Lawmakers in the Bay State are rushing to change state law to make sure the late Sen. Edward Kennedy’s seat is filled as soon as possible with a reliable Democratic successor.

Never mind that as recently as 2004 the same state legislature had changed state law to mandate that a vacant Senate seat could only be filled by a special election to be held within five months of the vacancy.

Before then, as in most other states, vacancies were filled by an appointment of the governor, with the seat coming up for a vote at the next federal election. But in 2004, the Democratic legislature changed the law to prevent then-governor Mitt Romney, a Republican, from naming a Republican to replace Democratic Sen. John Kerry if he were to be elected president. Kerry lost to George W. Bush, but the law remained on the books.

That was then; now is now. With Democrats in Washington wanting to maintain their 60-vote caucus in the Senate, a five-month delay to let the people of Massachusetts actually vote on who will replace Kennedy has become an intolerable roadblock to progress. According to a report from Bloomberg News this morning, the Democratically-dominated legislature in Massachusetts is about to change the law back to allow the now-Democratic governor to appoint a successor within a month.

This is a textbook example of how politicians routinely ignore The Rule of Law in pursuit of political aims.

In his book, The Road to Serfdom, Friedrich Hayek devoted an entire chapter to the importance of the rule of law to a free society. “Nothing distinguishes more clearly conditions in a free country from those in a country under arbitrary government than the observance in the former of the great principles know as the Rule of Law,” Hayek wrote. He defined the phrase to mean “that government in all its actions is bound by rules fixed and announced beforehand,” and not subject to be changed arbitrarily depending on circumstances.

The Bloomberg story contained a less scholarly but equally sound critique of what is going on in Massachusetts: “It shows Democrats don’t care about principle,” said Massachusetts House Minority Leader Bradley Jones, a North Reading Republican. “They don’t care about debate. They don’t care about the rules. It really is disgusting.”

Further to David Rittger’s post below, here is a sublime commentary on Washington politics, the media, and some other odd phenomena:

Is Using A Minotaur To Gore Detainees A Form Of Torture?

The White House and the CBO announced this week that:

The nation’s fiscal outlook is even bleaker than the government forecast earlier this year because the recession turned out to be deeper than widely expected, the budget offices of the White House and Congress agreed in separate updates on Tuesday.

The Obama administration’s Office of Management and Budget raised its 10-year tally of deficits expected through 2019 to $9.05 trillion, nearly $2 trillion more than it projected in February. That would represent 5.1 percent of the economy’s estimated gross domestic product for the decade, a higher level than is generally considered healthy.

What is the right response to these deficits?

One view holds that most current expenditure is desirable — indeed, that expenditure should ideally be much higher — so the United States should raise taxes to balance the budget. Taxes are a drag on economic growth, however, and unpopular with many voters, so this view presents politicians with an unhappy tradeoff.

The alternative view holds that a substantial fraction of current expenditure is undesirable and should be eliminated, even if the revenue to pay for it could be manufactured out of thin air. To be concrete:

• Medicare and Medicaid encourage excessive spending on health care.
• The invasions of Iraq and Afghanistan encourage hostility to the U.S. and thereby increase the risk of terrorism.
• Drug prohibition generates crime and corruption.
• Agricultural subsidies distort decisions about which crops to grow, and where.
• And much, much more.

So, under this view, the United States can have its cake and eat it too: improve the economy and reduce the deficit without the need to raise taxes.

This approach is not, of course, politically trivial, since existing expenditure programs have constituencies that will fight their elimination.

But thinking about these two views of the deficits is nevertheless useful: it shows that discussion should really be about which aspects of government are truly beneficial, not just about the deficits per se.

C/P Libertarianism, A to Z

Over the last few days the right has been trying to rehabilitate the use of “enhanced interrogation techniques” on detainees, claiming that the ends justified the means. For a sample, click here, here, here, and here.

Don’t be fooled by these “enhanced justification techniques.” (H/T NonSequitur, who coined the term in response to Charles Krauthammer’s justifications for torture, something I have also fisked)

Peter Bergen breaks down the facts and chronology of what information we gleaned from Abu Zubaydah and Khalid Sheikh Mohammed (KSM) over at Foreign Policy.

Most interesting tidbit:

The CIA inspector general’s report on al Qaeda detainees also concluded that based on a review of KSM’s plots aimed at the United States, it “did not uncover any evidence that these plots were imminent,” but it did find that KSM “provided information that helped lead to the arrests of terrorists including Sayfullah Paracha and his son Uzair Paracha, businessmen who Khalid Shaykh Muhammad planned to use to smuggle explosives into the United States; Saleh Almari, a sleeper operative in New York; and Majid Khan, an operative who could enter the United States easily and was tasked to research attacks [redacted]. Khalid Shaykh Muhammad’s information also led to the investigation and prosecution of Iyman Faris, the truck driver arrested in early 2003 in Ohio.”

