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.