Tuesday, May 12, 2009

NATO Intelligence: A Contradiction in Terms - Report dated in 1985

NATO Intelligence: A Contradiction in Terms. By Edward B. Atkeson

CIA, Center for the Study of Intelligence > Studies in Intelligence > Vol 53 No 1 > From the Archives-1984: Design for Dysfunction

US Derivatives Sector Riled By Treasury Tax Plan

US Derivatives Sector Riled By Treasury Tax Plan. By Jacob Bunge
Dow Jones Newswires, May 12, 2009 14:41

CHICAGO -(Dow Jones)- A U.S. Treasury plan to end a preferential tax treatment for the derivatives industry could drive away market liquidity, according to opponents of the move.

The Treasury's 2010 revenue proposal release Monday would see banks, hedge funds, proprietary trading firms and other market makers would lose their so- called 60/40 tax treatment.

The move is the latest in long-running efforts to boost taxes on the derivatives sector, and would raise an estimated $2.5 billion over the next 10 years.

The futures and options industry, fresh from a scare that the administration would revive plans for a trading tax, immediately moved on the offensive.

Susan Milligan, senior vice president of government relations for the Options Clearing Corp., said the move would hit individuals and partnerships involved in market-making, who benefit from the blended capital gains and ordinary income tax rate.

Market makers are key to the efficiency of the markets by standing ready to buy or sell contracts.

"If individuals leave the market making profession because of [the tax increase], that has an impact on market quality," Milligan said.

The 60/40 tax treatment dates from 1981 when then-Rep. Dan Rostenkowski, (D- Ill.), pushed through a provision allowing derivatives market makers to pay 60% of their income tax at the capital-gains rate and the remaining 40% at the ordinary tax rate.

The treatment provides a blended tax rate of around 23%, according to industry estimates.

The 2010 budget proposal would tax 100% of these entities' income from futures and options trade at the ordinary tax rate, which currently tops out at 35%, but could rise to 39.6% in 2011.

"There is no reason to treat dealers in commodities, commodities derivatives dealers, dealers in securities and dealers in equity options differently than dealers in other types of property," Treasury officials wrote in a document explaining tax proposals for 2010, released Monday.

"Increasing taxes on players in the financial services industry is in vogue right now," said Scott Talbott, senior vice president of government affairs for the Financial Services Roundtable, which represents the banking sector and plans to argue against the budget proposal.

Officials at Chicago-based CME Group Inc. (CME) were reviewing the proposal Tuesday, and the Chicago Board Options Exchange was preparing its own response, according to officials.

The International Securities Exchange, an electronic U.S. options platform owned by Deutsche Boerse (DB1.XE), said in a statement that events of the past year have highlighted the role of transparent, regulated markets.

"This is not the time to alter the tax treatment - and ultimately the health of - the very markets that our nation's regulators are attempting to drive business towards." Treasury representatives did not respond to requests for comment.

The financial services industry has successfully defeated challenges to the 60/40 rule in the past.

In 2003, the Senate was on the verge of repealing the provision before a lobbying campaign by exchanges and derivatives industry groups won a reprieve, arguing that elimination of the 60/40 tax treatment would hurt U.S. markets and investors.

-By Jacob Bunge, Dow Jones Newswires (Sarah N. Lynch contributed to this report.)

05-12-09 1441ET

'Thought Crimes' Bill Advances

'Thought Crimes' Bill Advances. By Nat Hentoff
This article appeared in the Metro West Daily News on May 11, 2009.

Why is the press remaining mostly silent about the so-called "hate crimes law" that passed in the House on April 29? The Local Law Enforcement Hate Crimes Prevention Act passed in a 249-175 vote (17 Republicans joined with 231 Democrats). These Democrats should have been tested on their knowledge of the First Amendment, equal protection of the laws (14th Amendment), and the prohibition of double jeopardy (no American can be prosecuted twice for the same crime or offense). If they had been, they would have known that this proposal, now headed for a Senate vote, violates all these constitutional provisions.

This bill would make it a federal crime to willfully cause bodily injury (or try to) because of the victim's actual or perceived "race, color, religion, national origin, gender, sexual orientation, gender identity or disability" - as explained on the White House Web site, signaling the president's approval. A defendant convicted on these grounds would be charged with a "hate crime" in addition to the original crime, and would get extra prison time.

