Weekly Hit & Run Archive 2012 December 15-31

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Study Says Community Reinvestment Act Induced Banks To Take Bad Risks

'twas Wall Street greed what done it, some folks say, when it comes to explaining the spectacular housing meltdown of recent years, which had its roots in a great many astonishingly risky loans. Other folks suggest that the federal government just may have played something of a role in inducing, even strong-arming, banks to take risks they otherwise would have avoided. Specifically, the Community Reinvestment Act and related policy pressures are pointed to as culprits, part of a government effort to extend home-ownership in lower-income neighborhoods. Now comes a new study from the National Bureau of Economic Research that says, quite bluntly. that the CRA played a major role.

In the academic world, mealy-mouthed delivery of even powerful conclusions is the norm, so it's refreshing to see authors Sumit Agarwal, Efraim Benmelech, Nittai Bergman, Amit Seru answer the title's question, "Did the Community Reinvestment Act (CRA) Lead to Risky Lending?," with the clear, "Yes, it did. ... We find that adherence to the act led to riskier lending by banks." The full abstract reads:

Yes, it did. We use exogenous variation in banks’ incentives to conform to the standards of the Community Reinvestment Act (CRA) around regulatory exam dates to trace out the effect of the CRA on lending activity. Our empirical strategy compares lending behavior of banks undergoing CRA exams within a given census tract in a given month to the behavior of banks operating in the same census tract-month that do not face these exams. We find that adherence to the act led to riskier lending by banks: in the six quarters surrounding the CRA exams lending is elevated on average by about 5 percent every quarter and loans in these quarters default by about 15 percent more often. These patterns are accentuated in CRA-eligible census tracts and are concentrated among large banks. The effects are strongest during the time period when the market for private securitization was booming.

Investors Business Daily does a very nice job of summarizing the nature of the pressure brought on lenders (that's IBD's most excellent graphic, above):

"We want your CRA loans because they help us meet our housing goals," Fannie Vice Chair Jamie Gorelick beseeched lenders gathered at a banking conference in 2000, just after HUD hiked the mortgage giant's affordable housing quotas to 50% and pressed it to buy more CRA-eligible loans to help meet those new targets. "We will buy them from your portfolios or package them into securities."

She described "CRA-friendly products" as mortgages with less than "3% down" and "flexible underwriting."

From 2001-2007, Fannie and Freddie bought roughly half of all CRA home loans, most carrying subprime features.

Note that the authors of the study caution that their work here may actually understate the impact of the CRA. How? Because the study assumes that the major impact of CRA took place when banks were undergoing examination regarding their compliance with CRA goals. If banks found it difficult to shift gears in preparation for such exams, they may have altered their overall behavior to satisfy politicians and regulators. Or, as the authors put it in their conclusion, "If adjustment costs in lending behavior are large and banks can’t easily tilt their loan portfolio toward greater CRA compliance, the full impact of the CRA is potentially much greater than that estimated by the change in lending behavior around CRA exams."

The housing meltdown and the Great Recession. Something else for which you can thank the feds.

See other Reason writers on this issue.

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NDAA Passes House, Senate By Wide Margins, Amicus Brief Filed by Descendants of Interned Japanese-Americans on 68th Anniversary of Korematsu Decision

While the House passed the National Defense Authorization Act by a comfortable 315-107 margin and the Senate by a margin of 81-14, the controversial provision which allows for the indefinite detention even of U.S. citizens is continuing to be challenged in court. This week the children of Japanese-Americans the federal government interned in detention camps during World War II, filed a friend of the court brief in Hedges v. Obama, drawing parallels with their parents’ detentions. That federal policy was ruled constitutional by the Supreme Court in the 1944 case Korematsu vs. United States, continuing a tradition of yielding on military issues, even when they involved domestic action. In a 6-3 decision, the Court accepted the government’s argument of national security during wartime.

The Supreme Court also agreed with the government in World War I on another far-reaching rights violation, deciding that free speech could be curtailed in times of war. Justice Oliver Wendell Holmes used the now-famous argument that “you can’t yell fire in a crowded theater” to rule that criminalizing some forms of political dissent, such as opposing the draft, was constitutional. The NDAA provisions can similarly serve to place limits on free speech and a free press.  Another amicus brief filed in the NDAA case, by the Government Accountability Project, says that the indefinite detention provisions in the NDAA could also have a chilling effect on government whistleblowers.

The government argues that the country is in a state of war (on terror, even if they don’t use the term publicly), and the military has the authority to detain anyone in the world considered aiding Al-Qaeda or “associated forces”  and hold them for the duration of the war. The war is considered worldwide and indefinite. When a federal judge earlier this year briefly ruled the applicable portion of the NDAA unconstitutional, the Justice Department argued the language was nothing new, and the power already used and approved by courts. An amendment put forward by Senators Mike Lee and Dianne Feinstein that would exempt U.S. citizens from the provision was stripped in conference before the law passed.

The president remains fully committed to the indefinite detention powers and will be signing the bill presumably before the end of the year. Last year he signed it on New Year’s Eve, arguing he would never use the power to indefinitely detain Amricans. Officials explained the detentions were, uh, temporary. 

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LAPD, DEA Find Themselves on Opposite Sides of Thin Blue Line

In July 2010 Albert Arriaga was arrested in Los Angeles in a U.S. Drug Enforcement Agency meth bust and handed over the Los Angeles Police Department. Then he died. A coroner subsequently found that his ribs had been broken in 21 places.

Here’s how the Los Angeles Times describes Arriaga’s last hours:

The informant, wired with a hidden microphone, approached the suspects' car and received the drugs from Alberto Arriaga, who remained in the passenger seat throughout the exchange. Drug agents moved in and are believed to have pulled Arriaga from the car, laid him face down on the pavement and handcuffed him, according to the LAPD report.

Eventually, officers from the LAPD were called in to take Arriaga and the other suspect to a nearby station to be booked, the report said. A station supervisor asked the men if they had any medical issues. Arriaga complained of leg pain from a previous injury but mentioned nothing else, the report found. The men were then placed in a holding cell together.

Sometime later that night, after the booking process had been completed, detention officers tried to move Arriaga, 45, to another jail facility. He told the jailers he was having abdominal pain "and had been beaten up by the DEA agents who arrested him," the report said. Arriaga was taken by ambulance to Hollywood Presbyterian Hospital. There, according to coroner's records, he waited 16 hours without receiving medical attention despite his worsening condition and then died.

The coroner's autopsy revealed that Arriaga's fractured ribs had caused internal bleeding in his chest that led to respiratory failure. Because the ribs had been broken by "blunt force injuries" that came from the back, the coroner classified the death as a homicide.

The LAPD is tasked to investigate the circumstances behind the man’s death. The problem?  The DEA has refused for more than two years to allow its agents to be interviewed by the LAPD to try to determine where exactly Arriaga’s injuries happened and who is ultimately responsible for his death:

Dawn Dearden, a spokeswoman for the DEA, said the U.S. Justice Department's own Office of the Inspector General is conducting an investigation into the death to determine whether DEA agents broke federal civil rights laws by using excessive force when arresting the man. Dearden said the DEA has provided the LAPD with some information and documentation about the incident.

"However, it is not uncommon for an agent under multiple ongoing investigations to decline specific law enforcement interviews until an inspector general investigation is completed," she said.

The LAPD, though, are required to investigate any in-custody deaths and report their findings to a civilian panel. According to their report, no LAPD officers were present at Arriaga’s arrest, so they have little information about how he was actually treated at the crime scene. Here’s the reality:

Frustrated by the DEA's inaction, LAPD investigators went for assistance to local prosecutors in the district attorney's office, who concluded they did not have the authority to compel federal agents to cooperate with a local police department's investigation.

They can’t compel federal agents to cooperate with the investigation even though the federal agents are actually subjects of the investigation.

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This Isn’t the Way the World Ends, Obama Names Kerry to State, No Warrants for Emails: P.M. Links

  • In case you weren’t sure, the world has not ended.
  • But unless we put armed guards in every single school in America, the NRA thinks the world just might end.
  • As had been widely speculated, President Barack Obama has named Sen. John Kerry to succeed Secretary of State Hillary Clinton.
  • The part that requires the government to get probable-cause warrants to access private emails has been stripped from federal privacy legislation.
  • Thanks to the fiscal cliff impasse shoving aside the farm bill, the feds may have to follow protectionist dairy regulations that could cause milk prices to more than double.
  • A student came up with an idea to surprise his schoolmates by coming to school dressed as Santa Claus. But because of the secretive way he wrote about it on Facebook, authorities panicked and thought he was threatening violence.
  • Port strikes could hit coastal cities along the Gulf of Mexico and Atlantic as negotiations between longshoreman’s unions and the U.S. Maritime Alliance break down.

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Watch Nick Gillespie Discuss the 9/11 Libya Attack, Rampant Racism Accusations, and Muslim Brotherhood Antics on Red Eye

ReasonTV's Nick Gillespie discusses a new report on the Libya attack confirming that it was not, in fact, a protest, racism accusations in U.S. politics, and a Muslim Brotherhood member's view of the average American on Fox News’ Red Eye with Greg Gutfeld.

Watch above or click below for downloadable and audio-only versions.

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What If Robert Bork Had Joined the Supreme Court?

In 1986 President Ronald Reagan nominated Antonin Scalia to the U.S. Supreme Court. He was promptly confirmed by the Senate. A year later, Robert Bork went through the same process and instead found his confirmation derailed and defeated. Writing at Balkinization, Yale law professor Jack Balkin poses a very interesting “what if” premised on the idea of Reagan switching the order of these two judicial nominees. Balkin writes:

Had Ronald Reagan nominated Robert Bork instead of Antonin Scalia in 1986 upon Chief Justice Burger's retirement, the odds would have been much greater that Bork would have been confirmed. After all, Republicans would have been replacing one conservative with another (although Bork was considerably more conservative than Burger by that point) and, equally important, Republicans controlled the Senate.

Then, in 1987, when Lewis Powell retired, Antonin Scalia might have had a far easier path to confirmation than Bork did, even though by that point the Democrats controlled the Senate.  You may recall, for example, that Republicans made much of the fact that Scalia was the first Italian-American nominated to the Court. In addition, Scalia had not fired Archibald Cox during the Saturday Night Massacre, and although he was known as an implacable foe of Roe v. Wade, he lacked Bork's remarkable paper trail of opposition to civil rights and civil liberties.  Scalia had not, for example, opposed the 1964 Civil Rights Act on grounds of individual liberty (Bork later recanted his opposition), and Scalia had not argued in a famous law review article that non-political speech was unprotected by the First Amendment.

Balkin argues that a Supreme Court stacked with both Bork and Scalia would have definitely overturned Roe v. Wade and perhaps also “cut a broad swath through existing liberal doctrines,” while “the cause of gay rights would have made almost no progress.” That all sounds plausible to me.

At The Originalism Blog, University of San Diego law professor Michael Ramsey picks up the “what if” thread, kindly including my own observation that Bork’s long advocacy on behalf of judicial deference has fallen somewhat out of favor on the right these days, though it did appear recently in Chief Justice John Roberts’ deferential opinion upholding the Patient Protection and Affordable Care Act. This leads Ramsey to raise this fascinating point:

An interesting question in the spirit of Jack Balkin's post is whether Justice Bork would have gone along with Scalia and Thomas' more aggressive use of originalism in cases like NFIB v. Sebelius, Heller, McDonald and Citizens United, or whether he would have pursued something closer to the position advocated by J. Harvie Wilkinson.  That is, once originalism and deference began to point in different directions, which would have predominated in Justice Bork's jurisprudence?

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New Reason eBook Features Interviews with F.A. Hayek, Ronald Reagan, Christopher Hitchens, Thomas Szasz, and Timothy Leary

Reason has interviewed some of the most provocative and important figures in politics, science, business, and culture during the past 45 years. 

Read the first volume of our compilation of interviews, featuring discussions with luminaries F.A. Hayek, Ronald Reagan, Thomas Szasz, Timothy Leary, and Christopher Hitchens.  The eBook includes the original art and covers.

Buy it today for yourself or a friend!

Kindle Edition

Apple Edition

Coming soon to Nook.

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Los Angeles City Council Grinches Screw Over Super-Sized Food Trucks

Merry Christmas, Los Angeles bricks-and-mortar restaurants. As a special end of the year gift, the city council approved new rules that screw the extra-large food trucks to protect their competitors' profits!

