Cave! Hic Dragones

John Yoo, the Berkley law professor, is under attack for at least one memo he wrote while deputy assistant attorney general in the US Justice Dept.’s Office of Legal Counsel. That memo argued that US criminal statutes, certain US constitution provisions, international treaty law, and international customary law did not apply to “military interrogations of alien unlawful combatants held outside the United States.” There is a petition calling for his dismissal and Brad DeLong has called for a faculty fact-finding committee to investigate.

The most startling aspect of memo was that the “commander-in-chief” authority trumped any Congressional regulation of interrogations as a separation of powers matter. Prior Supreme Court decisions held that US constitutional protections did not apply to US actions toward foreigners abroad, SC decisions and prior practice held that general criminal laws did not apply to the conduct of war, and prior SC decisions and prior practice held that the president could abrogate treaties and customary law. Since the US did not consider – wrongly, I believe — Taliban and al Qaeda combatants not covered by common article 3 of the Geneva Conventions, the legislation that Congress aimed at the US armed forces – 18 USC 2441 on war crimes  – did not apply (so I think it does apply).

Yoo argues that interrogations are an element of the conduct of a war, and that Congress has no constitutional authority to regulate the conduct of the war. This is an on-going matter of dispute among constitutional scholars. Can Congress legislate during a war that the president, as commander-in-chief, must invade coastline x rather than coastline y? Can Congress legislate that US forces must be withdrawn from certain areas once deployed, or that funds can be barred for maintaining deployments in certain areas? I don’t think Congressional authority is as limited as Yoo believes. I believe that Yoo is wrong when he argues that a presidential decision to violate CAT obligations constitutes a denunciation; instead, the president would need to formally denounce the treaty before abrogating it.

Yoo is not complicit in torture. Yoo did not write a policy memo; he wrote a legal memo. What legal restrictions existed for the Dept. of Defense? He never advocates that criminal laws, even if misconstrued, be violated. He argues where and when they apply and do not apply. He goes on to outline what the standards are for torture, cruel and inhumane treatment, assault and other crimes. One can agree with his conclusions and still decide that as a matter of policy it is immoral or impractical to conduct interrogations that involve inflicting physical or mental pain.

This is not really an academic freedom issue, as Henry Farrell has pointed out. Yoo is being attacked not for expressing ideas in general (if he had published this in a law review and was being attacked, it would be) but for his conduct at the Justice Dept. This does not mean, however, that one’s conduct in a government or other non-academic role should be a grounds for sanctions. Yoo has not been charged with, let alone convicted of, a crime.  He did not order or implement any violation of US laws. It is unclear what he did wrong, aside from mis-interpreting the constitution.  But if that was a  violation of legal ethics, every dissenting Supreme Court judge would be disbarred.

http://crookedtimber.org/2008/04/28/not-really-an-issue-of-academic-freedom/

Jacob Hacker points out the triviality of the debate between Obama and Clinton over healthcare given that their plans are fundamentally similar. I part with Hacker on one point:

Senators Obama and Clinton’s proposals are so similar it’s hard to see how Mr. Obama can suggest that everyone will voluntarily sign up under his plan while Mrs. Clinton’s will impose unbearable costs on middle-income folks.

It’s easier to see if you think of markets. Clinton’s plan would provide private insurers with a captive market, unless they wish to purchase a government plan “similar to Medicare,” which would mean costly prescriptions. Under Obama’s plan, customers could still “exit” by not purchasing a plan.

Clinton started it with her accusation that Obama’s plan would leave 15 million people uncovered. She omitted that they would be uncovered only if they chose not to purchase insurance, not because they would not be eligible to do so. She would simply require them to do so.

Hacker points out that the MA plan managed to cover only about half the uninsured. That’s progress, but it shows that reforms still have a long way to go.

The other issues he raises is the continuation of coverage for the insured. When people switch jobs or lose their jobs, will either of the candidates’ proposals ensure that their existing coverage continues? Or will they have to switch plans? Will people need to purchase the very-expensive COBRA package, that allows their benefits to continue?

