism Center at West Point that isn't actually Islamophobic:

The ACLU, through Freedom of Information Act lawsuits, has uncovered numerous FBI counterterrorism training materials that falsely portray American Muslim and Arab communities as monolithic, violent and supporters of terrorism. A prime example is a 2008 counterterrorism textbook called Terrorism & Political Islam: Origins, Ideologies, and Methods, which was produced by the FBI and the Combating Terrorism Center at West Point. It contains essays with conclusions like "the Jihadis are a product of and inspired by the current of traditional Islam."

The quote cited by Bell is wrenched from its original context. The essay states that "One extreme is the notion that the movement has nothing to do with Islam; it is an aberration...clearly the Jihadis are a product of and inspired by the current of traditional Islam described above." The "above" refers to an entire article on Islamic political movements that used violence. The paragraph goes on to add that "The other extreme is to mistake this current for the entire ocean. Jihadis would have us think so, as would some Western alarmists. Such tendentious readings of Islamic history and scripture are not only lazy; they give greater legitimacy to the ideology that is fueling the Jihadi Movement." That can't possibly be read as portraying Muslims and Arabs as "monolithic, violent, and supporters of terrorism." 

"The last paragraph or two, I was trying to split the difference between the ridiculous notion that jihadism is somehow representative of mainstream Islam, but I was also pushing back against the idea that it has no connection to the scripture or the history," said Will McCants, the former State Department counterterterrorism adviser who wrote the essay in question. "The tradition I was describing was the most hardline, the most militant strain of Islam."

ACLU National Security Policy Counsel Mike German, himself a former FBI Agent, stood by the post but said that "we're looking at the way we wrote it, and if we think something needs to be massaged or added to, we're open to do with that." He added that "we were just trying to summarize a concern in materials that were otherwise professionally done that there were still elements that had problems."

German is correct there. Although the textbook's preface describes Muslim communities as America's "greatest allies" against terrorism, as Ackerman noted in a previous piece, one of the essays in the collection implies that a Muslim expressing opposition to the war in Iraq might "indicate the individual follows militant ideology." At the time the textbook was published, more than half of all Americans opposed the Iraq war. Most, presumably, were not militant Islamists. 

"There is other material in there that is questionable," McCants said. "It is very healthy for watchdog groups like the ACLU to make sure that the material being taught about the beliefs of citizens in this country is accurate and fair, but I think they undermine their credibliity to do that when they are not being accurate and fair."

National Review Backs the Payroll Tax Cut

| Wed Nov. 30, 2011 2:00 PM EST
"In all likelihood we will agree to continue the current payroll tax relief for another year," Senate Minority Leader Mitch McConnell said Tuesday.

Late on Tuesday, the Wall Street Journal's Naftali Bendavid reported that Republicans will back a Democratic plan to extend the payroll tax cut that President Barack Obama signed into law as part of last year's tax compromise. (Republicans, as you'll recall, got the extension of the Bush tax cuts for the rich and a more generous deal on the estate tax; Democrats got the payroll tax cut, unemployment insurance, a college-tuition tax credit, and expanded business tax credits, among other things.) Prominent Republicans had voiced strong opposition to the measure, reserving special spite for Senate Majority Leader Harry Reid's plan to pay for the tax break by hiking taxes on millionaires.

In response, the editors of the conservative National Review outed themselves as payroll tax cut fan boys. It's not particularly interesting that the National Review's editorial board wants to keep taxes low. What is interesting is how the magazine's editors craft their argument: by debunking several of the GOP's most prominent objections to the cut, including the notion that temporary tax cuts have little economic impact and that a reduction in revenue from payroll taxes, which fund Social Security, will further erode the program's finances.

But the editors save their special sauce for Republicans' third objection—that the payroll-tax cut doesn't create jobs:

Here again holdout Republicans have a double standard, demanding that this tax cut pass a rigorous empirical test that they never apply to other tax cuts. It stands to reason that the tax cut makes hiring more attractive to employers—only marginally more attractive, to be sure, but it is on the margin that we seek beneficial effects from improvements to tax policy. And there may be ways to make the tax cut more effective, such as applying it to the employer’s share of the payroll tax rather than the employee’s.

