March 2004
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Month March 2004

Even more secretiveness about Medicare…

This executive privilege stuff is getting old. Today, the White House refused to allow their chief health policy advisor, Douglas Badger, to testify in front of Ways and Means tomorrow. Naturally, the spokesman cited the need to “preserve the White House’s ability to get the best information possible and to speak candidly.”

The issue, of course, is that Ways and Means is investigating the fact that the Medicare prescription-drug benefit was sold to Congress as costing $395 billion, while the true costs seem to be closer to $511 billion. Naturally, that’s $116 billion we don’t have, so it just adds to the deficit estimates. So, you can imagine that Ways and Means is pretty interested in whether (a) this is an honest mistake and the original estimates were simply wrong, or (b) the Administration knew the real cost estimate and lowballed it to pass the bill.

And, in a pattern which is looking sickeningly familiar, it looks like option B is the likely one. It’s been reported that former Medicare administrator Scully threatened to fire Richard Foster (Medicare’s chief actuary) if he revealed the higher estimate to Congress. This threat counters a long-standing tradition that Congress has had free access to Foster’s estimates.

When Foster testified last week in front of Ways and Means, he testified that Scully, Douglas Badger, and other White House officials knew about the higher estimates. Foster doesn’t know, however, whether Bush was given the estimates. So, the Ways and Means committee is now trying to get Badger’s testimony on this, in the usual game of “Did Bush Know This Before Saying Something Else Publicly?”

And the White House is giving its by-now-typical response: you can’t ask our people questions, it’s executive privilege.

Sickening abuse of power and lack of accountability, is what it is. I hope Ways and Means gets serious about cracking this one.

Verset Cornas 1985

Opened a bottle of the Verset Cornas from 1985 with some friends yesterday. With only ½ hour in the decanter, the nose was rich, with high-toned Syrah notes, a bit of olive (but not as much as you’d get from Clape), and a hefty serving of “merde.” The wine had great acid and the palate was rich, holding up in the glass for several hours. It turned out to be a high point in our tasting, alongside some surprise Barberas, a beautiful 1994 Sandrone Cannubi which was perfectly ready, and a couple of nice Chateauneufs. The 1985 is very hard to find, but if you come across a well-stored bottle, buy it without hesitation.

Reading List progress…

I’m getting pretty far behind in my reading, as a result of slogging through a patent filing and putting other reading on hold to tackle Richard Clarke’s book. I’m going to probably slow down the pace of blogging a bit, in order to catch up a bit and also work on a reflective piece on Christopher Hitchens and Iraq. And that’s no real loss — the online community is full of places for up-to-date analysis of daily events, and I’m trying to move into a more analytic, reflective mode in my postings anyway. I’ll be reporting increasingly on the results of research stimulated by current events, not the “daily news” itself.

Executive Privilege and the 9-11 Commission

We’ve heard the administration throwing around “separation of powers” and “executive privilege” a great deal lately, as excuses for various officials not testifying openly to the 9-11 Commission. I had only a vague notion of whether this was valid or not, so I delved a bit.

The Constitution, of course, doesn’t explicitly enumerate a right of executive privilege. Nevertheless, from Washington onward, presidents have claimed a right of confidentiality for their conversations, “internal” papers, and similar protections for their advisors. (Michael Dorf has an excellent history on FindLaw). And there’s little precedent for the conditions under which courts can strike down claims of executive privilege — except the case of United States v. Nixon (418 U.S. 683), decided by the Supreme Court in 1974.

Writing for a united court (Rehnquist did not participate), Chief Justice Burger noted that “Nowhere in the Constitution, as we have noted earlier, is there any explicit reference to a privilege of confidentiality, yet to the extent this interest relates to the effective discharge of a President’s powers, it is constitutionally based.” Yet Burger and the Court sharply limited the right of confidentiality whenever it would impede a criminal investigation. As a result, Nixon had to surrender his Oval Office tapes, and resigned several days later.

Clearly, the case of the Bush Administration and the 9-11 Commission doesn’t fall neatly into the standards established by the Burger Court. It’s not a criminal investigation or criminal case before a court. The 9-11 Commission, however, is a legally constituted investigative body, established by Public Law 107-306 (107th Congress). The commission has the right to “require, by subpoena or otherwise, the attendance and testimony of such witnesses…as the Commission or such designated subcommittee or designated member may determine advisable.” Individuals who are summoned for testimony under subpoena and fail to appear, are subject to the normal penalties for failing to appear under subpoena.

