Afghanization?

Col. Sellin, whose op-ed and consequent firing we noted (don't miss Buhallin's corrective), is taking advantage of his newfound liberty to opine over at Tom Ricks's place:

Seriously though, I think it is time for the American people to hold the senior military leaderships' (colonels and up) feet to the fire. When they make their reports to Congress, one can be sure that it is the best possible scenario that they can justify without lying. The phrase "progress is being made" should not be accepted as an answer. It is like saying "the check is in the mail."

Everyone should remember that these are military careerists. War provides the opportunity for testing their skills, getting medals and promotions. A compromise peace without their definition of "victory" might be considered a failure. They all want to march down Pennsylvania Avenue like General Norman Schwarzkopf. Likewise, the contractors want to continue making their huge profits. It is the common soldiers, however, who are providing the sweat and shedding the blood.

We must stop treating the Afghans like children. They are not. It is their country and for better or worse, they should start taking responsibility for it. There is little reason not to begin turning over responsibility now. Regional Command West is possible because it is the most peaceful part of the country. That could be followed by Regional Command North. Between now and next July, the coalition can concentrate on Regional Commands East, South and Southwest.

After that no more blank checks. In my opinion, time's up.

Undoubtedly the right, although difficult, answer; Afghanistan may collapse, or threaten to, but we cannot keep it on life support forever, a sort of Terri Schiavo "vegetative State."

"Limited government," meet "government without limits"

The Heritage Foundation has hired a new vice-president: David Addington.

Conor Friedersdorf reflects:

In other words, The Heritage Foundation now employs a man who has done more than almost anyone else to advocate radical expansions in the power of the federal government, including torture and warrantless spying on American citizens. On its About Page, the organization claims to advocate for "limited government" and says it believes "the principles and ideas of the American Founding are worth conserving and renewing."

There are a lot of employees at Heritage who actually do believe in those principles.

Can any of them defend this personnel choice?

Probably not many of them have the financial security *not* to defend it.

Instant internet classic

Wow. Someone managed to search Facebook status updates for the misspelling "mosk" and gleaned the most incredible sample of public opinion on the "9/11 mosque" (not at the 9/11 site; not a mosque).

There's a long diatribe on Glenn Beck (all true, but you knew it already, so skip), and then the Facebook stuff about 1/4 of the way down. A fascinating glimpse into the minds of the people standing ahead of you in the Walmart checkout line. You may never dare to shop there again.

(H/t EOTAW.)

Jews Ruin Parties

That's the more informative title of The Sun Also Rises, as brought to you by Better Book Titles.

See if you can guess these other classics' original titles:

Never Flirt with a Veteran's Wife

A Zombie Learns French

A Quaint, Midafternoon Panic Attack

One Long Sentence About Handjobs

If only we *had* a socialist in the White House!

Since the start of the recession, the number of unemployed in the U.S. has doubled. Those who are fortunate enough to still have jobs are often working longer hours for less pay, with the ever-present threat of losing being laid off. But even before the recession, American workers were already clocking in the most hours in the West. Compared to our German cousins across the pond, we work 1,804 hours versus their 1,436 hours – the equivalent of nine extra 40-hour workweeks per year. The Protestant work ethic may have begun in Germany, but it has since evolved to become the American way of life.

Thus Salon, priming its chat with Thomas Geoghegan, who thinks what America needs is more socialism. A snip:

But the Germans have a lower GDP than we do. Doesn’t that mean that our quality of life is better?

One day we’ll get beyond that and see that the European standard of living is rising. You can pull out these GDP per capita statistics and say that people in Mississippi are vastly wealthier than people in Frankfurt and Hamburg. That can’t be true. Just spend two months in Hamburg and spend two months in Tupelo, Mississippi. There’s something wrong if the statistics are telling you that the people in Tupelo are three times wealthier than the people in Germany. Despite the numbers, social democracy really does work and delivers the goods and it’s the only model that an advanced country can do to be competitive in this world. I mean that not just in terms of exports, but in terms of being green at the same time. That we can raise the standard of living without boiling the planet shows how our measure of GDP is so crude.

What are we missing when we measure the GDP?

