Follow by Email

Monday, November 25, 2013

THE FILIBUSTER AND CHECKS AND BALANCES


 

The tradition of unlimited debate in the U.S. Senate, while not a Constitutional provision, is based on a Senate rule that goes back over a century.  It is only the unwieldy size of the U.S. House of Representatives (435 members) that made such a tradition impossible.  Until just recently, the rule reflected the basic governing  philosophy  of the creators of the Constitution, which was divided government, checks and balances and the avoidance of concentrations of power. 

The filibuster, which was the embodiment of unlimited  debate in the Senate, certainly has been abused by both political parties depending on which party was in the majority in the Senate.  Suggestions to change the rule however, have been opposed in the past by prominent politicians of both parties i.e. former Senator Barack Obama (D-IL) and, current Majority Leader Senator Harry Reid (D-NV).  Now, Senator Reid, with the support of the thin Democrat majority in the Senate and the concurrence of President Obama, has changed the rule to do away with the filibuster by changing the requirement for ending debate (“cloture”) from sixty votes to fifty-one, a simple majority.

This was brought on by the fact that the Democrats did not have the necessary 60 votes and the Republican minority was not cooperating with respect to the President’s choices of Cabinet secretaries and federal judges.  The Constitution does not demand acquiescence by the Senate in such nominations.  It specifically requires the “advise and consent” of the Senate to approve those choices.  If the Senate is expected to automatically approve the President’s nominations then the “advise and consent” provision of the Constitution has no meaning.  That of course, was clearly understood though most of U.S. history until now. 

Defenders of Senator Reid’s initiative reside totally in the liberal wing of the Democrat Party. They argue that a simple majority is a manifestation of “true democracy” i.e. majority rule. This is the basis of the parliamentary system of government in which the leader of the majority party in the lower legislative body is always the chief executive (Prime Minister).  Thus this is a system of one party rule which America’s “founders” rejected, unless provided by elections to both houses and the presidency. Although it has occurred occasionally through U.S. history, it represented a concentration of power which the various requirements for super majorities off-set. The liberal “wing” actually makes up most of the Democrat Party who support the President’s nomination of liberal judges for the federal courts, especially three vacancies on the Federal Court of Appeals for the District of Columbia Circuit which hears most appeals involving the federal government.  This makes this court the most important federal court after the Supreme Court.  This also makes the importance of the now defunct cloture rule of sixty votes compatible with the “framers” belief that issues of great importance should require super-majorities, requiring a significant portion of the minority which would then demonstrate a higher level of consensus than just fifty percent plus one.

The Constitution makes clear the importance of such a belief.  The President, or his delegated representative, may negotiate and sign treaties with foreign powers but the Senate must ratify such treaties by a two thirds vote for them to become U.S. law.  The Constitution itself may be amended but this highly important process requires a two thirds vote in both houses of Congress and under the usual process, a three fourths concurrence by states legislatures.

Impeachment of federal officers, including the President and federal judges requires a two thirds vote in the “trial” portion of the process which occurs in the Senate.  Confirmation of federal judges, who serve for life, is also a matter of high importance and the super majority of the previous cloture threshold was entirely appropriate.

What Senator Reid and the Democrat majority has done is make an ideologically driven change of an historic Senate rule for short term gain; short term because the Senate, and the Presidency will not permanently remain in Democrat hands.  The political pendulum will shift but the nation’s political process will suffer in the long run.

Sunday, November 17, 2013

THE FOLLY OF "FIRSTS"


It is now November 2013, and already the political media has started a speculation and agenda driven “analysis” of the November, 2016 U.S. presidential election.  Why?  The speculation part is simply what pundits do for a living, although tiresome to readers and listeners simply interested in current political news.  The agenda part comes from interest groups, pundits and editorial boards, eager to get a jump start on the selection process by building momentum for a particular candidate.  Thus the movement to create an atmosphere of inevitability around the Democrat nomination and election of Hillary Clinton is in full force.  A “super pac  (political action committee) has been established to raise millions on her behalf and squeeze out the fund raising efforts of other Democrat candidates who might challenge her.  A quasi-official campaign staff of volunteers is being organized and Hillary, who hasn’t made a public commitment to run, is traveling the country giving speeches before friendly audiences.

Hillary was also the “inevitable” Democrat nominee and “next President” in the 2008 elections, until an unconventional young candidate who matched her ambition and lack of credentials, pushed her aside and went on to win the nomination and presidency.  Besides having thin resume’s, an underlying theme motivated the most dedicated supporters of both candidates, the notion of “first”.  Hillary was to be the “first” female President of the United States.  This captivated the imaginations of women young and old who seemed to see it as some kind of validation of them as equal citizens. To feminists, it took on the characteristics of a revolutionary movement, not to be denied by such old fashioned “glass ceiling” concepts like qualifications and ideology. The thin reasoning offered by the feminists then and now, seems limited to the notion that a female president would provide an important role model for the nation’s little girls who could now aspire to that same high office.  Of course, the unspoken limitation imposed by such organizations as the National Organization for Women (NOW), the Feminist Majority Foundation, and Emily’s List, is that only a liberal Democrat female president would properly fulfill this role.  

