The House leadership plans to hold a vote, more or less, on the Senate health care bill this week. President Obama says he wants to “ge[t] rid of many of the provisions that had no place in health care reform — provisions that were more about winning individual votes…than improving health care.” White House spokesman Robert Gibbs says Democrats will “take the pot-sweetening out of the process.” Yet Democrats have decided to retain the Senate bill’s $300 million subsidy for the state of Louisiana, commonly known as the “Louisiana Purchase,” and other state-specific bribes pot-sweeteners.

On ABC News’s This Week yesterday, Obama advisor David Axelrod argued that the “Louisiana Purchase” is not targeted solely at Louisiana:

The president does believe that state-only carve-outs should not be in the bill. There are things in the bill that apply to groupings of states…for example…what has been portrayed as a provision relating to Louisiana says that if a state, if every county in a state is declared a disaster area, they get some extra Medicaid funds. Well, that would apply to any state…

Sure, in theory. But as ABC News reported in November, the bill speaks of “certain states recovering from a major disaster” and “spends two pages describing what could be written with a single world: Louisiana.”

Axelrod would have us believe that after Senate Majority Leader Harry Reid (D‑NV) wrote the best darned bill he could, he slapped his head and said, “Omigosh! The way I worded this one subsidy provision, it would only apply to Louisiana — the home state of a senator whose vote I need! Gee whiz, what are the odds??” Using Axelrod’s rationale, if Reid had included a $10 billion pension for “all African-American former presidents,” that would not be an Obama-only pot-sweetener because it would apply to any African-American former president.

As I wrote in this post, Senators McCain and Lieberman proposed a broad piece of anti-terrorism legislation. The Enemy Belligerent, Interrogation, Detention, and Prosecution Act of 2010 would use military detention to incapacitate suspected domestic terrorists, including American citizens. This is a sea change in counterterrorism policy and a break from American principles that mandate a day in court.

This bill is a bad idea for several reasons. First, for the points that I made in my previous post, the civilian criminal justice system successfully incapacitates domestic terrorists. Our laws are built to do that — it’s the international nature of al Qaeda and the necessity of military force in the expeditionary conflicts we are fighting that make things different. Second, I doubt that this policy will be seen as a bonanza for domestic counterterrorism, and the agencies responsible tasked with using military detention won’t actually have much use for it. Third, and most importantly, detaining American citizens minus a suspension of habeas is unconstitutional and will be held so in court.

The policy prescribed under this bill is to direct anyone apprehended and suspected of terrorism into military custody for their initial interrogation. The bill bars them from being read Miranda rights, directs a high-value detainee interrogation group to determine whether or not they fit the bill as an unprivileged enemy belligerent (Military Commissions Act 2009 language for unlawful enemy combatant), and further directs authorities to submit this information to Congress. Anyone designated as an enemy belligerent can be detained until the cessation of hostilities, which amounts to whenever Congress says that the war on terrorism is over.

The kicker is that aliens detained domestically under this system must be tried by a military commission. Citizens cannot be tried by military commissions, and the jurisdictional language in the Military Commissions Act (MCA) reflects this. Basically, the government would collect a bunch of intelligence that is inadmissible in federal courts and then hold American citizens indefinitely. Also, detaining large numbers of Muslim aliens (who may have strong ties to local Muslim communities) and prosecuting them in military commissions threatens to radicalize citizens who are Muslims. The perceived double standard — commissions for Muslims in America, civilian trials for everyone else — is counterproductive when it comes to defeating terrorist recruiting.

I say that this won’t be a bonanza for the intelligence community because I see this scenario playing out in three ways:

First, it might work as seamlessly as the bill’s sponsors describe. This could be true if we already have a lot of evidence, the suspect is arrested, temporarily transferred for a short session of non-admissible interrogation, and then kicked back to the civilian criminal justice system (true with citizens, not with aliens). There’s an argument that traditional police interrogations could get the same (or more) information that the military can, because military interrogators do not have the bargaining tools such as snitching on co-conspirators for reduced sentences, plea bargains and the like. I won’t belabor that, since it’s not the point of this post.