We don’t have any material value of leisure time, which is extremely valuable to people. We don’t have any way of valuing what these European public goods are really worth. You know, it’s 50,000 dollars for tuition at NYU and it’s zero at Humboldt University in Berlin. So NYU adds catastrophic amounts of GDP per capita and Humboldt adds nothing. Between you and me, I’d rather go to school at Humboldt.

So much of the American economy is based on GDP that comes from waste, environmental pillage, urban sprawl, bad planning, people going farther and farther with no land use planning whatsoever and leading more miserable lives. That GDP is thrown on top of all the GDP that comes from gambling and fraud of one kind or another. It’s a more straightforward description of what Kenneth Rogoff and the Economist would call the financialization of the American economy. That transformation is a big part of the American economic model as it has morphed in some very perverse directions in the last 30 or 40 years. It’s why the collapse here is going to take a much more serious long-term toll in this country than in the decades ahead.

Not sure where he got "Tupelo" from, but it's probably like many American cities in that respect: a few people doing very well indeed, and a lot of people struggling to get by. Anyway, I'm not competent to judge the pros and cons of the German economy, but take a look. (One complaint about Euro socialism, that it's unsustainable, no longer sounds as cogent; how sustainable is the American economy?)

Housekeeping

Yahoo!'s mail program was better than Hotmail when I switched -- Hotmail had no discernible spam filtering at the time -- and I was happy with it for years.

But in the past few months, its pages have been unbearably sluggish. I suspect their ads are to blame. It became ridiculous having to wait a few minutes to check off spam posts, for instance.

So, TBA is joining the lemmings' rush to Gmail: tbablogs -at- gmail -dot- com. I'll probably get mail forwarded from the Yahoo! account for a couple of weeks.

"This is going to be almost inconceivably ugly"

I’m finding it hard to read about politics these days. I still don’t think people in the administration understand the magnitude of the catastrophe their excessive caution has created. I keep waiting for Obama to do something, something, to shake things up; but it never seems to happen.

Here’s what I wrote in February 2009. It’s pretty rich that now the usual suspects are accusing me of having shared the administration’s optimism. But that’s a trivial point; the important thing is that all signs are that the next few years will be a combination of economic stagnation and political witch-hunt.

This is going to be almost inconceivably ugly.

-- Paul Krugman.

The stimulus was underpowered and destined to falter right when it has, before the mid-terms. The Fed is delusional (if not actually conspiring to hurt the Dems in the elections, as TBA is not above suspecting). Failure to aid state governments sufficiently has put our public-sector consumption behind even Germany's.

Krugman's blog has been one of the best pol-econ sites on the internet. Bookmark it. Unless, like Krugman, you too have an understandable reluctance to read about politics these days.

Comer plaintiffs seek writ of mandamus

Jonathan Adler notes that the plaintiffs in the "global warming --> Katrina" case, who got a 12(b)(6) dismissal reversed and then had their case tossed by an egregious procedural trick, have petitioned SCOTUS for a writ of mandamus to get their panel decision un-vacated.

I continue to be very skeptical of the merits of their case, but the plaintiffs deserve to have their panel op reinstated, and then perhaps the defendants can seek cert themselves on those merits.

"That fine line between good taste and unemployment"

Col. Lawrence Sellin crossed that line, and is no longer employed by the U.S. Army in Afghanistan -- tho happily for him, he's a reservist, so now he can go back to his real career.

His crime? Blowing the whistle on that notorious WMD, PowerPoint (Weapon of Mass Dullification):

I have been assigned as a staff officer to a headquarters in Afghanistan for about two months. During that time, I have not done anything productive. Fortunately little of substance is really done here, but that is a task we do well.

We are part of the operational arm of the International Security Assistance Force commanded by U.S. Army Gen. David Petraeus. It is composed of military representatives from all the NATO countries, several of which I cannot pronounce.

Officially, IJC was founded in late 2009 to coordinate operations among all the regional commands in Afghanistan. More likely it was founded to provide some general a three-star command. Starting with a small group of dedicated and intelligent officers, IJC has successfully grown into a stove-piped and bloated organization, top-heavy in rank. Around here you can't swing a dead cat without hitting a colonel.

For headquarters staff, war consists largely of the endless tinkering with PowerPoint slides to conform with the idiosyncrasies of cognitively challenged generals in order to spoon-feed them information. Even one tiny flaw in a slide can halt a general's thought processes as abruptly as a computer system's blue screen of death.

