Posts Tagged ‘Wall Street Journal’

The Escalating War Over Judicial Appointments

Thursday, October 29th, 2009

I recall the Wall Street Journal editorial page making a big deal about the “unprecedented” blocking of appointees to the Judiciary while George W. Bush was in power. The editors considered it a travesty that the a minority would take such “unprecedented” and “anti-constitutional” steps to preserve their “last toehold on power” using “not-so-democratic tactics” (the filibuster) to “block, delay and besmirch” Bush’s judicial nominees in an “assault on democracy” whose purpose was “judicial Armageddon.” (I’ve excerpted some examples below the fold.)

Clearly, the Wall Street Journal opposes “judicial filibusters” (though it wrongly credits the Democratic Party for inventing them.) So you would think that they would make a point – just to appear consistent – of calling on the Republicans to stop the practice of judicial filibustering. (There was one guest editorial to this effect since Obama’s election that my research has found.) Instead, most readers of the editorial page would have no idea that Republicans have in fact escalated the judicial war that has been going on since the 1980s. As Doug Kendall writes in Slate:

Over the past several decades, senators in both parties have used an escalating set of procedural tactics to block confirmations, particularly near the end of an out-going president’s term in office. To date, however, the tit-for-tat game has played out within a fairly narrow category of nominees who are deemed controversial. [my emphasis]

Now, Kendall points out, the Republicans are slowing down all judicial appointments rather than just the handful of controversial ones.

Kendall compares how Bush nominees fared at the end of Bush’s term with the Congress controlled by Democrats:

In the last two years of Bush’s term with a Democrat-controlled Congress, 26 of 68 nominees were confirmed less than three months after the president nominated them, with 100 confirmations total during that time.
In the first nine months of Obama’s term with an even more Democrat-controlled Congress, 0 of 22 nominees were confirmed less than three months after the president nominated them, with 3 confirmations total during that time.

Kendall points out that Obama’s nominees have all been uncontroversial so far – supported by their home state senators, even when they are conservative Republicans. (The support of your home state senator is an important measure used for judging nominees.) And that they have been blocked even when passing the Judiciary Committee with bipartisan support:

Two additional nominees, Andre Davis of Maryland and David Hamilton of Indiana, cleared the Senate judiciary committee way back on June 4—144 days ago. Yet their floor votes are still pending.

Davis and Hamilton have spent longer in this particular form of limbo than any Bush nominee confirmed from 2007-08. Yet Davis cleared the judiciary committee by a bipartisan vote of 16-3 and can’t remotely be considered controversial. Hamilton has the strong support of his home state Republican senator, Richard Lugar. Beverly Martin, an appeals court nominee supported by Georgia’s two conservative Republican senators, was unanimously reported out of the Senate judiciary committee by a voice vote more than 46 days ago. She, too, has not received a Senate floor vote. Five other Obama nominees, all well-qualified and without any serious opposition, similarly await floor action.

I personally would not begrudge the Republicans the ability to filibuster and try to block nominees whose views they deemed controversial. I would oppose any justice who believed the president possessed the powers of a monarch in times of war (as Justices Alito and Roberts seem to) and I can see grounds for opposing some leftist nominees as well. But to hold up the entire judicial appointment process is a clear abuse. I await the Wall Street Journal‘s imminent essay on the “judicial Armageddon” that these “anti-democratic” and “anti-constitutional” actions by the Republican Party they sympathize with will clearly lead to. Especially as the Republicans in Congress have pushed the filibuster to historically unprecedented levels.

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Former Bush Attorney General: American Justice System Led to September 11

Tuesday, October 20th, 2009

I already commented on this Mukasey piece – but I wanted to follow up and make clear why this piece from a well-respected “conservative” demonstrates how far the conservative movement, the right wing, and the Republican Party have fallen. First, it’s important to note Mukasey’s position under Bush – as the chief proponent and custodian of our justice system. Second, one should remember that he was long considered a moderate in the party.

Yet Mukasey literally blames September 11 on American values, on the American justice system:

[W]e put our vaunted civilian justice system on display in these [previous terrorism] cases…

In return, we got the 9/11 attacks and the murder of nearly 3,000 innocents….