Hillary was going to be “the first”, except she wasn’t. While the Republican well had been poisoned by George Bush’s multi-year military campaigns in Iraq and Afghanistan and the on-set of the “great recession”, Barack Obama offered his own “first” candidacy which appealed to the Democrat Left which was already put off by Hillary’s senate vote in support of the invasion of Iraq.  Essentially, the prospect of the “first woman president” was defeated by the attraction of the “first black president”.   On November 13, 2013 the Washington Post reported that “Guests descended upon the Japanese Embassy to celebrate (Caroline) Kennedy as the nation’s ‘first female U.S. envoy’, (ambassador to Japan.)  Here is a woman, noted for nothing besides her relationship to President John F. Kennedy, who died when she was six years old, and her inherited wealth.  She has a law degree but has never practiced, spending her entire “professional life” lending her famous name to  boards and advisory positions of non-profits, arts and education organizations. While she may be a charming and intelligent individual (or not), there is nothing in her background that indicates any knowledge of, or experience with , international relations and diplomacy in general, or of Japan in particular.  Ambassadorships are commonly awarded to financial and political supporters of successful presidential candidates as rewards for their patronage.  However, most of these appointments are to lesser important and socially appealing posts like Caribbean island nations or European fun spots like Lichtenstein or Luxembourg.  Relations with Japan are critical.  Japan and China are involved in a serious conflict over remote islands in the Western Pacific which may have important oil reserves.  The constant tension with the nuclear armed dictatorship North Korea presents an important regional security threat which requires continuous and sensitive diplomatic efforts among the U.S. and regional nations including Japan.  Another highly sensitive diplomatic issue with Japan is U.S. military basing agreements.  This is not the place for a social/political appointment of an unqualified “first”.

When President Obama decided that Federal Reserve Chairman Ben Bernanke would not be reappointed, it became known that his preferred choice for the position was Lawrence Summers, an esteemed economist, former President of Harvard University and economic advisor to the president.  However, feminist organizations immediately started a media campaign to use the vacancy to achieve the appointment of “the first female” Chair- (man; woman; person) of the Federal Reserve.  The person the feminist organizations picked was Janet Yellen.  Yellen is indeed qualified.  She has served as the Vice Chairman since 2010 and has a significant professional background in economics.  But her nomination was promoted on the basis of her being the “first”.  Again, no attempt was made to make the argument that her chromosomal make- up would provide special insights, competency, or even any policies that differed from either her predecessor or Summers.  The political heat became so inflated that Summers withdrew his name from consideration and Obama was able to make the “politically correct” choice necessary to accommodate the “glass ceiling” crowd.  In her recent Senate confirmation hearings Yellen supported the continuation of Bernanke’s bond purchase “stimulation” policy which has pumped billions of dollars into the economy and is becoming increasingly controversial, so expect nothing new.

Although George W. Bush appointed the “first black female” National Security Adviser who then became the “first black female Secretary of State”, “firsts” have been mostly the agenda of the Democrats. While  celebrations of “firsts” might be of interest to cultural historians,  few, if any supporters of individual “firsts” ever explain how the individuals who actually are the “firsts” are substantively different from others who might have been elected or appointed.  Thus, the question of appearance out weighing competence always remains below the surface. 

More recently, there has been press speculation about the political attractiveness of New Mexico’s Republican Governor, Susana Martinez as a potential presidential candidate.  Ms. Martinez is the “first Hispanic female governor” of New Mexico.  It was reported that Governor Martinez was considered for the Vice Presidential nomination by 2012 Republican candidate Mitt Romney.  This would have been a crass political event of Palin-like proportions, and would have achieved the same result.  Martinez may be an intelligent and capable politician but there is no question that her electoral success in generally liberal and heavily Hispanic New Mexico was aided by her ancestry which in theory is seen by some to be transferable to the national electorate. However,   there is also no question that her resume’ does not reflect sufficient qualifications for the most important political office in the world.  She has been governor of New Mexico only since 2011, prior to that she was a government lawyer.  That’s it.  Still, the ever pretentious editors of Time magazine in 2013, named her one of the “100 Most Influential People in the World”, (along with rapper J-Z).  This is certainly a lofty credential, or would be if anybody took it seriously.  New Mexico has just five electoral votes out of the national total of 538 and a population of just over two million, a little less than Houston, Texas.  Thus, in spite of Time magazine’s over reach, her selection reflects the unfortunate devolution of the U.S. electorate into competing groups engaging in “identity politics”, that is, supporting candidates who share their ethnicity, gender, or even gender identification , and without close scrutiny of their qualifications .

The supporters of “firsts” feed off this tendency ignoring the down side, one of which is the unfair perception that choice of qualified candidates and appointees was mostly the result of their “first” characterization and not their achievements.  Of course, the major down side is the possibility that they are not qualified at all.

