Getting Out of Afghanistan and The Defense Problem

With our President prepared to send 40,000 more soldiers into Afghanistan a serious discussion has arisen about the future of our commitment there. I have written before about the time and material required for nation building. Back then i was much more willing to devote what was needed to the long struggle of fixing Afghanistan. The nature of the mission has changed and so has my support for sending more resources, more men and women, to that country. Unfortunately the United States has a real problem with our orientation towards the military.

Matt Yglesias posted today on the personnel expenditures for the US armed forces. By his estimates it came to about $300 Billion. The fact that people related expenses make up about 50% of the money that the United States spends on defense has implications related not only to the idea of balancing the budget but our foriegn policy itself. Has Yglesias notes

In policy terms, Arkedis makes the point that this means you can’t make any really large reductions in the defense budget purely by going after the interests of the contractors who make weapons systems. The soldiers themselves are the military’s most important weapons, and also the most expensive ones. And the only way to reduce these costs is to either have fewer soldiers, or else to over time accept a lower quality of recruits. And that in turn would mean giving them either fewer missions, less ambitious missions, or some combination of the two.

This is worth thinking about not only in terms of Afghanistan, but also in broader strategic terms. Over time as technology advances and wages and health care costs rise, most organizations seek to do their work in a less labor-intensive manner. But the rise of counterinsurgency doctrine in the military implies a shift in the direction of a more labor-intensive strategic concept. There are some good reasons for this turn, but it has a lot of underdiscussed and underdebated budgetary implications.

The cost of supporting the soldiers in the military is going to be higher as the congress appropriates more money for mental health services and greater veterans benefits. President Obama has discussed increasing the size of the military. From all appearances our military spending is going to increase in the future and not decrease. A shift to counter insurgency wars would guarantee the increase.

The United States seems to have locked itself into a position where we depend on our military strength. Much our power seems to revolve around the strength of our military and our ability to provide a defense guarantee to our allies. This is a powerful if inflexible tool. This means that our allies are free to defy us and our interests without a real fear that we will pull back our defense umbrella on anything but the most essential of issues. Our military has assumed a position of paramount importance.

At the same time some in the senate, such as Evan Bayh, have become deficit obsessed. They are pushing for a commission that would reduce the structural deficit. What this ultimately is is a means of gutting any liberal agenda and gutting social security and Medicare. There is no chance that at this point in time with a shift towards counter insurgency, increased commitment to Afghanistan, the central importance of American military power, and the structure of military expenses that the Congress would touch defense expenditures.

President Obama's decision to escalate in Afghanistan rather than wind down the adventure means that the chances for eliminating the deficit with anything other than cuts in the social safety net are far fetched. It increases the role of the military and foreign adventure in American society. Given the economic problems that we currently suffer from it makes much more sense to pull back from foriegn adventures to fix our domestic problems. This is not what we are doing.

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Institutional Power and Congressional Sheep

As a general rule members of Congress wish to be reelected. That is not too shocking of a proposition because being a member of Congress is a prestigious job with good benefits. As a result of this interest congress people, senators especially, like to do things that will keep them in office. One of the things that helps keep someone in Congress is taking credit while avoiding responsibility. By taking this approach Congress has managed to alter the balance of power vis-a-vis the Presidency. A case in point is the filibuster.

Reading Ezra Klein's post on Congress' voice should make it clear that the system of government in our country could use some reform.

More to the point, it's important for Congress to begin thinking that way again. For the filibuster to end, Congress is going to have to rediscover its institutional voice. Democrats hate the filibuster when they're in power, and Republicans loathe it when they're in power, but it won't end until Congress decides it an enemy of Congress, rather than of whichever party happens to be in the majority at that moment.

People occasionally let slip that the filibuster is one of the checks and balances written into the Constitution. It isn't, of course. And its centrality to the process is a symptom of the failure of the checks and balances envisioned in our founding document. Congress was supposed to be stronger than the executive branch, and in competition with it. As such, it was considered very important, and very obvious, that Congress would work diligently to maximize its own power and authority. Congress would never permit some loophole to render it an ineffective branch, dependent entirely on rare supermajorities and presidential momentum to pass legislation.