Or, as the subhead put it:

We tried the first World Trade Center bombers in civilian courts. In return we got 9/11 and the murder of nearly 3,000 innocents.

This is not a conservative approach to the issue. It is a radical one. The accumulated wisdom of our forerunners is thrown out the window in the favor of a shiny, new and “improved” justice system. And even worse the barratuve being built is clearly unhinged from reality. Its only purpose seems to be the same as Cheney’s – to preemptively politicize the aftermath of the next attack. Reading his argument analytically, it’s hard to see how he reaches the conclusion he does regarding the American justice system. The list of deficiencies are all manageable – perhaps with some tweaks – within our legal system. Perhaps they suggest we should try a system of national security courts. But Mukasey concludes instead that they necessitate throwing out our values and the institutions which represent the accumulated wisdom of our democracy.

This leap comes from the narrative. The rationale Mukasey offers is deeper than any of the actual facts he cites – and is emotional rather than logical. For him, September 11 happened because our justice system doesn’t work against terrorism. It is an argument parallel to Cheney’s – that September 11 happened because we were weak – and as a result of this mindset, Cheney set out demonstrating our strength by bullying other nations, withdrawing from treaties, avoiding multilateral institutions, invading Iraq, avoiding the Middle East peace processes, refusing to talk to our adversaries, labeling them evil. But in each case, despite the emotional “logic,” the narrative itself is unhinged from reality.

The fact that a “moderate” in the Republican Party has been so radicalized demonstrates how far from common sense the right wing movement has fallen.

[Image not subject to copyright.]

The Fallacies of Mukasey

Tuesday, October 20th, 2009

Michael Mukasey’s editorial in the Wall Street Journal yesterday continues to demonstrate the collapse of common sense in the Republican Party. His thesis is that “civilian courts are no place to try terrorists.” His main supporting argument – and the subheadline – suggests that there is a direct link between trying terrorists in a criminal proceeding and September 11. He doesn’t explain the link anywhere in the piece – but as the subhead says:

We tried the first World Trade Center bombers in civilian courts. In return we got 9/11 and the murder of nearly 3,000 innocents.

Mukasey himself concludes his piece:

Nevertheless, critics of Guantanamo seem to believe that if we put our vaunted civilian justice system on display in these cases, then we will reap benefits in the coin of world opinion, and perhaps even in that part of the world that wishes us ill. Of course, we did just that after the first World Trade Center bombing, after the plot to blow up airliners over the Pacific, and after the embassy bombings in Kenya and Tanzania.

In return, we got the 9/11 attacks and the murder of nearly 3,000 innocents. True, this won us a great deal of goodwill abroad—people around the globe lined up for blocks outside our embassies to sign the condolence books. That is the kind of goodwill we can do without. [my emphasis]

The “if…then…” relationship between these two is tenuous – and if you read the piece, you notice that Mukasey does not try to make it. And his laziness is evident elsewhere as he tries to attack Attorney General Eric Holder’s contention that a certain group of terrorists was prosecuted successfully on the grounds that (a) they were not executed because a jury member lied about his willingness to impose the death penalty; and (b) because one prisoner attacked a guard and injured him seriously.

The bulk of his piece does not attempt to further the narrative about how American justice leads to terrorist attacks on America – it instead raises a number of other issues, which have often been gone over. There is some legitimacy to this critique – so I do not mean to dismiss it outright. Phillip Bobbitt and some other legal scholars on the left have used it to make the case for “National Security Courts” which would solely deal with issues of terrorism and national security threats. Mukasey though uses them to make the more radical argument that our justice system itself is incapable of dealing with the threat – and so he proposes a kind of preemptive surrender of values.

These are the basic issues he raises:

  • Trying terrorists would require extra security for judges, jurors, prosecutors, etcetera.
  • This extra security (and additional caseload) would further burden an overloaded system.
  • The court itself would become a target.
  • Trying terrorists in a court would encourage litigation of national security issues.
  • If terrorists are convicted and put into the general prison population, they would be able to try to recruit converts to jihad.
  • Those suspected terrorists held by George W. Bush weren’t treated consistently with American standards of justice – and due to various reasons, we cannot make any case against many of them.
  • Part of our justice system involves the full disclosure of evidence to the defendants; this would allow information to leak, including possibly about intelligence means and methods.

