Editorials

June 22, 2008

The Other Bill Clinton

Not all the world hates the United States. Countries that make up the former Soviet empire have a great love of America, thanks to the U.S. commitment to ensuring their freedom and helping them join the EU and NATO. And in sub-Saharan Africa, the U.S.'s approval ratings are even stronger, including countries with mostly Muslim populations. In fact, George W. Bush's approval ratings on the continent are staggeringly high because of his commitment to AIDS and malaria funding, which has saved millions of lives.

Says who? Says none other than former President Bill Clinton, in a lecture at the legendary Radio City Music Hall in New York on Tuesday.

It wasn't a night of nonpartisanship, of course. Mr. Clinton railed against global-warming skeptics and those who would drill in the Arctic. He blamed Republican economic policies for growing inequality in the U.S. and compared American society – in which the richest 1% control 42% of the wealth – to South American dictatorships.

Nonetheless, Mr. Clinton's tone in general suggested his finger-wagging behavior on the campaign trail does not carry over when speaking in his capacity as elder statesman and philanthropist. Then, he's all about policy and problem solving. Also missing was any hint of the isolationism and protectionism that were his party's stock in trade during the recent primary race.

"Divorce from the rest of the world is not an option," Mr. Clinton said, generating awkward laughs from the audience. He was referring to his own party's antitrade posturing as much as Mr. Bush's refusal to sign the Kyoto climate treaty. Though frustratingly silent on Nafta, a signature achievement of his administration that recently was criticized on the campaign trail by another candidate named Clinton, Mr. Clinton did speak at length about the African Growth and Opportunity Act.

That law, which he signed in 2000, allows certain sub-Saharan countries – those that improve their labor laws and move toward a market-based economy – to export goods to America duty-free. The act, says Mr. Clinton, created hundreds of thousands of jobs and lifted hundreds of thousands of African families out of dire poverty. Hmmm. If free trade works for Africans, is Mr. Clinton saying it can work for others?

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Wall Street Journal | Sunday, June 22, 2008

 

June 13, 2008

President Kennedy

Supreme Court Justice Anthony Kennedy isn't known for his judicial modesty. But for sheer willfulness, yesterday's 5-4 majority opinion in Boumediene v. Bush may earn him a historic place among the likes of Harry Blackmun. In a stroke, he and four other unelected Justices have declared their war-making supremacy over both Congress and the White House.

Boumediene concerns habeas corpus – the right of Americans to challenge detention by the government. Justice Kennedy has now extended that right to non-American enemy combatants captured abroad trying to kill Americans in the war on terror. We can say with confident horror that more Americans are likely to die as a result.

An Algerian native, Lakhdar Boumediene was detained by U.S. troops in Bosnia in January 2002 and is currently held at Guantanamo Bay. The U.S. military heard the case for Boumediene's detention in 2004, and in the years since he has never appealed the finding that he is an enemy combatant, although he could under federal law. Instead, his lawyers asserted his "right" – as an alien held outside the United States – to a habeas hearing before a U.S. federal judge.

Justice Kennedy's opinion is remarkable in its sweeping disregard for the decisions of both political branches. In a pair of 2006 laws – the Detainee Treatment Act and the Military Commissions Act – Congress and the President had worked out painstaking and good-faith rules for handling enemy combatants during wartime. These rules came in response to previous Supreme Court decisions demanding such procedural care, and they are the most extensive ever granted to prisoners of war.

Yet as Justice Antonin Scalia notes in dissent, "Turns out" the same Justices "were just kidding." Mr. Kennedy now deems those efforts inadequate, based on only the most cursory analysis. As Chief Justice John Roberts makes clear in his dissent, the majority seems to dislike these procedures merely because a judge did not sanctify them. In their place, Justice Kennedy decrees that district court judges should derive their own ad hoc standards for judging habeas petitions. Make it up as you go!

Justice Kennedy declines even to consider what those standards should be, or how they would protect national security over classified information or the sources and methods that led to the detentions. Eventually, as the lower courts work their will amid endless litigation, perhaps President Kennedy will vouchsafe more details in some future case. In the meantime, the likelihood grows that our soldiers will prematurely release combatants who will kill more Americans.

To reach yesterday's decision, Justice Kennedy also had to dissemble about Justice Robert Jackson's famous 1950 decision in Johnson v. Eisentrager. In that case, German nationals had been tried and convicted by military commissions for providing aid to the Japanese after Germany's surrender in World War II. Justice Jackson ruled that non-Americans held in a prison in the American occupation zone in Germany did not warrant habeas corpus. But rather than overrule Eisentrager, Mr. Kennedy misinterprets it to pretend that it was based on mere "procedural" concerns. This is plainly dishonest.

By the logic of Boumediene, members of al Qaeda will now be able to challenge their status in court in a way that uniformed military officers of a legitimate army cannot. And Justice Scalia points out that this was not a right afforded even to the 400,000 prisoners of war detained on American soil during World War II. It is difficult to understand why any terrorist held anywhere in the world – whether at Camp Cropper in Iraq or Bagram Air Base in Afghanistan – won't now have the same right to have their appeals heard in an American court.

