Saturday, November 21, 2009

Book 'em

President Barack Obama and Attorney General Eric Holder have come out in favor of show trials with pre-ordained verdicts for the men accused of planning the September 11 terror attacks.

At least that’s what it sounded like when Holder assured the Senate Judiciary Committee last Wednesday that he had told federal prosecutors that “failure is not an option” in the proposed trials, and Obama spoke as if the outcome were a fait accompli, saying that doubters would be reassured “when [Khalid Sheikh Muhammad] is convicted and when the death penalty is applied to him.”

In other words, we wouldn’t be holding a trial if we weren’t sure what the verdict is going to be. What kind of justice is that? Inherent in the idea of putting someone on trial is the possibility, even if remote, that the defendant may be acquitted.

Now, a variety of arguments can be made against bringing the September 11 plotters to trial, including the tainted nature of the evidence and the need to protect intelligence sources, but what Holder and Obama seem to be saying is this: the possibility of their acquittal is simply politically unacceptable. And that’s a scary thing to hear from the people at the top of our judicial system.

The question of what to do with the prisoners taken in the fight against jihadism is tying the U.S. government in knots and forcing us to think about justice and the sometimes fuzzy line between war and crime. Driving the debate is the Obama administration’s desire to close the U.S. prison at Guantánamo, Cuba, which means figuring out what to do with the people we’ve been holding there for years without trial.

How can a country based on the rule of law justify holding prisoners indefinitely without trial? Well, you have to define them as enemy combatants, which means you can hold them the way we did enemy POW’s in World War Two. None of them got a trial, and nobody said they should have. They just got caught in the course of fighting for the other side, and we had to do something with them. Similarly, we scooped up a lot of people in Afghanistan in the fighting that followed our invasion there, and we didn’t have any crimes to charge them with; they were just on the other side. We couldn’t let them go or they would have gone back into the hills and gone on fighting us, so we took them to Guantánamo.

So far, so good. But in World War Two there was a definable end to hostilities. When Germany and Japan surrendered, we returned their prisoners. When will the War on Terror be over? Nobody knows. Nobody even knows what the criteria are. With asymmetrical warfare and long-running insurgencies we’re in uncharted legal territory. So we have people sitting in Guantánamo who have never been charged with a crime but whom we don’t want to let go.

We’re not sure how to distinguish between the truly dangerous ones and the ones who just didn't like foreigners marching up the valley, and we don’t know what to do with the latter. But after eight years, it’s getting harder and harder to defend continued detention without trial. A country that proclaims its respect for the rule of law cannot simply go on holding prisoners forever without any possibility of appeal or resolution. And Obama’s determination to resolve the situation has opened up a Pandora’s Box of thorny legal questions.

Some say that military tribunals are more appropriate than our criminal court system for dealing with terror suspects. Others say that these tribunals don’t offer adequate legal safeguards. Of course, that’s precisely the point. If you can’t face the idea of the defendant going free, you’re not going to accept legal safeguards.

To achieve justice in the treatment of the prisoners at Guantánamo, we have to make some distinctions. We have to decide if there is any element of legitimate warfare at all on the jihadist side, and if so, we have to come up with criteria for the eventual release of those prisoners who were engaged in legitimate warfare. If not, they’re all criminals. And if they’re criminals, we have to be willing to prosecute, with all that that implies.

Of course there are, in theory, laws of war, and people can be prosecuted for contravening them. That’s why we put the Nazis on trial at Nuremberg and hanged Tojo. But if we try the September 11 plotters as war criminals in military tribunals, isn’t that tantamount to conceding some element of legitimacy to their campaign against the United States? We didn’t try Tojo for making war, but for commiting crimes in the course of that war. Is global jihad a legitimate military enterprise, with the September 11 attacks an aberrant departure from it?

Not in my book. But it could be argued that resisting the U.S. invasion of Afghanistan was legitimate warfare rather than terrorism, and if so, then some of the people at Guantánamo are prisoners of war in the classic sense. In that case, maybe the best course of action with regard to them is to send them back to Afghanistan and put them in Bagram prison with the other people captured in the current campaign there. We need to recognize that not everybody in Guantánamo has the same status and start sorting the guys who were just defending their turf from the ones who were devising ways of killing large numbers of American or European civilians.

For them, I don’t see any alternative to prosecution. Criminal prosecution of Khalid Sheikh Muhammad says to the world that we deny the legitimacy of attacks specifically targeting civilians. That’s not war, that’s murder. And if you’re going to bring criminal charges, that means you have to have due process, including the risk of acquittal. You’d better make damn sure you have a good case, but in the long run the legitimacy of our system will only be undermined by rigging the trials or refusing to provide them. And in the long run, American men and women are not going to go on fighting and dying in faraway countries for a system of dubious legitimacy.

So I think Obama and Holder have to stand up in front of the American people and say, “These are the people who planned the greatest mass murder in American history, and we are going to prosecute them, and if a fair trial leads to acquittal, then that’s just one of the risks of having a working judicial system. And if they are convicted we are going to put them in prison here on American soil, because they committed their crimes against Americans, and if that makes us the target of further attacks we will defend against those as we have defended against others in the past. And those are the risks of having an open society.”

