The right eloquence needs no bell to call the people together and no constable to keep them. ~ Emerson

Friday, October 30, 2009

The Wrong Tree

Blue Dogs and Other Moderate Democrats Are Barking Up One Regarding a “Public Option”

In the past two weeks, Democratic leaders in both the House and Senate have issued their respective versions of a healthcare reform bill. Surprisingly, both bills ended up including a “public option.” In the House, this consists of a new government-regulated insurance “exchange,” where private companies would sell policies in competition with the government. The Senate bill contains a much weaker public option, with states allowed to exempt themselves if desired.

I say “surprisingly” because two competing camps have been squeezing the bills’ authors from opposite directions for a long time on this issue. Democratic liberals are adamant that an aggressive public option is essential to achieving universal coverage and controlling costs. Democrats that are more conservative insist voting for any public option would cost them re-election, with constituents punishing them over profligate government spending and promoting socialized medicine.

In the House, the main objectors are Southern Blue Dog Democrats. In the Senate, it is a group of twenty or so moderates.

Until recently, conventional wisdom assumed the concerns of moderates would hold sway. The argument ran that liberals were desperate to pass some form – any form – of healthcare reform whereas moderates would be only too happy to walk away from anything that struck them as politically toxic.

Informal vote counting suggests that, particularly in the Senate, healthcare reform proponents still lack the necessary votes to pass any bill with a public option. Does this mean Democrats are doomed to drop it before the two chambers bring their respective bills to a floor vote, let alone then attempt reconciling them in joint committee?

I do not think it necessarily does. However, the argument Democratic leaders need to apply to recalcitrant moderates is not cajoling over Party loyalty or impassioned moral pleas. The factor motivating moderates on this topic is fear. The key is to create doubt in their minds about what they ought to fear most.

The prevailing notion is that any House Blue Dog or Senate moderate will be crucified by Republican opponents over their “yes” vote on healthcare reform in 2010 or thereafter.

For House Blue Dogs in particular, the assumption that a public option is a deal-breaker may be a non sequitur. The main objection by Blue Dogs serving on the House committees writing healthcare legislation back in the summer was that bills contained insufficient reforms to control healthcare system costs. They also wanted a broader exemption for small businesses that did not have to pay penalties for failing to offer healthcare coverage to employees and fixing what they see as inequities in the current system for reimbursing rural doctors and hospitals.

In September, Democratic Representative Stephanie Sandlin of South Dakota, the leader of the Blue Dogs, said she still believed that a majority of the group would ultimately support healthcare reform “if it was reasonable and represented a consensus Democratic view.” When Speaker Pelosi released her bill, Blue Dog did not damn the public option but rather withheld support waiting to see if the Congressional Budget Office rated it as budget neutral or better.

It is true that President Obama campaigned on the promise of healthcare reform but then so did his Republican rival. So did his challengers in the Democratic primary. So did virtually every Democratic candidate in 2008. After the election, voters understood healthcare reform was not only a top priority for the Obama Administration but for the new Democratic majority session of Congress as well.

At the same time, Congressional Republicans decided to make opposition to any form of healthcare reform favored by Obama and liberal Democrats as the cornerstone of their ideological stance as well as their platform for 2010. Many Democrats hoped that Obama’s popularity would overcome voter objections. Although the Administration has effectively countered some of the harshest criticisms levied by Republicans, the President has been unable to shift public opinion on this topic.

This makes sense to me and I believe Democratic reliance on Obama to carry the day is not only overestimated but also essentially misplaced.

Much has been made of a recent Washington Post poll that shows public support for a government-funded entity offering health insurance at fifty-seven percent. Another Post poll, this time in combination with ABC News, places support as high as sixty-two percent. However, these same surveys show that if a public option caused employers to drop their current offerings and/or forced private insurance companies out of business, support for a government-funded entity plunges to thirty-seven percent.

The most recent Rasmussen poll shows that only forty-five percent of those surveyed support the current healthcare reform bills as written – or, more precisely, as best understood – and forty-nine percent would rather see no healthcare reform passed this year than the current bills become law. In spite of this, the same survey found fifty-four percent said the current healthcare system needs some major changes and sixty-one percent think it is important for Congress to pass some reforms.

Similarly, a new USA Today/Gallup poll finds that despite concerns about its high costs and the implications for the country, fifty-six percent favor passage of a healthcare reform bill.

Rasmussen looks at all these conflicting results and concludes, “Voters do not have firm opinions” on the public option or healthcare reform in general. I think it suggests that voters are every bit as much of two minds on this topic as are Democratic lawmakers. They support the idea in the abstract but easily give in to hesitation over specific proposals for reasons ranging from legitimate concerns to wild rumors to deliberate fear mongering.

Moderate Democrats are correct to believe that Republican opponents and some voters may hold a “yes” vote that turns healthcare reform into law against them. However, they are naïve in the extreme if they think a “no” vote that prevents healthcare reform’s passage will cause this issue to go away by next November. They are outright delusional if they think Republicans will not attempt to use healthcare reform as weapon against them next year.

It seems to me that voters are less likely to hold Democratic incumbents responsible for passage of legislation they favored in the abstract but retain concerns about in the concrete, especially when they will not yet have felt the impact of healthcare reform’s passage in 2010. The alternative for Democratic incumbents will be to face Republican charges that their Party first created bad legislation and then failed to solve any significant problems. This is exactly the condemnation that Democrats used to win against Republican in moderate to conservative districts in recent elections.

It is also notable that while trust for either Party remains at all-time lows among voters, most incumbents are traditionally exempted from these general suspicions by their own constituents. Voters nervous over healthcare reform and government takeovers are much more likely to be reassured by the fact that their local Representative or Senator – “one of us” – believed in it enough to vote for it than by the fact the President Obama wanted/supported it.

By voting for healthcare reform, Democratic incumbents make the race about them and their actions. Voting against it makes the election into a referendum over the Democratic Party and its ideological direction. I suspect Republicans will find the later much easier to demonize.

I suppose the correct metaphor for almost any Democratic lawmaker regarding healthcare reform is to say they find themselves between a rock and a hard place. However, House Blue Dogs and Senate moderates who find themselves so squeezed may want to consider the problem began for these particular dogs when they began barking up the wrong tree. Embracing the public option carries its share of risks but also holds potential rewards. Rejecting it is simply an admission that their Party of choice does not know how to govern – there is nothing to be gained in that for any Democrat.

Tuesday, October 27, 2009

Protecting the Troops

H.R. 1016 Is a Real Victory But the Only One for the Foreseeable Future

Well, now we know part of the source of the holdup, as a decision remains forthcoming from President Obama regarding Afghanistan. Admiral Mike Mullen, Chairman of the Joint Chiefs of Staff, has been personally overseeing a series of war games meant to predict the likely responses of the Taliban and al-Qaida to introducing different troop levels into the current situation.

