Health Care Notes

Just a few things I saw today:

• Orrin Hatch will no longer participate in the Senate Finance Committee's bipartisan discussions on health care reform. I'm surprised he hung in as long as he did. If Ted Kennedy came to him and asked to vote for cloture, I think it'd be 50/50.

• Olympia Snowe has become queen of the weasel words. In her district she had a statement read supporting a public option;



But back in Washington, she adds an extra line that wasn't read that turns it into a trigger. Now THAT'S weaselly.

• In the Nancy Pelosi interview I noted before, she has some interesting comments on MedPAC reform:

MedPAC has been an idea out there for awhile. There have been some concerns about it among many of us because it's a big transfer of authority to the executive branch. I myself could have argued the issue both ways. Do I want my members figuring out how much oxygen people need or do we want to pass it on? But how we pass it on was important. Does Congress participate in appointing membership? Do we establish criteria to make sure we bend the curve in a way that protects people?

Steny [Hoyer] and Mr. Waxman and Mr. Dingell and, I think, Mr. Rangel were among those who did not fondly receive this proposal at first. It became more of an issue when we were seeing what CBO was going to score. When we found out they could score that, we thought okay, with the proper criteria, this is something we could probably live with.

They mention the Defense Base Closure and Reauthorization Commission. But leadership has appointments to BRAC. We want to see representation, not some ex officio group we have no say over.

That's probably a fair compromise. And it's vital to get the kid of cost savings many seek.

• Michael Steele actually doesn't know what kind of health insurance he has. This is the leader of the Republican Party. And the RNC doesn't have a choice of plans, either. Some free market.

• John Kerry's proposal in the Finance Committee is pretty interesting:

Orszag also said the White House is open to a proposal by Sen. John F. Kerry (D-Mass.), a Finance Committee member, to tax insurers for very generous health policies. The idea is a variation on a provision that Baucus, Grassley and others on the committee had pushed: to tax beneficiaries who receive generous policies through their employers.

Obama staunchly opposed taxing beneficiaries as a candidate, and on Monday he threatened to veto a bill that targets individuals. But Orszag said that the White House is open to the Kerry alternative, noting that a fee on high-value policies would "create an incentive for companies to create more efficient plans."

A senior House leadership aide said Democratic lawmakers there are keenly interested in the Kerry provision, along with other revenue measures with consensus support in the Finance Committee, to replace the wealth surtax that Baucus and others have already declared dead on arrival. "Our guys want to see some movement there," the aide said. "They're loath to vote on a tax increase if it is not going anywhere in the Senate."

It's a shame that nobody's willing to say that America is worth paying for. But I'm with Digby. As long as we're stuck in this paradigm, with the old dialogue about taxes, you might as well try to accomplish the same goal - reducing incentives for "Cadillac" health care plans - as limiting the employer deduction through a tax on the insurers. In the end it's the same deal.

• It's sad that the White House won't release the documents of which health industry stakeholders they've met with. It reverses the expressions of transparency he vowed in the campaign and continues to vow. CREW is suing and I hope they win - secret government should not become precedent.

Slow Motion Avalanche

This jumped past me last week, but a federal judge ordered John Yoo to testify in a case filed by Jose Padilla, who was held in a Navy brig for years and slowly driven insane under the enemy combatant policies of the last regime. Ady Barkan thinks this could actually provide some accountability.

In 2002, Justice Department lawyer John Yoo wrote a memo recommending that Jose Padilla, arrested in Chicago in the wake of 9/11 and held on suspicion of plotting a dirty-bomb attack, be classified as an enemy combatant. Yoo also wrote memos arguing that American law does not prevent the president from ordering such enemy combatants tortured. This January, after enduring years of abuse in prison, Padilla sued Yoo for violating his constitutional rights.

And a week ago, Judge Jeffrey White ruled that Padilla's allegations were plausible enough to justify denying Yoo's motion to dismiss the lawsuit. White was appointed by George W. Bush the year Yoo was writing his memos.