Second, there’s the possibility that the military and the intelligence community won’t want to get involved in a lot of these cases, essentially nullification of what Congress would dictate with this bill. The FBI would monitor the communications of someone like JihadJane, have mountains of evidence against her, and have a case that supports the arrest of her co-conspirators overseas. In this case military detention is unwarranted, so the military investigator shows up, decides that the law enforcement agents have the situation in hand, and high-fives them on the way out the door. The bulk of terrorism suspects don’t have a wealth of information about other plots, so mandating military detention is tying the Executive’s hands by making counterterrorism agents jump through additional bureaucratic hoops when they take people into custody. I thought this was something that conservatives oppose.

Mandating military custody gets hairier in real emergencies. Imagine a parallel to the 1993 WTC bombing where the FBI knows that a cell is assembling a bomb but doesn’t sweep up the suspects before the bomb is operational and in a truck bound for its intended target. Agents lose track of the suspects, but quickly locate one of them and take him into custody. The new law would mandate that they first get the guy into military custody before asking him where the bomb is going. Besides creating an incentive to put military investigators (CID, NCIS, or OSI) on every Joint Terrorism Task Force in America (possible Posse Comitatus and 10 U.S.C. 375 issues with this and the rest of the bill), this doesn’t even guarantee that a military investigator is with the agents who capture the suspect that we need information from right now. Under the current “soft-on-terrorism law enforcement approach” the law enforcement agents can question the suspect directly and be assured that the exigency of the situation makes his statements admissible in court via Quarles, where the Court created a “public safety” exception for the post-arrest, pre-Miranda questioning of a rapist who had hidden his gun in a supermarket. A bomb heading toward the federal building or a shopping mall is a bigger threat than a revolver mixed in with the fresh fruit, and courts get this. If the course of action dictated to the people on the ground fails the “ticking bomb” scenario, it ought to be opposed by all armchair counterterrorism experts who take their cues from 24.

The third possibility is a worst-case scenario. Suppose we have an American citizen who gets taken into military custody, gives up a lot of information, but then won’t repeat it when he is kicked back to the civilian law enforcement system. Some will make the case that this is justification for an honest-to-goodness preventive detention system to keep such a person in custody.

This raises the question of constitutionality with regard to holding American citizens as domestic enemy combatants. More to the point, it resurrects the case of Yaser Hamdi with a differently-situated plaintiff. Hamdi was a dual US-Saudi citizen who was captured on the battlefield in Afghanistan. He was brought to the US and kept in a naval brig in Charleston, South Carolina. The Supreme Court heard his case and the plurality held that he could be detained as an enemy combatant, but that some form of administrative hearing was required to balance his liberty interest versus the government’s national security concerns.

Justices Scalia and Stevens dissented and got this case right (agreeing with Cato’s brief). American citizens cannot be held without trial short of suspending habeas corpus, and Congress has not supplied language to comply with the Non-Detention Act when it passed the Authorization for the Use of Military Force after 9/11.

After all, President Bush’s military order of November 13, 2001 directs the Secretary of Defense to detain and try enemy aliens by military commission. The Military Commissions Acts of 2006 and 2009 have not deviated from this language.

The court challenge that results is a return to the Executive playing “chicken” with the courts, and the Executive continuously losing.

Courts will distinguish domestic terrorism suspects from those who participated in hostilities on the battlefield. This was the reasoning behind Jose Padilla’s loss in the 4th Circuit. He had been on the battlefield and escaped, parallel to Yaser Hamdi and the Nazi saboteurs of the Quirin case. This distinguished him from Lambdin Milligan, the post-Civil War domestic terrorist who was ordered out of a military commission and back into the civilian courts.