Only the last two are legitimate issues that are difficult to deal with. The first five all have relatively easy solutions if we decide that our American justice system is capable of handling the threat from terrorism. We will provide the extra security. We will hire more judges and prosecutors and get the necessary resources to handle the additional caseload – getting this done would be as much a priority as having enough troops to accomplish a mission in Iraq. We would house terrorists separately from the general prison population – and I haven’t seen anyone suggest otherwise. (Though it’s worth noting that the example Mukasey gives is of a man who was radicalized in prison without being housed with terrorists.)

The issue of what to do with the prisoners George W. Bush was responsible for is a thorny one. Bush and Mukasey left the situation unresolved, and however it is resolved, it will prove politically and legally hazardous. But Obama seems to be approaching this situation pragmatically – and avoiding letting a desire for consistency to constrain him. This is the overall right approach, though the details could obviously be resolved poorly.

Regarding the last issue, Mukasy raises a very salient point – one which a National Security Court would resolve. This issue was also raised with respect to the War on Drugs and efforts to prosecute organized crime, and in each case, a new court with a new justice system was proposed. But our justice system proved able to handle these issues after early setbacks. Perhaps a new court is needed here, as our adversarial system can work to the advantage of organized groups opposing it. This is an issue to be debated – and a serious one. I would tend to believe that our courts – perhaps with some extra rules or procedures designed to mitigate the downsides – can handle these cases.

[Image by threecee licensed under Creative Commons.]

A World Where 24 Is “Believable” and Orwell Is Misquoted

Tuesday, September 1st, 2009

I know that defending torture is difficult as well as unconscionable – but just because an editor will publish such trash doesn’t necessary mean they are bad at their job. However, if the evidence from this past weekend is any indication, it seems they are. Pat Buchanan began his piece with a quote that has been famously and erroneously attributed to George Orwell:

Men sleep peacefully in their beds at night because rough men stand ready to do violence on their behalf.

Buchanan tries to use this quote to defend the Orwellian abuse of language that John Yoo and other Bush administration members used to legally justify the proposition that torture wasn’t “torture.” I have the feeling that Orwell would have appreciated the irony. But more importantly, wouldn’t any editor take a moment to check if the quote was actually by Orwell? A Google search will quickly turn up the fact that it has been misattributed to him. Maybe I’m naive, but I would presume an editor – or someone – would take a moment to double check a citation.

Then of course Amanda Bowman in the Wall Street Journal explains the reason Americans watch 24:

[T]he Obama Administration is going to pay a big political price for indulging the civil libertarians of their party. The American television show 24 is in its 7th season because its portrayal of a life-and-death fight against terrorism in the face of political meddling appears to most Americans—and I would add Britons—both believable and justified. [my emphasis]

I like 24; I still watch it – one of a slowly dwindling number of Americans who still does. But anyone who calls it “believable” clearly isn’t familiar with the show. When Jack Bauer wanted to stop a terrorist in a van, he jumped in front of the van. Jack Bauer once died multiple times in a single episode – and was running around the next. Jack Bauer extracts the truth from his prisoners with surgical precision – whether by shooting them in the leg, electrocuting them, or whatever other means are necessary. (Bauer’s techniques were so ineffective and so unrealistic that the U.S. military actually sent a team to talk to the show’s producers a few years back.) To get people to talk – some of them innocent – Bauer has threatened babies and kidnapped and mock executed children. Every terrorist attack is financed and controlled by some convoluted plot involving nefarious American corporations seeking profits. Bauer manages to never eat or go to the bathroom in the 24-hour period covered by the show. Perhaps most unrealistically, Bauer lives in a world where nuclear weapons have gone off several times on American soil and spectacular terrorists attacks are common – yet the Congress in Bauer’s world insists on holding hearings that are more onerous than any held to this day by our Congresses, despite the respite from attacks in real life.

24 may be many things, but “believable” isn’t one of them.

Governor Rick Perry Lies to Voters As He Prepares for a National Race

Monday, August 24th, 2009

Emily Asfahini Smith interviewed Governor Rick Perry of Texas for the Wall Street Journal editorial board over the weekend. Governor Perry made very clear in the interview – by his positioning – that he’s planning on making a jump to the national stage. He’s probably the candidate most motivated to bring libertarians back into the Republican fold – referencing Hayek here and blaming the Republicans’ problems on not remaining true to their values – of which he says fiscal conservatism is the core:

They spent too much money. They acted like Democrats.

