Political MoJo

Good catch from the New York Times:

With Congress poised for a final vote on the energy bill, the Environmental Protection Agency made an 11th-hour decision Tuesday to delay the planned release of an annual report on fuel economy.

But a copy of the report, embargoed for publication Wednesday, was sent to The New York Times by a member of the E.P.A. communications staff just minutes before the decision was made to delay it until next week. The contents of the report show that loopholes in American fuel economy regulations have allowed automakers to produce cars and trucks that are significantly less fuel-efficient, on average, than they were in the late 1980's.

Let's see: cars are getting less and less fuel-efficient as time goes by, the government knows this perfectly well, the country is facing a potential oil shortage in the coming years, gas prices are rising... and Congress now has to decide whether or not to pass a bill that seems to exist solely for the purpose of enriching Tom DeLay's corporate sponsors. Will it pass? No, really, the suspense is killing me.

For the record, the Center for American Progress has some good ideas as to what a national energy policy should actually look like. Heck, even the Heritage Foundation's proposal would be better than Congress' version. A sobering thought.

• Print
• Email
• Tweet

Spencer Ackerman wrote an important piece yesterday about the other torture memos that haven't yet garnered much attention, and his story's worth highlighting. Recently, the Senate, led by Lindsay Graham (R-SC), brought to light some recently-declassified documents showing that, back in 2003, senior military lawyers—Judge Advocate Generals (JAGs)—had very vigorously opposed the Bush administration's interrogation policies. These aren't just any lawyers. As Sen. Graham puts it, "These are not… people who are soft on terrorism, who want to coddle foreign terrorists. These are all professional military lawyers who have dedicated their lives, with 20-plus year careers, to serving the men and women in uniform and protecting their Nation." Yet the White House basically swept their concerns aside. Here's Ackerman:

The JAGs were commenting on the report of a Pentagon working group, convened in January 2003, to review interrogation policy changes. But a common theme in their memos is the concern that the legal rationales employed by the working group were imported wholesale from the Justice Department's Office of Legal Counsel (OLC)--whose writing on the question of torture was memorably described by Yale Law School Dean Harold Koh as "perhaps the most clearly legally erroneous opinion I have ever read." (What the Justice Department lawyers actually gave to the Defense Department remains, inexplicably, classified, despite months of congressional demands.)

Major General Thomas Romig, the Army JAG, essentially concurred. He denounced OLC's central contention--that any law restricting the president's ability to wage war is unconstitutional--writing caustically: "I question whether this theory would ultimately prevail in either the U.S. courts or in any international forum. ... This view runs contrary to the historic position taken by the United States Government concerning such laws and, in our opinion, could adversely impact DOD interests worldwide." Brigadier General Kevin Sandkuhler, the Marine JAG, was more specific about how adopting OLC's argument would harm the military: "Comprehensive protection is lacking for DOD personnel who may be tried by other nations and/or international bodies for violations of international law."

But the JAGs raise an even more fundamental argument, one that speaks to the heart of what has made the United States one of the greatest military powers in history: the rigorous, professional discipline instilled in every enlisted man and officer as part of post-Vietnam reforms. The success of these reforms has made it easy to take such excellence for granted, but barely a generation ago, the armed services had to deal with on-base racial gangs, and even killings within the chain of command. "U.S. Armed Forces are continuously trained to take the legal and moral 'high road' in the conduct of our military operations regardless of how others may operate," wrote the Air Force's deputy JAG, Major General Jack Rives. "Approving exceptional interrogation techniques may be seen as giving official approval and legal sanction to the application of interrogation techniques that U.S. Armed Forces have heretofore been trained are unlawful." Sandkuhler starkly warned about a breakdown in uniformed "pride, discipline and self-respect."

The memo from the Navy's JAG, Rear Admiral Michael F. Lohr, is perhaps the most forceful. Eschewing legalisms, Lohr bluntly cautioned that use of the new interrogation techniques would cost the military its other hard-won post-Vietnam commodity: public support. "More broadly," Lohr asked, "while we may have found a unique situation in GTMO where the protections of the Geneva Conventions, U.S. statutes, and even the Constitution do not apply, will the American people find we have missed the forest for the trees by condoning practices that, while technically legal, are inconsistent with our most fundamental values?" He correctly identified public support as essential to the war effort: "How would such perceptions affect our ability to prosecute the Global War on Terror?" It's a testament to the strong social bonds between the military and the public that such support hasn't significantly eroded--just as it's a testament to the resilience of military professionalism and values that the abuses the JAGs foresaw are still attributable to only a tiny fraction of the men and women fighting the war on terror.

The New York Times has a bit more, mostly perfunctory, coverage today. Don't expect much beyond that. The full memos can be found here. Meanwhile, Mary Lederman notes that there's absolutely no reason why these documents should have stayed classified for the past two years, except that they cast the Bush administration's penchant for torture in a bad light, and might've thrown a bit of a wrench in those re-election plans.