Even those who disagree with Scalia and Stevens can count votes on the Court. The narrow circumstances in Hamdi are not present here, and the battlefield/​civil society distinction has the potential to sway all but two or three of the justices. Kennedy indicated displeasure with the jurisdictional shell game the Bush administration played with Jose Padilla, along with Roberts and Stevens. Souter, Ginsburg, and Breyer voted to hear his case even after he had been transferred from enemy combatant status to federal court.

The bottom line is that this bill mandates treating all terrorist attacks as acts of war and not criminal violations, when some are clearly both. It isn’t bad policy because there is no justification for military force — there is — it’s bad policy because it prohibits a pragmatic legal response to terrorism. If the law enforcement paradigm gets results for the threat, use it. The same goes for the military paradigm. But let’s not pick one over the other for the sake of domestic politics.

On Sunday the University of Kentucky Wildcats saved their SEC tournament championship on a second-chance shot with 0.1 seconds left on the clock.

That’s a great way to win a basketball game, but not a good way for Congress to impose 2000 pages of federal rules on one-seventh of the American economy.

White House senior advisor David Axelrod continued the administration’s campaign against the Supreme Court’s Citizens United decision on ABC’s This Week:

But thinking about Teddy Roosevelt, I wonder what he would think about a bill that essentially allows for a corporate takeover of our elections, or a court decision. And that’s what we’re dealing with here. Under the ruling of the Supreme Court, any lobbyist could go into any legislator and say, if you don’t vote our way on this bill, we’re going to run a million-dollar campaign against you in your district. And that is a threat to our democracy.

He was of course echoing and defending President Obama’s declaration in the State of the Union address:

With all due deference to separation of powers, last week, the Supreme Court reversed a century of law that I believe will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections. I don’t think American elections should be bankrolled by America’s most powerful interests or, worse, by foreign entities. They should be decided by the American people.

Axelrod and Obama are horrified at the idea of corporate contributions to elections. Who can imagine the impact? It’s too horrifying to contemplate.

Except — it turns out that Axelrod and Obama don’t have to imagine a political system wracked by corporate contributions. They’re already intimately familiar with such an undemocratic system. Chicago Tribune columnist Steve Chapman points out:

But consider a state where corporations are already allowed to spend as much as they want on elections: Illinois.

That is, Obama and Axelrod spent their entire political careers in a state where corporations can make direct political contributions. Chapman isn’t impressed with the corporations’ impact:

Here, companies have established beyond doubt that this prerogative, when combined with $2.25, will get them a ride on the bus.

Illinois is something short of a corporate paradise. It ranks 30th among the states in its friendliness toward business. The Tax Foundation, which did the survey, complains of excessive sales, property and unemployment insurance taxes.

Illinois is one of a minority of states requiring employers to pay more than the federal minimum wage. It is notorious for heavy workers’ compensation costs. It puts no limits on the punitive damages a company can be assessed.

All this evidence should dispel the fear that future congressional debates will pit the senator from Exxon Mobil against her distinguished colleague from Bank of America. It turns out that where corporate expenditures are allowed, corporations a) don’t do much or b) don’t get much for what they do.

Whether or not that’s true, someone should ask Obama and Axelrod whether they accepted corporate contributions in Illinois, whether they fought to end that system, and whether they think democracy still exists in Illinois. But as far as I can tell, no one has, including ABC, NBC, and CNN, all of whom interviewed Axelrod this morning.

When Dorothy and her friends finally reach Oz, they present themselves to the almighty Wizard, only to eventually discover that he is just an illusion maintained by a charlatan hiding behind a curtain. This seems eerily akin to to the state of Keynesian economics. It does not matter that Keynesianism isn’t working for Obama. It does not matter that it didn’t work for Bush, or for Japan in the 1990s, or for Hoover and Roosevelt in the 1930s. In the ultimate triumph of theory over reality, the Keynesians say all that matters is the macroeconomic model behind the curtain showing that more government spending leads to more jobs and growth. Consider the recent report from the Congressional Budget Office (CBO), which claimed that Obama’s stimulus created at least one million jobs. As Brian Riedl of the Heritage Foundation noted:

CBO’s calculations are not based on actually observing the economy’s recent performance. Rather, they used an economic model that was programmed to assume that stimulus spending automatically creates jobs — thus guaranteeing their result. …The problem here is obvious. Once CBO decided to assume that every dollar of government spending increased GDP…, its conclusion that the stimulus saved jobs was pre-ordained.