Based on her current resume’, and compared to the incumbent, Hillary is “qualified “for the office of the presidency.  However, in her role as Secretary of State ,after being sent out of the country for four years by Obama, the state of U.S. relations with the important nations of the world does not reflect a record of significant accomplishment on her part.  Relations with Egypt, Saudi Arabia, Israel and the Palestinians, Russia, China and even European Union countries, are frayed to poor.  Thus there is an important difference between “qualified” and competent.  Obama was neither, and in spite of his status as a “first” and his success at breaking the “color barrier” to the White House, the nation is not any better off after his five years in office in terms of public policy or domestic race relations, or by any other important measure. Indeed, he may have done a disservice to future more capable black candidates.  By being the “first”, he may have become the “last”, for the foreseeable future.

And in spite of Hillary’s new and improved qualifications since 2008, the main justification for her candidacy is still to be the “first” female president.  Such a rationale without close examination of her public policy vision for the nation and her views on the proper role of the U.S. in the world will put the country at risk of another four or even eight years of decline.

 

 

 

Thursday, November 7, 2013

IMMIGRATION: COMPROMISE OR GRIDLOCK


Now that the fight over the extension of the debt limit and the government shut down is over, (until it starts again in early 2014), President Obama has said he wants to move on and focus on “comprehensive immigration reform”.  An immigration reform bill actually was passed in the Democrat controlled Senate (S.-744) in June.  Under ordinary legislative procedures, this bill would be introduced in the House of Representatives and after the inevitable modifications, it would go to a Conference Committee of members of both houses for negotiation into one final bill for votes by both houses.

However  “ordinary legislative procedures” seem to be an endangered species; most votes of any importance in the Senate now require a minimum of 60 supporters instead of 51 to avoid the threat of a filibuster; the “ordinary” annual federal budget process has been suspended by partisan intransigence and has been replaced by a series of “continuing resolutions” that simply extend government spending at existing levels;  joint Senate/House committees like the one that was supposed to avoid the across the board cuts required by the “sequester”,  are stacked with ideologically intransigent members from both houses which make successful compromise impossible.

So what will happen when, or if, the Senate immigration bill gets to the House?  First, the President, the Democrats, Hispanic advocacy groups and their liberal supporters have insisted on a “comprehensive” reform bill.  That means they want one huge bill that addresses all the problems with the current immigration situation and is broad enough to allow the inclusion of the more permissive aspects of their version of reform.

The House Republicans want to deal with the problems with a series of bills that address specific issues.  That will allow them to prioritize the reform effort and put border enforcement at the top of the list.  Democrats are more concerned with the legal assimilation of the 11-14 million illegal aliens currently living in the U.S.

The Senate bill did pass with the support of 14 Republican Senators who were able to negotiate the inclusion of some provisions that are most important to conservatives in the House.  However, the substance of some of these provisions and the general provisions for establishing a legal status for the millions of resident illegals will still stimulate significant opposition in the House. 

Essentially the broad divisions are between those who are seeking tougher border enforcement to stem the tide of illegal immigration and those who are seeking a “path to citizenship” for current illegal residents.  The Senate bill and a similar one which has been introduced in the House attempts to deal with both issues. 

Basically, the path to citizenship creates a new class of immigrant status, the Registered Provisional Immigrant status for which illegals may apply if they’ve been in the U.S. continuously prior to December 31, 2011. The application period is for one year but can be extended by the government. There is a cash penalty fee and those with a criminal history are inelegible.

RPI status lasts for six years but is also renewable. After ten years the RPIs can apply for permanent legal resident status under existing rules. After three years as permanent legal residents, individuals may apply for citizenship, thus creating a 13 year track to become citizens.  During this process the RPIs are not eligible for Federal benefits including Obamacare.

To satisfy the border security first proponents S. 744 contains the following provisions:

The bill requires an additional 19,200 Border agents be hired bringing the total to 38,405.

Seven hundred miles of border fence will be installed

The E-Verify system of legal employee identification must be fully implemented for all employers.

Electronic surveillance, unmanned aircraft, radar stations and other sensors will be deployed.

Thus S.744 appears to be the most comprehensive attempt at bi-partisan immigration legislation to date and should provide a strong basis for the inevitable further negotiations that will come with the House of Representative’s response.  The bill however, is not without flaws and its authors have also succumbed to the usual temptation to use the “comprehensive” label to include more than is necessary to address the primary issues in immigration reform, which will make it more difficult to reach a final agreement.

The included provisions of the Southern Border Fencing Strategy and the Southern Border Security Strategy which include the above requirements, require prompt action on the part of the Secretary of Homeland Security to establish “plans” for “effective control of the border. These represent “triggers” which must be accomplished before RPIs may apply for Lawful Permanent Residence status (green card) on their way to naturalization i.e. citizenship.  However, that is a ten year process.  A Southern Border Security Commission will be created to make recommendations to achieve these goals if the Secretary of Homeland Security cannot certify “effective control” of all borders within 5 yrs.

So is this legislation going to fix the problem of illegal immigration especially from the southern border?  The answer is no.  From the Democrats and Hispanic activists point of view that was never the goal.  Their goal was legalization and a path to citizenship for the eleven million illegals now living in the U.S. and “reform” in immigration policy to allow even more immigrants into the country legally. The legislation does both.

