Gloria, Gloria, in Excelsis Deo

This afternoon, I was privileged to be in attendance when, in perhaps the single greatest act of political courage in my 40 (plus a teensy bit) years on this planet, George H. Ryan, Governor of the State of Illinois, emptied the state's condemned unit. In a sure that sign that he was acting in God's name, the incoming governor, the State's Attorney for Cook County , and other bloodthirsty, power hungry, small-minded men have already pounced on him. I'll have more to say (with links) on this subject in the days to come, but this evening my fiancee and I are going to watch Jack with a comb-over and Kathy Bates in her birthday suit, while my client, though still in jail, for the first time since June 1982 no longer faces the possibility of his own state sanctioned murder.

More Evidence of Europe's Disease

Worth a thousand words. (The link, to a Yahoo! news photo, will expire within a couple weeks. It shows Gretta Duisenberg, wife of the head of the European Central Bank, with one arm around Arafat and her other hand grasping his, in a show not just, I think of political solidarity -- grotesque enough -- but of personal warmth). Well, at least Fallaci still lives, so perhaps Europe may yet be redeemed. (Note: the link is to an article written by Fallaci in the Corriere in April of last year condemning European anti-semitism. Perhaps self-consciously written with Zola in mind, "Io trovo vergognoso" will one day take its place in history alongside "J'accuse." The link is to the original Italian. I am aware of an excellent translation by another blogger, but he has taken it down due to copyright concerns). UPDATE: The translation is apparently still available here.

UPDATE: See Sullivan's post about Frau Duisenberg's views here

Suffer the Children

Who would proudly send his child to near certain death or grievous bodily harm? What to make of the society that institutionalizes this practice? What to make of the overlap between those ultra-lefties, in our society, who rightly say that a civilization is best judged by how it treats its most vulnerable -- including its elderly and its young -- and at the same time lionize the purveyors of this perverse culture of death? Sceptics might note that the link above is to a website of the IDF. But the article itself is based on, and links to, to Arabic sources. So all you scpetics who are fluent in Arabic can check out whether the report is accurate.

In the Highest Degree Odious

The United States Court of Appeals for the Fourth Circuit today decided that American citizens captured and detained by the American military in a foreign war zone may be detained indefinitely by the government, without charges or access to counsel. Here's Churchill's view of such power, whence comes the title for this post (and for the excellent book by my teacher Brian Simpson, where I first read it):

The power of the executive to cast a man into prison without formulating any charge known to the law, and particularly to deny him judgment by his peers for an indefinite period, is in the highest degree odious, and is the foundation of all totalitarian governments.

The Fourth Circuit today paid lip service to that principle, while giving the government virtual carte blanche to detain -- without access to counsel or hope for a trial -- American citizens whom it does not like. Volokh has a pretty straightforward summary of the Court's holdings.

To my mind, the best reading that one can give to the court's opinion is that the goverment may detain an American citizen indefinitely only if (1) it captures him in a foreign theater of war; (2) during active hostilities; and (3) it determines him to be "indeed allied" with hsotile forces. (see pp. 52-53 of the opinion). It sounds almost reasonable. Here's the catch: all three prongs of this test are sufficiently proved, in the court's view, by a two-page affidavit written by an unelected, unaccountable government bureaucrat. Those two pages might be a work of fiction, but the court believes no judicial inquiry into the truth of what's stated there is warranted.

I was in favor of the Afghanistan invasion (although I'm sceptical about its success), and I'm all for dealing harshly -- even savagely -- with terrorists (as some of my posts below make plain). I don't even quarrel with the notion that an American citizen can be classified as an enemy combatant. But then charge him with treason, give him counsel, and be done with him. Don't use such a one to establish broad powers of incommunicado detention for the government, trusting that they'll only be used for good.

