Sunday, May 31, 2009

Why It's So Hard to Close Gitmo

Why It's So Hard to Close Gitmo. By David B Rivkin Jr and Lee A Casey
Holding jihadists in existing U.S. facilities probably violates international law.
WSJ, May 30, 2009

President Barack Obama is retaining many important Bush administration antiterror policies, including the detention without trial of jihadist captives as well as military commissions. He is determined, however, to close the Guantanamo detention facility because he believes doing so will not cause many problems in the U.S., and will improve our image abroad and bolster international support for U.S. antiterror policies. He will be disappointed on all counts.

Guantanamo has always been a symbol, rather than the substance, of complaints against America's "war on terror." It's the military character of the U.S. response to 9/11 that foreign and domestic critics won't accept.

There are also longstanding ideological currents at work here. At least since the 1970s, "progressive" international activists have sought to level the playing field between nation states (especially the U.S. and Israel) and nonstate actors such as the Palestine Liberation Organization and Hamas. Although international humanitarian law is supposed to apply neutrally to all belligerents, international opinion now gives nonstate actors far more leeway to ignore fundamental norms such as the rule against deliberately targeting civilians. The underlying implication is that terrorist tactics, however regrettable, are justified as the only means of achieving laudable goals like national liberation.

This mindset will not change if Guantanamo closes. At the same time, closing the detention facilities will create numerous headaches quite beyond the security issues raised by dangerous detainees who might escape or serve as a magnet for terrorist attacks in U.S.-based facilities.

One immediate problem, identified by FBI Director Robert Mueller, is the very real possibility that the Guantanamo detainees will recruit more terrorists from among the federal inmate population and continue al Qaeda operations from the inside. Radical Islamists already preach jihad in prisons -- this was how the just-arrested New York synagogue bombers were recruited -- and criminal gangs have proved that a half-in/half-out management model works.

A longer-term problem is that once Guantanamo is closed the option of holding captured enemy combatants any place overseas will be undermined. Over time, more and more such individuals, including the ones convicted by military commissions, would have to be brought to the U.S., especially as Europe backs away from taking such individuals. Aggregating the world's worst jihadists on American soil, from which they can never be repatriated, is not a smart way to fight a war.

Meanwhile, the legality of incarcerating captured terrorists in U.S. domestic prisons is far from clear. Today the Guantanamo detainees are held under well-established laws of war permitting belligerents to confine captured enemies until hostilities are over. This detention, without the due process accorded criminal defendants, has always been legally justified because it emphatically is not penal in nature but a simple expedient necessary to keep captives from returning to the fight. It was on this basis that the Supreme Court approved the detention of war-on-terror captives, without trial, in Hamdi v. Rumsfeld (2004).

The Guantanamo detainees are "unlawful" enemy combatants and not "prisoners of war" under the Geneva Conventions. Yet they are still combatants, not convicts. By contrast, the individuals held in the federal prison system, and especially those in the maximum security facilities suggested for the Guantanamo detainees, are convicted criminals.

It is very doubtful that under the customary laws and customs of war, the Hamdi decision, or Common Article 3 of the Geneva Conventions (which the Supreme Court also has applied to the war on terror) the Guantanamo detainees can be treated like convicted criminals and consigned without trial to the genuinely fearsome world of a super-max prison.

Segregating the detainees from the overall prison population -- to maintain the "non-penal" character of their confinement as well as to frustrate any recruiting activities or continuing al Qaeda operations -- is also legally dubious. Unless a new Guantanamo is to be constructed, this segregation will have to take place in existing isolation wards used to discipline (and sometimes protect) federal inmates.

This could mean solitary confinement, perhaps for 23 hours a day, without regard to a detainee's conduct or disciplinary status. The chances that courts would consider this to be the "humane" treatment required by the Geneva conventions are not overwhelming.

The Obama administration can be certain these conditions will be challenged in the courts, and it is difficult to see how, in light of current judicial attitudes, the detainees will be denied the entire panoply of constitutional rights claimed by ordinary inmates -- including lawsuits challenging their conditions of confinement. If courts conclude that these conditions are unconstitutional, or that they cannot be held indefinitely as enemy combatants, judges could mandate the release of these jihadists into the U.S.

Mr. Obama can still reverse his decision to close Guantanamo. This would cost him significant political support among his base. But making unpopular decisions to serve the national interest is a president's duty and obligation. In this regard, Mr. Obama should follow his predecessor's example and put American national security before the vagaries of popular approval.

Messrs. Rivkin and Casey worked in the Justice Department under Presidents Reagan and George H.W. Bush, and have served as expert members of the U.N. Subcommission on the Promotion and Protection of Human Rights.

Money and the Schools

Money and the Schools. WSJ Editorial
More isn't better.
WSJ, May 30, 2009

Brace yourself, because there's good news on education -- and in New Jersey of all places. On Thursday, the New Jersey Supreme Court let stand a 2008 law replacing a judge-made funding formula that had been in place since the 1980s. Under the old formula, created by the 1981 Abbott decision, 31 of the state's poor school districts received the lion's share of state education funding. Funding in these so-called "Abbott districts" has been exceeding $17,000 per student, well above the state average of $13,500.