But in recent years, American politics has become entirely about the president. Congressional elections are referendums on the president. Republicans lost in 2006 because Bush was unpopular, not because Harry Reid was beloved. Democrats understand that their fortunes are lashed to Obama's success, and Republicans have been clear that their return to power runs through his failure. Congress defines itself in relation to the president. That makes the filibuster very important to whichever party isn't in charge of the White House. It means the minority party has a continual stake in Congress not really working, because that means the president can't really succeed.

Klein has a good point and is mostly correct. Where i think he misses the mark is that the President has been the center of American politics for much more than the recent past. FDR, Teddy Roosevelt, Lincoln were all strong executives who acted in the center of American Political life.

What is clear is that President's demand power. Both Democratic and Republican presidents seek to expand the power of the executive office. They cede power only after bloody political struggle. The reason for this is that Presidents can hardly avoid responsibility in the way that Congress manages to do. It is easy to identify who holds the presidency. Blame is easy to apportion to him when voters feel he deserves it. Under these circumstances what person would not want to gather the most control over his destiny as possible? Not to mention that the type of person who seeks the Presidency is one interested in power. There are no Cincinnatuses in modern American politics.

In contrast Congress appears to be more than happy to cede power to those willing to take the responsibility. Avoid making decisions, avoid pissing people off too much, get reelected. Nate Silver makes exactly this point in his post advising Blanche Lincoln. Silver's message is that the best advice is to stay out of the spotlight. Avoid being the one responsible and improve your chances of reelection. Massive gridlock helps individual legislators avoid taking the blame. The approve/disapprove numbers of your representative are better than congress as a whole. It is not there fault its everybody else. The filibuster provides an excuse for Democrats to blame Republican's and continue the policy of not rocking the boat.

As Klein points out the modern Congress is not in opposition to the President. The party system in our country means that there are incentives for the Congress to make the President look good. Those in the same party as the President are rewarded for going with the President. As an institution, Congress has decided that it is generally better to be the sheep than the shepherd. If enough members of Congress wanted it bad enough they could break any filibuster. The problem is that that would be...hard. Also, time consuming.

There's two pieces. One is the time of the chamber. They have other things to do. The modern Senate has more staff, deals with more interest groups. There's more legislation. More appropriations. The modern senator spends 1 percent of his or her time on the Senate floor. They have to take pictures with constituents. They have to fundraise and meet with constituency groups and lobbyists and deal with staff. To actually have a live filibuster would mean they have to give up all the other business.

And as individuals, they have other things to do. Air travel has opened up. In 2009, if you are the senator from Montana, it's perfectly reasonable for you to go home on the weekend and campaign for reelection. That wasn't possible in 1940. You came to Washington to do your work and you stayed until it was done. Now air travel has made it possible for you to fly away for the weekend. That makes your time more valuable.

They have better things to do. If they wanted it bad enough 50 democrats could break any filibuster. It would be an epic war of attrition and a media feeding frenzy for the ages.

The best example of this is the 1964 Civil Rights Act. It was the longest debate in the Senate's history. But the majority wasn't trying to wait out the Southerners. Instead, they just let them talk, and would send their guys down, and argue against them when they would, for instance, deny that lynchings happen in the South. This helped public opinion turn.

The benefit to the majority can be that public attention focuses. They know the bill is there and they know the Republicans are blocking it. That becomes the basis for news coverage. When will the bill be done? What's going on today? In that sense, you can win. The point is not that you exhaust the Republicans, but that you embarrass them. X number of people died today. I hope that whatever you had to say was more important.

And time can work on your side. In 1913, the second item on Woodrow Wilson's agenda was what we now know of as the Federal Reserve Act. The bill came up December 1st., and the Democrats said we'll stay here till the bill passes. If that means we don't get a Christmas break, we don't get a Christmas break. That focused people's attention.

Imagine the responsibility and blame that could be fed out here. Senators would have to really step up. They do not want to do that. They have excuses built into the system and no interest in expanding their power against the presidency and the judiciary.

The power of the presidency is going to continue to grow as will the power of the judiciary, the fed and other independent groups who are able to absolve Congress from responsibility for hard or unpopular decisions.