UPDATE: See this excellent observation on Volokh's site about the Padilla case, where the administration wants to see the Hamdi logic carried to the extreme: a right to detain indefinitely and incommunicado an Americna citizen arrested on American soil.
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More Palestinian Doublespeak

Meryl Yourish brings this beaut: Apparently, Abu Abbas, hijacker of the Achille Lauro and murderer of Leon Klinghofer, feels he should be lauded for not murdering everyone else aboard. Meryl does a great service in highlighting the terrorists' depravity. Pity her misguided views on bread.
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A Whisper in the Madding Crowd

Andrew Sullivan and Meryl Yourish (among others, I'm sure) have done yeoman's work these past two years documenting Europeans' weakening inhibitions in expressing their undiminished hatred for Jews. Every once in a while, though, a glimmer of reason shines through. The London Times' lead this morning criticizes Israel's decision not to let Palestinian delegates attend a planned London conference this weekend. In doing so, the Times states: "With some reason, Mr Netanyahu believes that Britain, and most of Europe, is culpably naive in dealing with the Palestinian Authority . . ." The Times' view is, however, that the London conference, rather than buttressing Mr. Arafat and his culture of permanent jihad, could lay the foundations for moving the Palestinians beyond that culture. On this view, Mr. Netanyahu's travel ban plays right into Arafat's hands.

I think the Times too demonstrates some naivete -- the culture of permanent jihad runs deep among Palestinian Arabs (and Arabs generally), and Mr. Arafat is not the problem. Still, their recognition that Mr. Netanyahu has a point is encouraging, even if it is drowned out still by the hate-filled vitriol of Europe's chattering classes.
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Compassion for (wealthy) Conservatives

Wiser heads than I have chimed in on the Bush tax cut. Paul Krugman hits the nail on the head in the New York Times. The Washington Post cites the views of two economists that the plan will do little to stimulate the economy. (Sullivan points out, for what it's worth, that both economists cited by the Post are democrats, one even having contributed to the DNC). The Christian Science Monitor (which blissfully does not require registration on its website) begs to differ. In the CSM's view, making dividends tax-free will have a transformative effect on shareholder-management relations: investors will clamor for "bird-in-hand" dividends, rather than long-term capital gains, once the relative tax benefits of the two types of return on investment are reversed (capital gains are currently taxed at a lower rate than "ordinary income," which is how dividends are classed). As a result, the incentive for companies to boost their stock prices by "such tricks as mergers" will be replaced by an incentive for them to boost productivity and hand over a greater portion of their profits.

It seems to me this is a speculative benefit at best. Billed as a way to stimulate investment and grow jobs, it could as easily have the opposite effect: Feeling pressured to pay a dividend (and to maintain it at a constant level or increase it over time), companies may forego the very type of long-term investment opportunities that lead to job growth. The fact is, sound management -- including decisions on how to finance the entity and whether to retain profits for investment or return them to investors -- should be based on broader considerations than the relative tax benefits of various alternatives. Want to encourage sound management? How about addressing the tax consequences of financing the entity? Right now (and historically), the tax code is biased in favor of debt finance: interest payments are tax deductible to the entity, while dividend payments are not. Seems to me, the Bush plan heightens the effect. Faced with pressure to pay dividends when they believe it's not sound to do so, management might simply alter the debt/equity mix of the company's financing. There are constraints on the company's ability to do so of course, but my intent is not to offer a prediction -- just to show that the predictions on which President Bush and his supporters rest so much of their argument are not so obviously accurate as they would have us believe.
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There He Goes Again

President Bush wants to eliminate income tax on dividends, at a cost to the fisc of $300 billion over 10 years. Guess what this is, folks: that's right, a sop to the wealthy. Most working stiffs don't have much in the way of dividend income,and most of what they do have in the way of dividends accumulates tax-free in IRAs, 401(k)s, and other tax-deferred savings plans. On the other hand, the members of the Ford and Bush families, for example, use dividend income as a primary source of spending money (hey, it beats working for a living).