White's decision is the first of its kind: Until now, although other lawsuits have been brought, no government official has faced personal liability for his role in the torture or deaths of detainees. But it probably won't be the last. These cases are just beginning to address the fraught questions of justice that have emerged in the aftermath of the Bush era—what atrocities were committed in the name of national security, who bears responsibility, and how should they be punished? Although neither the Obama administration nor most members of Congress want to deal with these questions directly, they're even more opposed to letting judges (and juries) take a crack at them. Padilla v. Yoo is an example of a surprising development: a conservative judge putting pressure on the Democrats in Washington to create some system of accountability for the Bush administration. It could help spawn more such rulings.

The Obama Administration actually defended Yoo's plea to skirt testifying in this case, clearly to just close down this issue in the name of moving forwards and not backwards. But White really boxed in the White House now, and every option available to them plausibly leads to more disclosure and more court rulings that would force some measure of accountability. Barkan considers this ruling crucially important, and maybe it is. Remember that Bush lost case after case invalidating his national security procedures, and now Obama has mirrored his predecessor on many of those fronts. Taking the hard line on official secrecy and executive privilege has the benefit of delaying accountability, but as long as there are lawyers willing to seek justice - and there are - they will pursue the avenues made available by favorable rulings. This avalanche may be happening in slow motion, but it's rolling downhill, and even a crafty efforts from the elites to shield themselves from a reckoning may not be enough to stop it.

Most Transparent Government In History

The Obama Administration has really taken to this executive power and official secrecy thing. Duck, meet water. This has all happened in the past week:

MSNBC:

The Obama administration is fighting to block access to names of visitors to the White House, taking up the Bush administration argument that a president doesn't have to reveal who comes calling to influence policy decisions.

Despite President Barack Obama's pledge to introduce a new era of transparency to Washington, and despite two rulings by a federal judge that the records are public, the Secret Service has denied msnbc.com's request for the names of all White House visitors from Jan. 20 to the present. It also denied a narrower request by the nonpartisan watchdog group Citizens for Responsibility and Ethics in Washington, which sought logs of visits by executives of coal companies.

The Guardian UK:

A rift has opened between the Obama administration and some of its closest allies - Democratic leaders and environmental organisations - over its refusal to publicly disclose the location of 44 coal ash dumps that have been officially designated as a "high hazard" to local populations.

The administration turned down a request from a powerful Democratic senator to make public the list of 44 dumps, which contain a toxic soup of arsenic and heavy metals from coal-fired electricity plants, citing terrorism fears.

The LA Times:

He was appointed with fanfare in December as public watchdog over the government's multibillion-dollar bailout of the nation's financial system. But now Neil Barofsky, inspector general of the Troubled Asset Relief Program, is embroiled in a dispute with the Obama administration that delayed one recent inquiry and sparked questions about his ability to investigate without interference.

The Treasury Department contends that Barofsky does not have a completely independent role. That claim prompted a stern letter from a Republican senator, who warns that Obama administration officials are encroaching on the integrity of an office created to protect taxpayers.

The Washington Post:

A federal judge yesterday sharply questioned an assertion by the Obama administration that former Vice President Richard B. Cheney's statements to a special prosecutor about the Valerie Plame case must be kept secret, partly so they do not become fodder for Cheney's political enemies or late-night commentary on "The Daily Show."

U.S. District Judge Emmet G. Sullivan expressed surprise during a hearing here that the Justice Department, in asserting that Cheney's voluntary statements to U.S. Attorney Patrick J. Fitzgerald were exempt from disclosure, relied on legal claims put forward last October by a Bush administration political appointee, Stephen Bradbury. The department asserted then that the disclosure would make presidents and vice presidents reluctant to cooperate voluntarily with future criminal investigations.

The Plum Line:

On Friday, there may be a major development in the torture wars: The CIA is set to release portions of a 2004 report that reportedly found no proof that torture foiled any terror plots, which would dramatically undercut Dick Cheney’s claims that torture worked.

But a news story this morning raises the question: Is the CIA trying to keep chunks that would undermine Cheney under wraps?

That last one may concern the CIA, but I'm pretty sure they work for somebody in the White House. And that's just from this week, there are countless other examples of using the state secrets privilege to shut down lawsuits, breaking a campaign promise to post every bill passed by Congress on the White House website for public comment before signing, and on and on and on.