It’s a funny thing to say, if typical. The freest spending presidencies in recent memory have been George W. Bush and Ronald Reagan. The most fiscally responsible have been Bill Clinton, George H. W. Bush (who lost the Republican base for responsibly raising taxes), and Jimmy Carter. It’s not so much fiscal conservatism that is the heart of the Republican party as deficit politics – the game the Baby Boomers have played regarding spending and taxing.

There’s a great moment in the interview though that is so typical of the absolute asininity of the Republican positioning on health care. He “explains” the bill’s position on end of life issues as this:

You’re a little too old to be spending money on, so we’re just going to put you over here in the ‘gonna die’ category. ‘Bye.’ That’s pretty gruesome and scary to people that are my mom and dad’s age.

But his next line is about how:

To talk about health-care reform and not talk about tort reform is like whistling past the cemetery…

So, his message is: Obama’s going to put my mom and dad in the “gonna die” category – and on top of that, there’s no tort reform in the bill! Imagine the insane mental leap required for a man to go directly from one of these subjects to another. Clearly, the charges of forced euthanasia aren’t meant to be taken seriously – even by those promoting them like Governor Perry. Of course, this isn’t news. But it’s worth calling out by name each lie I come across, so when it is time for voters to evaluate them again, they remember the many lies they were told.

[Image by Bonzo McGrue licensed under Creative Commons.]

Health Care Reform To Stimulate the Entrepreneurship

Tuesday, July 21st, 2009

Paul Gigot of the Wall Street Journal editorial page makes the same argument many Obama critics have been making – beginning with Rush Limbaugh who attempted to blame the financial collapse on the fear markets had at the prospect of an Obama victory in the 2008 election to the present, as Gigot attempts to blame any lingering effects of this financial collapse – and its economic aftereffects – on fear of “the Obama agenda.”

But neither Gigot nor Limbaugh nor any other right-wingers seem to give any consideration to those drags on risk-taking that our current status quo creates.

Gigot apparently thinks that raising taxes on a handful of powerful individuals has a greater effect on reducing risk-taking than the prospect of global warming, than the lack of a health care safety net has on potential entrepreneurs.

The difference between Gigot and myself is that Gigot is concerned that this handful of powerful people will be less likely to take risks with their vast sums of money – along with a dozen or so major corporations having less ability to generate major profits by externalizing costs for pollution and health care to the society at large. If a corporation has to pay for the damage it causes, then it is – by Gigot’s standards – less free. This is true only in the sense that a tyrant is less free than an ordinary citizen because he is no longer able to impose his way upon others.

If one wants to stimulate the economy by encouraging small businesses and entrepreneurship, there are few better ways to do it than to pass some sort of health care reform that makes it cheaper and more available outside of large employers. As Daniel Gross, financial columnist for Newsweek and Slate, explains:

An affordable national health care policy, which could allow people to quit their jobs and launch businesses without worrying about the crippling costs of premiums or medical costs, might be a better spur to risk-taking than targeted small-business loans.

I say this as a former small business owner and entrepreneur myself. One of my biggest concerns in working outside of an established business was that I was not able to get my health care through my job – which meant astronomical monthly premiums for a service I did not use – but which I could not be sure I would not badly need.

Gigot and other right-wingers are not focused on small business and entrepreneurs – although they does invoke them as a fig leaf for political reasons. If they were they could see the advantage of a public health care option. Instead of defending the free market, Gigot and other right-wingers seek to defend a corrupt status quo in which decisions are made by a princely few rather than being made in the competition and varied decision-making bodies of a free market. Health care reform – if done right, with a public option – will remove a major obstacle to individuals taking their own risks, starting their own businesses; it will be a small step to diversifying decision-making and creating a more free market.

Gigot – by taking the dogmatic position he does – proves he is not serious about protecting the free market; he is only interested in protecting the interests of his cronies among the monied elite.

Is The Secret Plan Panetta Found Hersh’s “Executive Assasination Ring”?