Test scores have improved among younger students, but University of Arkansas professor Gary Ritter says education reformers had hoped for better results in earlier years of the program given that urban districts like Camden are now spending more than rich suburbs. Derrell Bradford of Excellence in Education for Everyone says scores at the lower grades look better because testing has been dumbed down, and he attributes any improvement to the fact that Abbott students can use vouchers for preschool. By any measurement, Abbott students still lag behind those in districts spending far less per student.

New Jersey taxpayers pay the highest property taxes in the country -- $7,000 on average -- to fund their own schools, and then they pay state income taxes to further fund Abbott districts. Under the new law, state funds will be sent automatically to wherever the needy kids are, even if they attend suburban schools. The real reform would be to let parents decide which schools deserve their kids and allow the funding to follow. But at least we've had one more object lesson that more money doesn't mean better schools.

Did Larry Summers really sign off on these policies?

Say It Ain't So, Larry. By Irwin M. Stelzer
Did the president's top economic adviser really sign off on these policies?
The Weekly Standard, June 08, 2009, Volume 014, Issue 36

Ninety years ago the Chicago White Sox intentionally lost--dumped, to you sports fans--the World Series. Legend has it that a young fan implored the team's star, "Shoeless" Joe Jackson, as he emerged from the court house, "Say it ain't so, Joe." The Shoeless one allegedly responded, "Yes, I'm afraid it is, kid."

Let's hope that chief White House economic adviser Larry Summers wouldn't respond similarly if someone were to charge that he sat silently when the administration's political types decided it would be just fine to submit a budget that will take the ratio of debt-to-GDP from around 40 percent to 80 percent--most critics say 100 percent is where the debt-to-GDP ratio will in fact end up in ten years. Surely Summers knows that many economists use a rule-of-thumb that suggests that such an increase will force interest rates up between 1.25 and 1.5 percentage points, with unpleasant consequences for our economic growth rate. Or that, according to the highly regarded Stanford professor John Taylor, we could only inflate our way out of the problem by allowing a 100 percent rise in the price level over a ten-year period.

More important, it was only a few weeks ago that Summers told an audience at the Brookings Institution that it is "a criterion of fiscal sustainability that ensures that once the economy has recovered, the ratio of the nation's debt to its income stabilizes rather than continuing to grow. . . . Once your income has returned to normal . . . your debts can't be rising relative to your income." But just such an increase is built into the president's ten-year budget.

Summers is famous for his intellect and ability to shoot down nonsensical ideas, so if he was not asleep or absent, he must have gone along. Say it ain't so, Larry.

The administration, led by GM and Chrysler CEO Barack Obama, also decided to lay hands on the auto industry. First it shortchanged the companies' creditors--pension funds and investors who had lent the -companies money on terms that gave them preferential access to the companies' assets should there be a bankruptcy. What matter contractual obligations when the United Auto Workers is awaiting payback for its support of Obama in the primary and general election campaigns? Surely Summers knows that such a move will make investors more reluctant to lend in the future and inclined to charge higher interest rates to any companies they do finance. Some say Summers sat in on these meetings and either lost the argument--implausible, in the view of those who have jousted with him in the past--or remained silent. Say it ain't so, Larry.

The administration has also promised to lower health care costs by introducing new IT systems and expanding insurance coverage. Virtually every expert says that information technology might be a nice thing--automated records, easily accessible--but at best will have only a trivial effect on costs. And just how expanding coverage can lower costs remains a mystery to most economists. Unless, of course, the administration is planning to ration health care, a nightmarish system that until recently led the National Health Service in Britain to deny treatment to patients suffering from macular degeneration until they were blind in one eye. Summers knows all about these cost figures and the inefficiencies of rationing. Did he decide to go along to get along? Say it ain't so, Larry.

Then there is energy policy. The president says he can make us independent of foreign oil. Summers knows he can't. He knows too that many economists contend fuel efficiency standards are more likely to deny consumers the cars they want than to have any effect on global climate, given the developing countries' plans to build thousands of new coal-fired generating stations. Summers had the opportunity while at Harvard to sit at the feet of the wonderful energy economist Professor William Hogan (as did I, although the thought of Summers meekly sitting at the feet of a colleague does strain credulity). So he must have decided either to nod off during the energy policy meetings at the White House or to defer to climate and energy policy czar Carol Browner. Say it ain't so, Larry.