The extra punishment applies only to these "protected classes." As Denver criminal defense lawyer Robert J Corry Jr. asked (Denver Post April 28): "Isn't every criminal act that harms another person a 'hate crime'?" Then, regarding a Colorado "hate crime" law, one of 45 such state laws, Corry wrote: "When a Colorado gang engaged in an initiation ritual of specifically seeking out a "white woman" to rape, the Boulder prosecutor declined to pursue 'hate crime' charges." She was not enough of one of its protected classes.

Corey adds that the state "hate crime" law - like the newly expanded House of Representatives federal bill - "does not apply equally" (as the 14th Amendment requires), essentially instead "criminalizing only politically incorrect thoughts directed against politically incorrect victim categories."

Whether you're a Republican or Democrat, think hard about what Corry adds: "A government powerful enough to pick and choose which thoughts to prosecute is a government too powerful."
But James Madison, who initially introduced the First Amendment to the Constitution, had previously written to Thomas Jefferson on the passage of the Virginia Statute on Religious Freedom: "We have in this country extinguished forever ... making laws for the human mind." No American, he emphasized later, would be punished for his "thoughts."

However, doesn't the House "Hate Crimes Bill" state that nothing in the legislation shall "prohibit any expressive conduct protected from legal prohibition" - or speech "protected by the free speech or free exercise clauses in the First Amendment"?

Remember, however, as Kathleen Gilbert notes (LifeSiteNews.com) that "free speech advocates have pointed out that under current U.S. law, any action that 'abets, counsels, commands (or) induces a perceived 'hate crime' shares in the guilt of that crime and is therefore punishable."
But doesn't this new bill slip in an insistence that "evidence or expression or association of the defendant may not be introduced as evidence at trail unless the evidence specifically relates to that offense"?

In the definitive constitutional analysis of James B. Jacobs and researcher Kimberly Potter (Oxford University Press 1998, still in print), it is documented in "Hate Crimes: Criminal Law and Identity Politics" that "In Grimm v. Churchill the arresting officer was permitted to testify that the defendant had a history of making racial remarks. Similarly, in People v. Lampkin, the prosecution presented as evidence racist statements the defendant had uttered six years before the crime for which he was on trial," as specifically relating to the offense.

As for the 14th Amendment's essential requirement that no person be denied "the equal protection of the laws," there is carved above the entrance to the Supreme Court: "Equal Justice Under Law."

This legislation, certain to be passed by the Senate, will come to the Supreme Court. I hope the Justices will look up at the carving as they go into the building.

They should also remember that the Fifth Amendment makes clear: "nor shall any person be subject for the same offence to be twice put in jeopardy." But the House "hate crime" bill allows defendants found innocent of that offense in a state court to be tried again in federal court because of insufficiently diligent prosecutors; or, as Attorney General Eric Holder says, when state prosecutors claim lack of evidence. It must be tried again in federal court!
Imagine Holder as the state prosecutor in the long early stages of the Duke University Lacrosse rape case!

What also appalls me, as the new federal bill races toward a presidential signature, is that for years, and now, the American Civil Liberties Union approves "hate crimes" prosecutions!

I have long depended on the ACLU's staff of constitutional warriors to act persistently against government abuses of our founding documents. And these attorneys and analysts have been especially valuable in exposing the results of executive-branch lunges against the separation of powers in the Bush-Cheney years, and still under Obama.

Is there no non-politically correct ACLU lawyer or other staff worker or anyone in the ACLU affiliates around the country or any dues-paying member outraged enough to demand of the ACLU's ruling circle to at last disavow this corruption of the Constitution?

And the president, former senior lecturer in that document at the University of Chicago, should at least take it with him on Air Force One, where there are fewer necessary distractions, and familiarize himself with what the Constitution actually says.

AEI fellow on how federal president's care proposals will affect physicians

How ObamaCare Will Affect Your Doctor. By Scott Gottlieb
Expect longer waits for appointments as physicians get pinched on reimbursements.
WSJ, May 12, 2009

At the heart of President Barack Obama's health-care plan is an insurance program funded by taxpayers, administered by Washington, and open to everyone. Modeled on Medicare, this "public option" will soon become the single dominant health plan, which is its political purpose. It will restructure the practice of medicine in the process.

Republicans and Democrats agree that the government's Medicare scheme for compensating doctors is deeply flawed. Yet Mr. Obama's plan for a centrally managed government insurance program exacerbates Medicare's problems by redistributing even more income away from lower-paid primary care providers and misaligning doctors' financial incentives.