The goals of Republicans were first to secure the border and then find some accommodation  with moderate Democrats, if any could be found, to deal with the existing illegal immigrant population. In spite of the enhanced security measures required by the bill, securing a two thousand mile border is a physical impossibility. The new border patrol agents and new technology will help but the legislation contains a “hedge” by giving the Secretary of Homeland Security five years to certify “effective control’ and then the only result of a failure will be “recommendations” on the part of the Southern Border Commission.  Until the incentives for coming into the country are reduced and penalties assessed for violation of the law, illegal immigration will continue. 

Ironically, the very fact that the current eleven million may be granted an amnesty including full citizenship benefits, might itself be a continuing incentive for the next eleven million to come.  The legislation actually makes it more difficult to deport illegal aliens by providing enhanced legal counsel  and more discretion for immigration judges to grant legal status of some kind.  De-incentivizing  also must include lowering the expectations of employment.  This makes the mandatory use of E-Verify by employers crucial.  But this is a five year plan with staged implementation. 

House Republicans have already introduced several bills dealing with specific parts of the Senate’s legislation.  Clearly they should not simply throw up non-negotiable road blocks to any reform attempt.  S.-744 is far from perfect but political momentum for doing something is widespread and the political damage that would follow a simple obstructionist position following the damage done over the government shut down and debt ceiling fiasco would be significant.  The “comprehensive” Senate bill need not be adopted all at once and the current Republican strategy of passing different parts of the bill as separate legislation can be followed if the core portions are seriously dealt with. 

The Senate bill includes reform of HB-1 visas which deal with immigrants who have special skills and request non-permanent admittance.  It also significantly raises the number of immigrants who would be allowed to enter the U.S. legally under existing law. These provisions  have nothing directly to do with the border issues or the current illegal immigrant population and could be considered separately so that they can be considered after specific analysis and debate.

There is room for toughening up the schedule for upgrading border enforcement and shortening the schedule for full E-Verify compliance with penalties included.  The  “amnesty” need not include a “path to citizenship” although this has been the “holy grail” espoused by the political Left for years.  Millions of immigrants who entered the country legally currently have permanent legal residence.  Rewarding those who entered illegally is simply a liberal gift and an attempt to add millions to Democrat Party registration.  Nonetheless, House Republicans should work to produce common sense legislation that serves the core goals of both parties while looking to the future interests of the nation, and the reality is that Democrats in the Senate will have to be prepared to make concessions also if they want to reform immigration policy in 2014.

Friday, October 25, 2013

THE OBAMA CRISIS MACHINE


 

 
The recent overriding debate in the Congress over the issues of budgets, Continuing Resolutions (CRs) that keep government operating, and yet another debt limit increase will soon rise  from the dead again like one of the entertainment industry’s popular zombies .  The last stand-off was described as a “crisis” waiting to happen, but was resolved in the final hour after a 17 day government shutdown caused by the lack of appropriations for operating funds.  But the Obama Administration seems stuck in a thundering cascade of crises in both foreign and domestic affairs that makes one wonder “Who’s in charge?” and “What are they thinking?”

In just recent months, Obama has found himself in a self- manufactured diplomatic and political crisis over the Syrian civil war.  In 2012 he demonstrated his lack of diplomatic acumen by making an unscripted challenge to the government of Syrian President Bashar Assad not to “cross the red line” of use of chemical weapons in the conflict.  This was essentially political grandstanding on Obama’s part, as he never expected that Assad would actually use such weapons, and was combined with naiveté with respect to the importance of every public utterance of the President of the United States as well as the need to consult/inform regional players prior to important initiatives, especially military operations. 

The crisis occurred when the unimpressed Assad actually did use poison gas mounted missiles against a civilian population not far from the Syrian capital of Damascus.  This action either “forced Obama’s hand or “called his bluff” depending on how sympathetic one might be to his ineptitude.  Obama tried to build a case for a cruise missile attack on Syria as punishment for his defiance and a claim that the international community, not he, had created the “red line”. The case quickly achieved diplomatic crisis magnitude when the President found himself without supporters either abroad or in the Congress.  Normally dovish Democrats awkwardly assumed sycophantic  positions and tried to defend Obama’s threats but NATO allies and the broader EU, joined by the UN Secretary General, the Pope, and selected Middle Eastern governments usually in line with U.S. policies in the region, all voiced opposition, undermining Obama’s claim that the international community demanded accountability on the part of Assad. 

Obama and his supporters began a dance like response, claiming that the planned strike would not endanger civilians; would not be an attempt to influence the outcome of the Syrian civil war and would not target the chemical weapons themselves out of fear that such an attack would spread the poison gas indiscriminately. Such assertions naturally led to the questions; “What then is the purpose of the strikes?” and “What U.S. national interests will be served?”

In an act of special irony, Russian President Vladimir Putin, no friend of the U.S.,  came to Obama’s rescue and scored a significant diplomatic coup by convincing his Syrian client to agree to release his chemical weapons to UN inspectors.  Thus Putin looked like a peace maker and elevated his stature in the region and Obama simply looked inept irrelevant and foolish.