• Print
• Email
• Tweet

While hunting around for some old references on racial profiling, I came across James Forman Jr.'s essay in the New Republic, "Why Conservatives Should Oppose Racial Profiling," that came out rather fortuitously—or not—on September 10, 2001. It's really quite good, making the case that, right or wrong, racial profiling creates all sorts of practical problems that make it unwise as a crime-control policy. But I'm not sure all of Forman's arguments generalize to a blanket objection against racial profiling in the "war on terror"—or whatever it's being called today—as advocated, for instance, by Paul Sperry in the New York Times today.

After all, racial profiling in conventional crime-control risks inflaming—or does inflame, I should say—a large swathe of people precisely because this sort of racial profiling goes on everywhere, from Washington D.C. to Topeka, Kansas. By contrast, racial profiling for terrorism would in theory target a much smaller subset of the population. Police officers watching out for shifty-eyed Arabs in airports and mass transit areas simply wouldn't be as ubiquitous as highway patrol officers pulling over black drivers or police who target minorities playing in the park or whatever. (Only about 14 million Americans use public transportation, after all, and an even smaller percentage fly.) So the possibility that racial profiling would radicalize the Arab population in the United States seems much smaller—although obviously I wouldn't bet on this question.

One convincing counterargument here is that racial grievances could likely spread beyond those directly affected. Even if a particular Arab never rode the mass transit, he would realize that if he wanted to do so, he would very likely be searched, and that thought in itself could lead to real resentment. Moreover, it's hard to expect police officers to remain courteous and non-racist if they are explicitly instructed to use race as a factor in their surveillance. It's also very hard to argue that telling commuters to be aware of young Arab or South Asian men could possibly avoid exacerbating racial tensions in general. Another more practical problem is that the police could miss out on other terrorist threats that aren't so swarthy. White-skinned terrorists are as old as the republic itself; check out this list, for instance. Nor is too outlandish to think that, say, al-Qaeda could start using Uzbek or Chechen terrorists, demographic groups that might well slip under the radar if the obsessive focus is on, say, Arabs. Meanwhile, as with all race-based discrimination, our Constitution requires "strict scrutiny" for these sorts of actions. If authorities can find another way to achieve similar levels of enforcement, they should make every effort to do so.

• Print
• Email
• Tweet

From a political standpoint, I'm fairly convinced that the Democratic Party should steer far, far away from its gun control stance: frankly, it's a losing issue and it costs them too many votes that could be used to forward far more important progressive goals. From a personal standpoint, I'm all for letting people have guns, but every now and again I read a story about the whiners who head up the NRA and some primal part of me just wants to regulate the gun industry right out of existence, purely for spite. The assault weapons ban, granted, is frivolous and mostly useless, and the NRA was right to oppose it. Nevertheless, there's no reason that the gun industry shouldn't be treated like the auto industry—universal registration of firearms, granting gun owners licenses based on skills and knowledge of gun law, a liability insurance requirement, letting the Consumer Product Safety Commission test and rule on guns—and perhaps a modest limit on gun purchases (one per month, maybe).

Now it may be that the NRA opposes these common-sense measures because they fear that sensible regulation would just amount to one giant slide down the slippery slope to total gun confiscation—and admittedly, that fear has some basis in fact, since lots of liberals really do want to ban all guns—but by itself, the opposition to these sensible regulations is pretty much without merit.

Anyway, that's all by way of saying that I have mixed feelings about this liability shield for gun manufacturers that's coming up for a vote in the Senate. Some might argue that lawsuits against gun manufacturers as a result of misuse of a firearm are just frivolous, and will never succeed anyway. (After all, should alcohol makers face lawsuits for "foreseeable misuse" of their products too?) The first point seems true—strictly speaking, holding a gun manufacturer liable for the "criminal or unlawful misuse of a [gun]" by a third party seems idiotic.

But then again, say a gun manufacturer starts selling far more guns in states with weak-gun control laws, more than the people living there could possibly buy, and the excess guns end up in, say, the hands of criminals in a state with tight gun-control laws like New York? Should third parties be allowed to sue for "negligent marketing"? These aren't hypotheticals, of course; the courts have thrown out these exact cases—even supposedly anti-gun activist judges like U.S. District Judge Jack Weinstein have ruled against the plaintiffs—although that trend could change over time, as legal thinking "evolves." (Surely the gun industry isn't just worried about frivolous lawsuits—they're worried they might start to lose these suits.) Meanwhile, negligent marketing does seem like a problem and not at all something in the spirit of the Second Amendment, or freedom to bear arms, or anything of the sort. We can all see what's at issue here—manufacturers are getting rich by circumventing laws meant to reduce gun crime. And when legislatures at the state and national level can't or won't do anything about it, then litigation can often step in and force an industry to account for its negligent product marketing and/or design, as it did to the tobacco industry in the 1990s.

Then again, it may be unwise to rely on activist courts to fight these sorts of battles. So there just might not be any answer to gun manufacturers running amok, at least barring a shift in popular sentiment at the national level. (And given that rural states are disproportionately represented in the Senate, that seems unlikely; unless, of course, the filibuster were to be abolished.) Now as it happens, I'm not convinced that guns are even among the top 10 biggest problems facing America today, so I don't lose a whole lot of sleep over this, but it still seems like a difficult issue.

• Print
• Email
• Tweet