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Going Down Fighting

Some times political incumbents lose. Admittedly it doesnt happen often. When it does happen though you generally get a good picture ahead of time. The best evidence is Blanche Lincoln of Arkansas. She is, in all likelihood, going to lose. What then is she supposed to do on big votes like health care insurance reform? Her actions represent a general failing on behalf of losing politicians to do the right thing.

Lincoln is especially important in the mad house that is the senate. It now takes 60 votes for anything to move forward due to GOP threatened filibuster. If she was solidly committed to not supporting any GOP filibuster then maybe the GOP wouldnt threaten them as often. Thats a different topic though. The main point is that instead of doing whats right and letting the chips fall where they may Lincoln is running scared. From TPM,

As a rule, Sen. Blanche Lincoln (D-AR) may not be as ideological as Nelson is. But she's got a problem on her hands right now that Nelson doesn't. She's an unpopular senator in a conservative state and she's up for re-election next year. Unlike Nelson (or Joe Lieberman, who we'll get to momentarily) securing Lincoln's procedural vote is a nuts-and-bolts political problem. How do you get her into a position where she (and the Democratic party) feels her seat isn't particularly imperiled by votes for health care reform. Last week, she met with both Reid and President Obama. Those conversations will surely continue.

The problem is that her seat is in major trouble no matter what she does. Her seat is not in trouble because of health care reform it is in trouble because Arkansas is a very conservative state full of Republicans and right leaning indy's. Her seat is also in trouble because the voters most likely to vote for her are not particularly impressed. PPP tells all,

Among all Democrats her approval is a relatively weak 62%. But among conservative Democrats it's just 45%. While liberal unrest about her actions in Washington has perhaps received more attention her approval with them is 24 points higher, at 69%. Matched against the Republicans Lincoln averages just a 57-25 advantage with the conservative wing of her party, a standing she'll probably need to improve on before next November.

Although the dissatisfaction of liberals within her party may not be as a big of a numerical concern for Lincoln as the conservatives, there are some issues there as well. Her approval rating among voters who think that Obama is doing a good job is just 63% with 21% disapproving and 16% unsure. That failure to win over many of Obama's proponents is an indication that the President's unpopularity in the state can't be held completely responsible for Lincoln's difficulties. She does nevertheless win nearly 80% in the head to heads with the Republicans because she's clearly a more acceptable choice for those voters than the alternative but then the concern in an off year election becomes whether those folks even show up if they're not enthusiastic about casting a vote for Lincoln.

If Lincoln has perhaps seemed indecisive at times you can see why when she has it coming at her from both ends of her party.

You know what does poll well? The Public Option. in that poll we find that

73% of all voters think that private health insurance companies care more about profit than about the health of the patients that they cover. Among Democrats and Independents, that number skyrockets to 86% and 72% respectively.

You know what that sounds like? A winning issue. It sounds like something Senator Lincoln would like to use again and again as she champions health care reform. Yet she has stayed on the fence and concerned that her vote may cost her her job. Yet, isnt reforming health care the right thing to do. Is this something that might actually be worth doing if your going to lose? Yglesis adds,

But perhaps the most convincing thing you could say would be the argument from legacy. A lot of members of congress spent 1993 and ‘94 spiking the Clinton legislative agenda and then went down to defeat in November 1994 anyway. Wouldn’t it make more sense to turn the 111th Congress into a substantive success, hope you can persuade the voters that these are good ideas, and if you fail at least manage to have gone down fighting accomplishing something important?

Its the Deeds derangement syndrome. running away from substantive and good policy out of mistaken belief that people want nothing, i.e. conservatives policy, done. This isnt the case. The polling makes clear that voters find Lincoln ineffective. The point of holding public office is to put in to practice good policy. if your not going to do that what does it matter whether your in the seat or not? If you think your going to lose go down fighting and not dithering.

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Secret Intellectual Property Treaty is Very Bad

You probably are not aware of the intellectual property treaty being negotiated in Seoul South Korea. Its called the Anti-Counterfeiting Trade Agreement. The reason that you may not have heard of it is that its supposed to be secret. Why? National Security concerns of course. Thats right, a treaty that affects millions is being negotiated in secret apparently without the input of views that might be hostile to the draconian enforcement of copyright law.

