Without Angels

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.
— James Madison, The Federalist #51

In this week’s Sift:

  • Executive Power I: Assassinations. There’s a target list at the CIA. If your name were on it, people would come to kill you. That should bother you, even if you’re pretty sure your name isn’t on the list. Can we get this changed before the Palin administration takes office?
  • Executive Power II: Domestic Spying. On Inauguration Day, President Obama was well positioned to make a clean break with his predecessor’s legal justifications of warrantless wiretapping. He didn’t.
  • The Mine Disaster. It’s another example, if you needed one, that corporations value profit more than their workers’ lives.
  • Taxes, Terrorism, and the Washington Times. WT columnist Richard Rahn explains why the IRS is like the SS, why violence against civil servants is a justifiable response, and why IRS employees shouldn’t try to get away with a Nuremberg defense. I have a different diagnosis of tax-day anger, and make a modest proposal for re-directing it.
  • Short Notes. I review The Family. Paul Krugman explains climate-change economics. John McCain was never a maverick. When the newspapers are gone, what will crazy people hoard? Jon Stewart covers Fox News’ coverage of the nuclear treaty. Christie Wilcox breaks up with the Discovery Networks because of their relationship with that other woman. Newswipe presents the generic news report. And more.

Executive Power I: Assassinations
When I voted for Barack Obama, one of the major issues on my mind was executive power. In my pre-election Sift, two aspects of the Bush administration I wanted to bury were that it “asserts that it can imprison its own citizens indefinitely without trials” and it “spies on its own citizens without warrants”.

Regular Sift readers know that I continue to support President Obama, and that in general I’m happy with how this hopey-changey stuff is working out. But on executive power issues I’m not happy. Obama has tended to use his power with more restraint than Bush did, but for the most part he has defended the expansive view of presidential power that the Bush administration put forward.

And that’s not good enough. When I discussed these issues with Republicans during the Bush years, I always argued that the presidency needs to be kept under control even if you trust the person who happens to be president. I asked them to imagine Hillary Clinton becoming president and wielding the same powers Bush had established — because you can’t grant powers to a president you like, but imagine that those powers will magically go away when a president you don’t like takes office. It’s that government-of-laws-not-men thing.

Well, turn that around: If you don’t want President Palin (or whoever the next conservative president might be) exercising expansive, extra-constitutional powers, the time to get rid of those powers is now, when we can hope for cooperation from the Right.

During the Bush years, the case that crystalized everything for me was Jose Padilla. Padilla is an American citizen who was arrested in 2002 at O’Hare Airport. He was held in solitary confinement and sensory deprivation (the Christian Science Monitor characterized his treatment as a “mental twilight zone“), but wasn’t charged with a crime until 2006. During that time, the only thing justifying his detainment was a memo signed by President Bush declaring Padilla an enemy combatant.

I never argued that Padilla was an innocent victim or a nice guy. Maybe he was even the terrorist plotter the administration said he was. What bothered me was that legally, there was no difference between Padilla and me or you. If it was your name on that memo, then you’d have been in the brig in South Carolina with a hood over your head.

A presidential signature, and your whole life goes away. That’s not right. That’s not how America is supposed to be.

As in the Padilla case, it’s entirely possible that al-Awlaki is a bad guy. He’s a “radical” Muslim imam who is thought to be hiding in Yemen. Anonymous government sources tell the NYT that he’s an Al Qaeda operative and a recruiter for Al Qaeda. He had a connection with the Fort Hood shooter and the underpants bomber. And recently he is supposed to have crossed the line from justifying terrorism theoretically to actual participation in terrorist plots. So now he’s on a CIA “target list” — which means he can be assassinated.

Everything they say about al-Awlaki might be true. But as far as any legal process is concerned, he’s no different from you and me. If your name were on the same presidentially approved list at the CIA, then you could be assassinated too.

During the Bush years, this kind of thing was justified by daisy-chaining several arguments that individually make a certain amount of sense.