On the home front, the much heralded coming out party for the President’s single legislative “achievement”, the Affordable Care Act i.e. Obamacare, was a flop of huge proportions.  The incredibly expensive website created for “easy” application for health care insurance through government exchanges simply doesn’t work.  Since there is a deadline for the uninsured to buy insurance and a penalty for failure to do so, a festering political problem has been created.  Democrats in the Congress who just weeks ago opposed a proposed delay for the mandatory enrollment provision by Republicans in the House, are now calling for exactly such a delay. All of this is occurring in the context of nation -wide lack of support for the health care act itself.  Obamacare has never achieved majority support in the country.  Currently polls show only 41% approval and health insurance premiums are going up as insurance companies take on the extra burdens of the legislation.  This is a domestic political crisis for the Administration and for Democrats in moderate states who are facing reelection in 2014.  Republicans and Democrats alike are expressing outrage at the incompetence demonstrated by those in charge of program but so far no one in the Administration has been held accountable.

Coming on the heels of the Obamacare fiasco, which is still ongoing, are the revelations that the National Security Agency (NSA) which is the Administrations electronic intelligence agency, has been eavesdropping (the media calls it “spying”), on America’s European allies.  Particularly outraged is Germany’s Chancellor, Angela Merkel, who sources say has had her personal cell phone conversations monitored.  The scale of the NSA’s monitoring has been vast, with the governments of Mexico, and Brazil also being identified as the subjects of electronic surveillance. 

All of these revelations are made worse by the fact that they were made public by Edward Snowden the young civilian employee of a private contractor and current fugitive hiding out in Moscow, who inexplicably had access to an enormous amount of classified data that he had no “need to know”.  This security failure following a similar breach of national security by then 23 year old, emotionally disturbed Army Private Bradley Manning, makes the executive branch look to be out of control of its own operations 

Some European leaders are so incensed that they are talking about lower levels of cooperation in intelligence matters with the Obama Administration and others are considering cancelling trade talks even though they are unrelated to the eavesdropping allegations.

The Administration had already created a chill in relations with Israel by not including it in overtures to Iran regarding suspension of its nuclear weapons development.  Saudi Arabia is threatening reduced levels of cooperation over its lack of inclusion in U.S. policies toward Iran, Syria and the partial suspension of military aid to Egypt. 

Essentially the Obama Administration’s foreign policy is in multi-regional crisis.  The political impact of these problems, both foreign and domestic could be significant.  Obama is trying to change the subject away from them by demanding a push to achieve immigration reform legislation but the crises diminish his political clout and embolden immigration reform opponents in both houses. 

Most of the foreign policy issues occurred during former Secretary of State Hillary Clinton’s tenure.  She of course is being widely touted as the presumptive Democrat presidential nominee and “certain winner” in 2016.  She is already carrying the burden of the as yet unexplained Benghazi attack on the U.S. Consulate facilities that resulted in the deaths of four U.S. citizens including the American Ambassador.   The outcomes of the current diplomatic crises will surely come back to haunt her as well  if she indeed chooses to try for the White House again.

 

 

 

 

 

 

Thursday, March 7, 2013

THE SEQUESTER BLAME GAME




In October, 2010 the British government  instituted  cuts to spending and met significant resistance from the public and organized labor.  Over the next two years, Spain, Italy and Greece followed suit with similar results.  After decades of increases in public spending without regard to the lack of commensurate increases in public revenues, reality finally made its claim on politics and reluctant governments, faced with rapidly rising borrowing costs due to the weakness of their currencies, had no other choice.  The cuts were painful, as all surgery is, but the pain of ignoring the problem with its attendant high inflation rates, low consumption and job loss would have been much worse and the leadership in these nations showed political courage in addressing the problem.

The budget “sequester”, a mandatory across the board schedule of cuts to U.S. federal spending went into effect on March 1 and like the reductions in government spending in Western Europe,  will cause discomfort, even economic pain, for a broad segment of the American population.  President Obama has abandoned attempts at leadership and is traveling around the country warning workers in a whole host of government and private business occupations that their agencies and workforces will face downsizing.  Pell Grants, air travel, pre-school programs, environmental programs, Food and Drug supervision, even Capital janitors, etc. etc. etc. and of course “national security” are all “in danger” and “ it’s the Republicans fault.”

Essentially, Obama is telling the American people that spending cannot and should not be cut.  He remains focused on raising taxes on “the rich” as a prescription for dealing with deficits while paying lip service to “targeted “ spending cuts, but he has offered few specific targets and is trying to gain political advantage by demonizing House Republicans for rejecting tax increases in negotiations to restructure the sequester.  But the sequester is not about taxes.  It is all about spending cuts and the U.S. spending problem dwarfs the problems in Europe.  Comprehensive tax reform should also be a priority but as separate legislation, not as piecemeal amendments to spending bills.