The full scoop comes from Adam Blevins, who covered the story for the Park Labrea News-Beverly Press (and took the pic at right):

According to the ordinance, trucks that are larger than 22 feet long and seven feet high are prohibited from parking in spaces with oversized vehicle restrictions along Wilshire between Fairfax and La Brea avenues from 9 a.m. to 4 p.m.

“It makes the street safer for everyone,” said Councilman Tom LaBonge, 4th District, the author of the ordinance. He added that the restrictions should increase visibility for motorists in the area.  “It’s the safety that I’m concerned about, and I think it works it out.”

Food trucks have long been a source of frustration for some restaurant owners in the area, especially Dick Messer, owner of Johnny Rockets. He said food trucks siphon business from “brick and mortar” restaurants that are heavily taxed and regulated.

“Certainly, it will be a change for the area, as far as dining goes,” Messer said. “Hopefully, it’ll be helpful.”

Ho. Ho. Ho.

Via Mobile Food News.

Jesse Walker on Puritans, Pagans, and Christmas

Massachusetts outlawed Christmas from 1659 to 1681, and the authorities there continued to denounce the day as un-Christian for years afterwards. Jesse Walker explains the New Englanders' hostility to the holiday, and he spots some signs that the season stills includes some of the elements that upset the Puritans.

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Moving Forward on Military Intervention in Mali

As noted on Reason 24/7, the United Nations Security Council unanimously approved a French-backed military intervention in Mali. The plan is for regional ECOWAS forces to enter in the north to quell a Tuareg rebellion turned Islamist insurgency. Al-Qaeda is, naturally, suspected of involvement.

Though the Tuareg are indigenous to northern Mali, where the insurgency is spreading, the country was considered by USAID as “one of the most enlightened democracies in Africa” as recently as earlier this year. The collapse of the Qaddafi regime in Libya, with help from the West, created an influx of Libyan Tuareg fighters, who Qaddafi had kept in his employ, as well as Islamists fresh from the experience of toppling a government in Tripoli. The Tuareg rebels in the north declared independence in April, a coup followed, and elections scheduled for later that month never happened.

As a former French colony, the situation in Mali’s been closely monitored in France, where the recently elected Socialist president has been at the forefront of a push for military intervention, sending surveillance drones last month. France and the U.S. (because Al-Qaeda!) have also been pressuring Algeria to back an intervention in Mali. U.S. officials have been visiting all year long, with Hillary Clinton herself going in October.

While the U.S. is projecting a limited role in the now seemingly imminent intervention in Mali, it did confirm earlier this month that it was working closely with West African countries in planning the actual military operation. A few days later UN Ambassador Susan Rice reportedly told other UN-based officials the plans for intervention were “crap,” the fear being the ECOWAS countries (led by Nigeria) did not have the military resources or experience for a successful intervention. The stage seems set for deeper involvement in a military intervention moving forward not just by France but also the U.S.

In related news, the last of the French troops returned from Afghanistan today, with the French president declaring “mission accomplished.

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Net Neutrality Returns

At the end of 2010, the Federal Communications Commission passed so-called "net neutrality" rules giving the FCC new power to regulate traffic management practices on data networks. Those rules are currently being challenged by Verizon, which argues that the rules violate the First Amendment and lack sufficient statutory basis. A court is expected to rule on the matter next year.

In the meantime, though, Democratic Sen. Ron Wyden is proposing new legislation that would enforce certain traffic management rules. Via Wired:

A proposal forbidding internet service providers from turning the data-cap meter off to grant a so-called internet fast lane to preferential online services was introduced Thursday in the Senate.

The bill by Sen. Ron Wyden (D-Oregon) comes a week after a report found that the institutionalization of data caps by ISPs is geared toward profiteering rather than the stated goal of managing traffic congestion.

“A covered internet service provider may not, for purposes of measuring data usage or otherwise, provide preferential treatment of data that is based on the source or the content of the data,” Wyden’s bill reads.

Ars Technica noted that Comcast had not counted its Xbox video-streaming app against its data caps. Comcast, however, no longer enforces its data caps.

“Data caps create challenges for consumers and run the risk of undermining innovation in the digital economy if they are imposed bluntly and not designed to truly manage network congestion,” Wyden said in a statement.

Among other things, the proposal demands a standardized method for measuring data and also questions data caps altogether. That’s because it grants the Federal Communications Commission with regulatory power over data-cap pricing.

So a report has suggested that Internet service providers are, or at least were, arranging their business and pricing practices in a way that allows them to maximize their profits? It is surprising that anyone was able to uncover evidence to this effect. And obviously it must not be allowed to happen again. 

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NRA Fights Anti-Gun Hysteria With Pro-Gun Hysteria

Today the National Rifle Association broke its silence on the Sandy Hook massacre, and its strategy seems to be fighting anti-gun hysteria with pro-gun hysteria. The statement delivered by NRA Executive Vice President Wayne LaPierre, which is liberally sprinkled with italics and exclamation points, features passages like this:

When it comes to the most beloved, innocent and vulnerable members of the American family—our children—we as a society leave them utterly defenseless, and the monsters and predators of this world know it and exploit it. That must change now!

The truth is that our society is populated by an unknown number of genuine monsters—people so deranged, so evil, so possessed by voices and driven by demons that no sane person can possibly ever comprehend them. They walk among us every day. And does anybody really believe that the next Adam Lanza isn't planning his attack on a school he's already identified at this very moment?

How many more copycats are waiting in the wings for their moment of fame—from a national media machine that rewards them with the wall-to-wall attention and sense of identity that they crave—while provoking others to try to make their mark? A dozen more killers? A hundred? More? How can we possibly even guess how many, given our nation's refusal to create an active national database of the mentally ill?

Not exactly the voice of calm reason. LaPierre evidently wants people to panic, as long as they stampede in the direction he prefers. Yet the fact remains that mass shootings of any kind, let alone mass shootings at schools, are rare events, and we should be cautious about making any major policy changes in an effort to reduce an already tiny risk. I don't know what LaPierre means by "an active national database of the mentally ill," and I'm not sure he does either. But since there is no indication that Adam Lanza was ever declared mentally incompetent or committed to a mental institution, such a database could prevent people like him from buying guns (leaving aside the fact that he used his mother's weapons) only if the criteria for rejecting buyers are expanded to cover many people who pose no threat of violence (potentially including half the population, if a psychiatric diagnosis is all that's required). 

LaPierre wildly shoots at several other targets, including our allegedly lenient criminal justice system, which supposedly coddles "killers, robbers, rapists and drug gang members"; "vicious, violent video games with names like Bulletstorm, Grand Theft Auto, Mortal Kombat and Splatterhouse"; and "blood-soaked slasher films like 'American Psycho' and 'Natural Born Killers'" (which were released 12 and 18 years ago, respectively). There is some sense in there too (about the "assault weapon" bogeyman and the puzzling progessive aversion to armed self-defense), but it is drowned in the flood of foam flying off LaPierre's lips. And while letting teachers or other staff members with concealed carry permits bring their guns to school seems like a better policy than advertising "gun-free zones" to armed lunatics, the National School Shield Emergency Response Program that LaPierre recommends, featuring "a protection plan for every school," a potentially smothering "blanket of safety," and congressional appropriations, including "whatever is necessary to put armed police officers in every school," seems utterly disproportionate given the level of risk that children (yes, including my own) actually face when they go to school.

Last night I suggested that Piers Morgan's televised faceoff with Larry Pratt "pretty accurately reflects the general tenor of the current gun control debate, with raw emotionalism and invective pitted against skepticism and an attempt at rational argument." The NRA and Wayne LaPierre seem determined to prove me wrong.

Steven Greenhut on Gun Control in California

It took only days before California’s lefty legislators reacted to the horrific Sandy Hook Elementary School tragedy with a fusillade of bills designed to take California closer to Democratic leaders’ unstated but obvious goal: making it essentially illegal for citizens to own firearms in California.

Yet as Steven Greenhut observes, California already has the toughest gun regulations in America, including waiting periods, background checks, limits on the number of gun purchases, bans on high-capacity magazines, and the list goes on. But if you think Californians are safe from gun violence because of all those rules, check out the murder rates in Los Angeles, Oakland, and San Bernardino.

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New York Times Says Smoking Pot Is Virtually Legal but Still Should Stop You From Buying a Gun

Today The New York Times uses the Sandy Hook murders as an excuse to talk about "gaps" in the information on which background checks for gun purchases are based, although it concedes (in the fifth paragraph) that "the database flaws do not appear to have been a factor in the Newtown, Conn., school massacre." There are two reasons for that: 1) There was no background check on Adam Lanza, since he used his mother's guns, and 2) even if he had bought the guns himself, it looks like he would have passed a proper background check based on complete information, because he did not meet any of the criteria for rejection. But since Lanza did something horrible with a gun, we should talk about gun control, right? And now that we're talking about gun control...

This sort of bait and switch is familiar by now: After a mass shooting, gun controllers push the policies they've always supported as if they were a logical response to that particular example of senseless violence. When skeptics say it is hard to see how the proposed measures could have prevented that attack, gun controllers (if they are honest) say that's beside the point, because the real goal is not preventing the rare mass shootings that get all the attention but curtailing more common forms of gun violence. If so, the horrible event that supposedly makes new legislation urgently necessary does not in fact strengthen the case for that legislation one iota. If the proposed policy was a good idea before the attack, it remains a good idea; if it was a bad idea, the emotionally compelling but logically irrelevant deaths of innocents do not make it suddenly sensible. 

But OK, I'll bite. Let's talk about background checks. I would have no objection in principle to making the information on which they rely more complete if the criteria for preventing people from buying guns made sense. But several of them do not.

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Shikha Dalmia on Why Fiscal Hawks Should Fight for the Debt Ceiling

Whenever the establishment left and right agrees on something, writes Shikha Dalmia, expect a big assault on our democracy. That is the case with the emerging consensus that the debt ceiling should be dumped—for two years at least—in any deal that replaces House Speaker John Boehner’s ill-fated fiscal cliff Plan B so that spending hawks can’t later hold the economy hostage to extract cuts. But there are few external market checks on America’s profligacy. Without strong internal political checks, it might well spend itself into oblivion.

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Schwarzenegger Now Joking Positively About the Marijuana Whose Prohibition He Recently Supported

The New York Times has a soft-focus feature article out under the irritating and misleading headline of "Marijuana, Not Yet Legal for Californians, Might as Well Be." Among the headline-refuting words that do not appear in the story: raid, dispensary, Obama.

However, the cliche-ridden article does have some newsworthiness, including this bit about California's most recent Republican governor:

Arnold Schwarzenegger [...] ticked off the acceptance of open marijuana smoking in a list of reasons he thought Venice was such a wonderful place for his morning bicycle rides. With so many people smoking in so many places, he said in an interview this year, there was no reason to light up one's own joint.

"You just inhale, and you live off everyone else," said Mr. Schwarzenegger, who as governor signed a law decriminalizing possession of small amounts of marijuana.

Giggle giggle!

Such japery is a far cry from 2010, when the then-governor argued that the pot-legalization initiative Proposition 19 would bring "risks to public safety" and "make California a "laughingstock." At the risk of reading too much into a joke, I can't help but notice that the successful, historic legalization initiatives in Colorado and Washington this year came amid the near-total absence of the kind nervous, giggly dismissals that marked the near-unanimous dismissal of Prop. 19 by the Golden State's editorial boards. Perhaps the lesson is that the first one through the door always takes the most flak, and that establishmentarians never want to be the first ones to stick their neck out.

Welcome back to the anti-establishment, Arnold!

 

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Boehner's Fiscal Cliff Plan B Fails. Now What?

It was supposed to be a demonstration of strength. It turned out to be a demonstration of weakness.

When Republican House Majority Leader John Boehner informed the White House that he’d be holding a vote on “Plan B,” a bill to extend the Bush tax cuts for all income under $1 million, his goal was not for the plan to become law. It was to put President Obama in a more difficult spot: It would demonstrate Boehner’s control over his caucus, pushing through a vote on a tax increase for the highest earners. And it would give Republicans a way to blame Democrats should no deal be reached: Republicans could say they had voted to avert a tax hike on most Americans, and increase tax rates on high incomes — and Democrats had refused to support it.

That was the plan, anyway. But enough of Boehner’s colleagues in the House refused to go along that it didn’t come together. At the last minute on Thursday night, Boehner canceled the vote. He just didn’t have the support he needed. What the top House Republican ended up proving was that he wasn’t in control.