Im not an IP lawyer nor a computer science expert but there are a number of issues that bother me about this. A few of the leaked provisions,

1. Baseline obligations inspired by Article 41 of the TRIPs which focuses on the enforcement of intellectual property.

2. A requirement to establish third-party liability for copyright infringement.

3. Restrictions on limitations to 3rd party liability (ie. limited safe harbour rules for ISPs). For example, in order for ISPs to qualify for a safe harbour, they would be required establish policies to deter unauthorized storage and transmission of IP infringing content. Provisions are modeled under the U.S.-Korea Free Trade Agreement, namely Article 18.10.30. They include policies to terminate subscribers in appropriate circumstances. Notice-and-takedown, which is not currently the law in Canada nor a requirement under WIPO, would also be an ACTA requirement.

4. Anti-circumvention legislation that establishes a WIPO+ model by adopting both the WIPO Internet Treaties and the language currently found in U.S. free trade agreements that go beyond the WIPO treaty requirements. For example, the U.S.-South Korea free trade agreement specifies the permitted exceptions to anti-circumvention rules. These follow the DMCA model (reverse engineering, computer testing, privacy, etc.) and do not include a fair use/fair dealing exception. Moreover, the free trade agreement clauses also include a requirement to ban the distribution of circumvention devices. The current draft does not include any obligation to ensure interoperability of DRM.

5. Rights Management provisions, also modeled on U.S. free trade treaty language.

The general response among consumer protection and fair use supporters has been very critical. The main concerns are the adoption of a three strikes and your out policy recently adopted in france. The core of the policy is a law that requires ISPs to disconnect whole households if one member is accused -- without evidence or trial -- of three copyright infringements. Accused. You and your whole family may lose the Internet with out substantive review.

Let's reflect on what this means: First, the US government appears to be pushing for Three Strikes to be part of the new global IP enforcement regime which ACTA is intended to create – despite the fact that it has been categorically rejected by the European Parliament and by national policymakers in several ACTA negotiating countries, and has never been proposed by US legislators.

Second, US negotiators are seeking policies that will harm the US technology industry and citizens across the globe. Three Strikes/ Graduated Response is the top priority of the entertainment industry. The content industry has sought this since the European office of the Motion Picture Association began touting Three Strikes as ISP "best practice" in 2005. Indeed, the MPAA and the RIAA expressly asked for ACTA to include obligations on ISPs to adopt Three Strikes policies in their 2008 submissions to the USTR. The USTR apparently listened and agreed, disregarding the concerns raised by both the US's major technology and telecom companies and industry associations (who dwarf the US entertainment industry), and public interest groups and libraries.

How does this fit with the oft-repeated statement of the USTR that ACTA will not change US law, which justified the decision to negotiate ACTA as an Executive Agreement outside of regular US Congressional oversight measures? That remains to be seen.

In addition, there is a removal of the ISP's immunity from liability for the alleged copyright violations that occur over their pipelines if they fail to follow through on the disconnects. Meaning that your not going to get much a chance because the isps wont want to risk the litigation, especially since the potential damages might be more than the value of U.S. GDP.

What has been leaked is the MPAA and RIAA dream bill that stands in contradiction to current U.S. and E.U. law. Under the leaked regeme the ISPs would also have to adopt the notice and take down approach that is used to censor legitimate fair use on sites like you tube and flickr. The shepard fairey poster of obama with hope under it would have to be taken down from wherever it was posted online as the AP would surely allege that it is an infringer.

One of the huge issues here is that the secrecy makes it impossible to lobby or even know exactly what the bill contains. The reason for this secrecy,

According to IDG, the leaked European Commission memo also states that the US Internet chapter is "sensitive due to the different points of view regarding the internet chapter both within the Administration, with Congress and among stakeholders (content providers on one side, supporters of Internet freedom on the other)."

Cmon Obama, end the secrecy. If the doomsday reports of the treaty's contents arent true the public should know. if they are true they should know this too. These represent major changes in U.S. law and the public isnt getting any input here as this is being negotiated under an executive agreement signed by president obama. There isnt a more important issue in IP and copy right.