Tuesday, July 14th, 2009

Sam Stein of the Huffington Post got there first – but when I first heard the news about the secret plan so shocking that CIA Director Leon Panetta immediately shut it down and informed Congress late last week – my first thought was of the vague remarks by Seymour Hersh this March about “an executive assassination ring” run by Vice President Cheney.

Last night, reading the Wall Street Journal piece by Siobhan Gorman, this inkling seemed confirmed. Gorman reported:

According to current and former government officials, the agency spent money on planning and possibly some training. It was acting on a 2001 presidential legal pronouncement, known as a finding, which authorized the CIA to pursue such efforts. The initiative hadn’t become fully operational at the time Mr. Panetta ended it…

One former senior intelligence official said the program was an attempt “to achieve a capacity to carry out something that was directed in the finding,” meaning it was looking for ways to capture or kill al Qaeda chieftains.

Most of the other pieces on this subject have linked it specifically to Cheney – which is little surprise as most of the more extreme measures taken in the aftermath of September 11 were instigated by Cheney. Stories have also noted that this program is not related to the interrogation of prisoners or the wiretapping of information.

Compare this to Hersh’s comments back in March:

Right now, today, there was a story in the New York Times that if you read it carefully mentioned something known as the Joint Special Operations Command – JSOC it’s called. It is a special wing of our special operations community that is set up independently. They do not report to anybody, except in the Bush-Cheney days, they reported directly to the Cheney office. They did not report to the chairman of the joint chiefs of staff or to Mr. [Robert] Gates, the secretary of defense. They reported directly to him…

Congress has no oversight of it. It’s an executive assassination ring essentially, and it’s been going on and on and on. Just today in the Times there was a story that its leaders, a three star admiral named [William H.] McRaven, ordered a stop to it because there were so many collateral deaths.
Under President Bush’s authority, they’ve been going into countries, not talking to the ambassador or the CIA station chief, and finding people on a list and executing them and leaving. That’s been going on, in the name of all of us.

It’s complicated because the guys doing it are not murderers, and yet they are committing what we would normally call murder. It’s a very complicated issue. Because they are young men that went into the Special Forces. The Delta Forces you’ve heard about. Navy Seal teams. Highly specialized.

In many cases, they were the best and the brightest. Really, no exaggerations. Really fine guys that went in to do the kind of necessary jobs that they think you need to do to protect America. And then they find themselves torturing people.

The glaring discrepancy between the program Hersh is describing – and the one news reports are now – is that one point being emphasized in the current coverage of the concealed program is that it was never fully operational. But Sam Donaldson – in an unusual bit of worthwhile commentary – pointed out Sunday on This Week that we didn’t know how operational was being defined. He asked: Were there pilot programs? Was this tested in the field? Was there training? These questions are important – especially given how a word such as torture was parsed out of existence. And of course the most basic question, being fooled once, can we trust that this secret operation was not actually operational?

[Image by askpang licensed under Creative Commons.]

The Incoherence of Ajami

Wednesday, June 24th, 2009

Fouad Ajami wrote a piece for the Wall Street Journal op-ed page on Obama’s response to Iran that John McCain (he of the “hip-shooting onanism”) called a “Must read.” You might remember Ajami for writing another op-ed just before the election in which he compared Obama to Eva Peron, Ayatollah Khomenei, and Gamal Nasser – third-world populists who had dictatorial tendencies (if they were not entirely dictators.) Ajami starts from the same starting points most right-wingers take when dealing with Obama – presuming him to be both naive and acting in bad faith. This in itself makes his piece unpersuasive.

But more importantly, in taking on the issue of Iran, Ajami seems to have no understanding of the power struggle actually occuring. Not that I’m an expert – but even I know that the people marching in the streets are chanting slogans from the 1979 revolution – which they still look to as a positive event. They believe they are fighting for the spirit of that Revolution, and they see Ahmadinejad as a perversion of the legacy of this revolution – as the religious order he follows did not participate in it and rejects many aspects of it. Ajami though blunders in the middle of all of this, and lends credence and support to Ahmadinejad by portraying him as “a son of the Ayatollah Khomenei’s revolutionary order.” The crowds Ajami supports reject this – seeing Ahmadinejad’s theft of the election as a repudiation of the 1979 revolution.