What explains the refusal to go along with the GOP Speaker? As far as I can tell, it’s pretty straightforward: There were enough House Republicans who really didn’t want to vote for any bill that would allow tax rates to rise on anyone, even, and perhaps especially, a bill that wasn't actually intended to become law. 

Sounds simple enough, right? But the unique circumstances of the fiscal cliff make it a little more complicated. Now that Plan B has failed, we might well go over the fiscal cliff,  thus allowing the Bush tax cuts to expire. That will mean higher tax rates on everyone, at least until Congress inevitably passes a bill to reinstate the Bush tax cuts for everyone below $250,000.

In other words, Republicans were so opposed to casting a strategic vote raising taxes on anyone that they instead pursued a strategy that may have the effect of allowing taxes to go up on everyone, or at least those making more than $250,000. 

So what happens now?

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Remy: I Saw Daddy Pat Down Santa Claus (A Very TSA Christmas Song)

"Remy: I Saw Daddy Pat Down Santa Claus (A Very TSA Christmas Song)" is the latest offering from Reason TV.

Watch above or click on the link below for video, full text, supporting links, downloadable versions, and more Reason TV clips

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Katherine Mangu-Ward on the Mayan Apocalypse

The intricate geometric carving featured to the right has become a symbol of the Mayan apocalypse, projected by their calendar to arrive on December 21, 2012. In reality, the stone is (a) not Mayan, and (b) probably not even a calendar. The Aztec Sun Stone, which postdates Mayan civilization by 500 years, has absolutely nothing to say about when the world will end, says Katherine Mangu-Ward.

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A.M. Links: Obama Responds to Gun-Restriction Petition, "Plan B" Off the Table, Wikileaks To Release Lots More Documents

Have a news tip for us? Send it to: 24_7@reason.com

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Kurt Loder Reviews Jack Reacher

Lee Child’s Jack Reacher crime novels are a film franchise waiting to happen. Judging by Jack Reacher, the new Tom Cruise movie, they’ll have to wait a little longer. As Kurt Loder explains, the movie’s central problem is one of casting. Child’s protagonist is a former army major and top military police investigator. He’s a scruffy six-foot-five and weighs 250 pounds, and these are key attributes of the character (he’s a formidable butt-kicker). You don’t have to be a Tom Cruise hater to agree that this is not a description of Tom Cruise.

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Nick Gillespie Discusses the GOP's Plan B for the Fiscal Cliff on The Willis Report

ReasonTV's Nick Gillespie discusses House Speaker John Boenhner's Plan B for the fiscal cliff and the government selling its stake in General Motors on the Fox Business Channel's Willis Report. Airdate: December 19, 2012.

Watch above or click the link below for a downloadable version.

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The Apocalypse According to Bill

They say the world is supposed to end today. In honor of the occasion, here's William Burroughs on the apocalypse:

From the excellent Dead City Radio CD.

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Friday Funnies: Merry Obamacare

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Brickbat: Walk Like an Egyptian

An Egyptian court has sentenced Alber Saber to three years in prison for blasphemy. Saber allegedly ran Facebook pages questioning religious beliefs and insulting Islam and Christianity. He was als accused of uploading parts of the film "Innocence of Muslims" to the Internet.

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Is it "Horrific" To Analogize U.S. Drone Attacks with Sandy Hook? Why Might Someone Do It?

Economist Daniel Kuehn at his blog expresses his horror at unnamed and unlinked people who "think a crazy person targeting kindergartners is comparable to the military targeting al Qaeda affiliates."

I too have seen in the past couple of days casual comments in social networking feeds from antiwar folk making what could be seen as such analogies; not sure I've seen anyone do so in an extended way, and Kuehn, who took the trouble to blog about it, doesn't point you to anyone doing so. 

Here's the entire post:

You are welcome to be angry about a policy you don't agree with and you are welcome even to call its ethics into question. You are welcome to mourn the (dramatically fewer) innocent victims of drone attacks.

But to talk about these two things as if they're equivalent is something I find horrific.

Everyone is welcome to say anything they want, and to be horrified by whatever they want to be horrified by. But there are larger implications about foreign policy, and libertarianism in general, buried in Kuehn's comment worth teasing out, especially as I'm sure it's true that he speaks for many and almost certainly most Americans in expressing such horror.

First, it's worth noting that the most detailed attempts to answer the (surely unanswerable with unquestioned precision) question of how many innocent victims U.S.drone attacks have claimed come to the conclusion that Kuehn is wrong to call that number "dramatically fewer."[**See update below--Kuehn says I misread him]

As Ed Krayewski wrote about here the other day, the Bureau of Independent Journalism's count of child victims of drones in Pakistan is 176, substantially higher than Sandy Hook, though it is possible Kuehn wouldn't consider those dead children "innocent" even if he credited their existence. 

Indeed, just one reported drone incident from Yemen in 2010 alone exceeds the innocent victim number at Sandy Hook.

More details on these numbers from Wikipedia; a detailed Stanford Law/NYU School of Law Study on drones that takes the Bureau of Independent Journalism numbers seriously; a Guardian article on UN interest in drones which notes allegations from Ben Emmerson, a UN special rapporteur, that "since President Obama took office at least 50 civilians were killed in follow-up strikes when they had gone to help victims and more than 20 civilians have also been attacked in deliberate strikes on funerals and mourners"; and this Atlantic article makes a good case that the sense of terror and unease the drones create might match or even exceed what the Sandy Hook killings have done to the U.S.; and Foreign Policy questions at length whether the Bureau of Independent Journalism's numbers should be considered fully verified, in a manner that still wouldn't necessarily support Kuehn's belief that the number of innocent dead from U.S. drones is "dramatically fewer" than the Sandy Hook victim number.

One might also consider whether the death penalty imposed with no safeguards or independent adjudication is indeed a just penalty for whatever it is even the "non-innocent" and/or adult victims are supposed to have done, especially when you consider, as Gene Healy wrote:

Another former Obama counterterror official toldEsquire: "It's not at all clear that we'd be sending our people into Yemen to capture the people we're targeting. But it's not at all clear that we'd be targeting them if the technology wasn't so advanced. What's happening is that we're using the technology to target people we never would have bothered to capture."

Yes, the U.S. government denies all this, but I see no particular reason to credit these denials, though as with everything about events happening beyond the reach of our own eyes or trustworthy video or photography, you are free to pick your own epistemological standards about such things, and certainly "the government is telling the truth about things that might upset their constiuents if they admitted to it and no one else their citizens are likely to credit will gainsay them" is one you are free to pick.

So, why one might make the analogy that horrifies Kuehn seems obvious enough: both our drone program and Sandy Hook involve mechanized killing, including of children. That similarity is obvious.

The difference that I imagine makes Kuehn horrified (beyond his likely mistaken belief in the "dramatically fewer" innocent victims part) is that the motive of the drone killings is one he approves of and thinks others ought to as well: attempts to kill people the U.S. government thinks or claims are part of Al Queda, an organization that has planned and executed mass murders.

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Piers Morgan's Argument for Gun Control: 'You're an Unbelievably Stupid Man, Aren't You?'

CNN talk show host Piers Morgan recently debated Larry Pratt, executive director of Gun Owners of America, about the proper response to the Sandy Hook massacre. A sampling of Morgan's arguments:

You are talking complete and utter nonsense....

What you just said, Mr. Pratt, was an absolute lie.... 

You’re an unbelievably stupid man, aren’t you?...

What a ridiculous argument. You have absolutely no coherent argument whatsoever. You don’t give a damn, do you, about the gun murder rate in America. You don’t actually care....

It’s complete nonsense....

I know why sales of these weapons have been soaring in the last few days. It’s down to idiots like you....

You are a dangerous man espousing dangerous nonsense, and you shame your country.

The exchange, during which Pratt remains admirably calm, pretty accurately reflects the general tenor of the current gun control debate, with raw emotionalism and invective pitted against skepticism and an attempt at rational argument. I am not saying that every supporter of gun control is a raving bully on the order of Piers Morgan, or even that Pratt is right. (You can judge that for yourself.) But proponents of new gun restrictions are counting on emotional appeals for victory, which is why they insist that action must be taken immediately, before the grief and outrage provoked by Adam Lanza's crimes starts to fade. 

[Thanks to Michael Geoghegan for the link.]

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The Feds Can't Unload GM Quick Enough...

David Harsanyi is right that recent events underscore what a failure the government's illegal bailout of GM has been (the bailout used TARP funds which were supposed to be reserved for financial institutions). With the GM buyback of shares from the government, and a planned sell-off of remaining government-owned shares, it's likely that taxpayers will lose about $25 billion on the deal. Good riddance to bad rubbish.

Remember that the next time you hear pols and pundits talking about how the government can not just break even but even make big dollars when bailing out various industries.

And when you hear captains of industries laying down bullshit like this classic 2010 ad from former GM CEO Ed Whitacre about how GM paid back its government loan "in full and ahead of schedule":

 

Wow, it all sounds so good. Except it's a bigger pile of junk than a Pontiac Aztek, as Reason TV pointed out immediately after these claims started circulating:

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Will ObamaCare's Health Exchanges Be Ready on Schedule?

When ObamaCare became law, virtually everyone believed that every state would create its own health insurance exchange. That didn't quite work out. As of last week, only 17 states plus the District of Columbia had officially declared that they would take full responsibility for creating their own exchanges. At least 16 states have entirely opted out, leaving the federal government to build and run the exchange instead; others have chosen a partnership model that still leaves much of the responsibility to the federal government. As a result, implementation will proceed along two fronts: the state level in some case and the federal level in others. And there are real questions about whether the exchanges will be built on time in either case.

Some of the states that have been most aggressive about creating the exchanges are nonetheless worried about delays. In the District of Columbia, for example, authorities have admitted that the timetable is just too aggressive. Deadlines originally set for January 1 of 2013 aren't going to be fully met. “No state is going to be able to be fully certified on Jan. 1,”  Bonnie Norton, D.C’s acting director of health reform, told The Washington Post. “When they passed the ACA, they were highly optimistic about the timeline for states to implement exchanges."

Even bigger questions remain about whether the federal government will be able to build the exchanges it is now expected to have up and running before the end of 2013. In the OC Register, Ben Domenech predicts that the federal exchanges will ultimately be delayed:

Obama administration officials are desperate to meet the deadlines because they know implementation will be very difficult, if not impossible. They've kicked the can down the road again and again, with vague rules and regulations that raise more questions than they answer. In states that won't comply, health care bureaucrats will have to handle the creation of two federal exchanges – one for individuals, one for small businesses – an extremely difficult process.

All along the Obama administration has clearly been fairly nervous about this aspect of the process – it wants to be able to spread the blame around to state governments if the whole system comes crashing down.

Here's where the motivation for delay comes in. The implementation phase of Obama's exchanges will likely make for some interesting reactions in 2014, an election year and the first time when most people will have direct experience with Obama's health care law. The public's reaction could be significant for the Democrats' political prospects. If the system isn't ready, some Hill Democrats are murmuring, better to shift it to 2015 and take it off the table for a year.

Speaking to Investors Business Daily's David Hogberg last week, Cato Institute Health Policy Director Michael Cannon also predicted delay:

"HHS expected to be running zero exchanges," said Michael Cannon, director of health policy studies at the libertarian Cato Institute. "They have been throwing money at states to bribe them to start exchanges. HHS maintains they'll have these things up and running by October 2013. I don't know anyone who is confident about that and I'm ready to predict that they will not."

Delayed implementation would not necessarily mean that the law ultimately fails to get up and running. But it would certainly complicate messaging on a law that's always struggled in popular opinion, and further undermine public confidence in the administration's ability to deliver on its health reform promises. 

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National Guard in the Cafeteria?, Blizzard Slams the Midwest, New York's Budget Is Busted: P.M. Links

Have a news tip for us? Send it to: 24_7@reason.com

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Don’t forget to sign up for Reason’s daily AM/PM updates for more content.

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Greg Beato on How Capitalism Made the Christmas Tree Better

Progressive reformers initially championed the Christmas tree a means of counteracting the “crass materialism” of America’s holiday celebrations. Yet while the tree may have been introduced as a means to dampen commercialism, it instead did the opposite, writes Greg Beato. It gave retailers a new item to sell, and that item in turn prompted additional spending. Once you had a tree, you need ornaments and also a vast array of presents. Once you were decorating inside, why not outside too? The tree helped furnish the holiday, and the increasing number of furnishings associated with Christmas gave people more and more ways to make Christmas a larger and more significant part of their lives. And of course, Beato observes, the tree would not have caught on it as it did had it not been for the efforts of entrepreneurs determined to increase its availability and affordability.