Of course, the editors of the National Review wouldn't be the editors of the National Review if they didn't come around to defending the job creators that really count: the rich. They wind down their op-ed with an entreaty to Republicans to maintain their vigilant stand against any tax cut that's paid for by a permanent tax increase on the super rich.

But National Review's critique of the GOP's intransigence on the Democrats' payroll tax cut extension—which will add another $250 billion to the deficit unless offset by cuts or tax increases—is incomplete. The editors slam the GOP for rejecting the extension, then fail to offer up any viable pay-fors. Republicans know how desperate President Obama is to juice the economy, and that his options for doing so are few. Extending the payroll tax cut was one of the few courses of action he felt the GOP would support.

Given how badly Obama wants the extension, Republicans also know that all they have to do is wait him out and continue to refuse, politely, to raise other taxes to pay for the extension. Let's face it: we've seen this movie before. Republicans will extract another round of painful concessions on social spending from Democrats in order to pay for the payroll tax cut. In other words, the National Review is doing its part to move Republicans closer to a compromise that'll never happen on the Democrats' terms.

Mitt Romney: Don't Listen to Me, Just Read My Book

| Wed Nov. 30, 2011 1:19 PM EST

Perched awkwardly on chairs in the back of a Miami warehouse, Fox News' Bret Baier and Mitt Romney met on Tuesday for a lengthy televised interview. It was a rare moment of exposure for a candidate happy to keep the media at arm's length, but Baier didn't go easy on the GOP presidential front-runner. He wasted no time highlighting the former Massachusetts governor's wishy-washy record on an array of issues and asking Romney whether he believes voters can trust him given his flip-flopping.

Romney's reply, boiled to its essence: Forget what I've said; just read my book. He was referring to No Apology: The Case for American Greatness, published in 2010, in which he outlined his vision for restoring the US' stature as world superpower.

During the Fox interview, Romney deflected questions about his flip-flopping three times by pointing to No Apologies—which, as it turns out, had integrity issues of its own. (More on that later.)

Here are some excerpts from the Fox interview (emphasis mine):

Bret Baier: What is your reaction to [the New Hampshire Union Leader's] endorsement [of Newt Gingrich], and specifically that charge that you lack conviction?

Mitt Romney: And with regards to my own views, I'm happy to have people take a look at my book. I wrote that a couple of years ago, laid out my views for the country, and I believe my views are essential to get this country going again.

BB: Like the Union Leader, your critics charge that you make decisions based on political expediency, and not core conviction. You have been on both sides of some issues, and there's videotape of you going back years speaking about different issues—climate change, abortion, immigration, gay rights. How can voters trust what they hear from you today is what you will believe if you win the White House?

MR: Well, Bret, your list is just not accurate. One, we're going to have to be better informed about my views on issues. My view is, you can look at what I've written in my book, you can look at a person who has devoted his life to his family, to his faith, to his country, and I'm running for president because of the things I believe I think I can do to help this country.

BB: But I'm sure you've seen these ads using videotape of you in previous years speaking on various issues. And it seems like it's in direct contrast to positions you take now.

MR: Well, I'm glad the Democratic ads are breaking through and you guys at Fox are seeing them—

BB: Jon Huntsman has a couple ads that do the exact same thing.

MR: There's no question the people are going to take snippets and take things out of context and try and show that there are differences where in some cases there are not. But one place where I changed my mind: with regard to the government's role in relating to abortion. I am pro life. I did not take that position years ago. And that's the same change that occurred with Ronald Reagan, with George W. Bush, with some of the leaders of the pro life movement.

[Later, Baier asks Romney about the mandate signed into law by Romney that everyone in Massachusetts buy health insurance, and whether Romney believes Massachusetts' model would work on a national level.]