  • As commander-in-chief, the President has the powers that any subordinate commander would have.
  • On the battlefield, a military commander has the power to identify and kill the enemy. As long as he’s not willfully targeting non-combatants, the laws of war grant him considerable benefit of the doubt.
  • The struggle with Al Qaeda is a war.
  • The battlefield in the war against Al Qaeda could be anywhere. For example, no one thought that the World Trade Center was a battlefield until the planes hit it, or that Fort Hood was a battlefield until Major Nidal started shooting.
  • Defining the limits of the battlefield is a military judgment to be made by military commanders.

Each point sounds sort of reasonable in isolation. But if you put it all together, the President has the power of life-and-death anywhere he thinks he does. It’s up to him to decide where the battlefield is, and on that battlefield he can identify and kill the enemy.

You can imagine — I usually do imagine — that President Obama is trying to use this power responsibly. So if he thinks that the part of Yemen where al-Awlaki is hiding is a battlefield in the War on Terror, well, maybe it is. And maybe al-Awlaki is operating on that battlefield as an enemy of the United States. Maybe shooting him there really would be an act of war that would save innocent lives here.

But the Bush administration never drew any boundaries around this logic, and as far as I know the Obama administration hasn’t either. So I don’t see what stops President Obama (or some future president with less reason to like me) from deciding that my apartment building is the battlefield and that I am the enemy.

If Obama’s good character is the only thing keeping him from killing me, then we have a government of men and not of laws. And if we have a government of men today, someday we will have a government of bad men. We need to get back to a government of laws before that happens.

Other people have been all over this: Glenn Greenwald. Marcy Wheeler. Newsweek.

Executive Power II: Domestic Spying

In December, 2007, candidate Obama said:

No more illegal wiretapping of American citizens.

We should have gotten him to define illegal. Foolishly, most liberals thought Obama was referring to a plain reading of the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

In other words, we assumed illegal meant (or at least included) “without a warrant”. It’s debatable whether the Founders would have recognized a warrant from a secret court like FISA, but at least a FISA warrant is some kind of check on the executive branch.

The Obama Justice Department inherited all the suits against the government that were still unresolved on Inauguration Day. That would have been the moment to start over, or at the very least to ask judges for time to write a new policy. Instead, the Obama lawyers have mostly stuck with the same arguments the Bush lawyers made.

The hardest thing about controlling warrantless wiretapping is finding a case that a court can rule on. A court can’t just decide on its own that the government is doing something illegal; it needs a suit filed by an actual victim of the illegal activity. But if the wiretaps are secret, how do you establish your victimhood?

In general you can’t, but a variety of screw-ups have made it obvious that the Al-Haramain Foundation (a Saudi charity suspected of being an Al Qaeda front) was wiretapped, and the government has refused to produce a warrant. The Bush administration introduced the Catch-22 defense that the wiretapping program itself is secret, so Al-Haramain’s lawsuit should be quashed by the state secrets privilege. (In other words: The state secret is the fact that the state is breaking its own laws. And this continues to be a state secret even after the New York Times wins a Pulitzer for exposing it.) The Obama administration has taken up that defense as if it were their own.

At the end of March, a federal judge rejected that argument, saying:

Under defendants’ theory, executive branch officials may treat FISA as optional and freely employ the SSP to evade FISA, a statute enacted specifically to rein in and create a judicial check for executive-branch abuses of surveillance authority.

The judge issued a summary judgment against the government. (Text here.) The case may be headed for the Supreme Court, though Marcy Wheeler thinks there are some hidden nuggets here that the government might be inclined to accept.

If it does go to the Supremes, by then a new Obama appointee may have replaced Justice Stevens, one of the most stalwart voices against excessive executive power. Glenn Greenwald outlines the ways in which one of the front-runners, Elena Kagan, would have more sympathy for the executive than Stevens did.

The Mine Disaster
I assume you’re getting your primary coverage of the West Virginia mine disaster somewhere else. So I’ll just add a few supplementary thoughts:

1. This is the current level of corporate ethics: If they can make money by killing their workers or customers, they will. It’s not just a few bad apples; it’s standard operating procedure. (See my review of Doubt is Their Product.) That’s why we need unions and governments: As individuals, we’re not powerful enough to stop corporations from killing us.