So long as cost-controls remain a policy objective, how will the candidates really cut costs? The current proposals are vague and cavalier about how this will be done.

Bartels and Krugman argue that Sen. Obama was incorrect in his off-the-cuff explanation about why many white, rural, working-class voters in Pennsylvania and the Midwest were anti-immigration, anti-free trade, pro-gun, pro-Republican, and strongly religious. They argue that rural, working-class, whites are in fact more likely to vote Democratic than their non-rural, wealthier counter-parts. They are right, but they miss Obama’s point. (Technically, Bartels analysis is irrelevant to Obama’s claim since Obama confined himself to Pennsylvania and the Midwest. We would need to isolate those regions to test Obama’s claim, and Bartels did not do that.)

Krugman notes correctly that median household income rose during the Clinton years and fell during the Bush years, and this includes the Midwest. But this ignores wages. Obama referred to jobs, not income. If we look at BLS average hourly manufacturing wage data (in 1982 dollars), we find that wages declined from 1986 until mid 1996:

Clinton did get wages up late in his administration, but they continued rising under Bush. Both Krugman and Obama wrong. It was not until 2006 that wages began to decline consistently. In short, good jobs were hard to come by until 1996, and still are compared to the 1970s.

Also, neither Krugman or Obama address policy issues Obama raised – immigration, guns, and trade. How do these issue correlate with party votes?

The Democratic party identification is down; it depends on the baseline. According to Bartels 2006 study, from the 1984-2004 elections, the plurality of whites in the lowest-surveyed income category outside the South who identified themselves as Democrats has been less than 20%. From the 1998-2004 elections, the plurality of such whites in the South has been below 20% and declined at a steeper rate. Linear trends from 1952 miss the point that the Democrats have lost these groups compared to levels it had from the mid-1960s to the mid-1980s.

http://krugman.blogs.nytimes.com/2008/04/17/clinging-to-the-data

Today’s New York Times had this graphic to show how prices have declined since airline deregulation in 1978:

What the graphic lacks is data about fares before deregulation. The source of the NYT graphic, the Air Transportation Association, provides this data:

Note that the trend is very close before and after deregulation. In short, deregulation does not seemed to have caused much of a drop in fares based on this data. Using this ATA data, I came up with this chart of domestic route yields (the cost per passenger-mile) in 1978 dollars (actually cents here):

In this series, deregulation does not appear to be a major cause of the price decline either. Of course, this is just one feature of de-regulation. And because these are averages, price discrimination in deregulation-era fares (low restricted v. high unrestricted) means that people who could not afford to travel previously now can.

For more on this topic, the Borenstein & Rose NBER paper is worth reading.

In last night’s Clinton-Obama non-debate, ABC’s George Stephanopoulos stated: “During the Cold War, it was the United States policy to extend deterrence to our NATO allies. An attack on Great Britain would be treated as if it were an attack on the United States.” Stephanopoulos is confusing NATO’s mutual defense pledge that “an armed attack against one or more of [the members] in Europe or North America shall be considered an attack against them all” with the US policy of trying to prevent a Soviet attack on western Europe — be it conventional or nuclear — by committing the United States to the fight. The NATO clause did not guarantee a military response; it guaranteed only that a member would take “such action as it deems necessary.” Conventional deterrence — i.e., the deterrence of a conventional attack — was achieved by deploying US ground forces in Europe and elsewhere. Nuclear deterrence was the greater problem. The US extension of its nuclear deterrent to other states was not for allies with nuclear arsenals but at those states that lacked such arsenals. Great Britain had its own nuclear weapons by 1952 and France by 1960. In short, the US did not need to extend its nuclear guarantee to Britain. The nightmare scenario was a Soviet conventional strike in order to unify Germany. If no other NATO allies’ territories were attacked directly, would the US continue the war? The question was whether the US would “trade Washington for Bonn” — that is, use nuclear weapons against Soviet forces in Europe or even the Soviet Union itself, and risk Soviet nuclear strikes on the United States.