The “sequester” was of course, never intended to become policy.  In June, 2011 during the gridlock over raising the national debt limit, Republicans demanded spending cuts.  A compromise was reached and the debt limit extended.  The compromise included the creation of a Congressional “super committee”,  formally, the Joint Committee on Deficit Reduction, which was armed with the findings of the President’s own Simpson/Bowles deficit reduction  commission of December, 2010, and was charged with making specific  recommendations on reducing the deficit  to Congress to reduce spending.  To provide an incentive for the super committee and the Congress to act, the sequester was passed which would require “across the board” cuts in government spending in the amount of $1.2 trillion  over a nine year period (2013-2021) if they failed to do so.  The logic was that a super committee made up of members of Congress from both parties would act with foresight, integrity and political courage and recommend meaningful cuts to specific programs based on their relative importance.  The logic was correct, but the super committee did not contain enough such individuals and it reported its failure due to partisan gridlock in November, 2011.  No recommendations were made, the Congress failed to act and the “sequester” of automatic spending cuts loomed and became reality on March 1, 2013.

This fiscal year’s cuts total $85 billion which of course is a large number in absolute terms.  But in relative terms it dwindles in importance relative to the problem it is supposed to correct.  The actual 2012 federal budget deficit was $1.089 “trillion”.  Thus if 2013 spending and revenues remain the same the sequester cuts will reduce the deficit by only 7.8%  percent.  The remaining deficit will increase the federal debt by $1.04 trillion, to over $17.656 trillion.

Obama claims to have offered a “serious” deficit cuts program but the Republicans have ignored it.  The “plan” however is a “smoke and mirrors” political statement issued in the hopes that no one would examine it and the alleged savings included would simply be reported as a credible budget effort.  Here are some of the alleged “specific” cuts included.

In the area of heath care Obama would;  “Reduce payments to drug companies.” He doesn’t say how or which ones but he claims  the savings will be $140 billion.  He would also reduce payments to hospitals by $30 billion but again fails to specify the criteria or mechanism for such reductions.
Next in his exploitation of generalities is a proposal to eliminate  “certain subsidies” for agriculture.  This is supposedly worth $30 billion.  How that could by calculated without identifying specific subsidies doesn’t seem to matter.  The “plan” gets more preposterous however.  In a first for a budget item, he assigns a $50 billion reduction in government health care costs by simply “encouraging efficient care after hospital stays.” The formula for turning encouragement into actual savings would be interesting to see but is not provided.  However “encouragement “ gets quantified again in his next item:  “Encourage beneficiaries  to seek high value care” and “ask the most fortunate to pay more”.  How many “encouraged beneficiaries” and what the definition of high value care is in terms of actual cost isn’t provided but it is supposed to add up to $35 billion in savings to the government.  And if patients ignore the encouragement and avoid cheap care for quality care?  That’s not considered.  His next spending cut proposal?, “Other health savings”, $120 billion.  Spending cuts were never so easy.
Of course if“encouragement” doesn’t work then there is always the equally vague “reform” strategy.  He would save $50 billion simply by “reforming”   Transportation Security Administration (TSA) and Postal Service regulations.  How, and why this would save $50 billion is not explained.
Additional “other savings” from fees on wireless service providers, sales of “excess property”, and “program integrity” are listed at $45 billion. 

Obama’s plan was clearly crafted as a talking point by political advisers who were careful not to include any specific cuts that might offend Democrat voting constituencies or liberal pundits and as such is no plan at all.

Thus, essentially the problem created by the sequester is two fold; first,  Obama and the Democrats in Congress do not want to cut spending, it goes against their ideology.  House Minority Leader Nancy Pelosi made it abundantly clear when she declared that “We don’t have a spending problem.  We have a deficit problem.” , meaning that she believes the deficit is the result of a lack of revenues i.e. taxes.
The other side of the sequester problem is that it is a blunt force tool when a scalpel is required.  Across the board cuts are imposed by politicians who, like Obama want to avoid angering specific groups.  But every government expenditure has a vocal constituency which will claim that it’s funding, no matter how trivial , gratuitous, or non-essential, is vital.  Reality requires that government spending be reduced.  Many government programs are beneficial but not vital. In a time of austerity brought on by profligate, voter appealing spending, hard choices must be made. This requires political courage and executive leadership, both of which are sadly lacking. 

Common sense tells us that agencies like the FBI, the Coast Guard, and the FAA should not be cut by the same percentage as government subsidies to so called “green industries” which by definition are not technologically advanced enough or have enough customer appeal to be self supporting.  Nor should they be cut by the same percentage as nice but uncritical grants to cultural organizations, price supports to sugar beets and peanuts, military recruiting enhancements in times of downsizing, or foreign aid to less important nations or those who consistently prove unreliable allies.  There are abundant places to cut spending without reducing vital services to U.S. citizens. 
 
The Defense Department is being particularly hard hit as they have absorbed roughly half of the sequester cuts.  Ship deployments and flight hours are being cut but could be restored by significantly reducing  the number of bases and personnel in Germany and England  which are largely Cold War hold overs with little strategic justification.  