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Biden, Obama's Point Man on Gun Control, Thinks Gun Enthusiasts Are 'Mentally Unbalanced'

As usual in the wake of mass shootings, the alternative to ill-conceived, liberty-limiting gun control measures seems to be ill-conceived, liberty-limiting "mental health" measures. Instead of talking about new gun laws, Rep. Mike Rogers (R-Mich.) said the day of Adam Lanza's murderous assault on Sandy Hook Elementary School, "the more realistic discussion is, how do we target people with mental illness who use firearms?" Yesterday Rep. Howard Coble (R-N.C.) told The New York Times, "I think it's more of a mental health problem than a gun problem right now."

But why choose? Rep. F. James Sensenbrenner Jr. (R-Wis.) did not rule out new gun restrictions but added, "Our country must also grapple with difficult questions about the identification and care of individuals with mental illnesses." And President Obama, while calling for gun control measures such as a new federal ban on "assault weapons," also supports "better access to mental health services" and "tighter restrictions to bar mentally unstable people from buying weapons" (as the Times puts it).

The most complete psychiatric diagnosis of Lanza I've seen so far is based on reports from several acquaintainces that he might have had Asperger syndrome. That label, which soon won't even count as a mental disorder anymore, is not much more informative than saying he was a shy, socially inept loner (which people who knew him also said). It seems safe to assume that someone who murders randomly selected first-graders is psychologically abnormal, but that is not the same as saying that a specific "mental illness" explains his behavior. Given the subjective, amorphous nature of psychiatric diagnoses, we might as well say the devil made him do it. In any event, mental health professionals are notoriously bad at predicting which of the world's many cranks, misfits, and oddballs will become violent. That means forcibly treating people who resemble the pre-massacre Lanza, which is what "better access to mental health services" would mean in practice for relacitrant "patients," would be ineffective as well as unjust.

Likewise "tighter restrictions to bar mentally unstable people from buying weapons." Federal law currently bans gun ownership by anyone who "has been adjudicated as a mental defective or has been committed to any mental institution" (along with anyone who smokes pot or uses someone else's prescription drug, thereby qualifying as "an unlawful user" of "any controlled substance"). At this point it does not look like Lanza fell into either of those categories, and in any case the guns he used belonged to his mother. But let's say the aim is to stop people like Lanza from buying guns on their own. If so, the disqualifying criteria will have to be expanded. I have heard a lot of loose talk about barring "people with mental illnesses" from buying guns. Considering that close to half of all Americans may qualify for a psychiatric diagnosis at some point in their lives, that is quite a large dragnet. Should half of us lose our Second Amendment rights, at least for the duration of whatever mental disorder (depression, anxiety, addiction, inattentiveness, etc.) afflicts us?

Assuming a prescription for Prozac or Xanax is not enough to disqualify someone from owning a gun, what should the criteria be? One possibility is suggested by Joe Biden's response to a question about gun control during a 2007 debate with the other candidates for the Democratic presidential nomination. In a video submitted via YouTube, Jered Townsend of Clio, Michigan, said: "Tell me your position on gun control. Myself and other Americans really want to know if our babies are safe." Holding up a military-style rifle of the sort that Biden worked to ban as a senator, Townsend said, "This is my baby." Biden's reaction (which you can see in the video at the bottom of this post) was telling:

If that's his baby, he needs help. I think he just made an admission against self-interest. I don't know that he is mentally qualified to own that gun. I'm being serious....I'm the guy who originally wrote the assault weapons ban....We should be working with law enforcement right now to make sure that we protect people against people who...are not capable of knowing what to do with a gun because they're either mentally unbalanced and/or they have a criminal record....I hope he [Townsend] doesn't come looking for me. 

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To Prevent Mass Shootings, Forget Laws and Look to Airplane Security

There's probably no mystery in why politicians habitually propose new, ever-more restrictive laws in response to horrific crimes like the Newtown massacre. If there's any truth to the saying, "if you have a hammer, everything looks like a nail," then everything looks to member of Congress like a target for legislation — especially in the panicked aftermath of a tragedy, when people are screaming for a response. But, historically, laws have proven useful for setting out the penalties people can expect to suffer if they are caught going beyond the limits of behavior considered acceptable within a society (or, sometimes, just by lawmakers); for actually changing people's behavior beyond the margins, they're impotent. They're also easily evaded by people who intend harm.

In his book, Ceremonial Chemistry: The Ritual Persecution of Drugs, Addicts, and Pushers, Thomas Szasz documented how the 17th century Ottoman Empire tried to deter tobacco use by its subjects by "beheading, hanging, quartering or crushing their hands and feet." Despite vigorous application of such penalties, tobacco use became increasingly popular. If torture and execution couldn't stop people from puffing on prohibited tobacco, is it any surprise that even lengthy prison time has proven unequal to the challenge of dissuading modern Americans from from buying and selling a host of forbidden goods and services, from gambling to drugs to commercial sex?

Matters become further complicated if  targets of restrictions are politically and culturally loaded. Firearms in American society are icons, to millions of people, of individualism and personal freedom. They also have become associated with political conservatives and opposition to them with political progressives, so that the passage of restrictions on firearms are treated as Team Blue victories, and loosened laws as Team Red victories. That some of the biggest proponents of tighter restriction apparently exempt themselves (Sen. Dianne Feinstein has or had a permit to carry a pistol) just emphasizes the partisan-duel nature of such legislative battles. Defiance of such restrictions is certainly seen by many as a principled stand for liberty — and a flipped bird to political opponents.

Worse, though, new restrictions wouldn't just exacerbate political and cultural divisions; they'd be ineffective in stopping another massacre. That's because restrictions are predictable obstacles that can be worked into the plans of a would-be mass-murderer. Anders Breivik did exactly that over a period of several years, bypassing Norway's relatively restrictive laws to acquire guns, explosives and a phony police uniform and identification on his way to killing 77 people and injuring many more. In a debate over airport security hosted by The Economist, former TSA administrator, Kip Hawley, made some points relevant to current concerns:

Publication of system rules and enforcing literal compliance is an approach better served to address safety issues where the enemy is gravity tugging predictably on wing assemblies, etc. A terrorist, even a dumb terrorist, does not behave according to peer-reviewed, scientifically certified patterns. In fact, terrorists adapt their attacks to evade security defenses. Predictable, overly rule-based security measures play right into their hands and are also dangerously ineffective if used alone.

The Adam Lanzas of the world have all too much in common with the terrorists Hawley described. They can plan around any knowable, predictable obstacles put in their way.That makes a knee-jerk legal response ineffective — and maybe worse, if it lures people into a false sense of security.

So, what can be done? Hawley and his frequent critic, Bruce Schneier, agree that just two responses to hijacking attempts have been effective: hardening airplane cockpits and psychologically preparing passengers and air crew to actively resist attackers. Forget the theater at the airports, which is the equivalent of the gun/video game/legal-whatever bloviating in Congress; it's those two changes that have mattered.

If hardening targets and preparing people at the scene to intervene if necessary works against terrorist attacks on airplanes, it just may work at schools and elsewhere. What does that mean in real terms? Well, that's where the real discussion should begin. Debates over new legal restrictions on people who didn't commit the crime are a pointless distraction.

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The President's Non-Specific Spending Cuts

At a White House press conference yesterday, President Obama touted his willingness to agree to tough spending cuts. "We have put forward real cuts in spending that are hard to do in every category," he said. If Republicans agree to a deal, "they can get some very meaningful spending cuts." 

Can spending reductions be both meaningful and non-specific? The problem is that president hasn't offered much detail when it comes to the sort of  spending reductions he'd accept. And despite the House Republicans' rhetorical focus on the need for significant spending cuts, they haven't offered much in the way of specifics either.

As The New York Times notes:

Despite the dueling news conferences and stream of well-rehearsed sound bites from the White House and Congress about the budget talks, one element is still largely missing from the debate: details about spending cuts.

Beyond numbers so large they are virtually meaningless to most Americans and a few specific proposals, like an adjustment to the Social Security formula, neither side has said much about how it wants to cut federal spending. Given that tax increases — the most discussed point of the negotiations — would by themselves only bring in a fraction of the $1.2 trillion in new revenue the president has called for, the omissions are all the more glaring.

At best, the White House has indicated some broad areas where it might be open to reduced spending:

The White House has proposed $800 billion in cuts. The president has said that half would come from federal health care programs; $200 billion from other so-called mandatory programs, like farm price supports that are not subject to annual Congressional spending bills; $100 billion from military spending; and $100 billion from domestic programs under Congress’s annual discretion.

Democrats in Congress admit they don't even know what sort of details the White House actually favors:

For members of Congress not in the top ranks of leadership, there is one more reason not to talk in detail about cuts: Many of them do not know what exactly is happening in the negotiations.

“For us, we remain united behind the president,” said Representative John B. Larson, Democrat of Connecticut, a member of the House’s tax-writing Ways and Means Committee and one of the party’s Congressional leaders. “Everybody is always concerned about the details of any proposal. But to be brutally honest, we don’t have a whole lot of details to look at.”

To be sure, Republicans aren't being particularly forthcoming with what they want. But if the president expects people to believe that he's willing to make hard choices involving meaningful, it would be nice for him to say what those cuts actually entail. The White House just spent much of an election cycle complaining that the GOP presidential nominee wasn't being forthcoming with policy specifics. Doesn't the president, who is actually in power and in a position to make meaningful policy decisions, have a responsibility to spell out what, exactly, he supports? 

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U.S. Troops Helping Secure Part of Central African Republic as Rebels Near Capital

In October of last year, President Obama informed Congress he was sending 100 U.S. troops to Uganda to help hunt down Joseph Kony, later labeled a terrorist by the State Department, and his Lord’s Resistance Army. Troops would be deployed to Uganda as well as the Congo, the Central African Republic and the newly independent South Sudan, the purported range of the LRA.

Those troops, President Obama insisted in each of his subsequent war powers reports to Congress, “will not engage LRA forces except in self-defense.” The LRA, a veritable gang of war criminals, is not a new bugaboo for America. President Bush personally authorized the military to participate in a regional mission late in his administration to capture Kony, then hiding out in a Congolese national park.

The LRA is not the only rebel outfit operating in the region and contributing to instability. Last month, a break-away military group called the M23 (the March 23 movement, named after the date of a peace treaty rebels claim isn’t being upheld)  briefly took over a major Congolose city in the area, Goma.

And in the Central African Republic, a rebel alliance, comprised of break-away factions of rebel groups that also disputing a peace treaty, has captured its seventh town and is approaching the capital. Forces from Chad entered the Central African Republic from the north earlier this week to quell the insurgency, while U.S. troops are helping Central African Republic forces secure the south, where the Lord’s Resistance Army’s reach is near its furthest, hundreds of miles away from Uganda.

Kony himself, meanwhile, is believed by Uganda to be located as far out as the volatile Sudan-South Sudan border, where U.S. troops are also deployed. Nevertheless, humanitarian interventionists want those troops to “play a more operational role” in the hunt for Kony.

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DOJ Inspector General Faults Pardon Attorney for Misleading the White House About Clarence Aaron's Clemency Petition

On Tuesday the Justice Department's inspector general issued a report that criticizes Pardon Attorney Ronald Rodgers for mishandling a clemency application by Clarence Aaron, who is serving three concurrent (not consecutive!) life sentences for his involvement in a 1993 cocaine deal. The inspector general's office investigated the case at the request of Rep. Chaka Fattah (D-Pa.) after stories by Dafna Linzer in Pro Publica and The Washington Post last May revealed that Rodgers had failed to communicate crucial information about Aaron's petition to the White House. The report confirms Linzer's findings, saying Rodgers "did not accurately represent the views of U.S. Attorney Deborah Rhodes in his e-mail to the White House recommending against a commutation of Aaron’s sentence" and that he described the opinion of U.S. District Judge Charles Butler, who presided over Aaron's trial, in an "ambiguous" and potentially "misleading" way.

The Justice Department recommended against commuting Aaron's sentence in 2004, but toward the end of George W. Bush's second term the White House asked it to take another look. At this point two important factors had changed. Rhodes, the U.S. attorney for the Southern District of Alabama, where Aaron was prosecuted, supported commuting his sentence to 25 years, meaning he could be released as early as March 2014 (taking into account credit for good behavior). By contrast, her predecessor, David York, had opposed Aaron's petition. Judge Butler, who had been compelled to send Aaron to prison for life by mandatory minimum sentences, also favored commutation, in his case to time served (15 years at that point).