In the case of deterring an Iranian attack on Israel, presumably a nuclear one since the states are not contiguous, it is hard to see why Israel, which has nuclear weapons, needs a US guarantee. It can deter Iran itself. Of course, this is a diplomatically tricky topic. Israel claims that it will never be the first state to “introduce” nuclear weapons in the region; it does not openly avow to have them. A US presidential candidate will not acknowledge the Israeli arsenal directly in public for fear of creating diplomatic troubles in office.

In an ABC interview, former President Jimmy Carter made an astonishing claim:

That was a totally different experience in 1980, when the Soviet Union had brutally invaded and killed thousands and thousands of people, who — in Afghanistan then. They were threatening to go further south and take over other countries.

By 21 March 1980, when Carter finalized the decision to boycott the Olympics, it was clear that Soviet forces were not going further. The Jan. 1980 CIA estimate THE INVASION OF AFGHANISTAN: IMPLICATIONS FOR SOVIET FOREIGN POLICY did not predict an invasion of other countries. What is Carter basing this statement on?

Mayhill Flower, the “Off The Bus” blogger who released Obama’s “bitter” remarks, is quoted in The New York Times print edition: “There are no standards of journalism on the Internet.” Pfui!  Citizen-journalists are just like professional journalists in terms of their obligations to follow most ethical standards of journalism. A citizen-journalist has no right to fabricate quotes, steal property, or tap phones. Much has been made of the fact that Flower donated to the campaign. This does not make her a non-journalist, just an openly partisan one. Professional journalists have preferences even if they do not donate, volunteer, or even vote. Now, if Flower was being paid by the Clinton campaign, it would be a different matter.

The major difference is that that the government and other organizations don’t treat citizen-journalists as journalists. Press credentials are rarely issued to anyone who is not employed by a news company. Even free-lancers are expected to have a letter from the outlet that will publish or broadcast their stories. Most free-lancers don’t just go off and report and hope to find an outlet later; they have a contract with a publication or broadcaster. This doesn’t mean that citizen-journalist cannot do a lot, but the amateur journalist faces the same conditions that a citizen with no intent of broadcasting or publishing faces in gathering information. They cannot embed with the military, ride in a press plane, or sit in press galleries.

The mores of journalism are often misunderstood even by some journalists and otherwise-experienced officials. Consider Samantha Power, the former Obama advisor, who although herself a journalist, thought she could retro-actively make something “off-the-record.” Off-the-record means there should be no record. If your taping an interview and the subject asks to go off the record and you agree, the tape-recorder should be turned off. You should not take notes of an OTR conversation. But you, the journalist, has to agree to those conditions. This is different from “background” or “not for attribution” rules. An “on background” interview means that source will be anonymous; the reporter and the source agree on what the source will be called, with the specificity of the role usually diminishing as the information increases in controversial value. For example, if you were interviewing an appointed deputy mayor on background about his views of a city council vote, he might be called “a senior mayoral aide” but if he was telling you that the mayor botched things up, he might only tell you if you called him “a city official.”  In an interview that is “not for attribution” you can use information but you cannot attribute it to the source. This makes it more useful for garnering information in other interviews than for publication, although the expression “Privately city officials complain about the mayors conduct” or “the view in city hall is that the mayor botched talks with the city council” might be the result of  two “not for attribution” interviews.

The tough question is what you should do when covering an event rather than conducting an interview. My rule is that if the speaker or event organizers want to keep comments confidential, they should take active measures to do so. For example, if an official is giving a speech and he does not want the content reported, attendance at the speech should be by invitation only and the invitation should make clear that the remarks are to be kept confidential. Put differently, if an event is open to the public, it should not be closed to coverage.