The ability to brief well is, therefore, a critical skill. It is important to note that skill in briefing resides in how you say it. It doesn't matter so much what you say or even if you are speaking Klingon. * * *

The start and culmination of each day is the commander's update assessment. Please ignore the fact that "update assessment" is redundant. Simply saying commander's update doesn't provide the possibility of creating a three-letter acronym. It also doesn't matter that the commander never attends the CUA.

The CUA consists of a series of PowerPoint slides describing the events of the previous 12 hours. Briefers explain each slide by reading from a written statement in a tone not unlike that of a congressman caught in a tryst with an escort. The CUA slides only change when a new commander arrives or the war ends.

The commander's immediate subordinates, usually one- and two-star generals, listen to the CUA in a semi-comatose state. Each briefer has approximately 1 or 2 minutes to impart either information or misinformation. Usually they don't do either. Fortunately, none of the information provided makes an indelible impact on any of the generals.

I'm certainly glad we're getting intelligent people like Sellin out of the military. (Via Drum.)

Mee-YOW-zah on the MSSC!

Justice Dickinson's dissenting pen is getting sharper and sharper.

Today brings a curious asbestos case, in which the scope of a settlement was at issue: did it cover certain plaintiffs, or not? On the basis of "conflicting affidavits" from opposing counsel, the trial court ruled that there was an enforceable settlement.

Writing for a three-justice plurality, Justice Graves (whose ticket to the Fifth Circuit has not been stamped yet) says that is just fine. Dickinson is not convinced:

Today’s decision (albeit a plurality) would grant to a trial judge the authority to decide whether or not the parties have settled and, if so, the terms of the settlement. Never mind that in this case, the only proof of a settlement (and its terms) before the trial court was a pair of conflicting affidavits from the lawyers. Never mind that – as far as one can tell from reading the record – the plaintiffs’ lawyer (whose affidavit apparently persuaded the trial judge) has never been in the presence of the trial judge. Never mind that there were no witnesses, and that the trial judge never even heard from the client who actually has to pay the money. And never mind that the terms of the alleged settlement were not reduced to writing – not even so much as bullet points scribbled on the back of a napkin.

So let me see if I have it straight. After today, the plurality’s logic would allow a plaintiff to sue one of our cities – let’s say Jackson or Tupelo – in a slip-and-fall case. The lawyers could then meet to discuss discovery and possible settlement. Plaintiff’s lawyer then could file a motion to enforce a settlement, claiming the city’s lawyer agreed to settle for $25 million. The city’s lawyer files an affidavit saying, “no, we didn’t.” Other than the conflicting affidavits, there is no evidence of a settlement.

Without consulting (or ever even meeting) the plaintiff’s lawyer who signed the
affidavits; and without hearing any testimony from the plaintiff or the city potentially on the hook for the $25 million; the judge ponders the credibility of the conflicting affidavits and finds the plaintiff’s lawyer’s affidavit more believable. So the judge enters an order enforcing the settlement, and the city is on the hook for $25 million. Delighted with the results, the plaintiff’s lawyer files another lawsuit the following week.

After diligent effort, I am unable to imagine a more absurd judicial process or result. I respectfully dissent.

Justice Pierce, "concurring in result only" (with no explanation of why -- Pierce has been weak on explaining himself), writes solely to rebut Dickinson:

I write separately to address Justice Dickinson’s twenty-five-million-dollar hypothetical included in his dissent. Simply put, his hypothetical has no application to the facts of this case. In other words, he compares apples to oranges.

Or peas to beans?

Dickinson shoots back at Pierce in a footnote:

My colleague’s bewilderment with my example reminds me of my college days taking differential calculus – the fact that one doesn’t understand it doesn’t mean it isn’t correct.

Pierce returns fire:

I agree with the dissent’s assertion in footnote number 11 that differential calculus can be extremely difficult. Likewise, some cases that come before this Court are extremely difficult. This case is a prime example.

If the case is so difficult, perhaps it's not too much trouble for the public to think that Justice Pierce could explain why he concurs?

