Prepared Minds

Chance favors the prepared mind. -- Louis Pasteur

In this week's Sift:

• Swine Flu: If I'm not supposed to panic, what am I supposed to do? Well, don't party like it's 1918.
  
• Judge Hawkins Schools Obama on State Secrets. Presidents can't just tell a court to dismiss a case.
  
• Will Republicans Go Extinct? Why moving to the center is no better an idea for Republicans now than it was for the Democrats in 2004.
• Short Notes. "That's Aphasia!". Church and torture. Six years after "Mission Accomplished". And where government regulations really come from.

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Swine Flu: If I'm Not Supposed to Panic, What Am I Supposed to Do?

In the same way that economists worry about another Great Depression, public health people worry about another Great Influenza of 1918. Half the population of the world caught it, and it killed more people than World War I -- a lot more. Like war and unlike most flus, it was particularly lethal for the young, and it worked fast. You'd see a healthy young man walking down the street, and then hear a few days later that he was dead.

Like a Great Depression, a deadly flu pandemic is the kind of low-probability/high-impact event that humans don't know how to think about. Evolution programed us to run from tigers and to rest when the tigers aren't around. "Take precautions because something really bad might happen soon but probably won't" -- that thought didn't come up very often on the plains of prehistoric Africa. And so today, we still just want to know whether it's a tiger or not.

The swine flu is starting to look a little less tigerish than it did a few days ago, but the jury is still out. Here's the recent good news:

• Mexican officials think the flu has peaked there.
• People over 60 might have immunity. If this flu turns out to be similar to a flu outbreak from years past, some of those ancient antibodies might do the job.
• The suspected-death numbers in Mexico went down as the tests came in, and the confirmed-death numbers are rising slowly. On Tuesday Mexican officials were saying 159 suspected deaths, but Wednesday the estimate came down to 84. The number of confirmed deaths was up to 22 yesterday. So maybe the Mexican strain of this virus isn't as bad as we thought.
• Only one person has died so far in the U.S. -- a Mexican boy who came to Houston for treatment.
  

Still, schools are closing here and there all over the country. And if things took a sudden turn for the worse, you could see businesses closing as well. A precaution worth taking: Stock up on essentials now, while there's still no panic. Think about what you'd need if stores and restaurants were closed for a few weeks.

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A very good book on the 1918 flu is The Great Influenza by John M. Barry. A lesson I learned from it is that public health really is public. Plagues are controlled because governments step in with quarantines, curfews, drug rationing, and other draconian measures. A libertarian society would be completely helpless against a major epidemic.

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Here's the official CDC advice. They're tracking the cases state-by-state here.

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DemFromCT answers a lot of basic questions, including what a pandemic is and why closing schools is a good early strategy. DarkSyde explains how flu-evolution works.

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Dr. Charles Ericsson, head of the clinical infectious disease department at the University of Texas Medical School, describes the symptoms of swine flu: "Basically you will feel just plain rotten." Thanks, Doc.

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Judge Hawkins Schools Obama on State Secrets

Tuesday, the 9th Court of Appeals rejected the Obama administration's interpretation of the state secrets privilege. The opinion, written by Judge Michael Daly Hawkins, is a very nice primer on what the state secrets privilege is and how it should work. It rejects the executive-supremacy claims of the Bush (and now Obama) administration.

First, what's the case and where does it stand? Five non-American-citizens claim they were victims of rendition; the CIA flew them to countries like Egypt and Pakistan, where they were tortured. For technical reasons I don't completely understand, they're suing not the government, but the Boeing subsidiary that did the actual flying, Jeppesen Dataplan.*

The government has argued that the case should be thrown out because of the state secrets privilege. The lower court agreed, and the appeals court is now reversing that judgment, sending the case back to the lower court for trial.

But what is the state secret privilege and where does it come from? There are two major precedents:

• Totten v. United States (1875). A Civil War spy sued because the government didn't pay him. The court threw the case out, ruling that Totten's agreement with the government (if it existed at all) must have included an implicit provision that it remain secret. "The secrecy which such contracts impose precludes any action for their enforcement."
• United States v. Reynolds (1953). Widows of RCA employees killed in a military air crash sued the government. They tried to force the government to produce the accident report, but the government convinced the court that revealing the report would harm national security.
  

In Totten, the case gets thrown out. But in Reynolds, the case goes forward without the secret evidence. (The widows and the government negotiated a settlement.) Judge Hawkins argues that Reynolds is the right model here, not Totten, and so the lower court was wrong to dismiss the case.

At issue is what precisely the state secrets privilege protects. Hawkins claims it protects evidence, not facts.

According to Reynolds, therefore, the question is not which facts are secret and may not be alleged and put to the jury’s consideration for a verdict; it is only which evidence is secret and may not be disclosed in the course of a public trial.

This makes state-secrets similar to other privileges. If, say, I tell my lawyer that I really did murder the guy, the lawyer-client privilege keeps our conversation from becoming evidence at my trial. But the fact that I murdered the guy is not privileged; if the prosecution can prove it some other way, they are free to proceed.

