Nasser al-Aulaqi's Suit Dismissed

Judge Bates today dismissed Nasser al-Aulaqi's suit on behalf of his son, American-Yemeni cleric Anwar al-Aulaqi, for want of standing. Nasser, Anwar's father, had asserted "next friend" standing, which affords family members the ability to bring suit on behalf of an individual unable to access the courts--next friend standing is particularly relevant in habeas corpus petitions. Al-Aulaqi asserted that he satisfied next friend standing because his son is in hiding under threat of death and could therefore not access US courts. The government, on the other hand, argued that Anwar al-Aulaqi could in fact access US courts by presenting and surrendering himself to a US embassy in Yemen. Judge Bates wrote

Plaintiff has failed to provide an adequate explanation for his son's inability to appear on his own behalf, which is fatal to plaintiff's attempt to establish "next friend" standing.3 In his complaint, plaintiff maintains that his son cannot bring suit on his own behalf because he is "in hiding under threat of death" and any attempt to access counsel or the courts would "expos[e] him[] to possible attack by Defendants." Compl. ¶ 9; see also id. ¶ 26; Al-Aulaqi Decl. ¶ 10. But while Anwar Al-Aulaqi may have chosen to "hide" from U.S. law enforcement authorities, there is nothing preventing him from peacefully presenting himself at the U.S. Embassy in Yemen and expressing a desire to vindicate his constitutional rights in U.S. courts. Defendants have made clear -- and indeed, both international and domestic law would require -- that if Anwar Al-Aulaqi were to present himself in that manner, the United States would be "prohibit[ed] [from] using lethal force or other violence against him in such circumstances."

Taxing the Rich? You betcha!

Our colleague over at To Get Rich is Glorious, tries to scare us into believing an increase in the income tax for those in the top bracket will hinder economic development. He points to the bag tax in DC and the cigarette tax in Maryland as examples of what could happen if the Bush tax cuts are not extended.

This is a common argument against the administration proposal to let the tax cuts expire for those making over $250,00 per year, but does it hold water?

Here's a graph:

It's a little tough to read, but looking from 1988 to 2008 I pulled data on GDP (trillions chained to 2005 dollars), GDP percentage change (based on chained 2005 dollars), and overlay-ed the individual income tax rate for the top income tax bracket. I got the GDP numbers from the Bureau of Economic Analysis and the tax rate numbers from the National Taxpayers Union.

So what does the graph tell us? Honestly, not much. Seems like the 1990s were good times for US economic growth, despite and increase in taxes in 1991 and 1993. It also seems like the 2000s weren't some boon time spurred on the Bush tax cuts. These are incredibly strained causal arguments and I'm perfectly comfortable admitting that. At the same time, one can't make us fearful of a return to a tax rate we lived quite comfortably with during the 1990s.

You see, our colleague, to my mind, conflates several different economic topics in his examples. When looking at the bag tax, you're looking at substitution effect and some aspects of price-elasticity of demand. Turns out, people don't want to pay 5 cents for a plastic bag. In the example of Maryland and the cigarette tax, clearly the government overplayed its hand and came in excess of the elasticity of demand for cigarettes. They effectively priced the cigarettes beyond what people were willing to pay.

What does that tell us about letting the Bush tax rates expire for the top income bracket? Not much. The marginal utility of the first dollar earned beyond $250,000 (to use the administration's line) would be different from dollar $249,999, but the marginal utility of dollar $250,000 to $2 million is the same. If the marginal utility of each dollar earned is constant (at least as it relates to the tax paid on each dollar), then there is no evidence an individual would work less.

But wait, you say, look what happened to Maryland. They priced people out of buying cigarettes. You know, it sure looks like they did, but we aren't discussing a tax rate never considered before. We are talking about a tax rate that we lived just fine with for nearly a decade.

So beyond the sniff test, which makes it highly specious people would work less hard because the tax rate changes, this argument doesn't pass the economics test either. As an aside, not bad externalities to have people using fewer plastic bags and smoking less.

Palin, JFK, and Religion

Kathleen Kennedy Townsend spends some time defending her uncle's masterful speech to Houston Ministerial Association, where he sought to undo the perception that his Catholicism outweighed is American-ism, from Sarah Palin.