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Obama Coming Up Short on Civil Liberties

Is he delivering or not? That seems to be a dividing line right now among democrats and liberals. Is President Obama delivering on the change promised during the campaign? The answer to that depends in part on what you thought he meant by change. Other contributing factors to your view probably include the time frame he has had to operate in, the conditions of the media, the general lameness of the senate, and your own level of idealism versus pragmatism. For instance, i am not going to be satisfied with the end result of HCR, im not going to get the same choice members of congress get. democrats should stop saying that i will. Of course i really didnt have expectations that i would so i dont take that too hard. Civil Liberties on the other hand, i was really expecting better.

A diary currently on the rec list includes this,

President Obama's second core campaign promise was to make government more transparent and accountable, to rebuild a sacred trust that had been seriously eroded. And he has delivered. He closed the revolving door, forbidding anyone who works in his administration from lobbying when they leave their jobs. For the first time in history, names of visitors to the White House will be released, so every American can see which interests and individuals are visiting their government. And the groundbreaking website recovery.gov is allowing Americans to trace every dollar spent and every job created or saved from the recovery act, adding a level of transparency never before seen.

I think that this overstates the magnitude of the actions. I am however willing to grant that he has done some things to increase transparency in some areas. However our capital is generally the color of tar on a whole host of issues including the tarp money and many of the fed's practices. Let's not pretend that everything in washington is exposed to sunlight at this point. Lobbying still exists. Shady back room deals still happen. Beyond this stuff though i feel like part of this campaign promise of openness and sunlight was a reformed legal policy dealing with civil liberties.

There are several key aspects of civil liberties policy that i understood from candidate obama were going to be addressed. I dont think they are disputable. The first is the closure of Gitmo. Next is the end of the military commissions for trying terror suspects. Finally, the end of the extreme use of the state secrets privilege to toss out uncomfortable lawsuits that resulted from Bush Era abuses.

None of those things are happening nor do they look to happening any time soon. There seems to be some movement on DADT which is a policy that candidate Obama was in favor of repealing. It gets talked about without any action. The repeal of that program would most likely buy Obama more credit with those critical of him. Part of the problem is that he really doesnt have a great starting deposit. Almost immediately, he started off badly with the state secrets issue and the military commissions.

In early February, he had an opportunity to back up campaign rhetoric and make a break with Bush on state secrets.

Obama Administration Maintains Bush Position on 'Extraordinary Rendition' Lawsuit

The Obama Administration today announced that it would keep the same position as the Bush Administration in the lawsuit Mohamed et al v Jeppesen Dataplan, Inc.

A source inside of the Ninth U.S. District Court tells ABC News that a representative of the Justice Department stood up to say that its position hasn't changed, that new administration stands behind arguments that previous administration made, with no ambiguity at all. The DOJ lawyer said the entire subject matter remains a state secret.

This is not going to please civil libertarians and human rights activists who had hoped the Obama administration would allow the lawsuit to proceed.

It hasnt improved with time either,

Attorney General Eric Holder says a lawsuit in San Francisco over warrantless wiretapping threatens to expose ongoing intelligence work and must be thrown out.

In making the argument, the Obama administration agreed with the Bush administration's position on the case but insists it came to the decision differently. A civil liberties group criticized the move Friday as a retreat from promises President Barack Obama made as a candidate.

Holder's effort to stop the lawsuit marks the first time the administration has tried to invoke the state secrets privilege under a new policy it launched last month designed to make such a legal argument more difficult.

In addition the administration took a hard line on the media shield law demanding that the national security arguments be removed from the balancing test used to determine if compulsion of sources is required.

President Obama has also declined to eliminate the military commission as an available forum for the trial of accused terror suspects.

Looking at the steps he has taken, the tinkering made, and the lack of action im not happy. I dont think president Obama is doing a good job here and i do not believe he is delivering on the change he offered in the campaign. I understand he has only had nine months but these are actions taken in the wrong direction not simple inaction. There is no argument that the President has lacked opportunity he has simply not delivered.

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Media Shield Law on the Horizon

The NYT is reporting on the development of the media shield law designed to protect reporters from disclosing their sources. The law is required in order to give cover to sources who provide information vital to the public knowledge. The type of law that the NYT is reporting on seems like it might be sufficient protection but much hangs on any potential litigation in the court system.