The administration is determined to encourage trade union membership and the growth of union power. Rules for reviewing the expenditures of union officers are being relaxed. "Card check" is to replace the secret ballot in union recognition elections. Compulsory arbitration is to be accorded a large role in the future, putting government arbitrators in a position to respond favorably to union demands. Summers once believed that unionization contributes to long-term unemployment. That was 20 years ago, and he now says circumstances might have changed. But it is worth reading what he wrote in The Concise Encyclopedia of Economics:

Another cause of long-term unemployment is unionization. High union wages that exceed the competitive market rate are likely to cause job losses in the unionized sector of the economy. Also, those who lose high-wage union jobs are often reluctant to accept alternative low-wage employment. Between 1970 and 1985, for example, a state with a 20 percent unionization rate, approximately the average for the fifty states and the District of Columbia, experienced an unemployment rate that was 1.2 percentage points higher than that of a hypothetical state that had no unions. To put this in perspective, 1.2 percentage points is about 60 percent of the increase in normal unemployment between 1970 and 1985.

So is he in favor of card check, compulsory arbitration, and the rest of the Obama trade union agenda? Say it ain't so, Larry.

There's more, but you get the idea. When Barack Obama won the election and began to staff up, those of us who worried that the administration's policies would lean so far in the direction of political pandering as to create serious economic problems took heart when we learned that Larry Summers was to be at the center of policy-making. His fearless intelligence and debating skills would certainly prevent the administration from making terrible, irrevocable policy errors. Christina Romer, chosen by Obama to chair his Council of Economic Advisers, might prefer that appointment to fidelity to her academic research findings--tax cuts are more effective in stimulating an economy than is spending--but surely Larry Summers would not. So great is his reputation that Obama's chief political adviser, David Axelrod, told the press, "I'm not sure we would have gotten him but for the fact that we have a crisis that is equal to his talents."

Many of us joined Axelrod in praising Obama for landing Summers. And those who know him even slightly had no doubt that he has the good sense to treat fools slightly more kindly than his reputation would lead one to expect. So he could be heard. But we wonder if his voice of sanity has gone the way of Paul Volcker's, stifled and ignored. Say it ain't so, Larry.

Irwin M. Stelzer is a contributing editor to THE WEEKLY STANDARD, director of -economic policy studies at the Hudson Institute, and a columnist for the Sunday Times (London).

A New York putsch could one day hurt D.C. schoolchildren

Textbook for Failure. WaPo Editorial
A New York putsch could one day hurt D.C. schoolchildren.
WaPo, Sunday, May 31, 2009

WHETHER NEW York Mayor Michael Bloomberg will retain control of the city's public schools will soon be decided by state lawmakers in Albany. This is an issue about which there should be no debate. By any measure, the city's schools are better off today than under the byzantine system that preceded mayoral control. Too much is at stake -- for New York's 1.1 million students as well as for education reform efforts nationwide -- for the legislature to turn back the clock. If the vested interests of the education establishment succeed in their bid to kill off mayoral control in the nation's largest school system, it will make it harder for other cities to sustain the oversight of schools by mayors. Places such as Washington, D.C., are likely to become the next targets.

The 2002 law that gave Mr. Bloomberg direct authority over the schools, replacing a system of local control overseen by a central Board of Education, expires at the end of June. Lawmakers must decide if mayoral control should be maintained, abolished or modified; the lobbying is ferocious. Critics -- including the United Federation of Teachers -- want to curb the mayor's influence, saying that he and Chancellor Joel Klein have ruled like dictators. Among the suggested changes, presented under the specious guise of "checks and balances," are proposals for reconfiguring the education panel that replaced the old school board so that it would be able to overrule the mayor and giving broad new powers to local community councils. So much for accountability and responsibility; apparently the fact that Mr. Bloomberg was overwhelmingly returned to office in 2005 after staking his political future on running the schools isn't enough.

It's important to recall the grim reality prior to mayoral control: struggling and unsafe schools, failing students, inequities in funding, corrupt politics and patronage. Mr. Bloomberg and Mr. Klein instituted such reforms as ending social promotion and standardizing curriculum. They closed chronically low-performing schools and innovated with new and charter schools. No less an authority than U.S. Education Secretary Arne Duncan hailed the undisputed progress of these seven years. "I'm looking at the data here in front of me," Mr. Duncan told the New York Post. "Graduation rates are up. Test scores are up. Teacher salaries are up . . . ." Indeed, test scores announced this month showed 68.9 percent of students in fourth grade and 57 percent of students in eighth grade met or exceeded grade-level readings standards, up from 46.5 percent and 29.5 percent, respectively, in 2002.

Why sacrifice progress and momentum when there are so many students yet to be helped? One answer is in the clear dislike by teachers union officials of the hard-charging Mr. Klein, who, much like his D.C. counterpart, Michelle A. Rhee, is absolutely fearless in putting the interests of children ahead of job protection, seniority or being liked by city pols. Unions talk a good game about wanting to be change agents, but here, when real reform is on the table, they opt for sabotage. Easier to criticize a style of governing than the benefits of real leadership. Easier to look out for your own institutional interests than what's good for pupils.

A lot is riding on the outcome in New York; Washington, where the same union leaders have inserted themselves into the fight over education, should pay particular attention.