Yet in his email message to the White House, Rodgers described the turnaround in the position of the U.S. Attorney's Office as "a slightly revised recommendation" and said Rhodes believed "Mr. Aaron's commutation request is about 10 years premature." In fact, notes the inspector general's report, "the change was dramatic," and Rhodes never said Aaron's sentence should be commuted in 10 years. "The most reasonable interpretation of Rhodes' recommendation," the report says, "is that Aaron's sentence should be reduced to 25 years by granting his petition for clemency to that extent, not denying it with the understanding that it might be renewed in a decade." The practical difference between those two options, assuming credit for good behavior, would be four additional years in prison. Describing Butler's position, Rodgers said the judge "had no objection to commuting the sentence presently," which could mean letting him go right away (the option Butler favored) or making him serve several more years (Rhodes' recommendation). "The better approach," the report says, "would have been to make clear that Judge Butler did not object to a commutation to 'time served.'"

Kenneth Lee, the associate White House counsel who was dealing with Aaron's petition, told the inspector general's office that if he had known what Rhodes and Butler actually said, "the likely outcome would have been that he would have sent the clemency request back to the [Justice] Department and asked them to reconsider their recommendation that clemency be denied." The report suggests that Rodgers let his own opposition to Aaron's petition influence his description of Rhodes' recommendation:

We believe that Rodgers’s characterization of Rhodes' position was colored by his concern...that the White House might grant Aaron "clemency presently" and his desire that this not happen....

Rodgers did not represent Rhodes’s position accurately, and his conduct fell substantially short of the high standards to be expected of Department of Justice employees and of the duty that he owed to the President of the United States. We also believe that the language Rodgers chose to describe Judge Butler’s views was ambiguous and risked causing confusion or a misunderstanding. We are referring our findings regarding Rodgers’s conduct to the Office of the Deputy Attorney General for a determination as to whether administrative action is appropriate.

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Is Obama Kowtowing to Anti-Biotech Activists?

Back in the early days of his administration, President Barack Obama promised that he would not countenance the politicization of science. Specifically the president said:

It is about letting scientists like those here today do their jobs, free from manipulation or coercion, and listening to what they tell us, even when it’s inconvenient – especially when it’s inconvenient. It is about ensuring that scientific data is never distorted or concealed to serve a political agenda – and that we make scientific decisions based on facts, not ideology.

For the past 17 years, AquaBounty Technologies has been doggedly pursuing Food and Drug Administration approval of its biotech-enhanced salmon. The company's salmon contain two genes, one from a fish called a pout and another from Chinook salmon that enable them to grow twice as fast as wild salmon while consuming 10 to 25 percent less feed. In addition, the company plans to produce only triploid (three sets instead of the normal two sets of chromosomes) females that are sterile.

The Genetic Literacy Project has just released FDA documents showing that way back in April that the agency had concluded that the Aquabounty fish posed no health or environmental problems and should be approved. Specifically the FDA noted:

With respect to food safety, FDA has concluded that food from AquaAdvantage Salmon is as safe as food from conventional Atlantic Salmon, and that there is a reasonable certainty of no harm from consumption of food from triploid AquaAdvantage Salmon...

Based on the evidence collected and evaluated by FDA, FDA has made the preliminary determination that it is reasonable to believe that approval of the AquaAdvantage Salmon NADA will not have any significant impacts on the quality of the human environment in the United States (including populations of endangered Atlantic salmon) when produced and grown under the conditions of use for the proposed action.

Over at Slate, Jon Entine, head of the Genetic Literacy Project, is reporting that White House officials afraid of backlash from anti-biotech and environmental activists may have told the FDA to set on its findings until after the election. Slate reports:

But within days of the expected public release of the EA [environmental assessment] this spring, the application was frozen. The delay, sources within the government say, came after meetings with the White House, which was debating the political implications of approving the GM salmon, a move likely to infuriate a portion of its base.

It's ridiculous that it's taken this long for the regulatory process to reach the conclusion that the product is safe for consumers and the environment. Now we will get to see if the president will keep his promise that his adminisration will "make scientific decisions based on facts, not ideology."

Go here to read the whole article in Slate.

Disclosure: I loathe the taste of salmon, but I promise to eat one of these as soon as they come onto market.

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Have the Fiscal Cliff Negotiations Reached a Dead End?

Have the fiscal cliff negotiations reached a permanent dead end? 

For several days, discussions seemed to be moving toward an agreement. Both sides had narrowed their disagreements to two key issues: Whether top tax rates would rise on income above $400,000 or above $1 million, and whether a deal would include enough spending cuts to match new tax revenues. President Obama said his proposal raised $1.3 trillion and cut the same amount. House Majority Leader John Boehner counted just $930 billion in cuts, because the remainder of the savings came from reduced interest payments. 

But discussions went off the rails earlier this week when House Majority Leader John Boehner announced that he would be pursuing “Plan B,” in which he would introduce a bill to preserve current tax rates on all income under $1 million annually.

Plan B, which Republican leaders now say is likely to pass, is designed both as both a fallback plan and a way to create some extra negotiating leverage for Republicans: If Plan B passes and then we go over the fiscal cliff, Republicans can say that they passed a bill designed to stave off tax hikes on most everyone—but still raise taxes on millionaires. And they can also say that the president threatened to veto it. They can also point out that taxing millionaires at a higher rate is an idea first proposed by Democratic Sen. Chuck Schumer—and yet now Democrats are rejecting it.

The White House isn’t happy, and is accusing Boehner of wasting time on a plan that can’t pass. And John Boehner is playing tough as well. At an extremely brief press conference yesterday, he offered a Tweet-length ultimatum: “Tomorrow the House will pass legislation to make permanent tax relief for nearly every American,” he said. “Then the president will have a decision to make. He can call on Senate Democrats to pass that bill. Or he can be responsible for the largest tax increase in American history.”

So is that it? Possibly. President Obama could still decide not to negotiate further, and to go over the fiscal cliff. If that happens, tax rates go up on everyone. If that happens, it’s hard to imagine that Republicans and Democrats would not quickly vote to reinstate current tax rates on income under $250,000. President Obama wins. Republicans get nothing: no Social Security changes, no new spending cuts, and higher tax rates on all income above $250,000.

Yet there are risks to this strategy as well.

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Vid: How LA Regulated A Burger Stand Out of Existence

Entrepreneur vs. LA's city government: Who will prevail? Watch Reason TV's latest offering, "The Fall of Tam's #6: How LA Regulated a Burger Stand Out of Existence," to find out. Or, click the link below to read the full story and for downloadable links. 

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Guns Don’t Kill People; Imaginary Guns Kill People

Behold the strange dichotomy of pro-gun-rights Democratic Montana Gov. Brian Schweitzer. In his defense of gun rights and rejection of calls for more gun control in the wake of the Sandy Hook Elementary School massacre, he’s quick to throw video games under the Desert Bus. Via Montana Watchdog:

Instead of talking about the guns, the gregarious governor urged a national discussion of the violence culture now gripping Americans, especially youth.

“This is evil and it has everything to do with mental illness and, look, I’m going to pick on somebody right now,” Schweitzer said. “You wanna pick on somebody? How about those video game manufacturers, where an entire generation are glued to a screen for six to eight hours a day while they are poking buttons and blowing other people up and shooting them in the face.”

The governor stopped short of prescribing any solutions to reverse America’s addiction to violent movies and video games.

Pro-tip (that word comes from video games, by the way): Don’t try to oppose the bullying of one industry/civil liberty by suggesting the bullying of another ("pick on"). It draws a bit too much attention to your deflection. The First Amendment deserves Schweitzer's support, too.

It’s fascinating (and by “fascinating” I probably mean “repulsive”) when government leaders decry America’s violent youth when the government keeps sending them off to foreign countries to kill people. Granted, the governor of Montana has little connection to our foreign policy, but Sen. Joe Lieberman has no such defense. Yet he, too, was quick to blame violence in our entertainment culture.

Excuses for violent military intervention in foreign affairs arise from both the left and the right. Our government leaders look for reasons to give actual people actual guns and send them off to shoot actual people (or pilot drones to bomb them remotely). It’s a bit rich to see any government leader decry violence in culture. Maybe it’s yet another example of government not liking competition?

Quite a few folks fret that our soldiers treat war like a big video game. Maybe we should be using that. Maybe we’d have been able to get our troops back from Iraq and Afghanistan faster by convincing Congress it was all a great, big, scary video game. They seem to be more afraid of pretend wars than real ones.

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David Harsanyi on the Failure of the Auto Bailout

GM's labor costs, estimated at $56 an hour, still are higher than any of its competitors, writes David Harsanyi. Since the Obama administration cajoled the normal bankruptcy hearings and eradicated the pensions of nonunion workers to ensure union success, employees, like the ones at Delphi, the auto parts manufacturer and one-time GM subsidiary, took it on the chin while $26 billion of taxpayer funds were used to keep United Auto Workers in a secure position.

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Florida's War on Pill Mills Is Also a War on Patient Privacy

An anti-drug taskforce in Seminole County has illegally confiscated the records of more than 5,000 patients, according to the Orlando Sentinel. As part of their investigation into Dr. Vincent Mamone and 29 of his patients, agents with Sanford's City-County Investigative Bureau received a warrant to seize "business and financial records, prescription records, charts for 29 patients, sign-in logs, prescription pads and cellphone records" from Primary Care Physicians of Sanford. 

Yet CCIB agents didn't take the records of only those patients under investigation:

[I]n addition to the records seized, CCIB agents copied the computer servers from the medical practice, which [Mamone attorney Amy] Tingley said was not authorized by the search warrant. So instead of having data on 29 patients, agents with Seminole's countywide drug task force now hold information on more than 5,000. 

The CCIB hasn't said why it's investigating Mamone, though it's pretty obvious based on Tingley's claim that her client's office "is not a pill mill," that this investigation is about prescription painkillers. The records will remain sealed until all 29 patients have been notified that they are under investigation and been given a chance to object to his/her record being unsealed. But then what happens to the other 4,971 records? The CCIB won't say. 

Historically, Florida cops have had no more love for the Fourth Amendment (or the concept of privacy) than cops in any other state. But what they've done in the name of combatting the prescription pill epidemic is pretty extraordinary.

Back in October, the Sarasota Herald-Tribune reported that the Sarasota County Sheriff's Office had written privacy waivers ("Authorization for Release of Protected Health Information") and asked 30 pain clinics throughout the county (politely, I'm sure) to slip the waivers into the stack of forms new patients must sign the first time they seek treatment. If the patient signed the form, the sheriff's office could obtain their records without a warrant.

While the language in the waiver wasn't particularly dense, what made the department's scheme so nefarious is that the forms contained no indication that they had been written by law enforcement.  

According to the Herald-Tribune, no doctor has returned forms to the Sarasota County Sheriff's Office. 

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Gun Bought By ATF Special Agent Found at Mexican Crime Scene

A gun bought by George Gillett, who was the deputy special agent in charge of the ATF’s Phoenix field office while that office was involved in Operations Gunrunner and Fast  & Furious, was found at the scene of a shoot out between a Mexican drug cartel and military toops that left a Mexican beauty queen and four others dead. Maria Susana Flores Gamez may have been used as a human shield.

The firearm, an FN 57 Five-seven pistol, was bought by Gillett in 2010, and Senator Chuck Grassley notes in a letter to the Department of Justice that it appears Gillettl did not list the necessary address on the federally-mandated form for the purchase, which Grassley points out is actually a felony.

Fox News, meanwhile, reports that Gillett has admitted in news interviews to buying the gun and has said he later sold it [to a buyer he found] on the Internet [and says he went "above and beyond" federal requirements for the gun transaction]. The weapon is not the first connected to the ATF found in Mexico, where drug-related cartel violence has surged as the government attempts a crackdown. More than 50,000 have died since 2006.

Ed note: Details on sale of gun added

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Back When Robert Bork Wasn't Religious Enough to Sit on the Supreme Court

Reason contributor Walter Olson has a piece in the New York Post recalling one of the most hotly contested issues surrounding the recently deceased Robert Bork's 1987 Supreme Court nomination. He's not talking about the back-alley abortion stuff, either:

Here’s something you may not know about the 1987 battle that kept Robert Bork off the Supreme Court: Opponents pursued a whispering campaign against him on the grounds that he wasn’t enough of a religious believer.