That would take guts. We’ll see if Obama and Holder have them.

Sam Reaves

Sunday, November 8, 2009

Dial 911 for health care?

The House of Representatives has passed its version of a health care reform bill, and it’s starting to look as if before too long we’ll get some kind of legislation that will transform the U.S. health care system.

I wish I had more confidence in the ability of the Congress to produce good policy, but I don’t. Given the way the legislative process operates, we are guaranteed to come up with something that, while it may increase the number of people insured, will almost certainly make the system more cumbersome and expensive. That may be better than the status quo, but then again it might not be.

The legislation will be cumbersome and expensive for two reasons: the Democrats’ preference for bureaucratic micro-management over sensible calibration of incentives, and the way legislation is produced, in which horse-trading and marker-calling play a larger role than sober policy analysis. Whatever comes out of Congress, it’s going to be ugly.

Will it solve the problem? That depends on what problem you’re talking about. We’ll probably wind up with more people covered by insurance. But I see nothing in the summaries I’ve read (not even our Congressional leaders have read the whole 2,000-page monstrosity) that will reduce the burdensome administrative costs of the system, which are the main reason we spend 16% of GDP on health care. We’ll continue to have a complex, jury-rigged mixed health-care system, and it will only get more expensive.

Maybe in a few years, when the staggering costs begin to focus minds, we’ll be ready for a new attempt at reform. Let’s hope at that point we’ll also be ready for some fresh thinking and a new approach.

The best discussion I’ve seen recently of the health care crisis was in
David Goldhill’s article
on health care in the September issue of the Atlantic, together with readers’ reactions and Goldhill’s responses to them published in the November issue. Goldhill’s article analyzes the underlying reasons for the health care crisis, and suggests meaningful reforms.

The crux of his argument is that when patients do not directly bear the costs of medical care (because even routine care is covered by insurance), moral hazard is created, providers are insensitive to patient (i.e. consumer) concerns, and cost containment becomes impossible. Goldhill compares the current situation in health care to “paying for gas with our auto-insurance policy, or for our electric bills with our homeowners insurance” and details the distortions that follow from that. I don’t know of a better analysis of the real problems with the current system, which the currently debated legislation in Congress would do nothing to fix.

Of course, not everybody buys Goldhill’s argument. Among those who wrote responses to his article was Mike Mahoney of Sandpoint, Idaho, who said, “Throughout history, when societies have found that a service was needed for the common good, that service was created, and people chose to tax themselves to provide it. Armies, fire departments, water systems, police departments—all were created and paid for as the need arose. It makes no more sense to expect only those who can afford health care to have it than it would to make sure you have a valid credit card before dialing the fire department.”

That’s a pretty good statement of the case for state-provided health care. And proponents of a system like Britain’s National Health Service are right in saying that such a system would be administratively much simpler, reducing the amount of resources wasted on paperwork. Of course, there are other problems with government-provided health care, such as waiting lists and constant budget pressures. Any system has to ration care somehow, and in a single-provider or single-payer system it’s politicians and bureaucrats who decide how much gets spent on health care. And that brings a whole new set of problems.

But Mahoney’s letter got me to thinking: why do we accept without question government provision of police and fire services, while the thought of government-provided health care sends half the electorate into a Don’t Tread On Me frenzy?

Maybe it’s because the term health care covers a highly disparate variety of things, some of which are more suited to government provision than others. The reason why it makes no sense to make sure you have a valid credit card before dialing the fire department is because when your house is on fire, it’s an emergency: you need help right now, and your ability to pay is, or ought to be, irrelevant. The same goes for police protection and any other emergency service. We have recognized in our society that in an emergency it’s appropriate to help now and ask questions later.

Maybe it’s appropriate to make the same distinction in health care as we grope toward the right balance of public and private financing. Some medical needs are emergencies: you get hit by a bus, shot by a gang-banger or ambushed by your failing heart, and it’s inhuman to pester you with questions about payment as you bleed out on the gurney. Maybe in this realm government-provided (or paid-for) medical care makes sense, and Mahoney is right in saying that we ought to join other advanced nations in just providing it, no questions asked.

But other medical needs are more predictable and more subject to things under your control, such as diet and lifestyle, and are probably not best handled by third-party payment, for the reasons Goldhill discusses. Maybe you ought to pay for routine checkups the way you pay for an oil change on your car or maintenance on your furnace. Maybe even antibiotics for your fever ought to come out of your pocket, (or your privately financed insurance policy) the way body work after the fender bender does. Maybe the proper approach for most health care needs is to budget and save and carry private insurance for unexpected expenses. And for people who can’t afford that, there can always be a government-provided safety net.

In short, maybe there’s not a single best answer for all our health care problems, and a government role is appropriate for some medical needs and not for others. It’s worth considering as we wait for the latest spasm of tinkering from Congress to complicate the system, because the next round of reform is going to require some outside-the-box thinking.

Sam Reaves