As reported by the Times,

Under the deal, made public Friday, federal judges could quash subpoenas demanding testimony or information from reporters if the judges determined that the public interest in news gathering outweighed the need to uncover the source of a leak, including, in some circumstances, unauthorized disclosure of classified government information.

Protection under the so-called shield law would also be extended to unpaid bloggers engaged in gathering and disseminating news.

A version of shield legislation was approved by the House in March. But a similar bill has stalled in the Senate, and its prospects appeared to dim significantly in September when the administration, responding to apprehension expressed by intelligence agencies and prosecutors, took a harder line with regard to cases in which the government could claim national security concerns.

With the new agreement, however, the White House has now moderated that position.

The text of the bill is here in pdf.

As they say the devil is in the details. The determination of when a source is protected and when it isnt is made in the courts under a balancing test of public need to know versus need to keep secret. The Senate version of the legislation categorizes three different balancing tests for courts to use in deciding when disclosure is required. There are different considerations for civil, criminal, and national security cases.

In a standard criminal cases the standard required for production of a source is that a preponderance of the evidence shows that the compelling party has exhausted reasonable alternatives and that the source is "critical to the investigation or prosecution or to the defense against the prosecution". the washington post stated that,

In criminal cases, the compromise puts the burden on the journalist to establish in court why the public interest would be harmed by the disclosure of a source or sources. The government or defense attorney would need to show only that the information sought is essential to the case.

This is not quite true. My reading of the law is that the burden is always on the compelling party. They must show that the compulsion of the source for the prosecution of the case outweighs any interest in keeping the source under wraps. there is not a burden shift. It is possible that the way the proposed law will play out in criminal circumstances is that there will be a standing presumption in the courts that the prosecution interest outweighs the interest in keeping it secret but the law as proposed doesnt contain that presumption. In fact it could be argued that the law itself represents the idea that the presumption is against disclosure. In assessing this language the NYT said,

Ordinary criminal cases, as in prosecutors’ effort to find out who leaked grand jury information about professional athletes’ steroid use to The San Francisco Chronicle, would work the same way, except that the balancing test would be heavily tilted in favor of prosecutors. For a judge to quash a subpoena, the burden would be on a reporter to make it “clear and convincing” that the public interest in the free flow of information should prevail.

The language of the law as is available does not use the words clear and convincing in regards to the disclosure and balancing test for journalists. i am not sure where they got this idea as they dont link to available source of text. As currently available the only standard used in regards to disclosure is preponderance. To compel a source the case must be made that the public interest in gathering or disseminating news or information is outweighed by the need for disclosure. Disclosure must "more probably than not" outweigh that interest. It is for the compelling party to prove this. Maybe it is going to be amended to shift and ammend the burden but it hasnt yet.

On the civil side it plays out much as it does on the criminal side. all other options must be exhausted and the source must be one "critical to the successful completion of the matter" and again the disclosure interest must outweigh the secrecy interest.

That leads to the final category, national security. National security had been the sticking point as according to HuffPo,

The administration wanted to eliminate that balancing test in many cases involving terrorism and other security cases.

Under the compromise, the balancing test would be eliminated in classified leak cases where the government can show that disclosure of a source's identity is necessary to prevent or mitigate an act of terrorism or substantial harm to national security. But the government would also have to provide specific facts: it could not make a national security claim and then withhold most of the details.

This change has not yet been made in the available text. As currently drafted the text has the balancing test for national security just as the house bill has. From what i can tell this means that section 2 (a)(3)(A) will be moved outside section 2(a)and new language will be added as to the specificity required for compulsion. Right now it is only a "reasonableness" standard which is a very illusive and slippery burden. Judges would most likely side with the government on these types of cases simply because they wouldnt want a terrorist attack on their heads.

Most of the effects of this legislation will be determined by how high the courts choose to weigh the interests of non-disclosure. Because this is one of the weights in the balancing test an artificially low weight would gut the legislation and a heavy weight would prove very restrictive. Until this is litigated though the answer wont be known. According to Arlen Specter since 2001 at least 19 journalists had been subpoenaed by federal prosecutors for information about confidential sources and that four had been imprisoned for refusing to comply. What he doesnt say is whether any of them would be helped by this law.

Unless significant weight ends up on the journalists side and unless the courts actually hold the governments feet to the fire on national security claims the law could be much ado about nothing.

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