Palin questions the speech in her recent book, America by Heart, and thinks Kennedy divorced his religion from his governance, and that this was wrong. Kathleen Kennedy Townsend, meanwhile, spends the majority of her essay defending separation of church and state, but also indicts those that would impose a religious litmus test on political candidates.

"Not only does she [Palin] want people to reveal their beliefs, but she wants to sit in judgement of them if their views don't match her own. For instance, she criticizes Rep. Nancy Pelosi, a Democrat and a faithful Catholic, for talking the (God) talk but not walking the walk. Who is Palin to say what God's 'walk' is?" (my emphasis)

Quite right. There is a disturbing trend in American politics that candidates face litmus tests on all sides and instead of being rewarding for being genuine, they must walk this tight rope between what they truly believe and what a base of supporters will let them believe. Palin, it would seem, believes there is a religious litmus test a candidate must past.

This could help explain why Palin is the current presidential front runner for the Republican party. She's the one tying up the rope.

Don't Ask, Don't Tell, Just Discriminate

Matthew Yglesias has a quick thought up about the current DADT debate, and he asks an important question relevant to many issues related to the LGBTQ community:

"Do any of them think they’re on the right side of history here?"

This is a thought I have often when considering the policy position of conservatives, particularly as it relates to social issues.

World Cup in Qatar

The U.S. was shut out again. Not even the combined star power of Landon Donovan, Bill Clinton, and Nelso...err Morgan Freeman was enough to earn the U.S. it's second World Cup in 2022.

I'm a little bitter about it and the wound is fresh, but I'm not going to focus on some of the more petty issues of hosting the World Cup in Qatar, like where to get a beer or the absurdity of air-conditioned OUTDOOR! stadiums. And these same stadiums will be fully dismantle-able for shipment to less advantaged countries. Clearly FIFA is not concerned about the carbon footprint of the World Cup.

Instead, I'm considering if Qatar will be the Qatar of 2010 in 2022. It is an economy perpetrated on oil wealth and a country that seems to burn through money faster then the petrol they sell. I wonder if Qatar will still be a land of opportunity in 2022, or if diminished oil reserves, increased utilization of alternative energy, and potential inability for the economy to move beyond one natural resource will relegate the country back to LDC status. I hope for the sake of Qataris that is not the case, but twelve years in a long time. Where was Qatar twelve years ago?

I suppose FIFA feels they always have the U.S. on standby. We could host the World Cup with a few weeks notice and the security blanket (not unlike a security umbrella) is reassuring, though not reason enough to award us the games outright. For now, I think FIFA took a big gamble selecting Qatar, and I think it's a far bigger gamble then South Africa was.

Legislative Blockades & Governing

So here we are, exactly one month since the Democrats got walloped in the election. Republicans have won the House and gained ground in the Senate, but of course that's not until next month which means obstructionism continues to abound.

On Wednesday Senate Republicans vowed, in a letter to Senate Majority Leader Harry Reid, to block any and all legislation until there is resolution on the continuation of the Bush era tax cuts. From The New York Times article, here are some of the things that won't get done until the tax cut issue is resolved:

- The repeal of Don't Ask, Don't Tell

- The continuation of jobless benefits for millions of still unemployed Americans, with benefits set to expire (wait for it) on Christmas day

- The ratification of the New START Treaty

- Passage of the DREAM Act, giving illegal immigrants brought here as children the opportunity to become U.S. citizens

- Passage of the previously passed (but parliamentary fumbled) food safety bill

Very seriously, 2 out of 5 of those might reflexively raise the ire of Republicans. They could even be considered part of a "liberal wishlist" but 3 out of 5 seem largely mundane. But of course, in the Republican economic policy, tax cuts are supreme. It would appear literally nothing else matters. Sen. Mitch McConnell seems to suggest the legislative work the Democrats are trying to accomplish runs counter to the outcome of the election. I think he misreads the situation.