The simulations are doubtless part of an attempt to break a deadlock between military and civilian leaders regarding the best course in Afghanistan. General Stanley McChrystal, the commander in the field, is requesting an immediate forty thousand additional troops. He is adamant that nothing less will allow the United States to be successful there. On the other side, senior Administration and Congressional personnel, such as Vice-President Joe Biden and Democratic Senator John Kerry of Massachusetts, insist a smaller, phased approach is preferable.

Meanwhile, as violence in Afghanistan persists and U.S. deaths continue to mount, public support for the war there is fading, with many, especially those on the far left, calling on Obama to bring the troops home now.

Largely, Republicans have taken a hawkish view, arguing the need for more troops is a no-brainer. Leading this charge is former Vice-President Dick Cheney, who last week told the Center for Security Policy that Obama’s “dithering” on Afghanistan was endangering troops there as well as U.S. national security. “Make no mistake,” warned Cheney. “Signals of indecision out of Washington hurt our allies and embolden our adversaries.”

“What Vice-President Cheney calls ‘dithering,’ President Obama calls his solemn responsibility to the men and women in uniform and to the American public,” countered White House Press Secretary Robert Gibbs. “I think we've all seen what happens when somebody doesn't take that responsibility seriously.”

For his part, Obama vowed before a collection of service personnel at a Naval Air Station in Jacksonville Florida that he would not allow critics to rush him. “While I will never hesitate to use force to protect the American people or our vital interests, I also promise you this . . . I will never rush the solemn decision of sending you into harm's way . . . Because you deserve the strategy, the clear mission, the defined goals and the equipment and support you need to get the job done.”

What we see here is the same partisan polarization that marks healthcare reform and most other decisions coming out of Washington these days. Democrats and Republican not only fail to agree on the best approach but both evoke the shibboleth of “protecting the troops” to sanctify and defend their opposing positions.

In the midst of this rancor, an actual bipartisan victory for the troops has been lost from view. President Obama signed H.R. 1016, the Veterans Health Care Budget Reform and Transparency Act, into law last Thursday. This worthy legislation secures timely funding for veterans’ health care delivered through the Veterans Administration. It authorizes Congress to approve VA medical care appropriations one year in advance of the start of each fiscal year. An advance appropriation protects veteran healthcare against delays or denials due to political or budgetary squabbling.

At a time when each Party seems determined to block and oppose anything offered up by the other on principle, the House passed this bill with overwhelming support, 409 to 1.

This legislation comes at a time of urgent need. Speaking at a mental health summit this week, Secretary of Defense Robert Gates characterized traumatic brain injuries among veterans returning from Afghanistan and Iraq as “widespread, entrenched and insidious.” A study published last year by the RAND Corporation estimates there could be more than six hundred thousand service members in need of services.

According to Gates, returning wounded soldiers unable to take on further burdens face a bureaucratic system backlogged by hundred of thousands of disability claims as well as paperwork that can be “frustrating, adversarial, and unnecessarily complex.”

VA Secretary Eric Shinseki noted that many veterans are returning homes with “invisible wounds” of mental illness and maintained, “Warriors suffer emotional injuries as much as they do physical ones.”

Lawmakers have been “dithering” over this legislation since February 2009. Its passage marks a real and substantial victory at protecting those soldiers who have already paid most dearly to defend this country. Obama, Gates, and Shinseki have next promised to tackle reforming bureaucracy to make it easier for the Pentagon and VA to exchange information and shorten waits for veterans to get disability benefits. We can only hope they will be equally victorious at this endeavor.

While the passage of this bill marks a refreshing pause in the usual Washington poisonous partisanship, it would be sadly naïve to assume it indicated any real precedent. Regardless of where each of us stands on the question of our future in Afghanistan, reasonable people should at least be able to agree it is a complex and difficult issue. Even this simple consensus seems unlikely.

The desire for quick and uncomplicated answers is understandable from a political perspective. Unfortunately, spin doctoring, slogans, and sound bites, much like shibboleths, make poor balm for the wounds suffered by our vets. It may well be that all sides are equally sincere in their desire to represent the best interests of U.S. soldiers. Yet significant support for whatever course of action Obama ultimately decides upon seems unlikely when the major camps cannot even agree on what is in the best interest and protection for our troops.

Friday, October 23, 2009

Shoot the Moon

The U.S. Manned Space Program Needs Fewer Big Dreams and More Practical Vision

In his science fiction novel From the Earth to the Moon, Jules Verne had his astronauts make the outgoing trip not via rockets but rather shot them out of a large cannon/gun from the Earth to the lunar surface. When the French director Georges Méliès created his classic 1902 black-and-white film version of the story, entitled Le Voyage dans la Lune, he provided a fanciful image of their capsule hitting and putting out the eye of the Man in the Moon like a bullet. Apparently, in those days, they took the phrase “shoot the moon” (i.e. setting lofty goals) quite literally.

The U.S. harkened back to those literal times the other week when NASA successfully crashed its LCROSS probe into the Cabeus crater at the lunar South Pole. The purpose of actually, physically shooting the moon in this instance is to create a debris plume that can be analyzed for signs of water. The results are in and while the moon does hold water, it appears to be at the lowest spectrum of predictions. For all the romantic songs and geekish fervor it has inspired over the centuries, as a practical, scientific concern, the moon remains largely underwhelming in its potential.

Much the same is the case for U.S. manned spaceflight. When NASA’s performance evaluation begins with the sentence, “The U.S. human spaceflight program appears to be on an unsustainable trajectory,” it does not seem like it would be the year to demand a big raise. Yet, apparently, that is what everyone, including the reviewers, seem to think it needs.

The White House yesterday received the final copy of a report with the somewhat pompous title, Seeking a Human Spaceflight Program Worthy of a Great Nation. It reviews the goals established for NASA by former President Bush back in 2005. Led by former aeronautic/aerospace CEO Norm Augustine, the panel concludes that, despite some good intentions, NASA has picked the wrong destination (the moon) with the wrong rocket (Ares).

In their evaluation of current technology, the Augustine Commission recommends extending the space shuttle missions an additional year into 2011 and extending the life of the International Space Station from 2015 to 2020. They praise the underlying design of the Constellation Program, which includes the Ares I low-Earth orbit rocket, the Ares V heavy-lift rocket, the Orion low-Earth orbit capsule, and the Altair lunar lander However, they also worry all of these will cost more than expected and take far longer to implement.

The Commission then outlined three basic human space exploration scenarios, each with various alternatives.

The first initially concentrates on the moon with lunar surface exploration focused on developing the capability to explore Mars. The Commission is largely negative toward this approach, saying it provides too little bang for the buck. Moon missions require a lot of fuel because of the moon’s relatively high gravity. What is more, astronauts must haul the fuel there from Earth because the moon contains few raw materials from which to create fuel.

The second scenario initially concentrates on Mars, perhaps after a brief test of equipment and procedures on the moon. The Commission is more bullish on Mars but with an important caveat.