At the same time, Ajami profoundly misunderstands Obama’s rhetoric and method. Ajami claims that Obama “believed he could talk rogues and ideologues out of deeply held beliefs.” But what he misses is that Obama actually uses respect and civility as political weapons – in a classic community organizer technique.

And then there is Ajami’s total incoherence on looking at the differences between Obama’s and Bush’s approach to Iran:

[Obama] would entice the crowds, yet assure the autocrats that the “diplomacy of freedom” that unsettled them during the presidency of George W. Bush is dead and buried. Grant the rulers in Tehran and Damascus their due: They were quick to take the measure of the new steward of American power. He had come to “engage” them. Gone was the hope of transforming these regimes or making them pay for their transgressions. The theocracy was said to be waiting on an American opening, and this new president would put an end to three decades of estrangement between the United States and Iran.

But in truth Iran had never wanted an opening to the U.S. For the length of three decades, the custodians of the theocracy have had precisely the level of enmity toward the U.S. they have wanted – just enough to be an ideological glue for the regime but not enough to be a threat to their power.

Ajami doesn’t begin to deal with the coincidence that the fissures within the Iranian regime came suddenly into the open a few months after Obama stopped threatening to bomb Iran and Iran and reached out to them. Yet Ajami admits that the Iranian regime is held together by the “ideological glue” of  “enmity towards the U.S.” If a regime was held together by this, what better way to undermine it than to weaken that glue and break the cycle of escalating moral outrage. (Which again – is precisely the point of Obama’s method of reaching out.)

I don’t claim that Obama’s outreach caused this Iranian Green Revolution – but the removal of the U.S. as a potential invader of your country has a way of freeing up the internal dialogue. Without an external enemy to rally against, you focus on divisions within.

Ajami seems to think that after 30 years of pressure, America needed just a little more time to squeeze the regime before it fell. Now, it’s hopeless. Except, that at the moment, as soon as Obama relaxed our posture, the regime was shaken to its core – with the leading candidate the people rallied behind imitating Obama in several ways and the people on the streets expressing hope that Obama’s election in America might lead to a rapprochement.

Obama and the Rule of Law

Monday, May 18th, 2009


Right-wingers and some conservatives are trying out a new approach in their attacks on Obama – as you can see from the growing meme on the right that Obama has no respect for the Rule of Law. I’ve come across this meme in a George Will column, a Wall Street Journal editorial, and in a blog post by Jim Manzi for the National Review / The American Scene all last week. All three authors have focused on one particular event – Obama’s role in the Chrysler sale/bankruptcy/bailout. I for one am glad to see the National Review and Wall Street Journal finally coming around to accepting the importance of the Rule of Law after eight years of promoting George W. Bush’s blatant disregard for the law – but I digress.

The past eight years have demonstrated to many Democrats and liberals the vital importance of the respect for the Rule of Law to a well-functioning state – as President Bush concentrated more and more power in the White House and asserted authorities both beyond and over the law – which is why an accusation that President Obama is not respecting the Rule of Law must be taken seriously.

It is hard though to take the example all three authors use seriously – Obama’s intervention in the Chrysler mess. I can understand why people might object to what Obama did – if you consider unions to be a malevolent force, you certainly don’t want them helped out – and it is unseemly that they donated so much to Obama only to be rewarded now (of course, the creditors also gave Obama a great deal of support.) But neither of these objections is based on Obama disrespecting the Rule of Law.

Certainly, even these authors are not accusing Obama of disrespecting the Rule of Law in the same manner as George W. Bush – who did not believe he was bound by law when acting to protect Americans. The unitary executive theory he accepted and Cheney, Addington, and others used, is a direct assault on the idea that the president is bound by the law. Obama does not take this position.

These authors make a big point of the fact that Obama is abrogating contracts – but this objection is a bit silly. Obama is not a party to these contracts – and thus has no obligation to honor them personally. The Contracts clause of the Constitution – the Law which it is being alleged Obama has broken – was meant to constrain the individual states rather than the President or even the Congress. Congress was in fact given the power to abrogate contracts through bankruptcy proceedings in the Constitution. Obama – in intervening in the case of Chrysler – helped to negotiate an out-of-court settlement of the matter. Out-of-court settlements happen all the time – and are welcomed by overburdened judges who see it as better to allow all sides to come to an agreement rather than having to order them to agree.

