Thursday, March 14, 2013
Who Owns the Drones?
Frogs in the marsh mud drone their old laments.
— Pueblo Vergilius Mara, Georgics
It is wonderful how a new weapon can rejuvenate a word that has long been something of a dullard. The reinvigorated word is “drone.”
In days of yore among its more accustomed uses was to refer to a deep humming sound or monotonous speech. It has now been promoted to one of the most discussed pieces of armament in the modern arsenal. And a wonderful addition it is. Its importance was highlighted by Senator Rand Paul (R. Ky.) who, in a refreshing moment of historical significance, engaged in a filibuster of the old fashioned variety. Instead of saying he was filibustering, he actually filibustered and in so doing brought badly needed attention to the use of drones in modern warfare.
One of the drone’s problems (although this was not addressed by the Senator) is that like the bastard child, it is not always clear to whom it belongs and that may eventually lead to awkward international moments. The sorts of moments to which I refer were most recently on display following drone strikes that took place in Pakistan in early February. On March 4 a New York Times headline read: “U.S. disavows 2 drone strikes-over Pakistan. March 5 the headline was: “Pakistan Rejects U.S. Disavowal of Drone Strikes.” Pakistan did not want to take credit for these strikes even though, apparently successful, they killed two senior commanders of Al Qaeda together with seven other people who may have simply been incidental beneficiaries of the strike.
Senior Pakistani officials gave all the credit for the strikes to the United States but in an unusual display of military modesty, the United States declined to take credit. A spokesman for the United States who spoke anonymously (because the drone program is secret and anonymous speech keeps it secret) insisted on giving all the credit to Pakistan. The official said: “We haven’t had any kinetic activity since January.” (Those words are not meant to suggest that the military is moribund although it is not altogether clear what they do mean.) The Pakistanis were not pleased at being given credit for the strikes. That is because Pakistanis (whom we have favored with 330 drone attacks in the last five years) do not like manna from heaven when delivered by drones.
The United States did not want to take credit for the drone strikes even if it deserves the credit since it is not at war with Pakistan and there is little justification for going around using drones in countries with which it is not at war just because there are people in that country whom we consider enemy combatants whom we hope to kill employing drones.
The Pakistanis said the United States’ modesty about the successful strikes was “a distortion of the facts” and suggested the purpose was to dilute “Pakistan’s stance on drone strikes.” That stance is officially one of not being appreciative of drone strikes by the U.S., believing that these strikes infringe on their sovereignty and are a violation of human rights. (There is apparently a way that the United States can launch drone strikes in a country with which it is not at war without violating that country’s sovereignty. In a discussion of drones that was reported in the New York Times we are informed that lawyers analyzing the legality of drone strikes in friendly countries explained that Yemen has “granted permission for Drone strikes on its soil as long as the United States [does] not acknowledge its role, so such strikes would not violate Yemeni sovereignty.” Go figure.)
Senator Rand Paul’s filibuster pertained not to the use of drones in foreign countries but in the United States. Its purpose was to obtain assurance from the administration that it would not use drone strikes to kill U.S. citizens on U.S. soil even if it considered them enemy combatants. In the manner of a dentist dealing with a stubborn tooth, he was finally able to extract such an assurance from the attorney general of the United States.
Not everyone is as concerned with drones as Senator Paul. An editorial writer at the Wall Street Journal observed that the use of drones is limited to “the remotest areas of conflict zones like Pakistan and Yemen” (with neither of which countries are we at war) and went on to conclude that a U.S. citizen designated an enemy combatant could be targeted if found in the United States, presumably, although not articulated in the editorial, by a drone strike. The writer suggests that if U.S. citizen Anwar al-Awlaki, an acknowledged terrorist, killed by a drone strike in Yemen had been living in Virginia, he could have been targeted there. The writer pointed out that that’s what happened to the Nazis who landed on Long Island during the Second World War. They were, said the writer, captured and executed. One minor fact was left out of the editorial. The Nazis were tried before they were executed. The Journal obviously considers that a minor fact and its omission from the editorial is of no moment.