Back then, many Democrats still held seats in the rural South, and the religion angle gave them an easier way to explain their stance to constituents than, We’ve been asked to oppose him as a party-line matter.

Thus Rep. John Bryant (D-Texas) warned that Bork was “an agnostic who is not a member of any church.”

And Sen. Bennett Johnston (D-La.), while disclaiming any “religious test for judges,” advised “fundamental religious people” back home to “look, in addition to what he has written, at [Bork’s] statements on morals or lack thereof — and I don’t mean to suggest he is immoral — but his lack of occupation with morals and with religion.”

Sen. Howell Heflin (D-Ala.) told constituents he was “disturbed by [Bork’s] refusal to discuss his belief in God — or the lack thereof.” Heflin also alluded darkly to the nominee’s beard and “strange lifestyle” as a Yale law professor.

You got that? Bork wasn't religious enough! 

Olson notes that while the Bork nomination process set a new low in confirmation hearings and help push presidents toward appointees with less of a paper trail, Bork's general vision of originalism has won out, even among liberal jurists:

“Liberal originalism,” which takes seriously the insistence of critics like Bork that judges must adhere to what’s actually in the founding document, is making headway among scholars at places like Yale Law School.

Read the whole thing.

Over at the Daily Beast, former Reasoner Michael Moynihan recaps the most awful bits from Bork's 1997 best-seller Slouching Toward Gomorrah, a book that called for quarantining the "libertarian virus" via censorship and other means. Read Olson's review for Reason here.

[Note: Link to Olson review fixed]

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The Hutaree Are Taking Over!

Back in August I noted the news that Michael Meeks, formerly of the infamous Hutaree militia, had become the Republican candidate for constable in Bridgewater Township, Michigan. I'm a little embarrassed that it didn't occur to me til last night to check back and see how he did in the general election.

He won:

Michael Meeks last week won the job of constable in Bridgewater Township, near Manchester. The former member of the Hutaree militia was unopposed and got 631 votes in the election.

Meeks says his duties in the unpaid job still are unclear, although he might get involved in enforcing zoning issues.

In other Election News It Took Me A While To Notice, voters in Storey County, Nevada, have elected a brothel owner county commissioner. He describes himself as a "Republican who loves American values."

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A.M. Links: Federal Spending Up 78% Since 1998, Tax Filing To Be Delayed, Lawmakers Ask Why DOJ Accumulates Data on Americans

Have a news tip for us? Send it to: 24_7@reason.com

The updated Reason app for Apple and Android now includes Reason 24/7!

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Steve Chapman on Wrong Answers for Mass Shootings

The film "Casablanca" has many famous lines, but none more immortal than Capt. Renault's order after seeing a Nazi officer shot by Humphrey Bogart's character, Rick Blaine: "Round up the usual suspects." He issues that command to give the impression he's trying to solve the crime. In the aftermath of the Newtown massacre, the Renault approach is alive and well, says Steve Chapman.

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Brickbat: Everyone's a Critic

Russian prosecutors have launched a "extremism" investigation of the Hermitage museum in St. Petersburg. They say they have received numerous complaints that an exhibit that includes images of a crucified Ronald McDonald and a crucified Teddy bear insults the religious feelings of those who see those images.

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NDAA Amendment Designed to Protect Americans from Indefinite Detentions Killed; Rand Paul Blames John McCain

Sen. Dianne Feinstein (D-Calif.) and Sen. Mike Lee (R-Utah) had introduced an amendment to the National Defense Authorization Act that was designed to limit the president's arbitrary power to indefinitely detain American citizens. It passed the Senate, but was stripped today in a conference committee; see this Reason 24/7 report.

Sen. Rand Paul, a loud supporter of the amendment, is ticked. Details from the Daily Caller:

Kentucky Republican Sen. Rand Paul quickly blamed his party’s 2008 presidential nominee, blasting a “McCain-led NDAA conference committee” for the omission.

“The decision by the NDAA conference committee, led by Sen. John McCain (R-Ariz.) to strip the National Defense Authorization Act of the amendment that protects American citizens against indefinite detention now renders the entire NDAA unconstitutional,” Sen. Paul said in a statement.

“When the government can arrest suspects without a warrant, hold them without trial, deny them access to counsel or admission of bail, we have shorn the Bill of Rights of its sanctity,” the senator continued, noting that he voted against NDAA last year but supported the current version because of the Feinstein-Lee amendment.

The Caller sums up the argument that even with the amendment, the NDAA was still a civil liberties disaster:

Some civil libertarians worried that even Feinstein-Lee didn’t go far enough, arguing that it left the door open for Congress to authorize indefinite detention.

The amendment declared, “An authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States, unless an Act of Congress expressly authorizes such detention.”

The American Civil Liberties Union warned that this “could be read to imply that there are no constitutional obstacles to Congress enacting a statute that would authorize the domestic military detention of any person in the United States.”....

The NDAA is still trying to pretend it isn't blatantly unconstitutional:

In place of the Feinstein-Lee amendment is language stating that nothing in the NDAA “shall be construed to deny the availability of the writ of habeas corpus or to deny any Constitutional rights.”

The Supreme Court has already ruled that the writ of habeas corpus applies to all people.

“Habeas corpus is simply the beginning of due process,” Paul insisted. “It is by no means the whole.”

“Our Bill of Rights is not something that can be cherry-picked at legislators’ convenience.

The Tenth Amendment Center made a very detailed case that even the Feinstein-Lee amendment did not blunt the horrors of the NDAA.

Reason.tv on the NDAA from last year:

 

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Jacob Sullum Debates Gun Control With Robert Wright

Today I did a Bloggingheads.tv discussion/debate about gun control with Robert Wright in which he got me to admit that I also oppose drug control. OK, he did not really have to twist my arm on either score, but it was a lively exchange with a smart guy who understands that "assault weapon" bans are bogus but whose idea of serious gun control—which he argues would be constitutional, though politically impossible—seems designed to irritate fans of the Second Amendment. Thrill as he presses me on Stinger missile bans! Stand aghast as I ask him why police should have guns the rest of us are not allowed to have! Applaud as I tell him that I never really use my "large-capacity ammunition feeding devices," but I'll be damned if I'm going to turn them in after the Wright Bill passes! Wonder why I am licking my lips so much! 

Go here to see the segments that Bob chose to highlight, including "Why Jacob opposes gun control" and "Could any law have prevented this tragedy?"

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Chuck Hagel Out of Consideration for Secretary of Defense Nomination?

So reports the Free Beacon:

Former Republican Nebraska Sen. Chuck Hagel may no longer be President Obama’s favored pick to run the Defense Department, sources told theFree Beacon.

Hagel immediately drew a frosty reception from observers who criticized him for advocating in favor of direct unconditional talks with Iran and for backing sizable cuts to the defense budget.

Those who have worked with Hagel and have an intimate knowledge of his managerial style also expressed concerns about his possible appointment.

The Free Beacon uses multiple unnamed Washington sources to “corroborate” the view that Chuck Hagel is a poor manager and a foreign policy lightweight. There are also accusations that Hagel is an anti-Semite being floated in the media, no doubt helped by an “endorsement” from Iran. Last week I explained a few positive points about a potential Defense Secretary Hagel; he opposed the war in Iraq, and has said as recently as last year that it was time for America to “start heading toward the exits”. Nevertheless I recommended cautious pessimism.

Meanwhile, Cato's Christopher Preble explained last week why a potential Hagel nomination ought to be welcome news to anyone tired of decades of U.S. foreign interventionism. Preble also said he didn’t “put much stock in the neoconservative echo chamber’s claim that Hagel will have a tough time being confirmed,” so maybe there’s hope to be held out after all.

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Watch Nick Gillespie Talk Fiscal Cliff, General Motors, and More Tonight on Fox Business and Fox News Red Eye

Tune in to the Fox Business Channel’s Willis Report today at 6pm ET to watch Reason TV Editor in Chief Nick Gillespie discuss the fiscal cliff, the General Motors bailout, and more.

Details here.

Then tune in again tonight at 3am ET to the Fox News Channel’s Red Eye to watch Gillespie talk all things current events with host Greg Gutfeld, Andy Levy, and company.

Details here.

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January Deadline for Proposals Targeting Scary Guns, Boehner and Obama Still At It, Officials Resign After Benghazi Report: P.M. Links

Have a news tip for us? Send it to: 24_7@reason.com

The updated Reason app for Apple and Android now includes Reason 24/7!

Don’t forget to sign up for Reason’s daily AM/PM updates for more content.

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Lenore Skenazy on the Truth About “Dangerous” Christmas Toys

According to “World Against Toys Causing Harm,” or W.A.T.C.H., a website run by trial lawyers, every year there are exactly 10 terribly dangerous toys out there. And every year, this self-styled watchdog group puts out a press release. And every year the media dutifully take the bait and report that we are living in a world brimming with peril.

Don’t believe the hype, writes Lenore Skenazy. A closer look at W.A.T.C.H.’s bogus list reveals a handful of harmless toys accompanied by ridiculous warnings that should be ignored by all sensible holiday shoppers.

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New Data Cast Further Doubt on Drug Czar's Theory That Marijuana Reform Makes Kids Smoke Pot

For years drug czar Gil Kerlikowske has argued that laws allowing medical use of marijuana and efforts to legalize recreational use encourage teenagers to smoke pot. According to Kerlikowske, it is irresponsible even to advocate less punitive, more tolerant marijuana laws because such talk sends "the wrong message" to the youth of America. That tale has never fit the facts very well, whether you look at cannabis consumption trends in relation to the enactment of medical marijuana laws or compare states with such laws to states without them. The latest data from the government-sponsored Monitoring the Future Study cast further doubt on Kerlikowske's theory, indicating that marijuana use has declined among eighth-graders and 10th-graders while remaining steady among 12th-graders even as pot tolerance has hit record highs. Conversely, pot smoking by high school students remains substantially below the levels recorded in the late 1970s, when the idea of legalizing marijuana was much less popular.

In the 2012 survey, 6.5 percent of eighth-graders admitted smoking pot during the previous month, compared to 7.2 percent last year and 8 percent in 2010. Past-month use by 10th-graders fell from 17.6 percent to 17 percent (still a bit higher than the 16.7 percent recorded in 2010). Among seniors, this number rose slightly, from 22.6 percent to 22.9 percent, a difference that was not statistically significant. "After four straight years of increasing use among teens,"  say the University of Michigan researchers who conduct the survey, "annual marijuana use showed no further increase in any of the three grades surveyed in 2012." Maybe the upward trend will resume next year, after the kids digest the wrong message sent by the legalization of marijuana (for adults 21 and older) in Colorado and Washington.

More bad news for drug warriors and their panic-promoting pals in the press: The share of high school seniors who admitted consuming synthetic marijuana in the previous year remained steady (at 11.3 percent); the percentage of students reporting any use of the synthetic stimulants known as "bath salts" was "very low"; and use of Salvia divinorum fell in all three grades covered by the survey.

Grover Norquist on Fiscal Cliff, Tax Pledges, & Being the GOP's "Rasputin"

"Grover Norquist on Fiscal Cliff, Tax Pledges, & Being the GOP's "Rasputin"" is the latest from Reason TV.

Watch above or click on the link below for video, full text, supporting links, downloadable versions, and more Reason TV clips.

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UPDATED: Marijuana Reformers Have Mixed Feelings About Drug Warrior Dianne Feinstein Heading Up Judiciary Committee

Big, big update: CNN is reporting that Leahy has passed up the Appropriations Committee chair position, and will stay with Judiciary. 

Judiciary Committee Chair Sen. Pat Leahy (D-Vt.) bolstered the hopes of marijuana policy reformers last week when he sent a letter to President Obama's drug czar discouraging federal raids in Colorado and Washington and promising to hold committee hearings on the conflicts between state and federal drug laws. 

A week later, Leahy's letter might as well have been a dream. He's leaving the Senate Judiciary Committee to take over Sen. Daniel Inouye's seat at Appropriations, and Sen. Dianne Feinstein (D-Calif.), a committed drug warrior, is set to take over Judiciary

"It took a moment or two for my fingers and toes to uncurl" after hearing the news, wrote Allen St. Pierre, director of the National Organization for the Reform of Marijuana Laws, in an email.

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How Stupid Must a Gun Law Be to Get Struck Down by the Courts?