Article I, Section 9 of the Constitution contains the so-called Suspension Clause, which says: "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." Justice Kennedy makes much of the fact that we are not currently under "invasion or rebellion." But he ignores that these exceptions don't include war abroad because the Framers never contemplated that a non-citizen, captured overseas and held outside the U.S., could claim the same right.

Justice Kennedy's opinion is full of self-applause about his defense of the "great Writ," and no doubt it will be widely praised as a triumph for civil liberties. But we hope it is not a tragedy for civil liberties in the long run. If there is another attack on U.S. soil – perhaps one enabled by a terrorist released under the Kennedy rules – the public demand for security will trample the Constitutional delicacies of Boumediene. Just last month, a former Gitmo detainee killed a group of Iraqi soldiers when he blew himself up in Mosul. And he was someone the military thought it was safe to release.

Justice Jackson once famously observed that the Constitution is "not a suicide pact." About Anthony Kennedy's Constitution, we're not so sure.

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Wall Street Journal | Friday, June 13, 2008

 

May 13, 2008

Wall Street Journal - McCain's Climate 'Market' is Obama-lite

The latest stop on John McCain's policy tour came at an Oregon wind-turbine manufacturer, where the topic was – what else? – the Senator's plan to address climate change. This is one of those issues where Mr. McCain indulges his "maverick" tendencies, which usually means taking the liberal line. That was the case yesterday, no matter how frequently he claimed his approach was "market based."

In fact, if "the market" is your favored mechanism, Mr. McCain's endorsement of a "cap and trade" system is the worst choice for reducing greenhouse-gas emissions. The Bush Administration has pursued one option, which combines voluntary measures with subsidies for "clean" alternatives. Since 2001 under this approach, U.S. net carbon emissions have fallen by 3% – that is, by more than all but four countries in cap-and-trade-bound Europe.

At the other end of the market spectrum is a straight carbon tax, which would at least distribute costs more efficiently. It would also force politicians to be honest about – and take responsibility for – the true price of their global-warming posturing.

Then there's cap and trade, which Mr. McCain has backed for years and would, as he put it with some understatement, "change the dynamic of our energy economy." He noted that Americans have a genius for problem-solving but continued, "The federal government can't just summon these talents by command – only the free market can draw them out." To translate: His plan is "market based" insofar as it requires an expensive, invasive government bureaucracy to interfere with the market.

Mr. McCain's proposed targets and policy instruments more or less mesh with the global-warming bill sponsored by Senators Joe Lieberman and John Warner that may come up for debate next month. The McCain plan would aim to return emissions to 2005 levels by 2012, and to 1990 levels by 2020. Barack Obama supports similar reductions.

In theory, this would be achieved by imposing emission ceilings on electric power, transportation fuels, commercial business and industries. If a company produced less carbon than it was allowed under the cap, it could sell -- i.e., trade – its extra allowances to other businesses. Under the McCain plan, permits would be given away to industries, at least initially. Mr. Obama prefers to "auction" the permits, meaning businesses would be taxed at the outset. So Mr. McCain's plan would help mitigate the transition costs of putting "the age of fossil fuels behind us."

The problem is that once government creates an artificial scarcity of carbon, how the credits are allocated creates a huge new venue for political rent-seeking and more subsidies for favored industries. Some businesses will benefit more than others, in proportion to their lobbying influence and how well they're able to game the Beltway. Congress itself will probably take the largest revenue grab, offering itself a few more bites out of the economy and soaking politically unpopular businesses.

Then there's the question of whether any of this will even reduce greenhouse gasses. The McCain plan would allow businesses unlimited use of domestic and international offsets to comply with the carbon cap. So a chemical manufacturer, say, would pay an industry not covered by the program – most notably, agriculture – to reduce its emissions. Or it could pay a coal plant in China for plucking low-hanging efficiency fruit, like installing smokestack scrubbers. In other words, U.S. consumers would be paying higher prices for energy in return for making Chinese industries more efficient and competitive. Europe is in the midst of that experience now under the Kyoto Protocol, and most of its reductions so far have been illusory.

The compliance bookkeeping for this new "market" is vastly complex, and a McCain Administration would create a public-private "Climate Change Credit Corporation" to oversee it all. This new regulatory body is likely to morph over time into an "Energy Fed," similar to the one Warner-Lieberman would create. Such an agency would set the price of energy indirectly by fiddling with carbon levies, which will undoubtedly lead to economy-wide distortions.

Given the distance between Mr. McCain's rhetoric and the policy reality, we wonder if he even knows what he's proposing. This is of a piece with his approach to many domestic issues, where the policy contradictions and cul-de-sacs overwhelm his professed political convictions. The McCain campaign believes his global-warming plan will appeal to independents and young people, as well as separate the Senator from President Bush.

But he will never be green enough for the climate-change fundamentalists. The Obama campaign and Democrats were already dinging Mr. McCain yesterday for half-measures. His concessions won't help him much in November, but they will make his governing decisions in 2009 that much more difficult if by some chance he does win.