The man identified by the CIA inspector general as “Saleh Almari, a sleeper operative in New York” who KSM supposedly gave up to his interrogator appears, in fact, to be Ali Saleh Kahlah al-Marri, who was arrested on Dec. 12, 2001, in Peoria, Ill., a year and a half before KSM was captured.

I’ve written extensively about al-Marri, an Al Qaeda sleeper agent that the FBI picked up shortly after September 11, 2001. His arrest had nothing to do with KSM’s statements. This was FBI agents doing police work like we would hope they do. His indictment for credit card fraud and lying to federal agents may not be prosecution for conducting a terrorist attack, but that’s okay — if you can bust him on something else before he blows up a building, then it’s a win all around. Terrorism inherently breaks laws, and prosecuting aspiring terrorists for those crimes neutralizes them.

As former FBI counterterrorism agent Mike German says:

As an FBI agent my counterterrorism investigations never resulted in anyone being charged with terrorism. The terrorists I arrested were charged with specific criminal offenses; possessing and transferring illegal firearms and explosive devices, illegally using firearms and destructive devices, conspiring to use illegal firearms and destructive devices, and conspiring to violate civil rights. Terrorists use these crimes to accomplish their political goals. Once I had evidence of their illegal activities, I could bring charges against them. Certainly the motive behind their conduct came into play to prove they had the requisite criminal intent, but the laws I enforced had absolutely nothing to do with the terrorists’ ideology.

Al-Marri’s criminal prosecution should have been a success story that shows how law enforcement plays a critical role in counterterrorism. Instead, the Bush administration used him as justification for domestic military detention of suspected terrorists, a practice that it claimed would be lawful in the case of an American citizen apprehended on the streets of Anytown, U.S.A.

The rest of the information gained from KSM also fails to justify the blowback from exceeding the lawful limits of interrogation:

The Parachas are a father-and-son team; the former, arrested in Thailand in the summer of 2003, is being held at Guantánamo and has yet to face trial, while his son was convicted in 2005 of providing “material support” to al Qaeda.

Majid Khan was arrested in Pakistan only four days after KSM was captured, suggesting that this lead came not from interrogations but from KSM’s computers and cell phones that were picked up when he was captured.

Of the terrorists, alleged and otherwise, cited by the CIA inspector general as being fingered by KSM during his coercive interrogations, only Ohio truck driver Iyman Faris was an actual al Qaeda foot soldier living in the United States who had serious intention to wreak havoc. However, he was not much of a competent terrorist: In 2002 he researched the feasibility of bringing down the Brooklyn Bridge by using a blowtorch, an enterprise akin to demolishing the Empire State Building with a firecracker.

Bergen does a good job of putting torture in context and how little utility it actually had. Read the whole thing.

The Church Committee was a post-Watergate congressional committee that investigated allegations of lawbreaking by the executive branch, including the CIA and FBI. The committee’s report was incredibly important in helping the public understand the depth and breadth of Cold War lawlessness during the previous three decades. When Cato asked me to pen the chapter on electronic surveillance in this year’s edition of the Cato Handbook on Policy, I included a recommendation that Congress should launch a modern-day successor to the Church Committee.

In the last few months, I’ve been pleased to see that people smarter than me have been having the same idea. The latest is the Nation’s Chris Hayes, who has a great cover story calling on Congress to launch a wide-ranging investigation of executive branch lawbreaking.

We have lots of evidence that members of the Bush administration broke laws related to torture, wiretapping, and the Patriot Act. But because these reports are based on press reports and heavily-redacted Freedom of Information Act requests, we don’t know the full nature and extent of these crimes. Given that Barack Obama has fallen short of the transparency pledges he made during the campaign, Congress is likely the only institution in the United States with the resources and the political clout to produce a complete accounting of the civil liberties abuses of the last three decades.

I think the most important point Chris makes is this one:

Since the committee began in the wake of Nixon’s resignation and revelations about his deceptions, abuses and sociopathic pursuit of grudges, Church and many Democrats had every reason to believe they would be chiefly unmasking the full depths of Nixon’s perfidy. Quickly, however, it became clear that Nixon was a difference in degree rather than a difference in kind. Kennedy and Johnson had, with J. Edgar Hoover, put in place many of the illegal policies and programs. Secret documents obtained by the committee even revealed that the sainted FDR had ordered IRS audits of his political enemies. Republicans on the committee, then, had as much incentive to dig up the truth as did their Democratic counterparts.