New York Times legal reporter Adam Liptak argues that D.C. v. Heller, the 2008 decision in which the Supreme Court recognized that the Second Amendment protects an individual right to keep and bear arms, "appears perfectly consistent with many of the policy options being discussed after the shootings in Newtown, Conn." I'm not so sure about that, especially with reference to renewing the federal ban on "assault weapons," the most popular response so far.

As Liptak notes, the Court did suggest in Heller that the Second Amendment permits laws "prohibiting the carrying of 'dangerous and unusual weapons.'" But since the features that legally define an "assault weapon" have little or no functional significance in the context of violent crime, it is hard to argue that such firearms are any more "dangerous" than models that do not fall into this arbitrary category. When it comes to mass shootings or more common forms of gun crime, does it matter whether a gun has, say, a bayonet mount or a flash suppressor? Furthermore, the guns that Sen. Dianne Feinstein (D-Calif.) and President Obama want to ban are not exactly "unusual." As I note in my column today, AR-15-style rifles like the one used by Adam Lanza—which does not qualify as an "assault weapon" under Connecticut law or under the federal ban that expired in 2004 but could under Feinstein's bill if she broadens the definition—are among the most popular rifles in America, with something like 3.5 million sold since 1986. Very few of those guns are used to commit crimes, let alone mass shootings. And according to Heller, the Second Amendment clearly applies to guns "in common use for lawful purposes." 

Heller did not say what level of scrutiny should apply to restrictions on gun ownership. But with a piece of legislation as frivolous as an "assault weapon" ban, it really shouldn't matter. You might say that such laws leave people with plenty of choices for self-defense and other legal uses. But by the same token, "assault weapon" bans leave mass murderers and ordinary criminals with plenty of perfectly serviceable alternatives, which calls into question the basic premise of such legislation. Where are the benefits—even theoretical ones—to weigh against the burdens of enforcing these silly distinctions? The lack of logical support for an "assault weapon" ban certainly should mean it would fail strict scrutiny, the standard generally applied to content-based restrictions on speech, or intermediate scrutiny, the test used in equal protection cases that do not involve a "suspect class." It even should fail the "rational basis" test, if that standard meant what it sounds like.

Imagine that Congress banned the use of certain words, asserting that they were especially conducive to defamation, fraud, conspiracy, and incitement. Could it defend such an absurd edict by pointing to all the other words that people were still allowed to use, arguing that freedom of speech remained essentially intact? Not a chance. The courts would say you need a really good reason to restrict First Amendment rights, not just any excuse that pops into a legislator's head. Why shouldn't the same expectation apply to Second Amendment rights? 

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The Fiscal Cliff: It’s About Dealmaking, Not Debt Reduction

One of the most important things to remember about the fiscal cliff negotiations is that no one on either side of the table really wants to go over the cliff. Both Boehner and Obama would prefer to come to a deal — just not quite yet. 

President Obama wants to avoid any risk of a severe hit to the economy and focus on his second term agenda, not an extended budget standoff over a collection of policies that, tax rates on the wealthy aside, aren’t high on his priority list. Republican House Majority Leader John Boehner would prefer to avoid the sequester’s reductions in defense spending, keep tax rates from rising on anyone, and generally not make a big fuss about the rest of it; he’s also understandably worried that Republicans will take the blame, at least in the short term, if there’s no deal and subsequently the economy suffers. 

Yes, there are more committed partisans on both sides who think that their side should refuse to sign on to any deal that concedes anything to the other party. Which is why the incentive is to make a deal, some deal, but not until the last possible minute. Neither side wants to look like they gave in too early, or too easily.

And so far, that’s the track we’re on: The two sides come closer together. Things look hopeful for a moment. But then tensions rise again as the two sides employ new tactics intended to push the opposition. 

The primary considerations here are, as much as anything, about political posturing and positioning. In order to come to an agreement, both sides need to preserve an image and walk away with concessions. President Obama needs to look strong in the wake of an electoral victory, mostly by getting Republicans to agree to some sort of tax increase on the wealthy. Boehner has a somewhat more delicate job: In order to sell any potential deal to his own party, he needs to look reasonable in his willingness to negotiate, but also firm enough that he doesn’t simply give away Obama’s entire wishlist. He needs to extract symbolically meaningful concessions.

Neither side, though, can be completely honest about these sorts of political considerations. They need a policy framework through which to communicate — with each other, and with the public. And so they talk about debt and deficits.

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Alabama Cops Staged Jailhouse Suicide, Lawsuit Alleges

The father of a twenty-six year old who police two years ago said committed suicide in a jail cell in Mt. Vernon, Alabama after being picked up with his girlfriend for public drunkenness is suing the city and the police department, alleging that police staged the suicide after beating his son. In court documents filed this week in U.S. District Court, Framon Weaver Sr. claims that his son’s girlfriend, Monica Griffin who was also picked up by police, observed Framon Weaver Jr unconscious and covered in blood surrounded by police officers in the jail’s parking lot. The lawsuit claims Griffin wasn’t “booked in” and was left unattended until she entered the parking lot. According to the lawsuit, police only then locked her into a cell. Weaver believes his son was already dead when Griffin saw him in the parking lot, and points to findings in the autopsy such as no internal neck injuries and multiple abrasions on the forehead as evidence not consistent with a suicide. The lawsuit also says the autopsy listed “hanging” as the cause of death and “suicide” as the manner, without a specific cause such as asphyxiation.

The lawsuit alleges police tased the hand-cuffed Weaver and once he died hanged his dead body in a jail cell and staged a “discovery” of the body more than 14 hours later. The lawsuit charges the city and police with a violation of Weaver’s rights, including punishment without due process, as well as negligence and wrongful death resulting from the excessive use of police force. The father is demanding a jury trial.

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If You Run a Fake Vaccination Program as a Cover for a Covert Op, People Just Might Suspect That Real Vaccination Workers Are Covert Operatives

When news broke last year that the CIA had run a fake vaccination program in Pakistan as part of the effort to track down Osama bin Laden, Wired's Maryn McKenna pointed out that the tactic

plays, so precisely that it might have been scripted, into the most paranoid conspiracy theories about vaccines: that they are pointless, poisonous, covert shields for nefarious government agendas meant to do children harm.

That is not speculation. The polio campaign has already seen this happen, based on just those kind of suspicions — not in a single poor slum in New Delhi, but across much of sub-Saharan Africa.

In the fall of 2003, a group of imams in the northern Nigerian state of Kano — the area that happened to have the highest rate of ongoing polio transmission — began preaching against polio vaccination, contending that what purported to be a protective act was actually a covert campaign by Western powers to sterilize and kill Muslim children. The president of Nigeria's Supreme Council for Sharia Law said to the BBC: "There were strong reasons to believe that the polio immunisation vaccine was contaminated with anti-fertility drugs, contaminated with certain virus that cause HIV/AIDS, contaminated with Simian virus that are likely to cause cancers."...Three majority Muslim states — Kano, Kaduna and Zamfara — suspended polio vaccination entirely....

The accusations that polio vaccination was a Potemkin cover for anti-Islamic activities almost ruined the international eradication of polio when they were false. Now, on the basis of the CIA's alleged appalling ruse in Pakistan, they may be made again. And they will be much more believable, because this time they might be be true.

Now jump to this month. The Guardian reports:

Two more workers in a polio eradication campaign have been shot dead in Pakistan in the latest in a series of attacks that have partially halted the UN-backed global health campaign to stamp out the disease. A third health worker was seriously wounded....

There were at least three separate attacks on Wednesday. In the north-western district of Charsadda, men on motorbikes shot dead a woman and her driver, police and health officials said.

Hours earlier, a male health worker was shot and badly wounded in the nearby provincial capital of Peshawar. He remains in a critical condition, said a doctor at Lady Reading hospital, where he is being treated.

Four other women health workers were shot at but not hit in nearby Nowshera, said Jan Baz Afridi, deputy head of the expanded programme on immunisation.

I'm not saying that there's a simple causal relationship between the intelligence-gathering scheme and the assassinations. The conspiracy theories did predate the revelation about the CIA. But as McKenna said, people are more likely to believe a theory when they've seen a substantial reason to suspect it's true.

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Nick Gillespie at Reuters on Economic Inequality & Mobility

This week, Reuters is running an excellent series on income inequality and the Great Recession. Check it out here.

I've contributed a commentary piece titled, "Examine inequality's causes before prescribing solutions," which looks at the ways in which government promotes geographical inequality and stacks the deck against younger, poorer people in favor of older, wealther people. Some snippets:

Fear and loathing of income inequality is both totally understandable and ultimately misplaced.

It’s understandable because everywhere around us it seems as if top income earners ‑ those latter-day kulaks vilified as the “1 Percent” by the Occupy crowd and populist politicians ‑ are gaining while the rest of us seem barely able to hang on to a lower-middle-class standard of living.

It’s misplaced because it glosses over strong evidence that the ability to rise above your starting place ‑ the American Dream, by most accounts ‑ is better than it was 40 years ago....

...generational inequality...is also goosed by government policy. The Pew Research Center finds that in 1984, households headed by someone 65 years or older possessed on average10 times the wealth of a household led by someone under 35. By 2010 that gap had widened to 22 times. Part of that disparity is the result of payroll taxes that take about 12.4 percent (half from the worker, half from the employer) of every dollar of earned income up to $110,000 to pay for Social Security (for the past two years, the worker’s share of Social Security taxes has been reduced by 2 percentage points, a break that will expire at year’s end). Another 2.9 percent of all wages ‑ again split between employee and employer ‑ goes to Medicare.

Read more, with lotsa links, here.

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Cancer Not Increased by Exposure to World Trade Center 9/11 Attack Debris

The New York Times is reporting a new study published in the Journal of the American Medical Association that looks at the cancer incidence rate among more than 55,000 people exposed to the dust and debris produced by the fall of the Twin Towers on September 11, 2001. Earlier this year, advocates persuaded Congress to add 50 different cancers to the list of ailments for which they can receive compensation from a fund set up the federal government. The new study looks at the incidence of 23 different cancers. The Times summarizes:

Six months after the federal government added cancer to the list of sicknesses covered by the $4.3 billion World Trade Center fund, a New York City health department study has found no clear link between cancer and the dust, debris and fumes released by the burning wreckage of the twin towers.

The study was by far the largest to date. It examined 55,700 people, including rescue and recovery workers who were present at the World Trade Center site, on barges or at the Staten Island landfill where debris was taken in the nine months after Sept. 11, 2001, as well as residents of Lower Manhattan, students, workers and passers-by exposed on the day of the terrorist attacks.

Over all, there was no increase in the cancer rate of those studied compared with the rate of the general population, researchers concluded after looking at 23 cancers from 2003 to 2008. The prevalence of three cancers — multiple myeloma, prostate and thyroid — was significantly higher, but only in rescue and recovery workers and not in the rest of the exposed population. But since the number of actual cases was small and the subjects of the study may have been screened more frequently for cancer than other people on average, the researchers noted that it was too early to draw any correlation to time spent at ground zero.

In one of many counterintuitive findings, the incidence of cancer was not higher among those who were exposed more intensely to the toxic substances than among those who were exposed less.

The lack of clear evidence of a link between cancer and the debris from Sept. 11 casts into doubt the decision by the federal government in June to add 50 different types of cancer to the list of illnesses covered by the James Zadroga 9/11 Health and Compensation Act, signed by President Obama in early 2011.

The report is actually quite good news since it suggests that people who were exposed to debris from the World Trade Center's collapse are no more likely to come down the cancer than are the rest of us. Of course, if one happens to be male the lifetime risk of cancer is 1 in 2, and if female, it's 1 in 3. It also good to keep in mind that the American Cancer Society estimates:

Exposure to carcinogenic agents in occupational, community, and other settings is thought to account for a relatively small percentage of cancer deaths – about 4% from occupational exposures and 2% from environmental pollutants (man-made and naturally occurring).

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Post-Conviction Deal Shrinks Montana Medical Marijuana Grower's Sentence From Life to Five Years

Yesterday Chris Williams, the Montana medical marijuana grower who was facing life in prison, agreed to a highly unusual post-conviction deal with federal prosecutors that could allow him to serve five years instead. His sentencing hearing before U.S. District Judge Dana Christensen was scheduled for January 4, and 

Under the agreement, the U.S. Attorney's Office in Montana will drop six of the eight counts on which Williams was convicted. Those include three counts of using firearms in furtherance of a drug crime, based on pistols and shotguns kept at the Helena grow operation where Williams worked. Although Williams never wielded the weapons, let alone hurt anyone with them, those three counts alone added 75 mandatory years to his sentence. The dropped charges also include one for conspiracy to manufacture and distribute marijuana, one for manufacturing marijuana, and one for possession with intent to distribute. The remaining two charges are one count of possession with intent to distribute, which carries a penalty of up to five years in prison, and a single count of using firearms in furtherance of a drug crime, which carries a mandatory minimum sentence of five years (whereas each of the additional gun charges triggered a 25-year mandatory minimum). In exchange for a 87-year reduction in the prison term he otherwise would have faced for the original gun and drug charges, Williams agreed to drop his appeal. He explained his decision this way:

It was not easy for me to give up my constitutional fight, but as I navigate this complex federal penal system, it has become clear that punishment is the only thing that is guaranteed.