Conservatives have claimed for years that taxing shareholders on dividends taxes corporate earnings twice: once when the corporatin pays income taxes on them, and again when they distribute what's left to shareholders as a dividend. In most European countries, this notion long ago took hold in tax policy, and those countries, the UK and France chief among them, have devised wonderfully complex systems for guarding against this double taxation (fertile ground for expensive tax advisers. Full disclosure: in a previous life, I was an expensive tax adviser).

But let's examine three assumptions underlying this so-called double taxation. First and foremost, the notion of "double taxation" rests on the presumption that the corporation paying dividends has in fact paid income tax on its income. As a former expensive tax adviser, I can say, verily it is not so. Or at least not always so. That's why God gave the world expensive tax advisers.

Second, the notion of double taxation rests on the assumption that the recipient of the dividend is a tax paying entity. For example, I own a few shares of IBM, and I earn dividends on them. I own the shares, however, in my IRA. Guess what: I don't pay tax on the dividends until that time, thirty odd years distant, when I retire and withdraw the funds. The present value of those taxes (assuming I'm around to pay them and the income tax is still on the books) is negligible.

Third, the notion of double taxation rests on what my very first tax professor called the "Heroic Assumption" -- that corporations do not pass their tax burden on to customers in the prices they charge.

Now one could argue all day about whether and to what extent these assumptions are valid. And converting a tax bill into a price increase doesn't eliminate a tax burden -- it merely redistributes it from the corporation and its shareholders to the consuming public (just as a national sales tax, a favorite tool of Republican enemies of the income tax, would do).

Reasonable people can differ about what the correct policy choice is here. Last I checked, this one wasn't answered conclusively at Mt. Sinai or at any time since.

But reasonable people cannot differ about the implications of President Bush's policy choice -- he has put himself firmly and decisively in the camp of the wealthy. The Rovian spin to come on how this will help all Americans is mere cant. Let's see if the media let BushRover off the hook or not.
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Sullivan Award

Andrew Sullivan's various "award" entries are usually on the mark and often amusing. He also tends to gore everyone's ox equally. But he misses badly with his "Begala Award Winner 2002 (for excessive liberal rhetoric)." Part of the problem, of course, is the term "excessive." One man's excess (whether in liberal rhetoric or tales of beagles) is another man's bliss. Beyond the issue of relativism, there is the millenia old use of rhetorical excess as a literary device (see, e.g., the Gospel according to Matthew 19:24,"it is easier for a camel to go through the eye of a needle than for a rich man to enter the kingdom of God." Now, there are no doubt Christians who believe that Jesus meant this comparison literally, but to discuss that point would require excessive digression). With that brief intro, let's dissect the award-winning quotation, to see in what sense its rhetoric might be deemed "excessive."

Bush's 'mandate' "includes using the taxing power to transfer wealth from working people to the rich.

Let's take a hypothetical taxpayer, call her Mary, married, two children living with her, earning $60,000 in wage income, and having no other source of income. In 2000 (taking 4 exemptions and the standard deduction), she'd have paid about $8,200 in federal income tax. In 2002 (assume no raise in salary; a dubious assumption perhaps, but in this economy, so's the assumption she'd still have her job), she'll pay just over $7,200. That's a savings of just under $1,000. Of course, more than a third of that is due not to the Bush tax cuts, but to the indexing to inflation of tax brackets, the standard deduction, and personal exemptions. Still, Bush has given her a tax break of roughly $650. I'm sure that cash comes in handy, trying to raise a family of four on $60,000 (gross) a year. But it hardly empowers Mary in any significant way. Add two zeros to Mary's income, and the tax break is all of a sudden worth about $60,000 (which is more than beer money, even to a $6 million Mary) And here's the downside: with a war looming, and less cash coming in to the Treasury, our budget deficit is ballooning again. Eventually, the spike in government borrowing is going to exert an upward pressure on interest rates. The well-to-do should weather that increase reasonably well (since they're likely to have little debt and lots of spare cash), but folks with variable rate mortgages and student loans, and with less cushion, will be in for a rude shock. The elimination of the inherited wealth tax amplifies the effect, and is an outright gift to the wealthy. Moyers' characterization pretty accurately describes the effect of the tax cut; if there's excess, it is perhaps only in ascribing to the President the motive, in cutting taxes, of achieving that effect. But that's fair too. It's not rocket science to see what the effects would be, and I think we can expect our President, even Dubya, to know a little. So the President either desired those effects, or was willing to accept them for some higher good that he hasn't explained very well.

