I think they meant "al dente"

A package of Italian pasta that I brought home gives careful bullet point pasta cooking instructions for ignorant Americans. Bullet point # 2 is "Drain pasta with tooth consistence."

Statutory mystery explained (?)

As a tax person, I am experienced at reading and construing statutes. So, despite my lack of legal background in the precise area of the military commissions legislation, I thought I would give it a careful read. Having done so, I must say that I am baffled and suspicious.

The stated purpose of the legislation is to "establish[] procedures governing the use of military commissions to try alien unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses triable by military commission." Section 948b(a).

Towards this end, the legislation contains two separate definitions of particular interest. One is "unlawful enemy combatant," defined in either of two ways. The first is as "a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant" (i.e., a member of regular armed forces somewhere other than the Taliban or al Qaeda). Section 948a(1)(A)(i). Many have noted how broad this language is. E.g., Vice President Cheney characterizes various forms of political dissent in terms that don't fall far short of this.

An "unlawful enemy combatant" is also defined as anyone who "has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense." Section 948a(1)(A)(ii). Many have noted that this appears to be standardless. You and I are unlawful enemy combatants if Bush or Rumsfeld establishes a tribunal that so finds under whatever standards they happen to prescribe.

But here's where the plot thickens. Again, the legislation serves to to "establish[] procedures governing the use of military commissions to try ALIEN unlawful enemy combatants" (section 948b(a); emphasis added).

To meet that definition, you must also be an "alien," which is separately defined in section 948a(3) as "a person who is not a citizen of the United States."

By virtue of section 948c, "[a]ny alien unlawful enemy combatant is subject to trial by military commission under this chapter."

Thus, there is nothing in the provision that gives separate legal significance to the term "illegal enemy combatant" without the word "alien" in the front.

So the question is: Why does the legislation define a term, "unlawful enemy combatant," that has no legal significance under it whatsoever if not preceded by the term "alien"? Sloppy drafting is one possibility. Skilled tax statutory drafters, at least with the time to check their work, would never leave a freefloating term like that.

But strange times breed mistrust. Is there a reason for gratuitously defining "unlawful enemy combatant" so that it unambiguously can be met by an American citizen, even absent operative provisions in this legislation itself that turn on meeting the definition?

An additional ambiguity here is that the provision I read is a subchapter, and the definitions are stated to apply for purposes of the entire chapter. What are the other subchapters? This may be knowable, but I don't happen to know it.

The upshot: this legislation provides for the use of military commissions solely against non-citizens. But it apparently gratuitously defines "unlawful enemy combatant" in a way that would permit the Administration to determine that an American citizen is such an individual. Indeed, it's purely discretionary with the President and the Secretary of Defense.

It is easy to conclude that the Administration will treat this determination as legally relevant to what it can do to American citizens, even though on the face of the legislation it can't use it to try them before military commissions.

But why bother to try them anyway, especially if you believe that you are empowered to detain and torture illegal enemy combatants indefinitely without any requirement that they be subject to a specified set of trial procedures?

I therefore conclude as follows: The legislation is not directly relevant to the question of what the Administration can do to American citizens. But it provides a statutory basis for describing them as "unlawful enemy combatants," which I would expect the Administration to treat as having further independent legal significance.

UPDATE: Marty Lederman reminds me that the law of war is conventionally interpreted (including in the Supreme Court's Hamdi decision) to permit detention of enemy combatants for the duration of the war for purposes of incapacitation.

The statute therefore arguably provides quite important if indirect statutory support for Bush's claim that he has absolute power of arrest and detention over all citizens as well as non-citizens.

A prediction

Jack Balkin among others has been analyzing the increasingly astonishing torture and detention legislation that is marching through Congress. One important thing in assessing this legislation: one should NOT read it as a lawyer interpreting text in good faith to determine its best meaning. Rather, one should ask oneself two questions: (1) how will Bush Administration officials interpret it, and (2) what recourse outside of Administration channels, and beyond the Administration's control, will it leave to people who are taken into custody. The short answer is: You really don't want to know, especially if you like sleeping soundly at night.

I predict that, if this legislation passes and the Republicans hold Congress, there will be disappearances of American citizens in the next two years. My guess is that it will at least initially be people in the Noam Chomsky camp, rather than those less far to the left, and that it will be unclear whether anyone has actually been taken into custody.

I do think that people closer to the center, such as Frank Rich and Paul Krugman, will genuinely and seriously have to ask themselves (whether or not they write about it) whether they are at risk of being disappeared as well.

And on a lighter note ...

... our cats' main nicknames:

SHADOW: the Big Guy, Captain Goodfellow [he's simply too dignified for anything far beyond these].

URSULA: Baby Girl, Princesska, Honeykins, Ursula Wobble.

BUDDY: Squeaky McGee, Silly Whillikers, Buddy von Beastingham, Spudzilla.

Despicable

Senators McCain, Warner, and Graham have sprung the trap they appear to have been planning all along, and agreed to legalize and rubber-stamp torture along with Stalinist showtrials in which people are executed on the basis of secret evidence. The highly theatrical charade they conducted does nothing for the values they claim to have been defending, or for American soldiers who might in the future be taken prisoner abroad. But it does provide enormous political aid to Bush, to Republican candidates in the midterm elections, and to McCain's 2008 Presidential campaign. This presumably was the whole idea from the start. The Democrats have only themselves to blame for marching right into the trap.

In a just world, Senator McCain would get to relive his past and re-experience the torture that he has now endorsed. I remember people saying of Hubert Humphrey, a long time ago, that the hunger to be President had eaten away all of the good things that had once been inside him. But Humphrey can't compare to McCain - a man who has now endorsed and will soon have legally enshrined, not torture to save American lives, but needless, pointless, gratuitous torture in the face of a consensus by the experts who actually do interrogations that it is not a useful tool.

I increasingly think of myself not as an American, but as a New Yorker and East Coast resident. I am proud of my culture and society, and will put it up against anyone's. But it is that of my region, not of this country.

Why has Grover Norquist visited the Bush White House at least 155 times?

Today's New York Times reports that Grover Norquist has visited the Bush White House at least 155 times.

Sleazy Abramoff-related lobbying? Surely you jest. According to the article, "White House spokeswoman Dana Perino said ... [that] it was possible some of Norquist's meetings were with Karl Rove, the president's longtime confidant and political strategist.

"'He is one of a number of individuals who worked to advance fiscal responsibility, which is one of the key aspects of the president's agenda,' Perino said."

Grover Norquist is to fiscal responsibility as Jack the Ripper was to safer working conditions for London prostitutes.

Horizontal equity

I'm teaching a Tax Policy course this semester, mainly on distribution issues (my other course focuses on efficiency issues). One funky thing about teaching Tax Policy at NYU Law School is that, since it's a required course for tax LLMs, you can get a lot of people who don't really want to be there. This is no fun if you're the teacher, even if you are agnostic rather than self-righteous about whether, from their standpoint, they ought to care. I actually raised this issue in class on the first day, asking anyone who might have been there for that reason to be a good sport & give it a shot. One way or another, my sense has been that it's working, and that a lot of the people in the class are engaged and interested. I've tried to do my bit, both by encouraging discussion and by trying to pick provocative papers rather than those that are ostensibly (or actually) canonical.

One of today's readings is a well-known 1976 article by Martin Feldstein about horizontal equity. Interesting to me to read this piece now. Provocative and surprising though I would think it was when it came out, time has truly passed it by, which is part of what makes it fun to read.

Feldstein goes against the Haig-Simons orthodoxy (at least among lawyers) of the time, by defining horizontal equity in terms of legal continuity rather than, say, comprehensive income taxation. Thus, no HE violation if you don't tax municipal bond interest and the tax benefit is capitalized into the price, causing the after-tax return to be the same as that on taxable bonds. Pretty obvious once stated, although at the time not widely understood. (Boris Bittker had written about it, however.)

Less impressively, Feldstein's 1976 view of the economics of information seems to be that X is considered 100% certain, then there's a total surprise and it is replaced by Y, which now in turn is considered 100% certain. Meanwhile, he doesn't think of people as generally engaged in portfolio choice under uncertainty with reasonably complete financial markets and the aim of maximizing expected utility given a constantly updated set of expectations. (A jargon-laden mouthful, I realize, but it captures the way that an economist with Feldstein's training ought to conceptualize issues automatically, at least as a starting point. And the rational expectations school in macroeconomics had arisen by 1976.) Meanwhile, the fundamental political economy issue of how we ought to define the optimal scope of binding government pre-commitment - which obviously shouldn't be assumed to arise either in all cases or in none - isn't even in sight.

It's also amusing to see Feldstein in 1976 being so cautious about the case for consumption taxation. With an air of being daring, he says that maybe capital income should be taxed at a lower rate than labor income,. Of course, the modern consumption tax view is that the return to waiting (capital income stripped of risk premia and other such conceptually separate elements) should be taxed at zero.

Harold Wilson once said that a week is a long time in politics. Perhaps academics should be relieved that, for us, a long time is measured instead in decades.

Fish in a barrel

The moment I saw the NY Times front page, inexplicably treating Bush's staged 9/11 milking as screamer-headline news, I correctly guessed that the lead article would say he was "visibly moved." But I missed out on the extra credit - the inevitable mention of the "unscripted stop." Anyone want to bet on whether they scripted the "unscripted stop"?

My wife speculates that the "lessons of that day" Bush will "never forget" (as the Times breathlessly quotes him) must have come out of "My Pet Goat."

I added that Bush certainly seemed to have forgotten the lessons of 9/11 when he pulled all those special forces guys off the Osama trail in Tora Bora so they could head to Iraq.

He says, of course, that "I" not "we" will "never forget." All that the rest of us are supposed to do, in his scenario, is give him the votes to keep on doing what he likes.

I was literally there on the day, about a mile from Ground Zero and with a clear view of the Towers as they burned and fell. (It also happens to be my wedding anniversary, a horrific coincidence that we are finally getting over.)

I find it in bad taste to use 9/11 as an election trick aimed at heading off Congressional investigations of six years of crimes and malfeasance.

Heard on the street

Today, as I was heading home, a nanny was walking with a very little girl plus a baby in a stroller.

"How much is 1 plus 2?" she asked the little girl.

"3!!!"

"How much is 21 plus 2?"

"30!"

"Try again."

"20!"

I think we've found the next Treasury Secretary.

Crasser than ever

Sending Khalid Shaikh Mohammed and the others to Guantanamo and suddenly demanding showtrials as a pre-U.S. election stunt is low and cynical even by Bush's warped standards. He certainly is willing to advertise his priorities to anyone whose eyes are open.

I guess I'm just naive. To me, the question of what we do with the likes of Khalid Shaikh Mohammed actually matters for its own sake. I don't see it as just a subject for political trickery.