You see, the Republicans don't actually take power until next month, but I think in the minds of many Americans the transfer of power happens on election night. Republicans are in a strengthened position and I believe those that voted for them, by and large, expected that they would govern, not obstruct. I think the failure to pass some of these things will fall at the feet of Republicans. I'm a poor prognosticator so take that prediction for what it's worth, but after the holidays, if millions of people no longer receive unemployment benefits, if all Americans see the tax cuts sunset, they will also see a Republican Speaker of the House and a strengthened Senate Minority Leader. Sure, President Obama will get some blame, but he doesn't cast a vote.

I think people will see this as the Republican party, extorting Democrats and throwing a tantrum like a child that wants two scoops of ice cream, but only got one. I wonder what Republicans will do in January. Is the Republican party capable, with its current membership, of governing at all?

“As a matter of law”

Ben Wittes, a fellow at Brookings and journalist who follows national security and law, responds to Nick Baumann of Mother Jones on Wittes blog (co-authored with Jack Goldsmith and Robert Chesney) today. Baumann attacks Wittes for what he sees as Wittes arguing about “straw terrorists” in the context of whether the United States has the legal authority to kill Anwar al-Aulaqi. Wittes writes

I think Baumann makes several important analytical errors here, errors which lead to a too-simplistic boiling down of positions that one cannot so easily condense. For starters, it is quite wrong to say, as Baumann does, that imminence is “the key issue here.” As a matter of law, if Al Aulaqi is covered by the AUMF and one accepts that the United States is engaged in an armed conflict with AQAP, Al Aulaqi can be targeted at will.

“As a matter of law,” Wittes is wrong. International humanitarian law—the law that governs conduct within an armed conflict—admits only two categories of armed conflict: international and non-international. Each category provides certain authority and certain obligations to the parties of an armed conflict. Importantly, the authorities and obligations attach to one party even if the other party does not follow the law. International armed conflicts occur when there is a resort to force between states. All other armed conflicts—those that occur between states and non-state actors or among non-state actors—are non-international armed conflicts.

Whereas in international armed conflicts, states may target combatants at will—unless they are hors de combat—in non-international armed conflict, there is no such thing as a combatant. Instead, states are forced to target civilians who have forfeited their status as protected by directly participating in hostilities. This means that these individuals are targetable when they are on their way to or from some hostile action or while they are participating in that hostile action: think a farmer walking to the edge of his village to plant an IED, planting that IED, and walking back. However, in recognition of the difficulty this law places the state in, an emerging norm of customary international law recognizes “continuous combat function,” which is an expansion of the notion of direct participation in hostilities. An erstwhile civilian may so regularly engage in hostile action that he performs no other role in life; he becomes combatant-like and therefore targetable at will.

There is good reason to believe that Anwar al-Aulaqi has assumed a continuous combat function by taking on an operational role in AQAP and is therefore targetable at will. However, it is far from assured that that international humanitarian law has, “as a matter of law,” recognized such a targetable status.

WikiLeaks Revisited

The Wikileaks disclosure continues to generate chatter in the blogsphere and I thought it was worth it to put up some links.

- Always good to be in the company of Secretary of State Hilary Clinton in your opinions and it would appear I am.

- Politico's Ben Smith believes WikiLeaks is hell-bent on diminishing America's power. I don't disagree that is WikiLeaks goal, but I wonder if they overestimate the magnitude of America's power.

- Will Wilkinson at Democracy in America believes the WikiLeaks disclosure is a blow against the state elite. In perhaps the most provocative statements he makes he doesn't seem to mind if the disclosure leads to the deaths of U.S. sources or U.S. government officials because without this disclosure, the state elite would have claimed the lives of others.

- Reza Marashi, Research Director at the National Iranian American Council, (and good friend of DCExile) has an article in the Huffington Post taking WikiLeaks to task for endangering U.S. officials and their sources, criticizes the here-to limited diplomacy of the U.S. toward Iran under President Obama, and considers opportunities for future negotiations in the wake of the WikiLeaks disclosure.

106

With more than a month left in 2010, the United States has already doubled its 2009 tally for drone strikes in Pakistan. The United States launched its 106th strike over the weekend, at a target in North Waziristan. In 2009, the US launched 53 drone strikes in Pakistan compared to 34 strikes in 2008. Both the year-on-year, and the intra-year rate of strikes has increased, with the United States launching 54 attacks in the first 8 months of 2010 and 52 in the following three months.