But surely this can’t be true, you may be thinking. Our public servants in Washington would not make important policy decisions based on a model that automatically produces a certain result, would they? Peter Suderman of Reason pulls aside the curtain:

[T]hose reports rely on assumption-packed models that effectively predetermine their outcomes; what they say, in essence, is that the stimulus worked because we assume it did. …That’s especially true when estimating government spending’s productive effects, which is accomplished by plugging numbers into a formula that assumes that government spending produces a multiplier—an increased return for every government dollar spent. In other words, it extrapolates from how much money is put in rather than from what has actually come out. And it does so using a formula that dictates that if money is put in, even more money will come out. According to the CBO’s estimates, depending on how the money is spent, one dollar of government spending can produce total economic activity of up to $2.50. What a deal! …[F]or all practical purposes, the same multipliers that were used to predict how many jobs would be created are being used to estimate how many jobs have been created.

Interestingly, CBO’s analysis is completely schizophrenic. Its short-run budget numbers are based on free-lunch Keynesianism that assumes deficit-financed government spending boosts growth, while its long-run numbers are driven by an assumption that government borrowing is terrible for growth (which is why CBO actually claims higher taxes boost economic output — see, for example, Figure 3 of this CBO analysis). It is impossible to know whether the people at CBO actually believe their own work, or whether they are simply trying to please their political paymasters by producing results that (conveniently) match up with political preferences for more spending today and higher taxes tomorrow. You can draw your own conclusions, but keep in mind that CBO is now making the absurd claim that a giant new healthcare entitlement will reduce budget deficits.

But I digress. Let’s now give a defense of the Keynesian model. The folks at CBO and other Keynesians who publish estimates that inevitably turn out to be wrong (Mark Zandi comes to mind) will claim that they are right because they are predicting results compared to what otherwise would have happened. So when they claim that Obama’s so-called stimulus created jobs, they are really saying that the economy would have lost even more jobs if the government didn’t spend all that money. The problem with this approach is that there is no independent benchmark, but this is not why Keynesianism is wrong. Indeed, most of the economic profession relies on this kind of “counterfactual” analysis. Instead, the problem with Keynesianism is that it fails the empirical test. The Keynesians may be good at constructing models, but that doesn’t mean much if the models don’t match the real world. Here’s what Kevin Hassett of the American Enterprise said in recent congressional testimony:

[M]ost economists learned in graduate school that models like those relied upon most heavily by the CBO provide nonsensical results. The reason the original large scale Keynesian Macro forecasting models were discarded by most of the profession is that they make a simple logical error in assuming that individuals do not change their behavior based on the expectation of future policy. …Professor Barro has been one of the primary contributors to the macroeconomic time series literature that has tried to estimate effects from observed economic data, rather than assume affects, as is done by the Keynesian models. …Barro’s analysis is based on econometric evidence, a reliance on experience. The CBO analysis is based almost exclusively on speculation within the context of Keynesian Macro models that were discredited decisively in the 1970s. …Dating at least back to the seminal work of Nelson (1972), economists have known that the empirical time series approach significantly outperforms macroeconomic models in forecasting competitions. …Ashley (1988) compares data-based time series forecasts to those from the large macro forecasters and concludes not only that the time series approach is superior, but that the macro forecasts were so bad that, “most of these forecasts are so inaccurate that simple extrapolation of historical trends is superior for forecasts more than a couple of quarters ahead.” …Finally, one should note that this literature, combined with an earlier public finance literature, raises questions concerning the welfare gain associated with short-term increases in spending. …Browning (1987) finds that the marginal cost ranges widely, between 10% and 300%. Thus, the welfare costs of paying the bill may be greater than the short-term boost to the economy from the most optimistic estimates. This literature would be consistent with Barro’s analysis that suggests the stimulus makes us worse off in the long run.