To call this a violation of the Rule of Law is disingenuous at best.

What these authors are right to be concerned about is the concentration of power that undermines the system of the Rule of Law – as the government’s role in backstopping the finance and auto industries leaves it with enormous leverage. But their fears should be allayed by the fact that most of these interventions are temporary. (Of course, George Will is on the record disbelieving this based on the old adage – as are all of Will’s beliefs – that once government has taken a power, it will not give it up.)

Liberals have continued to voice a different set of concerns about Obama’s respect for the Rule of Law – pointing to the many Bush administration positions Obama has accepted. But they key difference between Bush and Obama is that even as Obama may be putting forward positions on these issues which are controversial, Obama has given the sense he will concede if his legal means of asserting these claims are defeated. Bush in at least one instance refused to end a clearly illegal program despite the fact that his own Justice Department had declared it illegal. 

I do find a few areas of concern. The power of the executive branch has grown enormously in the financial crisis – between the Stimulus Bill and the bank bailout. While in the short-term this may be necessary, if steps are not taken, this would undermine the balance of power between the federal government and the states. While this in itself is not a violation of the Rule of Law – it does weaken the system which together helps maintain the Rule of Law. And it is this that conservatives and right-wingers seem to be ojecting to – but their rhetoric about the Rule of Law being disregarded is hyperventilationist – and for those who did not likewise say the same of our previous president, hypocritical.

But by far the most disturbing manner in which Obama is undermining the Rule of Law is in how his administration is keeping Bush’s policies on the matter of Bagram. The Supreme Court’s ruling on the rights of detainees to certain basic rights at Guantanamo was in a large part based on the idea that our government should not be able to deprive an individual of rights merely by moving them to a particular location. But this is exactly what the Obama administration is claiming with regards to the detainees brought to Bagram from around the world. Our nation’s freedoms are grounded in our traditions. This includes a respect for contracts, a balance of various powers, and an energetic chief executive – but at it’s base, our traditions are grounded in a single, fundamental restriction on the state. To quote Winston Churchill:

The power of the executive to cast a man into prison without formulating any charge known to the law, and particularly to deny him the judgment of his peers, is in the highest degree odious, and the foundation of all totalitarian government whether Nazi or Communist.

Why It’s A Good Sign That Byron Trott Is Leaving Goldman Sachs

Tuesday, March 31st, 2009

Though the articles about investment bankers leaving the big firms to start up their own smaller, competing firms seem to be trying to suggest that this is a bad thing – I find it hard to see it as anything but good. For example, an article in today’s Wall Street Journal by Heidi N. Moore and Scott Patterson suggests Byron Trott is leaving Goldman Sachs to start his own firm because of caps “on executive pay and calls for tighter regulation” on large banks. Byron Trott is significant because he is Warren Buffett’s favorite investment banker – but the article also suggests he is part of a larger trend. 

This strikes me as an almost unalloyed good. If banks like Golman Sachs, Citibank, Bank of America, JPMorgan Chase, etcetera are too big – and if the government isn’t going to break them up – then this draining of talent and resources into smaller firms run by highly competent former members of these organizations seems like the next best thing. Hopefully, this will help defuse the centralization of power and money in a few big firms which is one of the major factors that led to this crisis. 

Simon Johnson and others have argued that we need to break up these banks that are too big to fail:

Anything that is too big to fail is too big to exist.

My thought is that this might be accomplished with less political capital and more “naturally” in a market-driven approach that simply imposed regulations and costs on institutions that are “too-big-to-fail” that would serve to drive individuals to set up smaller companies.  At institutions that are too big to fail, there should be, for example, a fee similar to that paid to the FDIC by banks to finance the protection given to them. At the same time, pay – rather than being capped at a particular hard amount – should be forced to be tied to long-term results to avoid drastic short-term risk-taking; I’m sure there are other ways out there to limit pay without imposing caps. And of course, regulations should ensure that an appropriate amount of capital is available to handle any leveraged risks.

Even if this market-driven approach is not sufficient, the steps taken so far are at least moving people in the right direction.