BB: But, governor, you did say on camera and in other places that at times you thought it would be a model for the nation.

MR: You're wrong, Bret.

BB: No, no, I mean there's tape out there—

MR: No. The tape out there—continue to read the tape. The tape goes on to say, for each state to be able to look at it. I was asked time and again, in the last debates...look back at the 2008 campaign. On the stage, I was asked at the debate, 'Is your Massachusetts plan something you would have the nation do as a federal plan?' Each time said, 'No, the answer is no."

When you write a book, you have the ability to put down your entire view. And I put in that book as clearly as I possibly could that the plan we did in Massachusetts had many features that I thought should be adopted by the other states. I thought there were very good ideas in there. There could be a model for the entire states.

Here's the full interview:

Baier's right: Romney's shifting positions on major issues are well-documented. He's flip-flopped on humans' role in causing climate change, foreclosure relief, privatizing social security, a flat tax, whether President Obama made the recession worse, gay rights, and on flip-flopping itself, among others.

And in No Apologies, between the hardcover and paperback editions, Romney edited a passage on the universal health-care plan he signed into law in Massachusetts. As PolitiFact noted, after trumpeting the success of Massachusetts' health-insurance reform, Romney wrote in the No Apologies hardcover edition, "We can accomplish the same thing for everyone in the country, and it can be done without letting government take over health care." But in the paperback, that line was changed to read, "And it was done without government taking over health care." Romney didn't write that Massachusetts' plan should be national policy, but as PolitiFact concluded, "a line that advocated the Massachusetts model as a strong option for other states was replaced by a shorter, more generic sentence."

Even Romney's book, his fallback when his integrity comes under attack, has shifted over time. So much for that defense.

Florida Rep. Loses It Over Reporter's Chuckle

| Wed Nov. 30, 2011 12:13 PM EST
It's displays of rude advocacy like this that Rep. Mario Diaz-Balart finds so heinous.

On Tuesday, Miami Herald political reporter Marc Caputo asked Rep. Mario Diaz-Balart (R-FL) what he thought about President Obama's foreign policy accomplishments, such as the killing of Osama bin Laden and the NATO Libya mission. The Cuban-American congressman—who had just thrown Mitt Romney his glowing endorsement—responded with the following: "I applaud President Obama for doing two things: for keeping the policies of the Bush administration..."

And that's as far as he got before Caputo started chuckling. The Republican congressman wasn't terribly pleased with that, thus commencing a weird philosophical debate between the two over the nature of political "advocacy."

The laugh, Caputo writes, came out of his "surprise [that] Diaz-Balart wasn't giving any credit to Obama without strings attached." Caputo has since posted audio of the spat online. After reading the transcript of their lively disagreement, it's exceedingly difficult not to imagine it as a long-lost Abbott and Costello routine:

Diaz-Balart: "You laugh, are you a reporter or a debater?...It's funny because—and I'm not giving you a hard time here, but usually reporters are reporters, not advocates."

Caputo: "I am not."

Diaz-Balart: "Oh, yes, you are."

Caputo: "Give me an example of advocacy."

Diaz-Balart: "Right now! You're laughing about my position...You're an advocate! By the way, you have the right to be. I love advocacy."

Caputo: "I disagree with your characterization of advocacy."

Diaz-Balart: "You're in advocacy. You're an advocate."

Caputo: "I completely disagree."

Diaz-Balart: "And I completely respect your advocacy, I do. I respect your advocacy."

Caputo: "I respect your right to get it wrong that I'm advocating."

Diaz-Balart: "Okay, that's fine."

Caputo: "We'll agree to disagree."

Diaz-Balart: "And I respect you when I give a point of view that you disagree with, laughing about it."

Caputo: "I don't know why you think I disagree with it."

Diaz-Balart: "You laughed about it."

The allegation that Caputo was basically doing George Soros' dirty work is a tad much. He let out a mild giggle over a pretty ridiculous statement.