The question at National Journal’s Security Experts blog concerning NATO and the future of Europe has stimulated quite a spirited debate. I decided to take another bite at the apple.

My response:

Gordon Adams objects to the framing of the question, arguing that Europe is more important than ever because European governments have chosen to invest in civilians, not men and women at arms. In this context, Europe’s military weakness is a feature, not a bug.

Dan Serwer agrees, saying that the “Europeans are on to something,” that their civilian capabilities are vast, that they’ve been deployed in 22 different operations, and are involved in a dozen currently.

But even if they have such capabilities, all the soft power in the world isn’t worth much without some military power to back it up. In many of the places where nation building might be called for, various thugs, murderers and warlords use weapons to steal food aid, intimidate local officials, and kidnap wealthy foreigners. Such situations cry out for hard power: people who pry the weapons from the cold dead hands of the warlords, and convince the warlords’ followers to get onboard or else meet a similar fate. The aftermath of this dynamic, played out dozens of times in the past several decades, is what allows the guys in wingtips and the gals in sensible pumps to do development assistance, legal reform, institution building, etc.

In this respect, I agree with Messrs. Killebrew and Carafano. Hard power still matters. Unlike them, however, I would much prefer that locals be responsible for adjudicating these internal disputes, and, failing that, that others beside the U.S. military be capable and willing to deliver that hard power.

Bob Killebrew, the most emphatic defender of NATO as a concept (even if he advocates some reforms at the margins) concludes with three different points:

1. “NATO makes highly unlikely the kinds of European arms races and alliances that led to war so many times in recent history.”

In other words, with respect to Gates’s contention that Europe’s military weakness is a problem (bug), Killebrew still thinks it a good thing (feature).

2. “Without NATO, the Greeks and Turks would have long had their war, and perhaps others as well.”

Ummmm, hello? One could argue that NATO prevents small disputes like the 35-plus year Turkish occupation of northern Cyprus from spiraling into a major European war, but that is not what Col. Killebrew wrote (and it would be a very difficult assertion to prove in any case because there are in fact many things to explain the absence of wars between traditional enemies).

3. Killebrew concludes that we are, in fact, subsidizing the defense of other, far more vulnerable, allies, and that we should continue to do so. “With NATO, the Poles and others feel less pressure to prepare for their defense. That can, and should, irritate U.S. policymakers, but it’s good for the U.S. in the end.”

Jim Carafano appears to reject the argument — he wants Europe to get serious about military power and “join the real world” — but he is especially dismissive of the claim that greater restraint by the United States will induce the Europeans to do more. “The less we spend,” he writes, “the less they spend.”

Evidence please.

To reiterate, the current U.S. posture toward Europe is based on precisely the opposite premise: many of the defenders of the NATO status quo believe that if we were to do less, the Europeans would do more — and that would be bad.

Our intentions are ultimately irrelevant here. In my previous post, I alluded to the literature showing that even if our policies in Europe were not intended to discourage other NATO members from spending more money on their militaries, they would still be disinclined from doing so simply because it makes sense for each of them to shelter behind the strongest member of the alliance.

One need not sift through dusty economics journals or boring white papers to understand that while we have done more, the Europeans have done less.

• Andrew Coulson on national education standards: “The whole idea of imposing a single set of age-based standards on all students rests on a false premise: that children are identical widgets capable of being dragged along an instructional conveyor belt at the same pace, benefiting equally from the experience.”

• Question of the day: Would Obamacare end corruption—or expand it?

• Making things worse: How increasing the minimum wage will kill even more jobs for black teens, a group already facing 45 percent unemployment.

• The unintended consequences of a National ID card. (Now with support from both sides of the aisle.)

• Podcast: “Bad Statutes, New Crimes” featuring Marie Gryphon.