2. Current law is more concerned with protecting the mine owners from frivolous claims than protecting the lives of miners. Supposedly regulations were strengthened in 2006, but the conservative theory of regulation still prevails: The government needs to have an airtight case before it acts, and the company gets access to a multi-level appeal process before it has to respond — no matter how urgent the issue is. The WaPo reports:

When weighing whether to put a mine in the pattern-of-violation category, federal regulators cannot count any contested violation, and they may consider only violations that have occurred within the past 24 months. Yet cases at the commission are taking an average of 27 months to resolve

So even though the mine that exploded had 11 times the national rate of safety violations during the past year, those violations didn’t count yet because Massey Energy was still contesting them.

3. Massey Energy CEO Don Blankenship is a piece of work. In general I don’t like to demonize individuals, but I’ll make an exception here: This is a bad man. See Digby and Chuckie Corra for a more detailed case, or just watch him pose as a friend of labor while wearing a flag shirt at a teabagger rally and saying this:

Washington and state politicians have no idea how to improve miner safety. The very idea that they care more about miner safety than we do is as silly as global warming.

Because he cared so much about safety, 29 miners are dead. He cares about water pollution too. And West Virginia’s mountains.

Taxes, Terrorism, and the Washington Times
Washington Times columnist Richard Rahn unloads a big heap of crazy about the IRS, comparing it to the SS and the KGB, and doing his best to justify violence against the ordinary folks who work there.

According to news accounts, attacks and threats against IRS personnel are rising, and unfortunately, this trend is likely to continue until there is a fundamental change in our tax laws and collection methods. People who do not have access to the media and cannot afford expensive tax lawyers sometimes reach such a level of frustration with the IRS that they resort to violent or irrational behavior.

Here’s an idea: Maybe there’d be less violent or irrational behavior if we had a fundamental change in the irresponsible rabble-rousing of terrorist sympathizers like Richard Rahn.

Violence against IRS employees is no joke. Joe Stack crashed his plane into an IRS office just two months ago, killing Vernon Hunter and causing Ken Hunter to observe, “My Dad wasn’t responsible for [Stack’s] tax problems.” But Rahn has an answer for that:

IRS officials and workers will say the tax code is not their fault – it is the fault of Congress – and they are only doing their jobs. It is unambiguously true that the tax code and IRS are creatures of Congress, with all of its self-dealing, corruption, ignorance and incompetence. But it also is true, and was made explicit at the Nuremberg trials, that those who carry out orders that they know to be wrong or should know to be wrong are not absolved of personal responsibility.

Nuremberg? Yeah, ruling that somebody’s spare bedroom isn’t really a home office is exactly like gassing Jews. Totally the same thing.

For the record: Taxes are low here compared to other wealthy countries. And personally, I’ve managed to do my own taxes for decades now without an expensive lawyer and without killing anybody. Here’s my secret: I assume that to the extent I made money, I owe tax. The tax laws for ordinary people make a lot of sense from that point of view.

On the other hand, if you start with the view that government is trying to steal your money, that it is your moral responsibility to do everything you can to stop them from doing it, and that a person as clever as yourself ought to be able to win this game and not owe any tax — then the tax form will drive you nuts.

Here’s my suggestion: If April 15 drives you to “resort to violent or irrational behavior” don’t go after IRS employees, go after the people who put those crazy ideas in your head. (That, by the way, is a joke. I don’t want to hear about some Sift reader crashing a plane into the Washington Times. As satisfying as it is to imagine Rahn spending one day dealing with the same kind of fear he’s inspiring in civil servants, two wrongs don’t make a right.)

Rahn misses what’s actually immoral about our tax code: The kind of income that rich people make (dividends and capital gains) is taxed at a 15% rate, while wages can be taxed at rates as high as 35%. (See page 89 of the 1040 Instructions.) Wage-and-tip-earners start paying a marginal rate higher than 15% when their taxable income crosses $34,000 for single people and $64,000 for married couples. So a waitress serving martinis to a table of hedge-fund managers may well be paying a higher marginal tax rate than her customers.