It is strange, though, that Caputo was so "surprised" by the congressman's answer. It's common nowadays for conservatives—whether they're presidential candidates or talking heads on Fox—to dismiss Obama's foreign policy successes as flukes or simply products of the previous administration. It'd be wishful thinking to expect any more from a GOP congressman, especially on the same day that he announced his endorsement of the president's likely rival in the 2012 election.

As for Diaz-Balart's claim that Obama preserved the Bush-era policies, it's much harder to laugh that one off: When it comes to the Obama White House's position on warrantless wiretaps, the stunning lack of transparency, the hefty price-tag of the administration's clampdown on state secrets, and the aggressiveness and expansion of international counterterrorism measures, there's solid basis for that bit of the Florida Republican's argument.

Abortion in the Defense Authorization Bill

| Wed Nov. 30, 2011 9:07 AM EST

Women in the military have volunteered to serve the nation—but, if they're the victims of rape or incest, current US policy does not permit them to obtain an abortion under military medical insurance. Now, Sen. Jeanne Shaheen (D-NH) is leading an effort to change this policy through an amendment to the pending National Defense Authorization Act.

Under the Hyde Amendment, passed in 1976, no federal money can be used to provide abortion services. The rule provides an exception in cases of rape, incest, or to save a mother's life—an exception that other federal policies, including the Affordable Care Act, also include. But, under current policy, the 400,000 women in the service covered under the DOD's Military Health System can only use their insurance for an abortion if their lives are at risk.

According to the DOD, there were 3,158 military sexual assaults reported in 2010—and outside studies have estimated that as many as 75 percent of are raped do not report it. Without coverage through military insurance, those women are often forced to pay out of pocket and seek services off base.

The ACLU is pushing for the passage of the Shaheen amendment, along with a number of retired military officers. That includes retired Lieutenant General Claudia Jean Kennedy, who served for 31 years and was the first female three-star general in the Army. The abortion restrictions are particularly hard on women who lack seniority and are paid less, Kennedy told Mother Jones. "It is not fair. It's not about whether you think she should have this choice," she said. "You give this choice to everyone but her—her civilian counterparts have this choice."

"This woman is mature enough to be recruited into the military, trained, and deployed," Kennedy continued. "This is the minimum, to give women the medical care they ask for."

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Score One for a 96-Year-Old Victim of the Mortgage Predators

| Wed Nov. 30, 2011 6:00 AM EST
Lillie Mae Washington

Lillie Mae Washington, the 96-year-old woman whose foreclosure nightmare Mother Jones covered in August, has won a crucial battle in her multiyear court fight. Last week, a federal judge granted Washington's request for a temporary restraining order preventing a mortgage servicer, Ocwen Loan Servicing, from foreclosing on her home in Los Angeles.

Washington and her Alzheimer's-afflicted son, Hobert (now deceased), signed mortgage papers in late 2006 only to learn afterward that the monthly payment and fees were far larger than they had understood. Washington claims that the people who sold her the loan purposely deceived her about the costs and that their deception constituted predatory lending and fraud.

By November 2008, Home Loans Direct, the company that originated Washington's mortgage, surrendered its license during a state investigation. A California Department of Real Estate document (PDF) obtained by Mother Jones explains that Home Loans Direct did so after choosing not to contest allegations that it knowingly used loan practices that were "false, misleading, or deceptive."

But the company's loss of its license didn't mean that Washington's house was no longer in jeopardy. Ever since September 2008, when she first sued her mortgage servicer, lender, escrow agent, and others for fraud, she has been trapped in a legal hell. She has represented herself, been represented pro bono, and now pays a lawyer to handle her case. The suit has been handled by at least seven judges and the docket runs over 100 documents long in federal court alone.

Now, federal Judge Dolly M. Gee has forbidden Ocwen from foreclosing on Washington before December 13 and has ordered the mortgage servicer and the other defendants to file a brief explaining why she shouldn't forbid them from foreclosing on Washington for the duration of the legal fight.