Thus, clearly it’s not due to lack of appropriate authority that the Commission can’t force Condoleezza Rice to appear and testify under oath; the commission must not feel that it’s politically appropriate to try to compel such testimony. Likely this is covered by the following:

Sec. 606 (c) Public Hearings. Any public hearings of the Commission shall be conducted in a manner consistent with the protection of information provided to or developed for or by the Commission as required by any applicable statute, regulation, or Executive order.

Damn. This is where the wiggle room comes in. If there’s an Executive order, even a classified one, which says that the President or National Security Advisor won’t talk about certain subjects, they can claim that the Commission can’t ask them about it.

The upshot here is that the Commission itself is emasculated enough to be unable to compel testimony — even if they did subpoena Condi Rice, the Administration could claim that this could violate an Executive order or decision. The courts have the power, given United States v. Nixon, to break the wall of executive privilege in criminal cases, but this won’t go far enough. We’ll have to be satisfied with pressuring them politically.

Richard Clarke: The Sound and the Fury

As the furor over Richard Clarke’s book and 9-11 Commission testimony begins its second week, the whole thing keeps getting more surreal. The push now seems to be to declassify selected pieces of Clarke’s 2002 congressional testimony in order to use it for perjury charges — or at least to let that be the headline for a few days.

Here’s my take. Clarke isn’t a saint. There is, however, a ton of corroborating evidence for at least the big contentions in his book and testimony. An article by Condoleezza Rice in Foreign Affairs from 2000 has little mention of terrorism as a national security priority, and what mention there is focuses on “rogue states” like North Korea and Iran. No mention is made of bin Laden or al-Qaeda as threats, and it’s clear that Rice does have a “statist” view of foreign policy and security, just as Ivo Daalder, Ron Suskind, Richard Clarke, and others have previously claimed. Interestingly, Rice’s comments on Iraq discuss it as a leading “rogue state” but make no mention of exporting terrorism worldwide — whereas she makes precisely that claim concerning Iran.

Clarke’s testimony and book are also well-confirmed by an August 2002 article in Time Magazine by Michael Elliott (the article isn’t linked here because it’s in a paid archive but is available for $2.50). Elliott’s article confirms, at the very least, that broad elements of this story have been known in the public record for at least 18 months, before Clarke left government service to begin writing his book.

So there’s a couple of possibilities: (1) Clarke could be intentionally misleading everyone, but if he did, he planned the deception well because a lot of other people seem to be helping him out, (2) Clarke is essentially correct about the history of counter-terrorism throughout the Clinton and Bush Administrations. Which is the more likely hypothesis? Given the supporting evidence beyond Clarke’s testimony and books, I’m leaning towards accepting the simpler of the two explanations: Clarke is telling the truth.

Everything else is secondary. Sure, he’s an abrasive guy, and yeah, maybe he’s an asshole. Maybe he even did what he was told in 2002 and “spun” his testimony before Congress a bit, possibly even on orders from his superiors.

But as Josh Marshall has pointed out, none of that matters from the perspective of the public knowing the truth about what happened before 9/11. Granted, it’s possible some of this may come back to bite Clarke (particularly if the vindictive White House can make perjury stick), but that only sucks for Clarke. The rest of us still know more of the truth than we knew before. And that’s a good thing.

Bush’s Claims about Tax Cuts and Home Ownership

As he campaigns in Arizona and New Mexico, Bush has been touting his tax cuts as the “engine” for rising home sales. Paul Krugman will undoubtedly deconstruct this for us next week, but it seems obvious to me that tax cuts have nothing to do with rising homeownership. As everyone knows, the rate of housing sales respond much more strongly to mortgage interest rates than any other factor. With the Fed keeping interest rates chained up in the basement, mortgage rates are at the lowest rates since the late 1950’s.

Which means that many people can afford houses that previously couldn’t, with the same size down-payment. It means that people who own a home can sell it more easily and afford a better home. It means that people can do well by refinancing their existing homes. All of which is obvious, even to us non-economists.

This is really kind of pathetic — Bush is grasping at straws trying to paint a rosy picture of how he’s helped ordinary Americans economically. But sadly, Kerry hasn’t been doing much better lately, offering economic plans for which the arithmetic just doesn’t add up. Bush is clearly vulnerable, but not if the challenger can’t get it together.