While many scholars and commentators seek to justify US drone strikes in Pakistan under either the rubric of self-defense or by expanding the zone of combat of the war in Afghanistan to include the frontier region of Pakistan, the proliferation of strikes and the fact that armed groups other than Al Qaeda or the Afghan Taliban are targeted leaves these explanations wanting. It is likely that the intensity of US drone strikes and the level of organization of the targeted groups places the United States in an armed conflict in Pakistan, triggering international humanitarian law.

WikiLeaks Strikes Again

Hope everyone enjoyed Thanksgiving, ate plenty, slept in, and didn't have their grundle grabbed by TSA. It's back to reality and reality comes, in part, in the form of another WikiLeaks disclosure of classified U.S. documents. The New York Times summarizes some of the juicier tidbits, and attempts to put the documents in context.

I'm not sure what to feel about this disclosure and others WikiLeaks has been a part of. It seems dangerous to me to just release all these documents. I'm confident it's illegal for an employee of the U.S. government to share this documents. I'm confused as to what WikiLeaks hopes to accomplish. Is the release of information the objective? Is it striving for a more open-source society and does the release of these documents help to achieve that goal? I think more transparency is better, but I hesitate to embrace the release because I'm not convinced WikiLeaks fully considers what disclosure of people's names in these documents could mean for them or their families.

After some thinking out loud, let's clarify a couple things:

1) While some of the drama described is juicy, the cables don't really reveal anything we didn't already know. It was largely the same with the previous releases. We get more detail and we get names, but the narrative isn't markedly different.

2) This and the prior releases are not similar to and should not be compared to the release of The Pentagon Papers. Disregard what you hear from Daniel Ellsberg. I think he's bought in to his own mystique too much. Mr. Ellsberg did a public service by leaking a study of U.S. involvement in Vietnam over the course of several decades. It was a document vetted and edited to provide a full picture and not simply bits of chatter with people's names in it.

Again, I still don't know what to make of WikiLeaks and its disclosure of confidential U.S. documents, but I think it's clear the disclosure is not an act of heroism.

TSA, Outrage, and War

So in case you didn't hear, the TSA is under fire for enhancing search procedures. Specifically, people are up in arms about the body scanner that leaves little to the imagination or (if you elect to not go through the scanner) enhanced pat downs. Neither of these options are enjoyable, but how much of this is a real uproar and how much is media grabbing?

According to a CBS poll out last week, 81% of Americans support full-body X-ray scanner with only 15% not supporting the measure. This hasn't stopped calls for a boycott of TSA on Wednesday (the busiest travel day of the year) by some. TSA Administrator John S. Pistole has a statement out which correctly reminds people "we cannot forget less then a year ago a suicide bomber...tried to bring down a plane over Detroit." He has also urged people just this morning to not cause slowdowns at security checkpoints so people can get home to see loved ones.

As someone who will be flying Wednesday, I'm really hoping people heed his request. Of course, bigger happenings are afoot in the halls of Congress. Ron Paul has introduced legislation that would open up TSA employees to prosecution if they engage in enhanced pat downs. Rep. John Mica of Florida has said TSA should be ditched for private contractors. Of course the TSA, when asked for comment simply stated private contractors wouldn't be a cure all since "TSA sets the security standards that must be followed." Perhaps Rep. Mica will be more comfortable having a private contractor copping a feel as opposed to a federal employee?

I spend a fair bit of time in airports. I have been patted down just so I could board a plane in Columbia. I have been interrogated by a Federale in Mexico. I have suffered long lines, forgotten belts, and I tend to look for men in suits when figuring out which security line I'm going to go through, but I take this as all part of the process. The security procedures could be overblown, but clearly (based on the CBS poll) most American are fine with whats being done.

My issue is this: How can you be up in arms about security procedures at airports designed to protect American lives when you voted to send American troops to Iraq? As someone who voted to send troops to Iraq, Rep. Mica should have to answer that question. How is it tolerable to put U.S. troops in harms way but not to go through a full body scanner? (Ron Paul doesn't have to answer the same question. He is consistent in his convictions.)