“Mars is unquestionably the most scientifically interesting destination in the inner solar system, with a planetary history much like Earth’s. It possesses resources that can be used for life support and propellants. If humans are ever to live for long periods on another planetary surface, it is likely to be on Mars. But Mars is not an easy place to visit with existing technology and without a substantial investment of resources. The Committee finds that Mars is the ultimate destination for human exploration of the inner solar system but it is not the best first destination.”

Although the report presents options rather than making recommendations, it seems clear the Commission favors some variant on the third scenario, which initially concentrates on what the panel terms “a flexible path” to inner solar system locations, such as lunar orbit, Lagrange points, asteroids, and the moons of Mars, followed by exploration of the lunar surface and/or Martian surface. Because of lower gravity, the Commission contends NASA could reach such targets more cheaply and quickly than the moon.

Moving away from a return to the moon is likely to meet with consternation within Congress, according to Democratic Representative Gabrielle Giffords of Arizona, Chair of the House Subcommittee on Space and Aeronautics. She thinks full funding for NASA is the preferable answer.

Another possible point of controversy from the Augustine Commission report is its contention that NASA cannot afford to continue being the sole agency providing low-Earth orbit launches. To that end, it considers deemphasizing the Ares I rocket and placing greater reliance/incentives with private launch enterprises.

This has raised the ire of Republican Senator Richard Shelby of Alabama, whose home state is where the Ares I will be built and launched. On Wednesday, the Huntsville Times reported Shelby’s admonition on the Senate floor. “Without an honest and thorough examination of the safety and reliability aspects of the various designs and options for manned space flight, the findings of this report are worthless . . . these omissions are startling.” He too sees more funding as the answer to any problems.

The Augustine Commission does not entirely disappoint in this regard. Even with its cost-cutting measures and more modest goals, the report concludes NASA needs an extra $3 billion a year, starting in 2014, if U.S. astronauts are ever going to travel beyond Earth’s orbit.

As a fan of manned space exploration, I hope NASA ultimately gets the money. However, I also hope for the adoption of the new report’s basic pragmatism, including its less pretentious path into the inner solar system and beyond. It is easy to counter with warnings against loss of momentum by changing our direction but, then again, such losses characterize the whole history of U.S. manned spaceflight.

In dealing with the public during his Commission’s investigations, Augustine reports proponents of human space exploration struck him as believing in their topic “like a religion.” That seems an accurate description to me. Every so often, a prophet like JFK comes out of the wilderness to inspire us to some godlike task, realized with exhaustive human effort and massive amounts of money. Then, once achieving the impossible, we find ourselves without any clear idea what to do next and tremendous backsliding occurs.

When the Apollo missions ended, there was a multi-year wait for the space shuttle to return humans to space. When the shuttle is finally retired, the Augustine Commission predicts a minimum seven year gap before a new human launch vehicle is ready.

If manned spaceflight adherents want a consistent policy and budget, we need to pursue our ambitions less like ardent science fiction camp followers and more like serious scientists and businesspeople. This means meticulous long-range planning within the constraints of available financing. When NASA announces another milestone, instead of asking in wonder “How did they do that?” we need to have reached a point where we are slightly bored from having heard them talk about it for so long.

Without this discipline, we are a bit like Méliès’s Man in the Moon – when we shoot the moon, we keep shooting ourselves in the eye instead. To be truly sustainable and funded for the long haul, the U.S. manned space program needs fewer big dreams and more practical vision.

JFK’s inspiring and courageous words from 1962, announcing the U.S. intention to put a man on the moon in under a decade – “We choose to [do these things], not because they are easy, but because they are hard” – have remained a moving catalyst behind our dreams for exploring the stars well beyond their original, more limited intent. However, despite the opening lines of the Star Trek television/movie franchise, soaring rhetoric seldom makes for a good mission statement.

NASA and the American public needs to grow up regarding manned spaceflight. This is at the heart of the Augustine Commission report. It is high time.

Wednesday, October 21, 2009

Supreme Stool Pigeon

Chief Justice Roberts Makes a Case for “Guilty as Tattled”

U.S. Supreme Court Chief Justice John Roberts is tattling on his fellow Justices for refusing to hear a case. But that’s okay – in the view of Roberts, tattling is elevated from its old classification as playground peccadillo to a civic and moral duty.

The case in question is Virginia v. Harris.

In December 2005, Officer Claude Picard Jr. of the Richmond Virginia Police Department received notification via dispatch about an anonymous tip that Joseph A. Moses Harris Jr. was driving drunk. Officer Picard quickly located Harris because the anonymous tipster correctly identified the color and model of his car, the street and direction on which it was heading, and the color of Harris’s shirt, as well as partially identifying the car’s license plate.

Officer Picard followed Harris for some distance. During that time, he saw no instances of swerving or other recklessness indicating that Harris was intoxicated. Picard did note that Harris drove more slowly and applied his brakes sooner/more often than required. Finally, Harris pulled over of his own accord and Picard approached his car. The officer immediately noted the smell of alcohol on Harris’s breath and Harris failed a field sobriety test.

Picard charged Harris with feloniously operating a motor vehicle while intoxicated and Harris was subsequently convicted by the Circuit Court of the City of Richmond. Harris filed a motion to suppress his drunk test results during trial, arguing the investigative stop of his car was in violation of his Fourth Amendment rights against unreasonable search and seizure. The court denied the motion to suppress. The Virginia Court of Appeals agreed to reconsider the motion but ultimately sided with the lower court.

Harris then appealed to the Virginia State Supreme Court, which overturned his conviction. Writing for the majority, Justice S. Bernard Goodwyn explained that anonymous testimony always has a relatively low degree of reliability because, unlike testimony from a known source in court, the tipster’s reputation cannot be assessed nor can they be held accountable should their allegations turn out to be false.

While the information that Harris was driving drunk might have come from a concerned citizen, it could just as easily have come from a prankster, someone with a grudge against Harris, or someone with a political axe to grind about drinking and driving.

The court went on to note that anonymous testimony is more reliable when the tipster provides predictive information directly related to the alleged criminal activity. In this case, however, the tipster provided only descriptive information. Therefore, some additional, sufficiently corroborative information was required to justify reasonable cause for search.

Officer Picard’s original testimony in court did not describe Harris’s driving as “erratic.” (Picard used that characterization in subsequent testimony after it became clear it was a relevant differentiation to the court.) Instead, Picard described Harris as merely driving in an “unusual” fashion. The court maintained that lawful but unusual conduct is insufficient to generate a reasonable suspicion that the individual is involved in criminal activity.

Three Virginia Supreme Court Justices dissented from the majority. Their opinion, authored by Justice Kinser, quotes Alabama v. White that “There are situations in which an anonymous tip, suitably corroborated, exhibits sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.”