Progressives battled George W. Bush and Dick Cheney on their unprecedented offical secrecy on the merits, but also out of a recognition that there is such a thing as Presidential precedent. If one President can get away with aggrandizing their power, the successor would certainly watch and learn. Which is exactly what has happened.

American Pride

Where to begin? How about with the privatization of basic military functions and corporate muscle firing anyone who stands in their way?

The Army official who managed the Pentagon’s largest contract in Iraq says he was ousted from his job when he refused to approve paying more than $1 billion in questionable charges to KBR, the Houston-based company that has provided food, housing and other services to American troops.

The official, Charles M. Smith, was the senior civilian overseeing the multibillion-dollar contract with KBR during the first two years of the war. Speaking out for the first time, Mr. Smith said that he was forced from his job in 2004 after informing KBR officials that the Army would impose escalating financial penalties if they failed to improve their chaotic Iraqi operations.

Army auditors had determined that KBR lacked credible data or records for more than $1 billion in spending, so Mr. Smith refused to sign off on the payments to the company. “They had a gigantic amount of costs they couldn’t justify,” he said in an interview. “Ultimately, the money that was going to KBR was money being taken away from the troops, and I wasn’t going to do that.”

But he was suddenly replaced, he said, and his successors — after taking the unusual step of hiring an outside contractor to consider KBR’s claims — approved most of the payments he had tried to block.

This is a version of the "too big to fail" circumstance that "forced" the government to bail out Bear Stearns - we've given so much away to companies like Halliburton that their power is outsized compared to the ability to rein them in. KBR has threatened to stop providing food to the troops in the past if they didn't get their payments promptly. It reminds me of telecoms shutting off wiretaps due to late payments. These are the companies we're supposed to consider "patriotic." And in the case of KBR, they are a middleman performing job functions that the Army has traditionally done and ought to do again, lest we continue getting in situations where soldiers' well-being is essentially held for ransom.

Then we have the creeping official secrecy department.

The White House does not have to make public internal documents examining the potential disappearance of e-mails sent during some of the Bush administration's biggest controversies, a U.S. district judge ruled yesterday.

In a 39-page opinion, Colleen Kollar-Kotelly said that the White House's Office of Administration is not subject to the Freedom of Information Act (FOIA), even though its top officials had complied with the public records law for more than two decades.

This is documentation showing the possible commission of a crime, the destruction of evidence in matters like the US Attorneys firing, the CIA Leak case, and the pre-war propaganda. The precedent has been set that future governments can seek to destroy incriminating emails right out in the open and fear no discovery.

And finally, we learned this today.

A Senate investigation has concluded that top Pentagon officials began assembling lists of harsh interrogation techniques in the summer of 2002 for use on detainees at Guantanamo Bay and that those officials later cited memos from field commanders to suggest that the proposals originated far down the chain of command, according to congressional sources briefed on the findings.

The sources said that memos and other evidence obtained during the inquiry show that officials in the office of then-Defense Secretary Donald H. Rumsfeld started to research the use of waterboarding, stress positions, sensory deprivation and other practices in July 2002, months before memos from commanders at the detention facility in Cuba requested permission to use those measures on suspected terrorists.

I think this was actually known; Philippe Sands' Torture Team discusses Administration bigwigs like David Addington going down to Gitmo to deliver lists of torture techniques. But the gambit was to always make it look like they bubbled up from underneath, at the staff level, and that the higher-level guys were shocked at the findings. Not true. Your government authorized and directed torture.

Aren't you happy with your country today?

Because We Wouldn't Want THAT Information To Get Out

There's an old saying in Tennessee — I know it's in Texas, probably in Tennessee — that says...

Fool me once - by publicly releasing the NIE on Iran showing they gave up their nuclear ambitions four years ago - shame on, shame on you...

Fool me twice...

A new National Intelligence Estimate on Iraq is scheduled to be completed this month, according to U.S. intelligence officials. But leaders of the intelligence community have not decided whether to make its key judgments public, a step that caused an uproar when key judgments in an NIE about Iran were released in November.