Like Medicare, the "public option" will control spending by using its purchasing clout and political leverage to dictate low prices to doctors. (Medicare pays doctors 20% to 30% less than private plans, on average.) While the public option is meant for the uninsured, employers will realize it's easier -- and cheaper -- to move employees into the government plan than continue workplace coverage.

The Lewin Group, a health-care policy research and consulting firm, estimates that enrollment in the public option will reach 131 million people if it's open to everyone and pays Medicare rates, as many expect. Fully two-thirds of the privately insured will move out of or lose coverage. As patients shift to a lower-paying government plan, doctors' incomes will decline by as much as 15% to 20% depending on their specialty.

Physician income declines will be accompanied by regulations that will make practicing medicine more costly, creating a double whammy of lower revenue and higher practice costs, especially for primary-care doctors who generally operate busy practices and work on thinner margins. For example, doctors will face expenses to deploy pricey electronic prescribing tools and computerized health records that are mandated under the Obama plan. For most doctors these capital costs won't be fully covered by the subsidies provided by the plan.

Government insurance programs also shift compliance costs directly onto doctors by encumbering them with rules requiring expensive staffing and documentation. It's a way for government health programs like Medicare to control charges. The rules are backed up with threats of arbitrary probes targeting documentation infractions. There will also be disproportionate fines, giving doctors and hospitals reason to overspend on their back offices to avoid reprisals.

The 60% of doctors who are self-employed will be hardest hit. That includes specialists, such as dermatologists and surgeons, who see a lot of private patients. But it also includes tens of thousands of primary-care doctors, the very physicians the Obama administration says need the most help.

Doctors will consolidate into larger practices to spread overhead costs, and they'll cram more patients into tight schedules to make up in volume what's lost in margin. Visits will be shortened and new appointments harder to secure. It already takes on average 18 days to get an initial appointment with an internist, according to the American Medical Association, and as many as 30 days for specialists like obstetricians and neurologists.

Right or wrong, more doctors will close their practices to new patients, especially patients carrying lower paying insurance such as Medicaid. Some doctors will opt out of the system entirely, going "cash only." If too many doctors take this route the government could step in -- as in Canada, for example -- to effectively outlaw private-only medical practice.

These changes are superimposed on a payment system where compensation often bears no connection to clinical outcomes. Medicare provides all the wrong incentives. Its charge-based system pays doctors more for delivering more care, meaning incomes rise as medical problems persist and decline when illness resolves.

So how should we reform our broken health-care system? Rather than redistribute physician income as a way to subsidize an expansion of government control, Mr. Obama should fix the payment system to align incentives with improved care. After years of working on this problem, Medicare has only a few token demonstration programs to show for its efforts. Medicare's failure underscores why an inherently local undertaking like a medical practice is badly managed by a remote and political bureaucracy.

But while Medicare has stumbled with these efforts, private health plans have made notable progress on similar payment reforms. Private plans are more likely to lead payment reform efforts because they have more motivation than Medicare to use pay as a way to achieve better outcomes.

Private plans already pay doctors more than Medicare because they compete to attract higher quality providers into their networks. This gives them every incentive, as well as added leverage, to reward good clinicians while penalizing or excluding bad ones. A recent report by PriceWaterhouse Coopers that examined 10 of the nation's largest commercial health plans found that eight had implemented performance-based pay measures for doctors. All 10 plans are expanding efforts to monitor quality improvement at the provider level.

Among the promising examples of private innovation in health-care delivery: In Pennsylvania, the Geisinger Clinic's "warranty" program, where providers take financial responsibility for the entire episode of care; or the experience of the Blue Cross Blue Shield plans in Pennsylvania, Michigan and Virginia, where doctors are paid more for delivering better outcomes.

There are plenty of alternatives to Mr. Obama's plan that expand coverage to the uninsured, give them the chance to buy private coverage like Congress enjoys, and limit government management over what are inherently personal transactions between doctors and patients.

Rep. Nydia Velazquez (D., N.Y.) has introduced a bipartisan measure, the Small Business Cooperative for Healthcare Options to Improve Coverage for Employees (Choice) Act of 2009, that would make it cheaper and easier for small employers to offer health insurance. Mr. Obama would also get bipartisan compromise on premium support for people priced out of insurance to give them a wider range of choices. This could be modeled after the Medicare drug benefit, which relies on competition between private plans to increase choices and hold down costs. It could be funded, in part, through tax credits targeted to lower-income Americans.