The dissenters take pains to insist that the tipster’s report about the location and direction of Harris’s car represented predictive versus descriptive information. However dubious this may be pales in comparison to their assertion that its accuracy is “sufficient to support the conclusion that the informant had personally observed a vehicle being operated by an intoxicated driver,” failing entirely to relate to alleged criminal activity.

Instead, they again call upon White, as well as Illinois v. Gates, to avow, “Because an informant is shown to be right about some things, he is probably right about other facts that he has alleged, including the claim that the object of the tip is engaged in criminal activity.” In short, because the tipster accurately observed that Harris was wearing a green striped shirt, it is reasonable to assume their observation that Harris was intoxicated was equally accurate.

The dissenters then engage in a beautiful instance of circular logic, in which they argue that even if Officer Picard only observed unusual driving on Harris’s part, this was sufficient to justify investigation because it was already bolstered by the anonymous tip. The accusation makes Harris’s actions damning rather than neutral and the damning nature of Harris’s actions proves the validity of the accusation.

For his part, Chief Justice Roberts points out a majority of state courts have ruled that anonymous tips do not violate the Fourth Amendment and he pooh-poohs those that do – such as Wyoming, Massachusetts, and Connecticut, in addition to Virginia – not on the merits of the argument but the potential dangers from failing to investigate.

Noting that nearly thirteen thousand people die in alcohol-related car crashes each year, Roberts concludes, “The effect of the rule [in this case] will be to grant drunk drivers ‘one free swerve’ before they can be legally pulled over by police.” He goes on to fret, “It will be difficult for an officer to explain to the family of a motorist killed by that swerve that the police had a tip that the driver of the other car was drunk, but that they were powerless to pull him over.”

There is no defending the fact that Harris was drunk when approached by Officer Picard. However, intoxication does not necessarily reflect or predict incapacity or dangerousness. Picard’s observations suggesting a hazardous swerve by Harris was unlikely to be forthcoming, rather than simply a matter of time.

More to the point, this seems yet another situation in which an understandable but zealous desire for safety is causing us to replace the old mandate of “innocent until proven guilty” with the assumption that any and all accusations, even anonymous ones, must be true because otherwise why would anybody bother to make them?

Protection of individual rights under the law is the cornerstone of our justice system and it is disturbing to see our nation’s top jurist ready to throw them out the window in the name of public safety/security, no matter how altruistic. Terrorism suspects at Gitmo have little reason indeed to hope for mercy or protections from Roberts if he is ready to take such a hard stand against potentially tipsy motorists.

So, remember kids, if you see something that looks suspicious to you, it is probably criminal. Report it to your local police as often as possible because they need every break on their side. Chief Justice Roberts says so. And if that isn’t good enough for you, so does Chief Justice Roberts.

Wednesday, October 14, 2009

Too Nobel For Our Own Good

Our Reaction to Obama’s Peace Prize May Be Exactly Why He Got It

“I think part of their decision-making was expectations. And I'm sure the President understands that he now has even more to live up to. But as Americans, we're proud when our President receives an award of that prestigious category.”

That was Republican Senator John McCain of Arizona commenting on President Barack Obama’s Nobel Peace Prize. Nobel laureates are traditionally complimented in glowing terms but McCain was most definitely taking the high road. As with former Vice-President Al Gore’s 2007 Peace Prize, reaction to Obama’s win was definitely mixed. In this case, however, the problem was not what the recipient was promoting but rather who he was.

Sheer unexpectedness contributed in part to the reaction. It was known that Obama had been nominated but nobody viewed him as a contender, let alone a favorite.

Second, the Nobel Committee, which has played loose and fast with the original definition for the Peace Prize, made its most radical departure ever by giving the award to Obama, in McCain’s words, for expectations rather than accomplishments.

“It looks less like an objective award than it does a political endorsement,” said William Jelani Cobb, a history professor at Spelman College in Atlanta. One member of the Nobel Committee was not in the least shy confirming that very point. Aagot Valle told the Associated Press she hoped the selection would be viewed as “support and a commitment for Obama.”

Obama himself understood this only too well. He seemed both genuinely surprised and deliberately understated in his first remarks on the subject.

“I do not view [this] as a recognition of my own accomplishments but rather as an affirmation of American leadership on behalf of aspirations held by people in all nations. To be honest, I do not feel that I deserve to be in the company of so many of the transformative figures who’ve been honored by this prize . . . But I also know that this prize reflects the kind of world that those men and women and all Americans want to build . . . And that is why I will accept this award as a call to action, a call for all nations to confront the common challenges of the Twenty-First Century.”

Some reactions to Obama’s win can be dismissed as beyond the fringe. One is that of the conspiracy theorists, with the usual charge that Obama is actually anti-America and the Nobel Prize is a reward for him weakening America. Republican Representative Gresham Barrett of South Carolina, a gubernatorial candidate in that state, was the most vocal to this end.

“I'm not sure what the international community loved best; his waffling on Afghanistan, pulling defense missiles out of Eastern Europe, turning his back on freedom fighters in Honduras, coddling Castro, siding with Palestinians against Israel, or almost getting tough on Iran.”

The first problem here is that conspiracies tend to be secretive things and prestigious public awards are incongruous with secrecy. The second problem is that the nations and organizations who supposedly hate America the most – Hamas, Hezbollah, Iran, Pakistan, the Taliban – are not the most excited but the most outraged over this award.

Then there are reactions that range from the off-the-cuff opinion of Itya Silverio of Brooklyn – "My first opinion is that he got it because he's black" – to the more formal estimation of Erick Erickson, writing on the conservative website – “I did not realize the Nobel Peace Prize had an affirmative action quota.”

Of course, since it is now the rule by so many to dismiss anyone who accuses racism against Obama as “silly,” I will simply let these two examples of silliness stand for themselves.

Although skeptics exist everywhere, a basic divide in reaction toward Obama’s Nobel was quickly apparent. International reaction was largely positive and supportive. Within the United States, however, the prevalent response is nicely encapsulated by Robert Schultz, a retired civil servant and Vietnam veteran, who, when told of Obama’s win, asked incredulously, “For doing what?”

The more I think about this basic duality, the more I believe that a reaction of this type on the part of America may be exactly what drove the Nobel Peace Prize Committee to single out Obama. We are a bottom-line, “show me the money,” concrete logic culture. When we see a problem, our first and often only thought is to (unilaterally) devise a solution and then (unilaterally) impose it. Oh, and it better be a complete and permanent solution or we subsequently judge it as just another failure. When accepting awards, we tend to be a bit too noble – or, I should say, too Nobel – for our own good.

Europeans, Asians, and Middle Easterners tend to see history as a slow-moving process. Americans do not really relate to processes. We prefer a finite set of instructions that produce something tangible, like a birdhouse or coffee table, at the end. The world often sees dialogue as progress in and of itself. Americans see it as a lot of empty talk with no substance or accomplishments. The fact that these charges have long been leveled at Obama too is no surprise.