It is nice to know that we won’t use drone strikes on American soil. Perhaps some day we won’t fly drones over countries with which we are not at war.
Thursday, March 7, 2013
Roberts, Scalia and Voters
The conformation of his mind was such that whatever was little seemed to him great, and whatever was great seemed to him little.
— Thomas Babington, On Horace Walpole (1833)
There were two moments that purported to be moments of enlightenment in the case argued in late February 2013 in the United States Supreme Court. One was an iteration of a clever legal theory and the other a little known and incorrect fact. The legal theory was offered by Justice Scalia and the little known incorrect fact by Chief Justice Roberts. The moments of enlightenment, if that they were, came during the oral arguments that the Court heard pertaining to the need for the continuation of Section Five of the Voting Rights Act of 1965. That is the section of the Act designed to protect voting rights of minorities in jurisdictions where those rights were historically abridged by white officials. The question before the Court was whether the need to protect the rights of minorities to vote still existed, given the open arms that all states now extend to voters of all colors and races. (In 2012 a few states including, but not limited to Florida and Pennsylvania actually tried to make it harder for people to vote but they did it with the best of intentions. They were trying to prevent voter fraud that had not yet been detected but officials thought might be some day.)
Commenting on the fact that Congress had overwhelmingly reapproved section 5 of the Voting Rights Act when most recently called upon to do so, Justice Scalia explained that was not because members of Congress believed in the merits of the legislation but because they were intimidated by the phenomenon that he called “the perpetuation of racial entitlement.” He said that the only way the country can be protected from racial entitlements is if he and his colleagues on the Court say they are unconstitutional. That is because, says Justice Scalia, members of Congress are very reluctant to be seen as withholding support for a popular statute such as the Voting Rights Act that protects the voting rights of citizens. When it comes to balancing states’ rights with individual rights, Justice Scalia prefers states’ rights even if it may mean the occasional disenfranchisement or dilution of a voter’s rights. As he said during argument: “ You have to show, when you are treating different States differently, that there’s a good reason for it.” Protecting the right of a citizen to vote is not such a reason.
Chief Justice Roberts did not have to rely on the Scalia “cowardly Congress” theory to show why Section 5 was no longer important. During the oral argument the Chief Justice asked the Solicitor General of the United States who was arguing in favor of upholding Section 5, if he knew which state had “the worst ratio of white voter turnout to African-American voter turnout.” The Solicitor General, unprepared for such a question, confessed ignorance. Later, Justice Roberts asked the Solicitor General if he knew which state had the greatest disparity in registration and again the Solicitor General replied negatively. Justice Roberts provided the answer to both questions. He said it was Massachusetts. The answer the Chief Justice gave was wrong.
According to Massachusetts Secretary of State, William Galvin, Massachusetts has one of the highest voter registrations in the country. A report in the Boston Globe disclosed that, irrespective of whether a neighborhood was predominantly white or predominantly black, the turnout of voters was almost the same. In a predominately white neighborhood voter turnout was 68 percent and in the heart of Boston’s African-American community the turnout was 64 percent. Commenting on the Chief’s statements, Mr. Galvin opined: “I guess the point [Roberts] is trying to make is Mississippi is doing so much better they don’t need the Voting Rights Act. . . . [H]e shouldn’t be using phony statistics. It’s deceptive, and it’s truly disturbing.” (Mississippi made news in 1995 when it got around to ratifying the 13th Amendment to the U.S. Constitution that bans slavery. Due to a clerical oversight the ratification only became official February 7, 2013. )
When a reporter called the Supreme Court to obtain evidence of the truth of the Chief Justice’s statement about Massachusetts, the spokeswoman for the Court referred the caller to the court transcript of the proceedings in which the statement was made. In the lofty heights of the U.S. Supreme Court, the ultimate authority for a false statement of fact made by a member of the Court is the false statement of fact found in the transcript of the proceedings.
The outcome of the argument is almost a foregone conclusion. The only suspense is in waiting to find out if Massachusetts continues to be used to justify the ruling and whether the Court applies the Scalia Cowardly Congress theory to justify its ruling. One thing seems certain-Scalia and Roberts will be the winners. The voters will be the losers.