As for me, I hope people go with the flow through airport security on Wednesday. It won't be enjoyable and special preparations may be needed (fluffer?), but we're in it together. This is the world we live in and while we debate that balance between civil liberty and security I just want to make it to the airplane on time. Overhead space will be at a premium.

NPR = Nazis?

According to Roger Ailes, the news chief for Fox News that little math equation is accurate. He since apologized for using the word "Nazi" (and can I just say it seems like everybody virulent conservatives don't like are Nazis these days. Also, while "socialist" was in the full title of the Nazi party, they were in fact facists, but I digress)

Matthew Steinglass takes a moment to reflect on the absurdity of Ailes quote. And it is absurd, not only in citing Nazis, but in grammar.

My beef is this taken as word supposition that NPR is some virulent leftist broadcast station schilling liberal propaganda on the government dime. Come'on man. Really? Does NPR lean left? Oh maybe, but when I listen to NPR it seems to lean intelligent and reasoned rather then a specific direction. Maybe what makes Ailes and other conservatives so angry is that NPR fact-checks the often groundless statements pundits and politicians make.

As to whether or not NPR should receive any federal dollars, I'm ambivalent. Ambivalence is of course the death knell of a blog such as this one, but I've been listening to the dulcet tones of Michele Norris' voice for the last couple hours and everything seems alright.

Consumer Price Index (Inflation) Update

File this under mundane, but the Bureau of Labor Statistics released October CPI numbers this morning they they are reporting a CPI-U of 0.2, which is to say a very, very small increase in prices.

This is a boring fact, but important in the broader discussion about what to do with the economy. We are teetering on price deflation at this point, which sounds good but in practice is bad. These numbers would also tend to lead credence to the Fed's planned quantitative easing. I've put you to sleep already, haven't I?

The bottom line is this, if people balk at certain remedies espoused to help our economy on the ground that they are worried about inflation, you can tell them they are ridiculous.

Daily Graph

I stole this from the Economist.com, but an interesting graph showing a modified Human Development Index with countries and U.S. States side by side.

Ben, I'm sorry to here about Arkansas being 47 out of 50.

Negotiating with Iran

Our good friend, Reza Marashi, got published somewhere people actually read. His article with Trita Parsi on 5 tips to make the next round of US-Iran negotiations better then the last recently published in Foreign Policy magazine is an interesting and quick read.

While I defer to Reza on just about everything Iran, I have some thoughts to share (that's what the blog is for after all):

1. Tip #3 is the biggest tip of all in my opinion. There was a study put out by the RAND Corporation last year titled Mullahs, Guards, and Banyards. If you want to have the first clue about Iran power dynamics, it's a must read. It also really reinforces Tip #3. There are so many stakeholders in Iran. You could draw a Venn diagram, but in the end it would look like a bad acid trip with all the overlapping circles. I think it's important for the U.S. to remember that there are people in position of power in Iran interested in working with us and while we can't cater to them exclusively, it's an opportunity.

2. Could we get a corresponding article about what Iran can do to make the negotiations productive? That's like saying "Thank you for the apples, but how about some damn oranges!" but I had this nagging feeling reading the tips that the U.S. had to do X, Y, and Z and Iran did not. Thirty years of enmity will cause that kind of reaction.

3. Let's accept we were wrong to support the Shah the way we did. Let's maybe even apologize. Guys, as a nation we messed up in Iran. We messed up in a lot of nations during the Cold War, but the reaction in Iran was perhaps the most stark and the relationship sense likely the worst. It is not a sign of weakness to apologize. It's a sign of humanity and a dignified gesture (since we can't undo what happened) befitting a superpower. Our arrogance and own ignorance/denial of history make us look childish.

One final thought: It's all connected. The Islamic revolution of 1979, the overthrow (and subsequent hanging) of Bhutto by Zia al-Haq, the rise of the Taliban in Afghanistan, and America's impotence in the entire region is all connected. We spent many decades messing about in the affairs of Iran, Afghanistan, and Pakistan, and I don't think we could be considered a net positive. Negotiating with Iran, earnestly, patiently, and in anything resembling good faith could be the first step in trying to reverse the reviled perception of the U.S. in the region.