I suspect the Nobel Committee may be taken quite literally at its word as to why it felt it important to single out Obama.

“. . . for his extraordinary efforts to strengthen international diplomacy and cooperation between peoples . . created a new climate in international politics. Multilateral diplomacy has regained a central position, with emphasis on the role that the United Nations and other international institutions can play. Dialogue and negotiations are preferred as instruments for resolving even the most difficult international conflicts . . . The Committee has attached special importance to Obama's vision of and work for a world without nuclear weapons.”

Woodrow Wilson, the last sitting U.S. President to receive the Peace Prize “when it still meant something,” was singled out for creating the League of Nations. Yet even at the time of his award, Wilson had utterly failed at two key tasks.

First, he failed to convince the leaders of England and France to treat the conquered Germans with reasonable mercy. Instead, the harsh treaty imposed led to such miserable conditions and chaos as to facilitate the rise of Nazi fanaticism and require another “War to End All Wars.” Wilson also failed to convince an isolationist Republican Senate back home to join the League of Nations. America’s absence caused that body to have no authority to check rising aggression across the globe over the coming decades.

Yet, despite his failings, Wilson was still deserving of the award. He became the father of internationalism and many of his ideas were finally embraced, both abroad and in this country, at the end of the Second World War. In many ways, Wilson was rewarded far more for unrealized vision than any actual accomplishments.

It is true that Wilson’s award came at the end of his Presidency while Obama’s comes at the very start. Yet Nobel Committee Chairman Thorbjoern Jagland answers, “Some people say, and I understand it, isn’t it premature? Too early? Well, I'd say then that it could be too late to respond three years from now. It is now that we have the opportunity to respond — all of us.”

It is the same pragmatic viewpoint that caused FDR to reach back to the Biblical book of Proverbs in his first inaugural address to observe, “Where there is no vision, the people perish.”

Haag Sherman, Director of the investment firm Salient Partners, admits Obama’s selection politicizes the Peace Prize. In spite of this, he also notes, “It illustrates that the U.S. is still the prevalent power in the world and that the world really is seeking engagement with the United States.”

That we, as a nation, meet this yearning from the rest of the world by responding, “But we haven’t done anything for you to congratulate us about,” is exactly what Obama’s award is meant to tell not only him but all of us as well. The world can relate to us, and we to them, in ways other than as feared unilateral superpower or forgotten, fallen joke.

We are being reminded there is real, practical, tangible power in diplomacy, power in mulitlateralism, power in ideas, in words, in the courage to change, in hope. Our reaction to their choice makes it apparent it is a message we very much need.

Friday, October 9, 2009

Wrangling with Rangel

The Congressman’s Violations Go Beyond Partisan Attacks and Demand Consequences

On Wednesday, Republican Representative John Carter of Texas took the floor to introduce a resolution condemning the Democratic chair of a powerful House committee for corruption and calling upon him to step down. There is nothing new in this; the minority Party routinely seeks opportunities to embarrass and hassle those in power. Back in the winter of their discontent, Democrats reliably brought attention to the ethical foibles of former Republican House Majority Leader Tom DeLay and demanded his ouster.

The thing about Wednesday’s condemnation that was so striking and made it so DeLay-like, as it were, was the rather impressive list of charges against the Democratic chair. Carter read aloud to the House for over thirteen minutes from nine sheets of paper before finally concluding, “Therefore, be it resolved that upon adoption of this resolution, Representative Charles Rangel of New York is hereby removed as Chairman of the Committee on Ways and Means.”

Democrats responded by moving to refer the matter to an ongoing investigation of Rangel by the House Ethics Committee and made it so with a 246-153 vote. They say the process is clearly working. Unless the process to which they are referring is the status quo, they are clearly wrong.

Carter and the Republicans are correct – Rangel needs to step down and, since Rangel is Rangel, this means Democrats need to force him to step down.

The charges against him are legion. Rangel stands accused of failing to disclose a half million dollars he holds in checking and investment accounts, benefiting from special mortgage terms that amount to a gift, failing to report hundreds of thousands of dollars in rental income, failing to pay taxes on a beach rental property in the Dominican Republic, living in multiple rent-subsidized apartments in New York City while claiming his Washington, D.C. home as his primary residence for tax purposes, using Congressional stationery to solicit donors for a public policy institute in his name at City College.

Wait, there’s more! The Washington Times and other papers have extensively documented campaign contributions Rangel received from the British concern Diageo, which stands to benefit to the tune of nearly $3 billion dollars from a deal Rangel supports allowing them to make rum in the U.S. Virgin Islands. Most recently, Rangel funneled a $3 million earmark in the massive Defense Appropriations Bill to his favorite institute of higher learning, New York City College.

And there’s still more but let’s not wait . . . you get the picture.

Rangel also got the picture sufficiently to ask for a probe of himself by the Ethics Committee in September 2008, once the first few charges started appearing against him. Its investigation has been moving along with maddening slowness until Representative Carter’s recent motion. On Thursday, the Committee said it was expanding its probe; this after has reviewing more than twelve thousand pages of documents, conducting thirty-four interviews and holding thirty hearings into Rangel’s alleged misdeeds.

For his part, Rangel insists all of his scandals are just honest mistakes and/or understandable errors “in complex financial disclosure and tax filings.” Nine pages of alleged violations suggest Rangel did indeed make mistakes but there was nothing honest about them.

Even the Congressional Black Caucus, of which Rangel is a co-founder and current member, agrees Republican charges against Rangel are not racism. It does think they are politically motivated, however. The day after Carter’s motion, the CBC sent a letter to House Speaker Nancy Pelosi lambasting “partisan attempts” by Republicans “to ignore the well-established, bipartisan congressional ethics process . . . violate the core American principle of the presumption of innocence . . . [and] undermine the important work in Congress on healthcare reform.”

In truth, the attack is not even partisan. As Carter noted in his condemnation, Rangel’s actions have “held the House [as a whole] up to public ridicule.” Barack Obama won the Presidency promising to make government “more transparent and accountable.” Speaker Pelosi proclaims the current Congress “the most ethical and open one in history.”

The nature of the charges against Rangel is every bit as troubling as their sheer volume. Rangel has been the Chair of the powerful House Ways and Means Committee and Vice-Chair of the House/Senate Joint Committee on Taxation since January 2007. Rangel is not charged with an extramarital affair or speaking impoliticly to the President or attempting to hush up shooting his hunting buddy in the face; he is charged with failure to pay taxes and mismanaging his finances in general. It goes to the heart and the bottom line of his current job.

Rangel has been a Democratic fixture in the House for nearly forty years and therein may lay the root of the problem. Representing New York’s Fifteenth District, Rangel was first elected to Congress in 1970. He won re-election nineteen times, often with ninety percent or more of the vote. He is the most senior member of the New York delegation and the fourth most senior member of the House.