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Wall Street Journal | Tuesday, May 13, 2008

 

April 26, 2008

Foul Play Act

Every now and then – once or twice a year – Congress attempts to do the work that its constituents sent the Members to do. But most days are like Wednesday, when Senate Majority Leader Harry Reid could find nothing more pressing than to force an awkward vote on Republicans in an election year.

The vehicle was the Lilly Ledbetter Fair Pay Act, which passed the House last summer but which President Bush has threatened to veto. Ms. Ledbetter worked at Goodyear Tire & Rubber for 20 years before retiring a decade ago. Only after she took her pension – and her old boss had died – did she sue her former employer for pay discrimination. Last May, the Supreme Court sensibly ruled that the statute of limitations on these cases means what it was intended to mean. To wit: A claim that is not filed in a timely fashion (within 180 days in most pay-discrimination suits) should be thrown out.

Ms. Ledbetter took the novel view that decisions made decades ago by her now-deceased former boss affected her pay all the way up to her retirement, so each paycheck was a new discriminatory act. On this theory, there would be no statute of limitations at all. Cases could be brought long after relevant evidence and witnesses had passed from the scene. In practice, every such suit would become a new trial lawyer pay day, as employers settled cases they would find impossible to defend.

Democrats decided to make this enterprising legal theory the law of the land via the Ledbetter Fair Pay Act. Forty-one Republicans filibustered, so the bill stalled, as Mr. Reid no doubt expected. As one Senator told us, if Mr. Reid had really wanted the bill to pass, he would have cajoled the Republicans he needed beforehand. Instead, he rushed it to the floor, let Ms. Ledbetter's cause go down in flames, and then let the Democratic Party call out the Republicans who voted nay.

Expect attack ads denouncing GOP candidates for opposing "fair pay" to appear this fall. We hope Republicans fight back by calling the bill what it really is – the unfair pay for the trial bar act. Kudos to Senate Republicans for taking a stand against bad policy and partisan opportunism.

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Wall Street Journal | Saturday, April 26, 2008

 

April 6, 2008

No Lawyers, Please

A poll released this week finds that most Americans do not want their day in court. Rather, they prefer cheaper and faster methods of settling arguments. When asked how they'd like to settle a dispute with a company, 82% chose arbitration, which avoids the time and expense of going to court. Only 15% opted for litigation. Americans are not confident that a lawsuit will produce a fair result, reports the poll, but a solid majority looks favorably on mediation and arbitration.

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Wall Street Journal | Sunday, April 6, 2008

 

March 31, 2008

Hillary's Bad History

No, not sniper fire in Bosnia. We're referring to Hillary Clinton's lament last week that the U.S. is flirting with a 1990s Japan-style deflation. Perhaps it's a good time to remind everyone what really happened in Japan, so Mrs. Clinton and the rest of Washington don't make the same mistakes. "I don't think we can work our way out of the problems we're in in the broad-based economy with monetary policy alone," Mrs. Clinton said in the interview with Journal reporters. "I think the Japanese tried that and tried and tried that." She added Japan should have relied more on fiscal stimulus spending and aid to banks and homeowners, which is what she wants Washington to try now.

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Wall Street Journal | Monday, March 31, 2008

 

March 21, 2008

Guns and Legal Ammo

District of Columbia v. Heller has become the test case for a question that has animated legal scholars, politicians and lower courts for much of our modern history: Is the Second Amendment guarantee a collective right, which is to say it is reserved only for state militias, or is it an individual right?

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Wall Street Journal | Friday, March 21, 2008

 

March 11, 2008

Spitzer's Rise and Fall

One might call it Shakespearian if there were a shred of nobleness in the story of Eliot Spitzer's fall. There is none. Governor Spitzer, who made his career by specializing in not just the prosecution, but the ruin, of other men, is himself almost certainly ruined. Mr. Spitzer's brief statement yesterday about a "private matter" surely involves what are widely reported to be his activities with an expensive prostitution ring discovered by the U.S. Attorney's office for the Southern District of New York. Those who believe Eliot Spitzer is getting his just desserts may be entitled to that view, but it misses the greater lesson for our politics.

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Wall Street Journal | Tuesday, March 11, 2008

 

March 3, 2008

President "Whatever"

Russians yesterday "elected" 42-year-old lawyer Dmitry Medvedev, but the truth is that Vladimir Putin made sure power would stay in his hands. Mr. Medvedev gets a new office and some powers of appointment. But Mr. Putin will soon become Prime Minister and can count on support from cronies across the government who depend on him for their survival. Mr. Medvedev refused to debate his notional opponents, all pre-approved by the Kremlin; gave no press conference; and spent a single day campaigning.

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Wall Street Journal | Monday, March 3, 2008

 

February 28, 2008

A Little Nuke Music

The New York Philharmonic’s concert in Pyongyang was a tantalizing taste of what might be in America’s relationship with North Korea. It was also a reminder of the missteps and dangerously wrongheaded judgments that have kept the two countries apart and at saber-point for more than a half century.

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New York Times | Thursday, February 28, 2008