 Eventually the tougher political problem is that of entitlements which the reality of demographics make unsupportable under their current rules.  Social Security, Medicare and Medicaid are exempt from the sequester cuts but are the largest drivers of federal deficits.  Adjustments will have to be made and it is up to the executive branch to explain that the viability of these programs depends on their modification for future beneficiaries.  That seems far fetched given this administration’s reluctance to cut or modify any social program.

The Republicans in the House will have to be ready to make some compromises given the Democrats control of the Senate and the White House but should do so only in return for specific cuts in spending.  But since Obama will continue to rely on “encouragement”, “reform”, and demagogic “sky is falling” political tactics,  progress will only come if they make a serious effort to identify and prioritize the necessary cuts and then demand similar specificity by Obama as his alternatives during negotiations.

The “sequester” is ill conceived but is not the crisis inducing program that Obama is trying to scare the public with, and it is not beyond repair.  It is legislation that can be modified by further legislation which should be passed after being carefully crafted.  However the ideological war and entrenched partisanship that currently substitutes for serious statecraft in Washington makes the prospects highly uncertain.

Sunday, February 10, 2013

DRONES, COURTS AND COMMON SENSE



The war in Iraq is over and the war in Afghanistan is winding down to an announced U.S. withdrawal date of “combat forces” in 2014. But the separate, although related “war on terrorism” continues and will no doubt do so for the foreseeable future. Anti-western Islamic extremists, some organized as affiliates of Al-Qaida, operate in Yemen, Pakistan, Algeria, Libya, Somalia, Mali, and other nations in the Middle East and Africa. Thus the current political controversy about the use of drones as weapons systems will need to be resolved as their use will remain relevant for many years.
The Obama Administration has greatly expanded the role of armed drones especially in Pakistan, Afghanistan and Yemen, partly because of enhanced technological capability which has emerged over the last four years and partly because of military advantages they offer in the struggle against global terrorism.

The issue now being argued in the media and the U.S. Senate has focused on the strategy of “targeted killings” in which individuals known or suspected of being terrorist operatives are selected for attack by armed drones launched from regional sites but controlled by operators (“pilots”) thousands of miles away. Opposition to this tactic has arisen mostly from predictable sources in the U.S. These include the political Left, both commentators and Senators, anti-military organizations i.e. Code Pink and Left leaning civil liberties groups i.e. the American Civil Liberties Union (ACLU).
Opponents offer different perspectives. Some criticize the tactic as a moral issue. Others claim U.S. constitutional violations. Others claim it violates international law.
Part of the problem with drones for opponents appears to be the psychological impact of a new technology which seems to employ impersonal robot- like ruthlessness.  In truth, although the aircraft are unmanned, they are being guided via satellite from  long distances, and are still being “flown” by human controllers who have more detailed information about their targets than would a pilot of a more conventional fighter aircraft. Sensors on drones provide more detailed information and their slower speed and enhanced loitering capability make their target identification /acquisition and weapons delivery more precise than conventional aircraft, thus reducing the possibility of wrong targets or casualties involving innocent bystanders.  Also as a practical matter, drones are significantly less expensive than fighter aircraft and the total avoidance of the potential loss of pilots is a major advantage.

The underlying issue in the drone debate is however, the changed nature of warfare as it relates to international terrorism. This is a war between organized military and intelligence resources of the U.S. deployed and engaged against various components of an armed entity that has, and continues, to target American and allied military and civilian personnel and infrastructure around the world. This enemy has no organized national identity, integrates itself with general populations and wears no identifying uniform,  but they are clearly not civilians and have thus been identified as enemy combatants. Critics of the targeted killings of terrorist leadership argue that they often occur “far from the battlefields” and are thus not part of any declared conflict.  But despite the concentration of forces in Afghanistan where the U.S. is supporting the national government in its struggle against the Taliban insurgency, there are no geographically defined battlefields in the war on terrorism. The battlefield is wherever the terrorists reside and operate.  Terrorist attacks planned, launched or directed from Yemen, Pakistan or Somalia are just as deadly as those originating in Iraq or Afghanistan. 

The Obama Administration’s position is that killing a terrorist enemy where we find him with the permission of the governments of those nations where the attacks take place is an act of preemptive self-defense under international law. Unfortunately, the formulation of international law lags far behind the problem of international terrorism and the use of aerial attack in response to it. Attempts to interpret such laws to apply to this new threat lead to a wide difference in opinions often heavily influenced by underlying ideological differences. 

The basic national right of national self- defense is acknowledged in Article 51 of the United Nations Charter (1945) but does not address a preemptive right. However, that right is accepted as customary international law based on the so called Caroline Case of 1837 in which standards of applicability include the “necessity of self- defense, instant and overwhelming” and leaving no choice of means and no moment of deliberation.” This 19th Century formulation has in general been refined to the basic requirements of “imminent necessity” and “proportionality” of action. 

The problem of interpreting international laws crafted in less technologically advanced times and designed to apply to interactions between states so as to apply between a state and individuals  representing a non-state actor is one for lawyers and academics. But the resolution of the terrorist threats cannot wait and the President's constitutional responsibilities as Commander -in-Chief may make such resolution impossible in all circumstances. 