Rangel’s own personality, combined with this seeming electoral invincibility, makes for a volatile mix. His greatest strengths are often also his most dangerous weaknesses. He is candid, controversial, and feisty, so seeming to enjoy a fight that he will go out of his way to pick one. As his seniority grew, so did an already healthy sense of entitlement and his bank accounts.

Columnist Gail Collins, while admitting, “Rangel is my Congressman” and ceding him the title “Lion of Lenox Avenue,” sadly concludes it is “likely that he just feels he’s too important to be bothered with the rules.” Eugene Robinson concurs, saying the overall portrait of Rangel that comes across is “a wealthy and privileged Congressional pasha to whom ordinary rules don't apply.”

Back on August 31, the editorial board of the Buffalo News first called upon Rangel to resign his Ways and Means Chair. The Washington Post followed them on September 3. Today, the New York Times adds its voice to the swelling chorus, also condemning Speaker Pelosi for not forcing him to step aside.

The problem for Pelosi goes beyond potential Democratic embarrassment. In addition to money and ego, Rangel has also accumulated a lot of power in Congress over the past forty years. He is one of the kingmakers who supported Pelosi in her fight for Speaker. He may not be quite so easy for her to throw under a bus.

On the other hand, Pelosi bristled only yesterday at a press release from the National Republican Congressional Committee that criticized her for yielding to pressures from her liberal base opposing General McChyrstal’s request for more troops in Afghanistan. “Taxpayers can only hope McChrystal is able to put [Pelosi] in her place,” the press release concluded.

“I'm in my place,” Pelosi retorted angrily. “I'm the Speaker of the House, the first woman Speaker of the House. And I'm in my place because the House of Representatives voted me there.”

Back in January, Representative Carter of Texas offered up another resolution regarding Rangel, this one tongue-in-cheek. The Rangel Rule Act of 2009 (H.R. 735), proposed allowing all taxpayers to avoid paying penalties and interest on back taxes, in reference to Rangel having not yet paid his own at that time.

If Pelosi wishes to avoid Democratic promises to clean up corruption reduced to further laughingstock, she needs to stand up to Carter, Rangel, the CBC, the Republican leadership, and everyone else on this issue and act aggressively. She must pressure the Ethics Committee to complete its investigation quickly and then, based on its likely findings, show Charlie Rangel the door.

Wednesday, October 7, 2009

General Apologies

Letterman and McChrystal May Be Sincere but They Are Talking to the Wrong People

When CBS late night talk show host David Letterman faced a $2 million extortion threat, he neither tried to make the matter quietly go away by paying nor loudly protested his innocence. Instead, he turned in the blackmailer to authorities and confessed to his studio and television audiences last Thursday night that he was indeed guilty of having several affairs with female staffers on his show.

The confession earned applause and good reviews for Letterman. His combination of straight talk, deftly balanced with self-deprecating humor, drew particular praise. I can agree with this assessment. However poor a light Letterman’s philandering and workplace sexism casts on his character otherwise, he deserves kudos for owning up and telling the truth once caught at it.

On Monday night, Letterman was back for the first new show since his initial confession. This time, he issued a somber on-air apology to his wife, who he acknowledged had been “horribly hurt by my behavior.” Although Letterman maintains the affairs occurred before he married this past March, he and his wife, Regina Lasko, have been involved since 1986 and had a son together in 2003.

As before, Letterman mixed his contrition with humorous one-liners. Once again, the studio audience and TV critics lapped it up. Some think this scandal and Letterman’s handling of it could cement his position atop the new talk show heap resulting from Jay Leno’s departure from NBC’s Tonight Show. In Letterman’s own words, “If you hurt a person and it's your responsibility, you try to fix it.”

Here is where I part company with many in their continuing admiration. Issuing a general apology to his wife on the air? If Letterman did it instead of apologizing directly to his wife, he apologized to the wrong person(s). If he did it in addition to a personal apology, which I assume is most likely, it is superfluous.

In fact, I question whether it is an act of contrition at all but rather a passive-aggressive tactic on Letterman’s part to garner sympathy for himself by publicly displaying what a noble, upright kind of person he is. I have always liked Letterman and I am glad his audience is apparently not deserting him over this scandal. However, if he sincerely wants to fix things, he appears to have forgotten where his loyalties truly lie in this regard.

It is the same problem I see with General Stanley McChrystal, the U.S. and NATO field commander in Afghanistan. McChrystal sparked controversy last week for publicly disagreeing with any future policy for Afghanistan besides the one he personally favors.

McChrystal strongly believes the only way to long-term military success is building trust among Afghan civilians by protecting them from the Taliban. His plan would require as many as forty thousand additional troops and has the backing of most Republican Congressional leaders.

Others within the Obama Administration, most notably Vice-President Joe Biden, as well as some Democratic Congressional leaders, support a narrower approach, more focused on counterinsurgency techniques and training Afghan forces.

President Obama invited McChrystal to present his approach via videoconference from Kabul before the national security team. The report he presented warns “failure to gain the initiative and reverse insurgent momentum” over the next twelve months “risks an outcome where defeating the insurgency is no longer possible.” The other camp sharply challenged McChrystal during his presentation.

The next day, last Thursday, McChrystal gave a speech at the International Institute for Strategic Studies in London, where an audience member asked him if thought the narrower option had any chance for success. “The short answer is ‘no’,” McChyrstal replied. He went on to characterize such as strategy as “short sighted” and warn it would leave Afghanistan “in chaos.”

Chastisement was quick in coming. The President summoned McChrystal to Copenhagen the next day for a private meeting aboard Air Force One. National Security Adviser James Jones dryly suggested, “It is better for military advice to come up through the chain of command.” Secretary of Defense Robert Gates was equally understated but firm, asserting that military and civilian leaders “provide our best advice to the President candidly but privately.”

Counter-chastisement was equally prompt. “The White House finds a four-star scapegoat for its Afghan jitters,” trumpeted the Wall Street Journal this morning.

For his part, McChrystal was remorseful for any damage he may have caused but insisted he meant no harm and was simply trying to speak forthrightly, as encouraged by Obama, in promoting the mission given him by Obama.

As with Letterman, I question whether his London comments represent advice but rather a passive-aggressive tactic on McChrystal’s part to garner international and public sympathy, in order to force U.S. foreign policy into only one acceptable option – all the while displaying what a noble, upright kind of person he is. It is an apology in advance for failure that seeks to absolve him from future blame.

He achieved some success to this end. Yesterday, Michael O'Hanlon, a senior fellow at the Brookings Institution, defended McChrystal’s moral duty to speak out against his superiors, since he is “personally responsible for the lives of 100,000 NATO troops.” (As if, somehow, the President, Congress, Security Council, and Secretary of Defense are not?)

I agree that pulling down McChrystal as a scapegoat is wrong but I am equally repulsed seeing him propped up as a strawman. The problem is not that a general disagreed with Obama or even did so openly to his face in the national security council. The problem was going public with his objections, especially before a decision was forthcoming.