There are also measures available that could fix structural flaws in our delivery system and make coverage more affordable without top-down controls set in Washington. The surest way to intensify flaws in the delivery of health care is to extend a Medicare-like "public option" into more corners of the private market. More government control of doctors and their reimbursement schemes will only create more problems.

Dr. Gottlieb, a former official at the Centers for Medicare and Medicaid Services, is a fellow at the American Enterprise Institute and a practicing internist. He's partner to a firm that invests in health-care companies.

Schumer's Shareholder Bill Misses the Mark

Schumer's Shareholder Bill Misses the Mark. By Martin Lipton, Jay W Lorsch and Theodore N Mirvis
Corporate managers need to be able to take the long view.
WSJ, May 12, 2009

This week New York Sen. Chuck Schumer is expected to introduce the Shareholder Bill of Rights Act of 2009. The stated goal of the legislation -- "to prioritize the long-term health of firms and their shareholders" -- is commendable.

The trouble is that its provisions actually encourage the opposite. In its current form, the bill would require annual votes by stockholders on executive compensation. It would grant stockholders a new right to include their own director nominees in the corporation's proxy statement. The bill would put an end to staggered boards at all companies (the traditional option of electing one-third of the board each year). And it would require that all directors receive a majority of votes cast to be elected. Public companies would be forced to split the CEO and board chair positions.

Excessive stockholder power is precisely what caused the short-term fixation that led to the current financial crisis. As stockholder power increased over the last 20 years, our stock markets also became increasingly institutionalized. The real investors are mostly professional money managers who are focused on the short term.

It is these shareholders who pushed companies to generate returns at levels that were not sustainable. They also made sure high returns were tied to management compensation. The pressure to produce unrealistic profit fueled increased risk-taking. And as the government relaxed checks on excessive risk-taking (or, at a minimum, didn't respond with increased prudential regulation), stockholder demands for ever higher returns grew still further. It was a vicious cycle.

Thoughtful observers of corporate governance have recognized the direct causal relationship between the financial meltdown and the short-term focus that drove reckless risk-taking.

One key observer, the International Corporate Governance Network, issued a statement about the global financial crisis on Nov. 10, 2008. It spelled out the problem of shareholder power: "[i]t is true that shareholders sometimes encouraged companies, including investment banks, to ramp up short-term returns through leverage." It further declared that "[i]nstitutional shareholders must recognize their responsibility to generate long term value on behalf of their beneficiaries, the savers and pensioners for whom they are ultimately working." It recommended that pension funds and others seeking to hire fund managers "should insist that fund managers put sufficient resources into governance that delivers long term value."

If government really wants to encourage stability and profitability, the Schumer bill must call for measures that would promote the long-term value perspective. Providing long-term shareholders a greater number of votes per share should become a permissible option. Quinquennial rather than annual or triennial elections of corporate board members should be considered. Institutions should discontinue the practice of compensating fund managers based on quarterly performance. And corporations should follow the lead of General Electric by discontinuing the practice of issuing quarterly earnings.

The stockholder-centric view of the current Schumer bill simply cannot be the cure for the disease it spawned. Though the short-term focus benefited shareholders for a time, when the meltdown happened shareholders weren't the only people hit. Employees who devoted their lives to building stockholder value felt the pain acutely. Communities, suppliers and creditors -- indeed, the whole range of constituencies who support the creation and maintenance of stock value -- were impacted. They have a legitimate stake in this debate.

Let's use the opportunity for fresh thinking that this crisis presents and restore the ability of boards and managers to run America's companies for our long-term best interest. Hopefully, the astounding losses we have witnessed over the past months will steer us back to responsibility.

Messrs. Lipton and Mirvis are partners of the New York law firm Wachtell, Lipton, Rosen and Katz. Mr. Lorsch is a professor at Harvard Business School.

WSJ Editorial Page on Geithner: He concedes that monetary policy was 'too loose too long'

Geithner's Revelation. WSJ Editorial
He concedes that monetary policy was 'too loose too long.'
WSJ, May 12, 2009

Iraq: Hold And Build, Or Lose

Iraq: Hold And Build, Or Lose. By Anthony H. Cordesman
WaPo, Tuesday, May 12, 2009

Despite the violence of the past few weeks, it is Iraq that now risks becoming the "forgotten war." Iraq has become both a perceived "victory" and a war that many Americans and members of Congress would like to forget. As a result, we may rush toward the "exit" without a strategy -- and lose both the ongoing war and the peace that could follow.