Here’s a principle that should make as much sense to honest conservatives as it does to liberals: Income is income. Taxing different kinds of income differently distorts the economy because then people do tricks to turn one kind of income into another. The reason corporations get so tricky about stock options, for example, is that CEOs pay less tax on stock-option capital gains than if they made the same amount of money in salary.

Dwight Eisenhower used to be considered a mainstream Republican. During his administration the top tax rate was over 90%.

Conservatives are all about catching and punishing law-breakers … unless they’re rich. Fox News’ Megan Kelly interviewed Rep. Steve King about the IRS’ new unit focused on wealthy tax cheats, and together they raised a lot of sympathy for those poor, poor tax-cheating billionaires. If we make the rich obey the law, Kelly and King claim, they’ll take their magical job-creating abilities elsewhere. “No one ever got a job from a poor person,” King says.

Violence against census workers is no joke either.

Short Notes

My review of The Family: The Secret Fundamentalism at the Heart of American Power ended up focusing more on religion than politics. So I moved it to my religion blog, Free and Responsible Search.

Paul Krugman’s article about the economics of climate change (Building a Green Economy in the NYT magazine) is long but worth it.

[O]nce you filter out the noise generated by special-interest groups, you discover that there is widespread agreement among environmental economists that a market-based program to deal with the threat of climate change — one that limits carbon emissions by putting a price on them — can achieve large results at modest, though not trivial, cost.

In February, the conservative media was claiming that a snowstorm in D.C. disproved global warming. Back when I was declaring this to be a stupid story, I predicted:

Undoubtedly next summer there will be a heat wave somewhere, and I doubt that Fox News or the Washington Times will present it as evidence that Gore was right after all.

My time estimate was off. Wednesday it hit 90 degrees in Boston, breaking the old April 7 record by four degrees. This comes right after New England’s wettest March ever caused floods. No second thoughts from Fox or the Times.

Still, it’s important not to answer stupid with stupid: Weather — hot or cold, wet or dry — isn’t climate. Only long-term weather patterns are relevant to the global-warming discussion. This study, for example, looks at 60 years worth of Northeastern weather and concludes that storms with heavy rainfall are happening more and more often.

Thinking ahead: A Texas man filed for a restraining order against the police who might try to prevent him from using deadly force at an abortion clinic. The court forwarded the request to the FBI, who arrested him.

Remember that stuff from 2008 about John McCain being a maverick? You must have misheard. “I never considered myself a maverick,” he says now. Gail Collins replies:

if you are planning to deny that you ever thought of yourself as a maverick, it would be better not to have subtitled one of your memoirs “The Education of an American Maverick.”

What unhyped journalism looks like: Dow Jones Crosses Intrinsically Meaningless Milestone.

BBC-4’s Newswipe explains why news reports all look the same.

An Onion News Network panel discusses: How will the end of print journalism affect old loons who hoard newspapers?

If you want to get actual facts about issues like the new nuclear agreement with Russia, you’re better off listening to a comedian than to Fox News.

Even Senator Coburn realizes you can’t take Fox seriously. BTW, as much as I disagree with almost everything else Coburn does, I have to give him credit for smoothing the waters here. A woman at a public meeting is worried that she’ll be put in jail for refusing health insurance, and Coburn not only calms her down, but goes on to say that Nancy Pelosi is a nice person.

A gay-friendly Presbyterian church in Houston was burned by an arsonist Thursday. Member Kevin Murphy reports: “We lost everything: two buildings, all our furniture, books, hymnals, a new piano, a wall of crosses from around the world and so many other things.”

The Defenders of Wildlife Action Fund has an online petition asking Discovery Communications to drop its plans to air a “Sarah Palin’s Alaska” series. And Christie Wilcox writes Discovery a break-up letter:

How dare you be with her and try to tell me that you haven’t changed, that you’re the same science-loving, environment-protecting network I fell in love with?

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