Eugene Robinson of the Washington Post sums it up best.

“What we want to achieve in Afghanistan is a political question and we don't pay our generals to do politics. That's the job of the President and Congress – and whether our elected leaders decide to pull out tomorrow or stay for a hundred years, the generals' job is to make it happen . . . If military officers want to devise and implement geopolitical strategy, they should leave their jobs and run for office.”

Bruce Ackerman, a professor at Yale Law School, argues this whole affair “should provoke a broader discussion of the meaning of civilian control [over the military] in the Twenty-First Century.” As if on cue, O’Hanlon asserts the oft-repeated hawkish saw that McChrystal’s take on things is both the correct one and justified in its promotion because, as a soldier in the field, he automatically “understands reality far better than most in Washington.”

Likewise, the Wall Street Journal chortles that McChyrstal’s critics “have very short memories,” noting that when it was learned General Eric Shinseki, now Secretary of Veterans Affairs in Obama’s Cabinet, disagreed with former President Bush over troop levels in Iraq, he became a liberal hero overnight. The Journal seems to suffer its own problem with cognitive retention by failing to note that Shinseki was summarily fired as a result.

McChrystal recently told Newsweek he would not resign if the Administration ultimately rejects his request for more troops. Although his concern for the soldiers under his command motivates him to speak out, he apparently has not thought about or does not care the impact upon their morale if he subsequently asks them to follow him in a mission he has openly condemned as doomed to failure.

If the narrower option for Afghanistan prevails and McChyrstal really believes it is un-winnable, he should immediately relinquish his command and turn it over to someone who can both follow orders and believe in them. If he does not truly believe in his own pronouncements, he needs to make a very public, very general confession and apology.

And he needs to think very hard about where his loyalties really lie in this regard.

Monday, October 5, 2009

First Monday in Sotomayor

Her “Empathy” Could Make a Difference this Term . . . for the Right

As the first Monday in October officially commences another U.S. Supreme Court term, eyes are likely to remain focused on the Court’s newest member, Justice Sonia Sotomayor. Both conservatives and liberals have a lot riding on her performance, her voting record, and her (perceived) influence on the Court’s decisions.

For conservatives, Sotomayor’s confirmation by the Senate represented losing a war but winning an important first battle in painting President Obama, via his nominee, as a dangerous ideological extremist.

Few took aim at her actual record on the bench, save that last year the Supreme Court overturned one of her more recent Appellate decisions. Instead, they focused on her rhetoric in a few speeches, some from years earlier, to tar her as a dangerous radical; one who would make decisions based empathy and sentiment for defendants in place of the letter of the law and long-standing precedent. Sotomayor even stands accused of reverse racism, favoring people of color over whites in any/all situations.

Despite the fact that she was replacing Justice Souter, who usually voted with the Court’s liberal contingent anyway, the conservative argument ran that she nonetheless represented an extreme shift left in that contingent; one so aggressive and undisciplined as to tear down anything and anyone in her pursuit of progressive social reform.

For liberals, Sotomayor’s confirmation was a desperately needed break in momentum, after the two Justices appointed by former President Bush cemented the dominance of the Court’s conservative faction, both by moving it even slightly further to the right and, most importantly, ensuring its presence for many years to come. Sotomayor represented new liberal blood in counterpoint to Roberts and Alito.

Moreover, the arrival of the Court’s first Hispanic Justice, as well as only its third woman, was as much an outward signal of the change candidate Obama had promised to bring to Washington as any internal ideological shift. While most liberals understood from the start that shift was likely to be minor or even indiscernible, the far left still held hopes that Sotomayor might strike a blow for some of their most cherished causes.

My guess is that both sides are likely to be disappointed. The right will not get their fire-breathing socialist dragon and the left will fail to see a new champion arise, complete with a gleaming sword of populist justice.

A number of cases – such as Free Enterprise Fund v. Public Company Accounting Oversight Board, Jones v. Harris Associates, and Citizens United v. Federal Election Commission – all center around the ability of the federal government to regulate various aspects of corporate behavior. These might seem tailor-made for an Obama nominee in a post-Wall Street meltdown era. Yet Sotomayor’s potential increased aggressiveness over Souter in these causes is unlikely to make much difference unless other Justices on the Court have become significantly more suspicious of business – a dubious development.

Salazar v. Buono is the objection of Frank Buono to a white cross, erected nearly seventy years ago as a memorial to World War I dead, sitting in California’s Mojave National Preserve. When a federal district judge ruled it Unconstitutional, Congress attempted to skirt the issue by transferring the acre of land on which it sat to a private organization, the Veterans of Foreign War. Despite the seeming hotbed of the Separations Clause in this case, the real issues to be decided are more mundane, such as whether Buono had standing to object and whether the land transfer was legal.

McDonald v. City of Chicago questions whether the Second Amendment’s protection of an individual right to bear arms, which the Court ruled that federal laws may not abridge just last year, also applies to state and local laws. Regardless of how vehement a proponent Sotomayor may be for gun control, she and the Court’s other liberals have a very difficult time breaking the same five vote alliance that decided District of Columbia v. Heller.

The Court’s docket could cause Sototmayor to have an impact because of the number of criminal rights cases it contains. Sullivan v. Florida and Graham v. Florida both argue that sentencing juvenile offenders to life in prison without the possibility of parole violates the Eighth Amendment’s ban on cruel and unusual punishment.

United States v. Comstock challenges the practice of keeping sex offenders locked up in prison even after completing their sentences on the ground that they remain “sexually dangerous.”

Finally, Briscoe v. Virginia tests last year’s decision in the case of Melendez-Diaz v. Massachusetts that prosecutors may not rely on crime lab reports in criminal trials unless the analysts who prepared the reports are also made available to testify.

Because of her past as a federal prosecutor and trial judge, Sotomayor has often leaned more conservatively in favoring law enforcement than other areas of jurisprudence. It is wholly conceivable she could vote with conservatives and against her fellow liberals in any or all of these cases.

The same is true for Bilski v. Doll, a patent dispute case addressing whether companies can patent intangible business methods. Sotomayor has demonstrated consideration in the past for intellectual property rights.

The bottom line is that in cases where Sototmayor is most likely to vote as Souter might have, her vote is likely to have little impact on changing the majority ruling. However, in several cases, the empathetic factors that conservatives so feared in her decision-making process, might cause Sotomayor to change several five-to-four vote squeakers into more authoritative six-to-three decisions. This means her most likely impact (if any) on the Court, at least in her first year, will be to move it more to the right than it would have gone with Souter still in place.

If this is truly the outcome, once experts have analyzed all the key decisions and tallied the votes in each, it will be interesting to see what conservatives now think of their ersatz dragon and how liberals still feel about their nascent champion.