It is all too easy to forget that we "won" in Vietnam. We left having defeated the Viet Cong, having forced North Vietnam to halt its offensives -- and having gotten a Nobel Prize for the settlement. We created something approaching a functioning democracy, a reasonable level of development, and Vietnamese forces that seemed able to defend both without our support. It only took a few years, however, to show how costly an exit without a strategy can be.

There are limits to what we can do in Iraq. We cannot force Iraqis into political accommodation. We cannot develop their economy for them. And we cannot act as a lasting substitute for effective Iraqi forces or the creation of local security and a rule of law. But there are steps we can and should take to complete the "clear, hold and build" strategy that has changed the war so dramatically since 2007.

First, we need to ensure that Iraq can finish "winning" and continue to "hold." We should make clear that we will be flexible about the speed and level of our withdrawal of U.S. forces if an elected Iraqi government needs a limited amount of added help to defeat al-Qaeda and establish national security. We should also make clear that U.S. military advisory teams, including the embedded advisers necessary to make Iraqi combat forces fully independent and effective, will stay as long as Iraq wants them. We should be prepared to maintain and strengthen our advisory teams to help Iraq develop effective police and a criminal justice system.

If necessary, we should provide military assistance and equipment until Iraq can emerge from the budget crisis triggered by the collapse of world oil prices -- a crisis that has sharply cut its planned budget to $58.6 billion from an anticipated $78 billion. The revenue shortfall has also forced a freeze on the expansion of Iraqi forces when the country needs some 60,000 recruits in the coming year and has delayed most major equipment purchases.

Second, we must help Iraq "build." U.S. help will steadily grow more important as the necessary transition from armed nation-building to post-conflict reconstruction occurs over the next three to four years. This means keeping our economic and governance advisers in place as long as Iraq wants them. It means keeping our Provincial Reconstruction Teams (PRTs) in the field and replacing their military members with civilians. It means a major U.S. effort to support Iraq in dealing with both the International Monetary Fund and its debt and reparations problems. It might require carefully targeted economic aid in select areas. Iraq's budgetary and governance problems are solvable, but they will require years of additional aid and support.

Active U.S. diplomacy will be equally important in helping Iraq move toward political accommodation and minimizing the risk of new conflicts between Arabs and Kurds, Sunnis and Shiites, or local violence. It will be critical to working with a strong U.N. team, and it should involve doing everything possible to seek support from other Arab states, Turkey, and even (possibly) Iran.

The final dimension of the "hold" effort requires giving the highest possible priority to helping Iraq develop its oil fields and renovate and increase its export capabilities. This does not mean financial aid. It means recognizing that some 95 percent of the Iraqi government's revenue will come from oil exports over the next five years and that fixing the petroleum sector as quickly as possible is the only way for Iraq to obtain the money and government revenue that can hold the country together and fund security and stability.

Iraq can maintain and expand its petroleum exports only through major investment and the technology transfers that come from foreign oil companies. Progress cannot wait until Baghdad can pass perfect petroleum laws. Helping Iraq does not mean pushing it into contracts with American firms or those that are not to Iraq's clear advantage. It does mean giving U.S. firms and teamed U.S. and foreign oil company efforts proper support, and prioritizing open, competitive bidding managed by the Iraqi government. Without this, Iraq cannot find the money to help bridge its ethnic and sectarian divisions, unemployment will get even worse, and young men will turn back toward violence. Iraq will not be able to make use of its past aid, pay for key services such as education and medical care, improve its infrastructure, or attract other forms of investment. In the short term, Iraq has no other options.

Yes, some of these actions will cost U.S. lives and dollars. Such costs, though, will be far lower than the mid- to long-term cost of throwing away a high probability of leaving Iraq with lasting security and stability. The United States must find a way to leave Iraq that ensures the stability of the Persian Gulf -- a region with close to half of the world's known oil and gas reserves and where America's future credibility will be as critical to dealing with jihadist terrorism as is the war in Afghanistan and Pakistan. In strategic terms, Vietnam was always expendable. Iraq and the Gulf are not.

The writer holds the Arleigh A. Burke Chair in Strategy at the Center for Strategic and International Studies.