Thursday, February 28, 2013
Sequestration's Sire
The Republican form of government is the highest form of government; but because of this it requires the highest type of human nature-a type nowhere at present existing.
—Herbert Spencer, Essays [1891]. The Americans
It’s come to this. From the moment some years ago when the Senate’s minority leader, Mitch McConnell, said that his party’s goal during the remainder of President Obama’s first term was to prevent Mr. Obama’s re-election, Republicans in Congress demonstrated their single minded mindless commitment to the task by using the filibuster to make sure no legislation of significance was passed that would distract them from achieving their goal.
To their dismay, the 2012 election demonstrated that notwithstanding their herculean efforts, their goal had eluded them. Losing the election, however, wasn’t the worse thing that happened to them. The worst thing that happened to them was that they had forgotten what else they were supposed to be doing as members of Congress and they therefore did nothing. They even did nothing to avoid the sequester that is to take effect on March 1, an event that promises to have catastrophic consequences for the countless governmental operations that it will affect. Confused and puzzled the Republicans, accompanied by their democratic colleagues, went on vacation for 10 days hoping that while gone, they could figure out what it was they were supposed to be doing.
The filibuster they used to keep laws from being passed had more than one purpose. In addition to keeping laws from being passed it was used by the Republicans to keep governmental agencies from functioning. They accomplished that by blocking the appointment of individuals to those boards without whose presence the boards could not function. Republicans did that because they did not like the fact that boards functioned while they did not.
Since the president thought the whole purpose of having boards such as the National Labor Relations Board and the Consumer Financial Protection Bureau was to enable them to do the tasks assigned to them when created (just as Congress was assigned certain tasks by the country’s founders) he took advantage of the many vacations that Congress rewards itself with (in 2013 it will have 60 days of vacation, euphemistically referred to as “State Work Periods”) to make those appointments when Congress was on vacation.
On January 4, 2012, the president announced three appointments to the National Labor Relations Board. Without those appointments the board could not act since it lacked a three-person quorum. Those who think the country is governed best when governed least or, in the case of emasculated agencies, not at all, went to court to ask the court to rule that when Congress was officially on vacation it was not in fact on vacation and the president could not make recess appointments but had to go along with Congress’s charade that when its members were not in Washing they were, in fact, in Washington. The Federal Court of Appeals for the District of Columbia, using the well known judicial doctrine of “now you see them-now you don’t,” agreed with the plaintiffs. The Court said the president could not consider the Congress to be on vacation when it was on vacation and, therefore, he could not make recess appointments to the National Labor Relations Board. The court said the appointments were invalid. As a result, said the court, a decision made by the NLRB in the case of Noel Canning v. NLRB was void. During the time after the January 2012 appointments were made, the NLRB issued more than 200 rulings, all of which may now be invalid since they were made by a board that lacked a quorum. (It is possible that for each rule that was issued during the period the Board lacked a quorum, separate lawsuits will have to be filed by those seeking relief from the rule.)
The NLRB was not the only agency Republicans hoped to keep from functioning. The Consumer Financial Protection Bureau (CFPB) is another. Republicans filibustered the appointment of its proposed chairman, Richard Cordray. Many of its tasks cannot be performed without a chairman. Mr. Cordray was given a recess appointment by the president.
Following his appointment, the agency has, among other things, taken steps to prevent mortgage lenders from encouraging borrowers to take out unaffordable loans, ended mortgage lenders’ practice of paying brokers higher commissions when they sell higher interest rate loans to borrowers and issued rules regulating credit cards, mortgages, student loans, and credit reporting agencies. It has given consumers a way of filing complaints about errors on credit reports by establishing a complaint portal. More recently it has begun examining bank involvement in the payday lending scandal that gives borrowers the opportunity to pay interest rates as high as 500%.
If Mr. Cordray’s recess appointment is successfully challenged many of the reforms and investigations undertaken during his tenure may be stopped or invalidated. The consumer will be the loser. The Republicans will be the winners. Winning, rather than governing, is the point.