Friday, October 2, 2009

Ring Around La Constitución

A Congressional Report Legally Attempts to Justify the Honduran Coup . . . And Falls Short

An article in the current issue of Newsweek cites a new report prepared by the Congressional Research Service that finds both the Honduran National Congress and Supreme Court “used its powers as needed” in removing former President Zelaya from power. “It’s a rare situation,” Newsweek goes on to fret, “that a Congressional legal review found clear legality in removing Zelaya from power [which] stands at odds with the current policy of the Obama Administration.”

Well, maybe not quite so rare in a democracy. After all, Honduras calls itself a democracy and the legislators in its National Congress warned on Thursday that Zelaya’s Presidential successor, Roberto Micheletti, had better lift the emergency decree he issued earlier this week banning civil liberties, as he promised yesterday, or they would do it for him.

In addition, characterizing what the Congressional report found as “clear legality” is also a bit of a stretch. At times, the report is as much at odds with itself as Newsweek seems to find U.S. foreign policy, as much at odds as Honduras with itself regarding this sorry situation. As per the report –

Back in March, then-President Zelaya issued an Executive decree ordering the National Institute of Statistics (INE) to conduct a public referendum during the 2009 general elections as to whether to convene a National Constituciónal Assembly for drawing up a new Honduras Constitución. Many feared, probably correctly, that Zelaya’s purpose was removing Presidential term limits, thereby allowing him to run for office again.

The Honduras Chief Prosecutor filed suit before the Court of Administrative Litigation, alleging Zelaya was overstepping his authority and the Court declared the referendum illegal and nullified. Not one to give up easily, Zelaya issued another Executive decree in May, rescinding the previous decree and ordering a national opinion poll in its place. The Court immediately clarified its earlier decision by explaining the suspension of the referendum automatically extended to any other acts “which might be conducive to the same [ends].”

Zelaya ignored this ruling, going ahead with plans for the poll and ordering the armed forces to lend logistical and all other necessary support to the INE. At this point, the Chief Prosecutor filed a Criminal Complaint before the Honduras Supreme Court, requesting Zelaya’s arrest and accusing him of “acting against the established form of government, treason against the country, abuse of authority, and usurpation of functions.”

The Supreme Court voted unanimously to appoint one of its Justices to hear the complaint. After doing so, the Justice in question issued an arrest and raid warrant, ordering the Chief of the Joint Chiefs of Staff to implement the warrant.

The U.S. Congressional report analyzing the legality of what happened, prepared by Norma C. Gutiérrez, Senior Foreign Law Specialist for the Law Library of Congress, concludes everything that happened up to this point was wholly regular and within the law. The Honduras Constitución (Article 313, Section 2) grants the Supreme Court the power to hear cases against the highest officers of the State and further grants it the power to request the assistance of public forces to obtain enforcement of its rulings (Article 306).

However, as the report notes, in what is surely droll understatement for even a Congressional document, “The process at the Supreme Court did not continue due to the events that occurred after Zelaya’s arrest.”

The tacit purpose for arresting Zelaya was to place him under custody so he could stand trial for his accused crimes, a right (or punishment, depending on how you look at it) guaranteed him by the Constitución. However, the Honduras military, either of its own initiative or under instructions from parties unknown, “acting apparently beyond the terms of the arrest warrant,” chose instead to forcibly remove Zelaya from his bedroom, at gunpoint, and deposit him, still wearing his pajamas, in Costa Rica the next day.

This was in direct violation of the Honduras Constitución (Article 102), which states, “No Honduran citizen may be expatriated nor handed over to the authorities of a foreign State.” According to Honduran officials, this action by the military is “currently under investigation.”

Note also that a vote of the entire Honduran Supreme Court did not order Zelaya’s arrest but rather a single Justice. This is perfectly in line with Honduran law but there is a difference between the two things. It is analogous to Bush v. Gore’s resolution resting solely on Justice Scalia’s order to halt the vote recount in Florida without the subsequent unanimous decision by his peers upholding it.

Then there is the matter of whether the National Congress had the power to apply Articles of Impeachment against Zelaya and, if so, whether they properly exercised them. The Honduran Constitución once provided the Legislature with the power to impeach the Executive (Article 205, Section 15), although it never bothered to define the procedure by which this could be done. Perhaps due its vagueness and/or for other reasons, the National Congress voted explicitly to strip this power from the Constitución with Decree 175-2003.

Thus, the Honduras Constitución not only lacked details for impeachment proceedings, it also lacked any explicit authorization for the National Congress to impeach.

The Constitución does give the Legislature a variety of other options to help check the Executive. It may “approve or disapprove the administrative conduct of the Executive” (Article 205, Section 20), it may “appoint special commissions for the [purpose of] investigation” (Article 205, Section 21), it may “receive complaints of violations against the Constitución” (Article 208, Section 5), and it may fill vacancies in the offices of President and Vice-President if the current holders are “absolutely unable to discharge the powers and duties of their office” (Article 205, Section 12).

The Honduras Constitución also maintains (Article 205, Section 10 and Article 218, Section 9) that the power to interpret the Constitución rests not with the Judiciary, as in the United States, but with the Legislature. The U.S. Congressional report reasons the National Congress correctly exercised this power by interpreting “disapproving” of Zelaya’s conduct to include removing him from office in retaliation for it.

Such flexibility when government faces emergencies, especially when lacking specificity or past precedent, is one of the things many scholars admire most about the U.S. Constitution. But was this really the situation faced in Honduras?

The likelihood of Zelaya causing chaos, violence, death, and destruction by forcing an unauthorized public opinion poll on the voting populace seems minor. More than this, however, the reasoning by the National Congress that it had implicit authority to impeach in 2009 when it had chosen to strip that same explicit authority from itself in 2003 is nothing short of astounding.

Finally, the National Congress did not issue its decree authorizing impeachment until two full days after Zelaya’s arrest and a day after his removal from the country. It is best to attempt legalizing coups before they are fait accompli.

Zelaya has still never received a trail, in abstentia or otherwise. The Honduras Constitución (Article 313, Section 2) grants the Supreme Court the power to hear cases against the Executive. In accord with this power, the Honduras Code of Criminal Procedure provides that the Supreme Court must hear all cases against the Executive.

However, even Newsweek agrees the current Honduran regime has “skirted the issue” by referring Zelaya’s case to the Unified District Trial Court, arguing Zelaya is technically not President any longer (i.e. we don’t need to hold a trial to determine if we removed him legally because he has been removed).

So let us review. A dastard commits an illegality and flagrantly flaunts authority by so doing. Ordinary citizens are outraged. “We ought to do something about this,” one of them cries. Agreement spreads through the crowd and it mobilizes into action. Soon the villain faces “justice,” delivered swiftly and at the end of a gun. The scenario I just outlined has a name but it is “lynch mob” and not “Constitutional democracy.”

The truth is in the U.S. Congressional report. However, like so many things in Honduras these days, it appears the truth can be interpreted to mean anything the government – or even just one person in the government – decides.