As historian Kathy Olmsted argues in her book Challenging the Secret Government, Church was never quite able to part with this conception of good Democrats/​bad Republicans. Confronted with misdeeds under Kennedy and Johnson, he chose to view the CIA as a rogue agency, as opposed to one executing the president’s wishes. This characterization became the fulcrum of debate within the committee. At one point Church referred to the CIA as a “rogue elephant,” causing a media firestorm. But the final committee report shows that to the degree the agency and other parts of the secret government were operating with limited control from the White House, it was by design. Walter Mondale came around to the view that the problem wasn’t the agencies themselves but the accretion of secret executive power: “the grant of powers to the CIA and to these other agencies,” he said during a committee hearing, “is, above all, a grant of power to the president.”

A contemporary Church Committee would do well to follow Mondale’s approach and not Church’s. It must comprehensively evaluate the secret government, its activities and its relationship to Congress stretching back through several decades of Democratic and Republican administrations. Such a broad scope would insulate the committee from charges that it was simply pursuing a partisan vendetta against a discredited Republican administration, but it is also necessary to understand the systemic problems and necessary reforms.

This is a case where political expedience and justice point in the same direction. A thorough investigation will undoubtedly uncover numerous examples of abuses of power under the Bush administration. But Bill Clinton was hardly a civil libertarian himself. Thoroughly investigating abuses of power under Clinton (and under Reagan and Bush I) will serve two important purposes. First, of course, it will help to deflect spurious charges that the investigation is a partisan witchhunt. But more importantly, it will likely underscore the point that abuses of power are a bipartisan phenomenon. The problem is not just that George W. Bush was too secretive or power-hungry (although of course he was). The problem is that presidents are almost always secretive and power-hungry, and our system of government needs better checks and balances to ensure that presidential attempts to evade accountability do not succeed. The abuses of the Bush/​Cheney years may provide the political momentum we need to fix the problem. But the problem is bigger than any one administration.

The Dept. of Education has just released a study finding that (predominantly college-aged or older) students learn significantly more if their lessons occur at least partly on-line, than if they rack up seat-time exclusively in conventional classrooms (HT: Matt Ladner).

This makes sense. On-line learning usually allows students to progress at their own pace, so as soon as the student’s ready to move on to the next stage, she can. There’s no falling behind the rest of the class, or doodling in your notebook while you wait for them to catch up. So, like performance-based grouping and one-on-one instruction, it’s more efficient than the status quo, which lumps together students by age regardless of their knowledge or performance.

The great irony of this report is that it bears the name, in its frontmatter, of one Arne Duncan, secretary of education. Secretary Duncan had this to say shortly after taking office back in February: “If we accomplish one thing in the coming years, it should be to eliminate the extreme variation in standards across America.”

While the evidence presented by his own Department shows that greater student achievement comes from more individually customized on-line learning, Duncan’s diametrically opposed priority is to homogenize education so that every 10 year old is being taught the same things at the same time.

Fortunately, short of actually outlawing or invasively regulating on-line learning, there’s nothing that anyone can do to stop it from gradually displacing the old model, particularly for high school and older students.

Daniel Henninger shares the good news in the Wall Street Journal today: The war on terror is over!

Unfortunately, he appears to bemoan that development. The excesses of the “war on terror” will—regrettably, to him—be reined in by lawyers.

His basic thesis is, very roughly: Lawyers interfere with good things. Lawyers are going to interfere with torture. So torture is a good thing.

This litigation nightmare, together with the chilling effect of the special prosecutor’s potential indictments, has as its goal making the price of aggressive interrogation too high under any circumstance, including a one-hour-bomb scenario.

Bring back the Dalkon Shield, asbestos, and torture!

Except that the ticking time-bomb/“one-hour bomb” scenario is never going to happen. It’s an interesting ethical thought experiment—and riveting fodder for TV—but not a serious dilemma for our security policy.

I take delight when commentators misuse history or culture to jazz up their writing, and Henninger throws a slow, fat pitch right over the plate: He quotes the famous anti-laywer line from Shakespeare, “The first thing we do, let’s kill all the lawyers.”

The line was spoken by a criminal to other criminals as they dreamed up a criminals’ “chicken in every pot” scenario. This undercuts the idea that we’d be better off without lawyers and the rule of law.

Terrorists are too weak to advance their own unpopular ideologies, so they seek to tear down their opponents’. Henninger’s attack on the rule of law in the United States invites exactly what terrorists want us to do.