Justice Lamar also writes separately, joined by Waller, C.J., Carlson, P.J., and Dickinson; alas, their four-justice opinion loses to Graves's three-justice opinion thanks to the completely unexplained vote of Pierce and the non-participation of Justice Randolph, so that a tie vote affirms the trial court. Lamar objects to the trial court's acting as finder of fact:

Contrary to the plurality’s assertion that trial judges “customarily make findings of fact” when presented with motions to enforce settlement, and that this Court has “not found such trial court action to be improper,” I find no Mississippi Supreme Court cases in which this Court actually has been presented with this question.

The Fifth Circuit is sure going to be an interesting place with Judge Graves on it.

(I'm not sure that going to a Holmes County jury would've done the defendant much more good, btw.)

... In another instance of apparent pettiness [but, see update below], Waller writes on a banishment case, and Graves specially concurs to say only this:

The majority correctly notes that the U.S. Constitution addresses the deprivation of liberty without due process of law. (Maj. Op. at ¶10). See U.S. Const. amends. V, XIV. Hence, the statement in the majority opinion that “the judge may not restrict the defendant’s personal liberty of free movement without following the due process which Cobb, McCreary, and Mackey established” is erroneous. (Maj. Op. at ¶26). These cases did not establish a right. They merely recognized one which already existed.

When he's right, he's right. This op is joined by all six of the other justices who joined Waller's op for the Court, but Waller apparently refused to amend his opinion to get the law right.

Based on my law-clerk observations of the Justice McRae days on the Court, I hazard a guess that this kind of contention on the printed page betokens a similar lack of good personal relations. It doesn't bode for confidence that one's case is being decided on the law.

UPDATE: Will Bardwell reads Waller more charitably:

Justice Graves is right, of course, but I took the chief justice's observation to mean that Cobb and its companions established the process governing restrictions of the right to movement and not the right itself. But at the end of the day, it's a pretty academic debate.

Good reading, but as I commented at Bardwell's post, there's being right, and then there's being right in such a manner that all the justices joining your opinion think you should've worded it differently. Just change the damn sentence, in the latter instance.

I mean, really, you thought there was *competent* government hidden somewhere?

Fictitious sources also confirmed that the so-called "masterminds" behind our country's security and strategic defense are in fact people of moderate to reasonably above-average intelligence just like us who perform their jobs with more or less the same degree of competence and zeal as any regular person with a job would.

"Obviously, it would be very comforting, and pretty cool, if there were stealth groups of resourceful, naturally gifted secret agents like me scouring the planet, rooting out terrorist sleeper cells, and tracking down Osama bin Laden," said a multilingual computer/ explosives/espionage expert who most Americans actually believe is a real guy out there. "I'm not denying that would be amazing; my only point is that it just isn't true."

"Believe me, I wish I existed, too," the fake man added. "I would probably be great."

-- "Smart, Qualified People Behind the Scenes Keeping America Safe: 'We Don't Exist,'" The Onion.

Statutes, regulations, and Chevron

We at TBA are puzzling over a recent Medicare reimbursement decision by the Fifth Circuit. The entire case is dull, dull, dull, but we will focus on just one dull part: Chevron analysis. (Non-lawyers who wish to make the mistake of continuing to read, might wish first to glance here.)

The case involves a Medicare statute and a regulation implementing part of that statute. The court held that the statute was ambiguous under the first Chevron step. Fine.

Then it says "The parties agree that CMS’s regulations are entitled to Chevron deference if the statute is ambiguous." Fine.

Then, referring not to the regulation but to what CMS actually did, the court says (slip op. at 12) "CMS’s decision to base reimbursements in 2003, 2004 and 2005 on the amount of the previous year’s reimbursement is not 'manifestly contrary to the statute.'" Okay, but why are we talking about CMS's decision -- what it actually did -- as opposed to its regulation, which is what we just agreed was entitled to deference? The court concludes:

Thus, although Providers may offer a “better” interpretation by taking into account the structure and purpose of the statute, CMS’s reading finds substantial support in the text ... and is backed by solid reasoning. CMS’s interpretation, therefore, falls within the range of permissible interpretations.

The kicker here is that, in the last part of the op, the court goes on to consider the above-mentioned implementing regulation -- and holds that it does *not* support what CMS did, and in fact requires CMS to reimburse on the providers' theory, not CMS's! Hence, reversal and remand to the district court that had ruled for CMS.