It includes giving corporations a free hand to eviscerate the environment and control the regulatory agencies meant to hold them accountable.

On the environment, I confess to being too ill informed to comment. Again, though, if there's excess, it seems to be in ascribing to corporations a desire to eviscerate the environment or, which is the same thing, recklessly to disregard the environment. But on the matter of corporate control of (or influence over -- which is what Moyers probably meant (there's that pesky use of excess as a literary device)) regulatory agencies, he hits the nail on the head. Exhibit 1: Harvey Pitt as Chairman of the SEC. Fox guarding the henhouse. Nor is Moyers the only one with questions about lobbyist influence in the administration. Jonathan Chait summarizes some of the evidence in the New Republic.

And it includes secrecy on a scale you cannot imagine.

Here, Sullivan has a point, because Moyers is underestimating my imagination. Secrecy on a scale I can't imagine would be frightening indeed. But the Bush administration's love of secrecy, from immigration Star Chambers to its policy on the Freedom of Information Act, is pernicious enough. Read about it here.

Above all, it means judges with a political agenda appointed for life. If you liked the Supreme Court that put George W. Bush in the White House, you will swoon over what's coming.

Again, where's the excess? Bush has been open in his admiration for, and his intent to appoint judges in the mold of, Justice Scalia. I suppose it's excessive to use the word "swoon": Even I, uncommonly interested in the topic, have never swooned about a judicial nomination. But as excessive liberal rhetoric goes, it's pretty weak soup.

And if you like God in government, get ready for the Rapture. These folks don't even mind you referring to the GOP as the party of God. Why else would the new House Majority Leader say that the Almighty is using him to promote 'a Biblical worldview' in American politics?

Again, it's hardly time for the Rapture. Very over the top. But here's God's home at the White House. It includes handy advice to Churches on how to partner with the government. A far cry from naming the President fidei defensor, to be sure, though it's a title I'm sure he'd bear proudly.

So it is a heady time in Washington — a heady time for piety, profits, and military power, all joined at the hip by ideology and money." - Bill Moyers, paid for in part by your tax dollars, on PBS.

I'm shocked --shocked -- to discover that people are expressing political on PBS, which is partly funded by my tax dollars. But as Andrew well knows, there are opinions from the right, as well as the left, that find an outlet there. Hardly an award-winning quotation, if you ask me (at least not for liberal excess).
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What she said

Arianna mouths off about a big pet peeve of mine: the ubiquitous apostrophe. What really gets Arianna going is the use of apostrophes to render the plural of acronyms or abbreviations ("C.E.O.'s", for example). The sin that drives me crazy is "it's." I see this in briefs and even in judicial opinions all the time. Not only is it unprofessional for people who write for a living (lawyers and journalists) to make such an obvious error, but it's such an easy error to avoid. Here's the rule folks: Always use "its" (no apostrophe) in formal writing. "It's" is a contraction, meaning "it is" (It's a gorgeous day) or (less often) "it has" (It's been lovely chatting with you). Contractions are not proper in formal writing, unless they are a direct quotation of speech. Use your word processor's "find and replace" function to make a global change in all your documents. It's that simple.

Before I read Arianna's column, I thought I was alone in my frustration. Brava, Arianna.

Another Brick in the Wall
The lead editorial in this morning's New York Times finally takes President Bush to task for Executive Order 13279, disingenuously styled Equal Protection of the Laws for Faith-Based and Community Organizations. The courts and law reviews will be busy with this insidious ukase (and the larger crusade of which it is but a part), for quite a while (and yours truly will, I hope, have a hand in the work). But a little blogging is in order.