The issue of targeted killings i.e. specific targets identified by intelligence sources as members of terrorist organizations has been further complicated by two incidents where the targets have been U.S. citizens by virtue of their having been born in the U.S.  Critics of these two operations claim that the guarantee of “due process” to U.S. citizens by the Fifth and Fourteenth Amendments to the Constitution requires a civilian judicial proceeding to prove guilt and subsequent proceeding to impose a sentence, thus making the Commander in Chief’s (U.S. President's) determination that such individuals are appropriate targets by drones or any other military means is unconstitutional.

This is another instance where the relative uniqueness of the nature of international terrorism in traditional jurisprudence comes in conflict with the President's duties as Commander-in-Chief and his responsibility to protect the citizens of the United States.  It invites the question of whether a citizen of the U.S. who travels abroad, joins an armed and militant organization for the purposes of sponsoring, encouraging, inciting or carrying out violent attacks on U.S. citizens, military or civilian, has in actual effect renounced his U.S. citizenship and the protections therein.

Even if not, then does that citizen’s participation in an organization of armed combatants with the same purpose, still render that citizen as a proper target for military disposition?
Once again, the impossibility of arrest, and extradition, and the aforementioned need for the President to act before, not after, a terrorist attack, makes the constitutional argument seem inappropriate.
U.S. Attorney General Holder, speaking at Northwestern University Law School, outlined the Obama administration's legal rationale for killing U.S. citizens in foreign countries, as it did in 2011 with the airstrike that killed suspected al-Qaida operative Anwar al-Awlaki in Yemen and later his son, both U.S. citizens by birth.
“ . . .the government authorizes targeted killings against U.S. citizens only after a careful review that finds the citizen poses an imminent threat of attack against the United States, that capture is not a viable option, and that the killing would be in line with the laws of war.”
Still, the debate among legal experts is inconclusive at this point as there is no agreement on which legal framework applies; International Human Rights Law; the Law of Armed Conflict as outlined in the Geneva Conventions or the 2001 U.S. Congressional Authorization for the Use of Military Force Against Terrorists.  School of Law professor at the University of Virgina  Saikrishna Prakash supports the Administration's position
"I believe the 2001 Authorization [for Use of Military Force Against Terrorists] permits the president to use military force against al-Qaida and the Taliban. If the president determines that a U.S. citizen is a member of either group, he may use military force against that citizen.  Apparently the president concluded that al-Awlaki was a member of al-Qaida and he further concluded that an attack was warranted. The president's actions were wholly consistent with domestic law."

In December, 2010 a federal district judge dismissed a lawsuit against the government by the father of al-Awlaki in an effort to force the government to disclose the legal criteria for his name appearing on a “kill list”.  In his opinion Judge Bates' acknowledgment that "this is a unique and extraordinary case that presents fundamental questions of separation of powers involving the proper role of the courts in our constitutional structure”, and that "vital considerations of national security and of military and foreign affairs and hence potentially of state secrets.”
Still, terrorism is, in the minds of some on the political Left, a civilian law enforcement issue. It can be so, if the terrorists are operating largely on their own in national territories which choose to treat them as such. The U.S. government has arrested and tried many individuals in federal court under domestic anti-terrorism laws.  However, in Yemen, Pakistan and Afghanistan, the national military forces are engaged against organized terrorists with the assistance of the U.S. military. Utilization of aerial resources including drones is a part of this military cooperation. The implausibility of arrest in remote and unsecured regions and extradition to the U.S. for civilian criminal proceedings should be obvious and U.S. constitutional protections for civilian criminal defendants in the U.S do not apply to foreign enemy combatants in foreign countries.
Current discussions in the U.S. Senate involve the attempt to create some kind of judicial review in the name of “due process”.  The specific suggestion is that a judicial panel be created similar to the Foreign Intelligence Surveillance Court which was established to authorize wiretaps and searches of suspected spies and terrorists.  Presumably this new court would hear evidence provided by the executive branch to justify the targeting of individuals or at least U.S. citizens, for elimination abroad by military or intelligence agencies.

Since there is little likelihood of large numbers of U.S. citizens working abroad with foreign terrorist organizations, a court restricted to this part of the drone effort might be approved but it is unlikely that the Congress would allow judicial interference in the conduct of military/intelligence operations against foreign combatants abroad.  Ironically, the ACLU, which believes that the whole world is a theoretical courtroom in which lawyers should decide all important matters, is opposed to such a court.  They cling to the impossible construct of the “apprehension/extradition” civilian trial procedure.  As a back-up they support an equally unlikely scenario creating of a court to hear “damages claims” against the government for U.S. citizens found to be terrorists and eliminated in foreign countries.  The national security trump card possessed by the executive branch makes this highly unlikely from both a political and a judicial point of few.  

Al Qaida operating in Pakistan and its affiliates Al Qaida in the Islamic Maghreb (AQIM) operating in Algeria and Mali and Al Qaida in the Arabian Peninsula (AQAP), operating in Yemen remain fully functioning organizations which pose serious threats to regional stability and to U.S. and other Western interests.  This is the real world in which all U.S. Presidents must operate.