Perhaps most important, though, is the judge's ruling that Washington's suit "raises serious questions" about whether her loan was in violation of a California predatory lending law. That means Washington's case won't be summarily thrown out of court and can move forward. And that raises the incentive for the defendants in the case to settle. 

Here's the ruling:

 

Washington isn't the first person to avoid losing her home after being featured in a Mother Jones story. Last year, Army Capt. Michael Clauer got his home back after a MoJo report about his family's plight (his homeowners' association illegally foreclosed on him while he was serving in Iraq) attracted national attention.

We're Still at War: Photo of the Day for November 30, 2011

Wed Nov. 30, 2011 5:57 AM EST

It's raining flares, hallelujah!

A C-17 Globemaster III performs evasive counter measures by launching flares during a Mobility Air Forces Exercise November 16, 2011, over the Nevada Test and Training Range. The US Air Force Weapons School holds MAFEX twice a year to test the ability of C-17A Globemaster III and C-130 Hercules aircrews from Air Force bases around the world. (US Air Force photo/Senior Airman Brett Clashman)

Rick Perry's Freudian Slip on the Voting Age

| Tue Nov. 29, 2011 4:30 PM EST

America had a good laugh at Rick Perry's expense on Tuesday after the Texas Governor told students at St. Anselm College in New Hampshire to vote for him next November—but only if they're over 21. Zut alors! Le gaffe! The federal voting age is 18, not 21; 21 is the legal drinking age. Perry also managed to get the date of the election wrong.

But maybe he had a point. In Perry's Texas, as in various states across the country, Republicans have made a concerted push over the last half decade to make it harder and harder for certain Democratic-leaning constituencies—namely young people, senior citizens, and minorities—to vote. It's an attempt to suppress voter turnout in the name of cracking down on voter fraud (Ari Berman can explain it all for you).

Texas' new voter I.D. law, signed into law by Perry this summer, is a great example of that strategy. The law accepts concealed handgun license permits as a valid form of identification, but not student identification cards issued by state universities. The Department of Justice has blocked implementation of the law out of concerns that it discriminates against specific groups:

Democrats countered that there is no evidence of voter impersonation in Texas and that the bill simply was an effort to make voting more difficult for low-income Texas, students and the elderly, who typically vote for Democrats.

The new law would require voters to show a Texas driver's license, a Texas concealed handgun license, a U.S. passport, citizenship papers, or a military identification card before they could cast a ballot.

Student ID cards issued by state universities, out-of-state driver's licenses, or ID cards issued to state employees would not be accepted.

Really, Perry's gaffe was that he asked college students to vote.

Map: Is Adultery Illegal?

| Tue Nov. 29, 2011 4:20 PM EST
Herman Cain's alleged extramarital affair with Ginger White lasted more than twice as long as Newt Gingrich's affair with Callista Bisek.

Monday's report that Herman Cain recently ended a 13-year affair with a Georgia woman is, according to the experts, bad news for his crumbling presidential campaign. Iowa talk radio host Steve Deace, a barometer of conservative wisdom in the state, called the former National Restaurant Association lobbyist "toast." Mike Huckabee told Fox News' Greta Van Susteren that the news would likely steer Republican voters to a candidate "with less trouble, with less controversy"—such as Newt Gingrich. Herman Cain is reportedly so concerned about the report that he is "reassessing" whether Herman Cain will stay in the race.

But there's one question about Cain's alleged conduct that conservative commentators aren't asking: Is it against the law?

According to title 16, chapter 9, section 9 of the Georgia code of criminal conduct, "A married person commits the offense of adultery when he voluntarily has sexual intercourse with a person other than his spouse and, upon conviction thereof, shall be punished as for a misdemeanor." At least Georgia adulterers are in good company; adultery is a criminal offense in 23 states, with punishments ranging from a $10 fine in Maryland to life imprisonment in Michigan (at least according to one judge). It's also prohibited by the Uniform Code of Military Justice. Here's a state-by-state guide, courtesy of my colleague Tasneem Raja: