Freedom Line Blog

Say you’re a career civil servant who’s looking for a way to package old wine in a new wine skin. You don’t have the budget for hiring hot marketing talent or revamping your website. What to do? Invite a flock of twitterers to tweet about your work. Of course, this strategy is probably a bit easier to implement if you’re a NASA scientist offering prime seating at a shuttle launch in exchange for good publicity in the form of electronic sentence fragments. If nothing else, it will probably be a better show than watching a delivery of supplies to the International Space Station.  To be sure, transparency in government is usually a good thing, but do we really need to spend taxpayer money sharing footage of the space equivalent of a trucker delivering goods to a grocery store?

There’s an old legal adage that ignorance of the law is not a defense. On the other hand, since the earliest days of our Republic the U.S. Supreme Court has refused repeated invitations to create crimes using so-called “federal common law.” The reasoning behind the Court’s reluctance goes like this. In a nation of laws – not men – people should have some kind of notice about what is and is not legally permissible. Punishing someone after the fact for an act that was legal (or, if you prefer, not illegal) at the time it was carried out is akin to the types of political prosecutions conducted under the Stuart kings of England. Allowing federal judges to apply broad principles of justice to specific facts alleged by the government to be criminal, even though there is no specific prohibition in print, is hardly an improvement. An example of how important this notice notion is to our civil order can be found in the Ex Post Facto Clause of the U.S. Constitution.

What’s the point? Today the U.S. Supreme Court agreed to hear its third appeal in the last year regarding the meaning (and in one case, perhaps the constitutionality) of the federal crime of “honest services” fraud. The Wall Street Journal’s Law Blog contains a quick synopsis of the appeals involving former Enron executive Jeffrey Skilling, Canadian newspaper mogul Conrad Black, and the class action law firm Milberg. A more extended discussion can be found at the Scotusblog website. Both are well worth the read.

In essence, critics of honest services fraud claim that it has been:

“…invoked to impose criminal penalties upon a staggeringly broad swath of behavior, including misconduct not only by public officials and employees but also by private employees and corporate fiduciaries…Without some coherent limiting principle to define what ‘intangible right of honest services’ is, whence it derives, and how it is violated, this expansive phrase invites abuse by headline-grabbing prosecutors in pursuit of local officials, state legislators, and corporate CEOs who engage in any manner of unappealing or ethically questionable conduct.”

And that’s just Justice Antonin Scalia’s view. For those interested in having readily available, clearly stated criminal laws, the Supreme Court’s decisions in these cases will be eagerly anticipated.

From the chatter on the Internet and in the newsrooms you’d think Maine Senator Olympia Snowe’s vote in favor of the Baucus health care “reform” bill out of committee is newsworthy. According to the Associated Press, Snowe’s “Yes” turns a starkly divided blue-red, 13-10 vote into a 14-9 “bi-partisan” shocker. To wit:

But Snowe’s decision gave the vote a significance that transcends partisan divisions. For months, congressional Republicans have been virtually unanimous in denouncing the Democratic bills as an unwarranted expansion of government influence.”

So, even though “for months” congressional Republicans have been “virtually unanimous” in criticizing Democrats’ plans to overhaul American health care, one Senate Republican voting “aye,” constitutes a landmark in bi-partisanship?  Hardly.  Even Snowe acknowledges that she’s only voting for this version of the health care bill, and remains undecided about the inevitable modified version(s) still to be written. 

The real story here is how Snowe managed to dominate an event that would have had exactly the same effect had she been fly fishing today. Snowe’s vote isn’t about switching sides in a policy debate, or answering history’s call. It’s about solidifying her standing as a moderate to be negotiated with when Democrats need Republican cover for passing liberal legislation. Although Baucus failed to get a true bi-partisan bill out his committee, he did succeed in snaring a token R. One hopes an enterprising reporter at one of the Washington dailies will keep a close eye on the next few Appropriations bills to see how much Maine just benefited from its Senator selling her (qualified) support.

From today’s Washington Post distinguishing the Iraq troop surge from General McChrystal’s request for more ground forces in Afghanistan:

It’s important to remember that the crucial, lasting element of the surge in Iraq was not the influx of troops but getting Sunni tribes to switch sides, by offering them security, money and a place at the table. U.S. troops are now drawing down and yet – despite some violence – the Sunnis have not resumed fighting because Prime Minister Nouri al-Maliki is courting their support.”

So, according to Zakaria, courting Afghanistan’s Pashtuns will take the same kind of subsidies and sympathy extended to Iraq’s Sunnis. Fair enough. But how about that security thing? Does Zakaria really believe that – all other things being equal – applying only two of the three prongs of the Sunni pacification strategy to the Pashtuns will yeld exactly the same results? Especially when the prong he omits is the one that guarantees the persuasive effect of the other two? If there has been any lesson learned from America’s foreign policy dealings it is that nations – like individuals – need both carrots and sticks to inspire lasting changes.

We’ve seen this sort of reliance on “soft power” yield results before. Former President George W. Bush rode tractors with Vladimir Putin, looked into his soul, and then listened attentively as his buddy invaded and annexed a democratic country in neighboring Georgia. For over a decade State Departments under both Democrats and Republicans shipped consumer goods to North Korea while that country exploded nuclear bombs and fired rockets toward Hawaii. In both cases, the only defense for such subsidies is the active presence of American troops in Eastern Europe and South Korea. Take away the threat of an immediate response from the world’s premier fighting force and suddenly our subsidies become tribute; our sympathy, kowtowing.

Russia and North Korea understand this. So too do Iraq’s Sunni leaders. Are the Pashtuns any different?