With the rest of my life literally hanging in the balance, I simply could not withstand the pressure any longer. If Judge Christensen shows mercy and limits my sentence to the 5-year mandatory minimum, I could be present at my 16-year-old son’s college graduation. This would most likely be impossible had I rejected the latest compromise.

During his trial, Williams was not allowed to mention Montana's medical marijuana law, which is deemed irrelevant under federal law. His partners at Montana Cannabis have received sentences ranging from probation to five years in prison. The huge variation in penalties for essentially the same actions, from no time to the life sentence Williams originally faced, gives you a sense of the enormous power that mandatory minimum sentences and the ability to stack charges give prosecutors. In this case, Williams' punishment for insisting on his right to a trial was so absurdly unjust that even the prosecution felt compelled to admit it. But if the possibility of sending someone like Williams to prison for the rest of his life is so obviously unfair, why does the law allow it, let alone mandate it?

Previous coverage of Williams' case here and here.

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Senate Attempts Sneaky Renewal of FISA Warrantless Wiretapping

Apparently impatient with those Americans — and a handful of senators — who still think the government ought not be snooping on people without at least a perfunctory nod to due process and legal restraint, the Senate leadership is trying to slip through a renewal of the soon-to-expire FISA Amendments Act without debate. Senate Majority Leader Harry Reid, in particular, is a big fan of the legislation, and is steamrolling over a small bipartisan coalition that wants to insert just modest privacy protections. As Reid told The Hill, "FISA, this is an important piece of legislation as imperfect as it is, it is necessary to protect us from the evil in this world." Reid went on to justify the limits placed on amendments and discussion in terms of the importance of passing the legislation by year's end.

The Electronic Frontier Foundation explains why skating through the troublesome business of actually considering the legislation to be voted upon is a bad idea:

The FISA Amendments Act continues to be controversial; key portions of it were challenged in a case before the U.S. Supreme Court this term. In brief, the law allows the government to get secret FISA court orders—orders that do not require probable cause like regular warrants—for any emails or phone calls going to and from overseas. The communications only have to deal with “foreign intelligence information,” a broad term that can mean virtually anything. And one secret FISA order can be issued against groups or categories of people—potentially affecting hundreds of thousands of Americans at once.

Senate leaders, Democrat Harry Reid and Republican Mitch McConnell, owe the American public a debate about this law – including how many Americans have been scooped up in it, how many times it has been used in non-terrorism investigations and how much it has cost the American taxpayers.

In coverage of the Senate opposition to the FISA extension, U.S. News & World Report quoted Oregon's Sen. Jeff Merkley warning, "Citizens generally assume our government is not spying on them. If they had any inkling of how this system really works, the details of which I cannot discuss, they would be profoundly appalled."

EFF urges that people tweet their opposition to fast-tracking renewal of the snooping legislation, because tweets are seen and passed on more quickly than email of phone calls:

Hey @McConnellPress and @SenatorReid: Don't ram through a 5-year extension on FISA Amendments Act. https://eff.org/r.2asn

You can also send emails urging debate on the FISA extension from EFF's Action Center or use Free Press's call-in tool (yes, yes, I know ... but you can use the organization's Website for a good cause, anyway).

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Maybe Benghazi Report Will Put an End to “Hillary Clinton: 2016” Speculation

Noted this morning at Reason 24/7, the independent Accountability Review Board investigating the terrorist attack on The U.S. Consulate in Benghazi, Libya, that killed Ambassador Chris Stevens and three others has released its findings. Perhaps unsurprisingly by this point, they find plenty of blame in the leadership of the State Department.

From the full report (pdf):

Systemic failures and leadership and management deficiencies at senior levels within two bureaus of the State Department (the “Department”) resulted in a Special Mission security posture that was inadequate for Benghazi and grossly inadequate to deal with the attack that took place.

Security in Benghazi was not recognized and implemented as a “shared responsibility” by the bureaus in Washington charged with supporting the post, resulting in stove-piped discussions and decisions on policy and security. That said, Embassy Tripoli did not demonstrate strong and sustained advocacy with Washington for increased security for Special Mission Benghazi.

The short-term, transitory nature of Special Mission Benghazi’s staffing, with talented and committed, but relatively inexperienced, American personnel often on temporary assignments of 40 days or less, resulted in diminished institutional knowledge, continuity, and mission capacity.

Overall, the number of Bureau of Diplomatic Security (DS) security staff in Benghazi on the day of the attack and in the months and weeks leading up to it was inadequate, despite repeated requests from Special Mission Benghazi and Embassy Tripoli for additional staffing. Board members found a pervasive realization among personnel who served in Benghazi that the Special Mission was not a high priority for Washington when it came to security-related requests, especially those relating to staffing.

Further in the report:

Communication, cooperation, and coordination among Washington, Tripoli, and Benghazi functioned collegially at the working-level but were constrained by a lack of transparency, responsiveness, and leadership at the senior levels. Among various Department bureaus and personnel in the field, there appeared to be very real confusion over who, ultimately, was responsible and empowered to make decisions based on both policy and security considerations.

The report also makes it clear there was no protest against the Innocence of Muslims YouTube video prior to the attack.

Maybe now when outgoing Secretary of State Hillary Clinton says she’s not interested in running for president in 2016, people will listen. The Associated Press reports that the State Department’s security chief and two others resigned today in the wake of the report.

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Teach For America Kills Children, Says Union Prez on Newtown Shootings

The deaths in Newtown were a tragedy. But union supporters want to know: Who will weep for the children killed by charter schools and Teach for America? 

New York University prof Diane Ravitch, a one-time school reformer who has since gotten into bed with teachers unions, offered up her thoughts about the heroic teachers at Sandy Hook yesterday on her blog:

Every one of the teachers was a career educator. Every one was doing exactly what she wanted to do. They’ve worked in a school that was not obsessed with testing but with the needs of children. This we know: the staff at Sandy Hook loved their students. They put their students first, even before their own lives.

Oh, and one other thing, all these dedicated teachers belonged to a union. The senior teachers had tenure, despite the fact that “reformers” (led by ConnCAN, StudentsFirst, and hedge fund managers) did their best last spring to diminish their tenure and to tie their evaluations to test scores....

Newtown does not need a charter school. What it needs now is healing. Not competition, not division, but a community coming together to help one another. Together. Not competing.

Some folks, including Teach for America vice president David Rosenberg, took umbrage at her fairly direct implication that teachers at charter schools or other non-traditional educators wouldn't have tried to protect their charges from a carzy gunman.

Ravitch posted a follow-up, in which she clams to be baffled by why people might have found her line of argument upsetting or tendentious. Instead of reprinting their criticisms, however, she offers up a congratulatory email from Karen Lewis, head of the Chicago Teachers Union.

Lewis writes:

There might have been a time where “politicizing” tragic events, especially mass shootings was thought to be in poor taste. That has changed with the 24/7 news cycle that continues to focus far too much time and energy on the perpetrator of the massacre than that of our precious victims. Rosenberg’s “false outrage” needs to be checked. That same false outrage should show itself when policies his colleagues support kill and disenfranchise children from schools across this nation. 

Leaving aside the terrible writing (wait, so we should be falsely outraged over school reform policy proposals?), the underlying argument here is nuts. 1) It's totally cool to politicize mass shootings now, because the media isn't focusing enough on the victims. 2) People who support policies like offering merit pay, revising licensing standards for teachers, reducing the robustness of tenure, and school choice are killing children. 

Ravitch, who is a really smart person, posts the email without analysis, saying only that it "pleases" her. 

Via NRO.

Reason TV on those well-known child killers, Milton and Rose Friedman:

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John Stossel on It's the Spending, Stupid!

The media obsess about tax rates, but spending is more important, says John Stossel. If government spends a dollar, that dollar is taxed away from someone. If it's borrowed, it's removed from productive use, setting the stage for higher taxes later. If the government prints more dollars to fund spending, our purchasing power falls. Transferring purchasing power from the people to the government via inflation is a form of taxation.

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King Coal to Expand Reign, Says International Energy Agency

For those worried about man-made global warming produced chiefly by loading up the atmosphere with extra carbon dioxide from burning fossil fuels, the new report from the International Energy Agency (IEA) will stoke their fears. The IEA projects:

Coal’s share of the global energy mix continues to rise, and by 2017 coal will come close to surpassing oil as the world’s top energy source, the International Energy Agency (IEA) said today as it released its annual Medium-Term Coal Market Report (MCMR).

Although the growth rate of coal slows from the breakneck pace of the last decade, global coal consumption by 2017 stands at 4.32 billion tonnes of oil equivalent (btoe), versus around 4.40 btoe for oil, based on IEA medium-term projections. The IEA expects that coal demand will increase in every region of the world except in the United States, where coal is being pushed out by natural gas.

Of all the fossil fuels, burning coal produces the most carbon dioxide per unit of energy. The accompanying IEA Factsheet adds:

  • Coal demand is growing everywhere but the United States. The trend of the last decade continued in 2011, with coal supplying near half of the incremental primary energy supply globally. Coal demand grew 4.3% in 2011, or 304 million tonnes (mt). Chinese demand grew by 233 mt. The only region where coal demand declined was the United States. That drop is neither policy-driven nor a consequence of recession but rather the result of the availability of cheap gas.
  • Even though coal demand growth is slowing, coal’s share of the global energy mix is still rising, and by 2017 coal will come close to surpassing oil as the world’s top energy source. The world will burn around 1.2 billion more tonnes of coal per year by 2017 compared with today. That’s more than the current annual coal consumption of the United States and Russia combined.
  • China has become the largest coal importer in the world. In 2009, China became a net coal importer for the first time. In 2011, it became the largest coal importer, surpassing Japan, which had held the position for decades. Chinese imports (including Hong Kong) reached 204 mt in 2011 and they continued to grow in 2012.

It seems a bit churlish of environmentalists to attack fracking, since cheap natural gas produced by that technology is doing more to lower U.S. carbon emissions than all of the expensive solar and wind power combined.

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Robert Bork, 1927-2012

Robert Bork, a former federal appeals court judge and one of the central figures in the modern conservative legal movement, died this morning at age 85. A Yale University law professor who also served as solicitor general and acting attorney general under President Richard Nixon, Bork was best known for his controversial 1987 nomination to the U.S. Supreme Court by President Ronald Reagan, which ended in defeat.

Bork’s contributions to American law and politics were extensive. His 1971 Indiana Law Journal article “Neutral Principles and Some First Amendment Problems,” which questioned the constitutional underpinnings of the Supreme Court’s privacy jurisprudence in Griswold v. Connecticut (1965), remains one of the most frequently cited articles published by a legal scholar and also a touchstone for conservative legal thinking.

His popular writings had an equally far reach. In his 1990 bestseller The Tempting of America: The Political Seduction of the Law, Bork advanced a dual case for judicial restraint and constitutional originalism, an approach that proved highly influential on conservative lawyers, politicians, and activists. Although Bork’s emphasis on judicial deference to majority rule has become less influential on the right in recent years, due in large part to the powerful criticisms of his work made by legal scholars such as Roger Pilon of the Cato Institute and Randy Barnett of the Georgetown Law Center, Bork’s approach still has its adherents. His influence was demonstrated most recently in Chief Justice John Roberts’ opinion upholding the Patient Protection and Affordable Care Act, which Roberts framed as a Borkian exercise in judicial deference.

As I remarked in October on the 25th anniversay of Bork's failed Supreme Court confirmation, "whether you're a fan or foe of Robert Bork, there's no question he has had a tremendous influence on American politics."

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Post-North Korean Missile Launch Regional Elections a Win for Harder Line Candidates in South Korea, Japan

The regime in North Korea successfully launched a long-range missile last week, drawing ire from the rest of the international community, including a condemnation by the U.N. Security Council. The United States called the missile test, ostensibly the launch of a weather sa