What is controversial is that it is unclear whether Flower was attending as  a blogger or as a donor. Now, anyone attending could have reported Obama’s remarks, and some have posted YouTube videos according to Katharine Seelye. His staff allowed attendees to video-tape and record the event, not just Flower. If the event was off-the-record, no record should have been made by anyone. The issue is whether Flower solicited an invitation with the intent to publish or was issued an invitation as a donor. Flower asked a friend working for the campaign for an invitation – was the friend part of the press staff, did she know that Flower blogged or would be blogging? Did she think Flower was asking a blogger or as a donor? What is at issue is whether Flower was candid about why she sought to attend. According  to Marc Cooper, the OTB editor, it was clear to the Obama staff who she was and why she was there. She was invited by a communication’s staffer.

Why can’t the Iraqi army communicate by radio with US forces? In Michael Gordon’s article on an Iraqi company leaving its post in Sadr City. The Iraqi major

“…also complained that he had no means to communicate directly with the American troops.

“That is an excuse, and you know it,” Captain Veath shot back. He argued that one of the major’s platoons was situated just 100 yards from some of the American Stryker vehicles and that the two sides had agreed that the Iraqis could send a runner over to the vehicles to ask for help if necessary.”

At this late date, they don’t have radios? In fast-paced urban combat, they are supposed to rely on runners? That doesn’t excuse the dereliction from their post (technically, they did not desert, or leave the army; they disobeyed an order and failed to do their duty by leaving their position).

Moira Whelan at Democracy Arsenal points out that Sen. John McCain has been gaffe-prone lately on his alleged strong-suits: foreign policy and defense matters. Whelan argues that McCain’s gaffes add up to incompetence. I’m not so sure – he might be incompetent but this is not evidence of it. I’m no fan of gaffe-centered campaign coverage. Presidential candidates rarely get into the tough details – and the media do little to make sure that they do. But bloggers aren’t exactly helping on this score; they’re playing the same game.

What really matters is how McCain would approach the war if he was president. That question isn’t being asked properly. The real issue is McCain’s dodge about how he would deploy US forces. Gen. Petraeus is not the head of Central Command, but you would want to consult him if you were thinking of diverting troops from his command. McCain called for a greater military, and suggested a combination of greater monetary incentives and his leadership would make that possible. Would it? At what price? Fournier did not follow up on that.

Krugman’s “Health Care Horror Stories” makes one good point, one OK point, and one bad point. Krugman avoids using the misleading term “preventive care.” Regular health care “can identify and treat problems before they get acute.” Right. It cannot prevent illnesses. You can replace a car’s belt before it breaks and avoid damage to the engine; we do not routinely replace worn body parts to avoid future damage. The OK point is that uninsured Americans hesitate to use emergency rooms for fear of the expense. Sure, but some insured Americans also fail to use regular health care because of the expense. Insurance alone is not the issue.

The bad point is that he claims there was a “media circus” over the accuracy of an anecdote Sen. Clinton told about a pregnant woman who died in Ohio. The Washington Post account notes that the woman, Trina Bachtel, was insured, and was not turned away when she sought treatment.  The New York Times reports that she died from complications two weeks after her fetus was stillborn.  She was denied prior care a different clinic due to unpaid bills, but it is unclear when that was or what her condition was at that time. Clinton was repeating the account given her by a county sheriff but her campaign was not able to verify the story.

There a two problems with Clinton’s use of this anecdote. First, it is poor judgment not to check the facts on a story on the campaign trail. Couldn’t more thorough research by campaign staffers have discovered a better account of the failure of the US health care system? Krugman found one reported in the WSJ; why couldn’t Clinton? Clinton claims to have better experience and judgment than Obama. Getting the facts rights is a good test of this.

Second, the account is substantially inaccurate. The woman was not denied emergency care for her inability to pay. We don’t know what type of care she was denied. She had insurance, but had prior debts from when she lacked insurance. This matters because we don’t know how Clinton’s health care plan will work. Under Clinton’s universal coverage plan, if someone lacked the ability to make co-payments — which easily could cost $100 for an office visit, a sonagram, and other tests — would she get regular medical care, or would she be in the same position as the Ohio woman?