...you can't get fooled again.

Intelligence officials said that the National Intelligence Board -- made up of the heads of the 16 intelligence agencies plus McConnell -- will decide whether to release the Iraq judgments once the estimate is completed. But they made clear that they lean toward a return to the traditional practice of keeping such documents secret.

In internal guidance he issued in October, McConnell said that his policy was that they "should not be declassified." One month later, however, the intelligence board decided to publicly release key judgments from an NIE on Iran's nuclear weapons program, saying that it had weighed "the importance of the information to open discussions about our national security against the necessity to protect classified information."

I'm surprised they got the Iran one through. Obviously, the nature of how that blew up in the Administration's face is keeping them from ever doing something so profoundly silly again.

As for the Bushism, I think we have a new winner, and it's about Iraq so it applies:

"I appreciate the fact that you really snatched defeat out of the jaws of those who were trying to defeat us in Iraq."

Really, just shoot me in the head.

The Continuing Story of A.Lunatic

Another way in which we see the failure of our media is in their sustained characterization of Rudy Giuliani as a "moderate" Republican with "liberal views" on a variety of subjects, when the evidence is entirely clear that he is more like an extreme form of authoritarian neoconservative with meaningless views on social issues that he's desperately trying to abandon. David Greenberg in the Washington Post finally provides the context that voters need:

As any New Yorker can tell you, the last word anyone in the 1990s would have attached to the brash, furniture- breaking mayor was "liberal" -- and the second-to-last was "moderate." With his take-many-prisoners approach to crime and his unerring pro-police instincts, the prosecutor-turned-proconsul made his mark on the city not by embracing its social liberalism but by trying to crush it.

Most notable here of Greenberg's copious examples - including his efforts to censor art exhibits at the Brooklym Museum and fund parochial schools with government money - are those which concern extreme executive power.

In 1999, for example, he directed (without the City Council's permission) the police to permanently confiscate the cars of people charged with drunken driving -- even if the suspects were later acquitted [...]

The fanciful notion of Giuliani's liberalism also omits the piece de resistance of his mayorship: his flagrantly undemocratic bid to stay in office for an extra three months after Sept. 11, 2001. During earlier crises, even World War II, U.S. elections had always managed to proceed normally. But Giuliani maneuvered for weeks to remain mayor after his term-limited exit date. Only as normalcy returned to New York did his power grab fail.

Try as he might, Josh Marshall could not come up with one other instance in American history where a politician sought to overstay his legally sanctioned term of office. This shows more than anything the willingness for Giuliani to take advantage of any opportunity to expand his power.

There's also official secrecy, a hallmark of the Bush and Giuliani years, in the latter's case including the laundering of his mayoralty documents.

Shortly before Rudy Giuliani left the New York mayor's office in 2001, close associates worked out an unprecedented and controversial deal to transfer his mayoral papers from City Hall to a private, tax-exempt foundation, the Rudolph W. Giuliani Center for Urban Affairs.

Billed as a leadership think tank, the center served as a conduit for Giuliani to copy and archive 2,100 boxes of documents from his time as mayor before returning the originals to the city.

That record, which includes the months after the Sept. 11 attacks when he was anointed as "America's mayor," serves as the foundation of Giuliani's presidential campaign today. Because he moved his papers through a private organization led by his political supporters, however, the integrity of that record has been called into question.

And if you look at the issues he's foregrounding in the Presidential race, they all have to do with a megalomaniacal view of foreign policy fueled by his batshit insane B-Team advisers.

There can be no doubt that the pundit-based media is completely misreading the Republican field, touting it as a battle between social conservatives and the "liberal" Giuliani, when nothing can be further from the truth.

The Trial

In a scenario only Kafka could write, the US 6th Circuit Court of Appeals yesterday ordered a dismissal of the ACLU lawsuit against the President's warrantless wiretapping program, which a federal judge earlier ruled unconstitutional, because of lack of standing.

So, the appeals court is saying that, because the plaintiffs could not show that they were subject to surveillance, they could not bring suit. When the plaintiffs tried to determine from the government if their were being spied upon, the government claimed official secrecy. So you can't sue for having your civil rights violated through spying unless you KNOW that the government is spying on you. Which defeats the purpose of SPYING.