Our conceptual difficulty here is that, once the court found that (1) the statute was ambiguous and (2) the agency had issued a reg applying its understanding of the statute, why did the court pronounce on the reasonableness of CMS's "decision" instead of cutting straight to the reg? Back to Chevron, which says:

If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.

Here, the providers wanted CMS to follow its own reg, and the court held that CMS must do so (hence "reversal"). But the court did not seem to grasp that the regulation just is the agency's interpretation of the statute.

Instead, the court appears to have been thrown off-track by the peculiarity that the agency was advancing an "interpretation" of the statute, in its actual practice and in its litigating position, that was contrary to its regulation.

... The issue, but not the Fifth Circuit's treatment of it, exposes a flaw in the routine application of "the Chevron two-step" by the courts. Step one is to analyze the statute for ambiguity, and if it's clear, then you stop there. Step two, if the statute is ambiguous, look to the reg or other interpretation.

The problem here is that courts risk finding the statute "clear" when it's not -- hey, no need to go to step two, case closed! -- without deferring to the agency's construction of the statute, itself a venerable principle expressly recognized in Chevron:

We have long recognized that considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer, and the principle of deference to administrative interpretations

"has been consistently followed by this Court whenever decision as to the meaning or reach of a statute has involved reconciling conflicting policies, and a full understanding of the force of the statutory policy in the given situation has depended upon more than ordinary knowledge respecting the matters subjected to agency regulations."

So really, where an agency has construed a statute, the analysis works more like "the agency's interpretation controls unless clearly contrary to the statute." If there's any doubt whether the statute is clearly contrary, deference requires going with the agency's interpretation.

The bookshelf

Robin Lane Fox, The Unauthorized Version: Truth and Fiction in the Bible: I couldn't finish his Pagans and Christians -- *enough* already about dream interpretation! -- but this one was more readable, as a classicist's look at the text and history of the Bible and what import that has for how much of it is "true" in any normal historical sense. He comes to some interesting conclusions, for instance that John's gospel is the most likely to be based on an eyewitness account of Jesus by one of his disciples. Not for the fideistically squeamish.

A.J.P. Taylor, The First World War: Somehow I'd never picked up Taylor's little essay on the war, which seems to've held up well in the past 50 years. The Amazon reviews are entertaining -- consensus being that it shouldn't be the *only* book one reads on WW1, but that one should definitely read it. I would disagree; if you're the kind of person who will read only one book, ever, on WW1, then you are much more likely to finish Taylor's book than any other.

Kenneth O. Morgan, The People's Peace: British History 1945-1990: Found this previously unsuspected book at Choctaw Books in Jackson, and have enjoyed my desultory way through it, being quite ignorant of postwar Britain. Mostly a political account.

Peter Longerich, Holocaust: The Nazi Persecution and Murder of the Jews: Saw this blurbed in the Atlantic as being "hailed as the definitive single-volume history of the development and implementation of the Final Solution," and the new English version updates the 1998 original -- was pleasantly surprised to find it on the shelves of the local Barnes & Noble. Longerich suggests that the intentionalist/structuralist divide is really two sides of one coin, which is probably correct but effectively a win for the structuralists: no, Hitler did not sit down with Goering and Himmler the night of January 30, 1933, and say "all right boys, now that I'm chancellor, let's work out how we're going to exterminate the Jews." Still in the "persecution" part of the book, but having high hopes.

... Pierre Goubert, The Course of French History: It's absurdly difficult to find a decent survey of French history in the bookstore, as opposed to half a shelf on events from 1789-1815. Goubert's 1984 volume (found in my library) needs to be about twice as long, but it's quite serviceable, beginning with the Capetians, not scanting the early centuries, and finding a nice balance between social history and personalities.

A vanished world

Via 3QD, 34 color photographs from Russia in 1910.

Jewish students in Samarkand:


A cathedral in Mozhaisk:


32 more at the link.

Barack Obama doesn't understand how to be President

The President of the United States heads the executive branch of government. This is a large organization which the President cannot personally direct in every detail.

Hence he must appoint people to assist him.

Obama sucks at that game (ignore whiny blaming of "system," which is same system we've always had). (Latest example.)

If you can't nominate people -- AND PUSH THEM THROUGH -- then you are not succeeding as President.

... NMC picks up on the same Yglesias post, and comes to a similar if less vehement conclusion.