Let's start with the title. The choice of the equal protection language is politically astute (imagine the affirmatives from the Jaywalk All Stars on the push poll question: "Do you favor President Bush's efforts to provide equal protection of the laws to faith-based organizations?" Who could say no?). But to issue an Executive Order to assure faith-based organizations equal protection of the laws is a curious thing indeed. One would think that to the extent that faith-based organizations have a right to the equal protection of the laws, the Constitution itself ought to protect that right sufficiently. Are faith-based organizations currently being denied the equal protection of the laws? How? Are the courts in on the conspiracy?

Indeed, one might plausibly argue that faith-based organizations get better than equal protection of (at least some of) the laws. They are the beneficiaries of annual wealth transfers in the billions of dollars, in the form of property and income tax exemptions. Just think about what might happen to your real-estate taxes should churches, mosques and synagogues have to pay them. Compared to you and me, the protection of faith-based organizations from the revenue laws seems pretty damn equal! (Note: I don't for a minute suggest that these exemptions ought to be eliminated).

But EO 13279 has nothing to do with providing "equal protection" to faith-based organizations. It is, quite simply, an order to federal agencies to cut checks to churches: "No organization shall be discriminated against on the basis of religion or religious belief in the administration or distribution of Federal financial assistance under social service programs." (sec. 2(c)). The EO, to be sure, makes nods in the direction of separating religious indoctrination from federal funding. It requires that a faith-based organization receiving federal funding conduct "inherently religious activities such as worship, religious instruction, and proselytization" in a separate time and location from programs receiving federal funding (sec. 2(e)), and must not use federal funding to support those activities (sec. 2(f)). Now that division is well and good, it seems, except for two policing problems: Who? and How? First, the who: a government ombudsman? (or better yet,a corps of them? another group of bureaucrats? auditing our churches, monitoring their activities? Thank you no.) Second, how? Money is fungible. Woe betide the auditor who's going to try to enforce this kind of segregation. The EO specifically allows the churches to use their facilities to provide the programming the government is funding. Which means, presumably, that a portion of the church's mortgage is going to be an expense that can be charged back to the government program. Of course, what that means is that the government (that's you and me, folks) inevitably is paying for the upkeep of churches. No thank you. And the bigger problem: what's an an inherently religious activity? To an observant Jew, the easier question might be "what isn't?" I for one don't want the government going anywhere near that question, let alone answering it.

This is fertile ground for further inquiry (including the question I've begged above, about the principled distinction between tax exemptions and outright grants), but time is fleeting.

A Happy and Healthy 2003 to all, should I not post again before tomorrow evening.

Tortured Logic
The Washington Post reported yesterday that the U.S. may be torturing detainees in the war on terrorism. That is a serious allegation, and there should be a serious debate about whether and in what circumstances torture is justifiable. Human Rights Watch predictably takes the position in a letter to President Bush that "[t]orture is never permissible against anyone, whether in times of peace or of war." Alan Dershowitz, on the other hand, argued recently in a "60 Minutes" segment, that such an absolute prohibition is neither desirable nor achievable. See The Dagger's comments on a related topic.

But what I find more fascinating than that general debate (in which I would agree with Dershowitz) is this "example" of torture from the Post article:

Sometimes, female officers conduct interrogations, a psychologically jarring experience for men reared in a conservative Muslim culture where women are never in control.

Now, dollars to donuts, those who would consider this torture are ardent feminists, yet this is the argument they make: We shouldn't let a woman interrogate a fanatical muslim because in his culture, women are not allowed to do such things. The mind boggles.

But let's take this logic out for a test drive to show how absurd it is: In the fanatical muslim's culture, there is no such thing as due process of law, and the prohibition against torture is routinely violated. A fanatical muslim would expect to be tortured by his captors, just as he would torture his enemies. Out of respect for those cultural norms, mustn't we torture the fanatical muslim in order not to "psychologically jar" him by treating him differently (albeit more humanely) than he would expect to be treated?

Perhaps I'm missing something profound about this horrible practice of using female intelligence officers. If so, please enlighten me.