The government through the Congress can still investigate the spying program, but the President can cite executive privilege. And it doesn't seem like they can, as Jonathan Turley suggested, investigate it as a crime, since it's a crime without standing.

This is a casualty of the national security state, as official secrecy has been built out (and the courts have become very deferential), and what the courts are really saying here is that any program conducted in secret is by default legal, because nobody can prove that it exists. Is this how we want our American principles and ideals to be carried forward? If this ruling stands, the American experiment is actually over. It provides a blueprint for any successive Administration to perform any action that impinges on the rights and liberties of citizens: just don't tell anybody about it.

The ACLU has vowed to continue the fight, and they make a couple good points in the service of futility:

"We are deeply disappointed by today's decision that insulates the Bush administration's warrantless surveillance activities from judicial review and deprives Americans of any ability to challenge the illegal surveillance of their telephone calls and e-mails. As a result of today's decision, the Bush administration has been left free to violate the Foreign Intelligence Surveillance Act, which Congress adopted almost 30 years ago to prevent the executive branch from engaging in precisely this kind of unchecked surveillance.

"It is important to emphasize that the court today did not uphold the legality of the government's warrantless surveillance activity. Indeed, the only judge to discuss the merits clearly and unequivocally declared that the warrantless surveillance was unlawful.

"We are currently reviewing all of our legal options, including taking this challenge to the U.S. Supreme Court. In the meantime it is now more important than ever for Congress to engage in meaningful oversight."

Which is all true, but the recent Extreme Makeover: Federalist Society Edition of the Supremes means that this argument of standing is likely to hold water with them, and so it doesn't matter if the judiciary doesn't uphold the legality of the wiretapping progam. It's certainly not ILLEGAL if it's unable to be stopped.

And, I would add that, as Glenn Greenwald says, the appeals court decision was legally sound.

But the fact that the decision's result is so unfair does not mean, unfortunately, that it was wrongly decided. The role of the judge is to apply the law as it exists, and a judge is not free -- nor should we want them to be free -- to disregard binding legal doctrine whenever the judge decides that doing so is necessary to avoid unfair results. In a society that exists under the rule of law, the solution to bad laws and bad legal doctrines is to change those laws democratically, not to empower judges unilaterally to disregard the law in order to produce (what the individual judge perceives to be) better results.

As technical-seeming as it is, "standing" is a critically important constitutional limitation on the power of the judiciary. Independently, whether one believes in the merits of this doctrine or not, it is a requirement that must be fulfilled before the Constitution permits a court to rule on any matter. And there is good reason for that.

Courts are not omnipotent, free-floating bodies that exist in order to resolve all disputes. If courts had the power to resolve every abstract political and legal dispute, courts themselves would be omnipotent, or at least supreme. The Constitution thus limits the power of courts by narrowing the circumstances in which courts are empowered to act ("The judicial Power shall extend to all Cases . . . [and] to Controversies to which the United States shall be a Party"). Rightly or wrongly, the Supreme Court over the years has interpreted that provision to require (roughly speaking) direct and unique injury by the party who is suing, and the Sixth Circuit judges were required to apply that doctrine.

This is essentially a crack in the Constitutional system that the Bush Administration has managed to exploit because of the accumulated buildup of the national security state and the continuing reverence for official secrecy. The Bush Administration never tries to make an argument that their spying program is legal, just that nobody has a right to challenge it. They understand that other branches of government will constrain themselves to the powers granted to them by the Constitution, even if they won't.

Here's the solution, as expressed by Greenwald:

There are ways for Congress to act here in order to enable or even compel a court to rule on the legality of the NSA warrantless eavesdropping program. Regardless of one's views on the legality of this program, obtaining a judicial ruling is urgently necessary. It should require little mental energy to contemplate the dangers of allowing our government leaders to spy on us (or take other actions against us) in secret and then simultaneously block any and all processes to determine whether they have broken the law.

Exactly. And Congress needs to act as quickly as possible. The powers of the executive have been constantly expanding over 230 years, and it's time for that process to stop.