The government claims that "the very subject matter" of the Jeppesen case is a secret. Hawkins points out what a bad precedent this would set:

This sweeping characterization of the “very subject matter” bar has no logical limit—it would apply equally to suits by U.S. citizens, not just foreign nationals; and to secret conduct committed on U.S. soil, not just abroad. According to the government’s theory, the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law.

Hawkins also rejects the idea that classified is the same as secret. It's a checks-and-balances issue. The executive branch classifies documents on its own, without the participation of any other branch of government. If courts just accept that, then the executive branch is supreme; it has an unchecked power to decide what evidence courts can and can't consider.

It follows that, while classification may be a strong indication of secrecy as a practical matter, courts must undertake an independent evaluation of any evidence sought to be excluded to determine whether its contents are secret within the meaning of the privilege.

Hawkins argues for balancing various interests, rather than letting the executive's desire for secrecy automatically trump everybody else:

Within the Reynolds framework, the President’s interest in keeping state secrets secret is, of course, still protected: the court must balance “the circumstances of the case” and the plaintiff’s “showing of necessity” for the evidence against the “danger that compulsion of evidence will expose matters which, in the interest of national security, should not be divulged.” Where a plaintiff’s need for the evidence is “strong . . ., the claim of privilege should not be lightly accepted,” but “even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied” that the privilege applies.

And a state-secret claim should not automatically dismiss a case. Instead, the privilege excludes specific evidence. The case may later be dismissed for lack of evidence, but that's a separate judgment.

Thus, within the Reynolds framework, dismissal is justified if and only if specific privileged evidence is itself indispensable to establishing either the truth of the plaintiff’s allegations or a valid defense that would otherwise be available to the defendant.

The upshot is the beginning of a case is the wrong time to claim the state secrets privilege. It should be claimed when evidence is being introduced, on an item-by-item basis:

We simply cannot resolve whether the Reynolds evidentiary privilege applies without (1) an actual request for discovery of specific evidence, (2) an explanation from plaintiffs of their need for the evidence, and (3) a formal invocation of the privilege by the government with respect to that evidence, explaining why it must remain confidential.

Hawkins' concluding instructions to the lower court:

On remand, the government must assert the privilege with respect to secret evidence (not classified information), and the district court must determine what evidence is privileged and whether any such evidence is indispensable either to plaintiffs’ prima facie case or to a valid defense otherwise available to Jeppesen. Only if privileged evidence is indispensable to either party should it dismiss the complaint.

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*Lest you think Jeppesen is just caught in the middle here, Judge Hawkins includes this footnote:

Plaintiffs cite, among other things, the sworn declaration of Sean Belcher, a former Jeppesen employee, who stated that the director of Jeppesen International Trip Planning Services, Bob Overby, had told him, "We do all the extraordinary rendition flights,"which he also referred to as "the torture flights " or "spook flights." Belcher stated that "there were some employees who were not comfortable with that aspect of Jeppesen’s business" because they knew "some of these flights end up" with the passengers being tortured. He stated that Overby had explained, "that's just the way it is, we’re doing them" because "the rendition flights paid very well."

In other words, they're scumbags. Don't feel sorry for them.

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Will Republicans Go Extinct?

The news that Senator Arlen Specter is defecting to the Democrats started a new round of stories about the dire state of the GOP.

• The remaining 40 Republican senators can't sustain a filibuster, in the unlikely event that the 60 Democrats -- when Al Franken finally gets seated -- all unite.
  
• A new survey announced that the number of Americans calling themselves Republicans has dropped to 22%, and is still dropping.
• The Northeast's surviving two Republican senators -- Olympia Snowe and Susan Collins from Maine (NH's Judd Gregg is retiring) -- are being asked when they're going to switch. Certainly they don't fit any better than Specter did. And Snowe's NYT op-ed didn't sound very happy with the direction of the party. ("Ideological purity is not the ticket back to the promised land of governing majorities.")

DailyKos is gleefully trying to name the goposaur (see left) created by malacandra.

The media narrative has the GOP swirling around the drain like this: Fewer voters consider themselves Republicans; the remaining Republican voters are the extreme conservatives; in order to appeal to those primary voters, Republican candidates are going to have to take extreme conservative positions on the issues; extreme conservative positions will alienate moderates; so even fewer voters will consider themselves Republicans.

The issue that epitomizes that pattern is immigration. Karl Rove's once-feared plan for a "permanent Republican majority" included winning over the fast-growing Hispanic demographic by appealing to their Catholic heritage on issues like abortion and gay rights. But that's can't work when the current Republican base is brimming over with anti-Hispanic racism. McCain was the least offensive of the Republican primary candidates, and Obama still got 67% of Hispanic votes, helping him win once-reliable red states like Colorado, New Mexico, and Nevada. If Democrats hang on to 2/3rds of the Hispanics going forward, Republicans are sunk. (Leading immigrant-basher Tom Tancredo interprets this differently, of course, referring to the "so-called Hispanic vote".)

So is it over for the Republican Party unless they stop being so conservative? I've got my doubts about that.

Not so long ago, pundits all agreed that the Democrats were too liberal to survive, and that they needed to move to the center by embracing candidates like Joe Lieberman rather than Howard Dean. That's why every Democratic senator but Feingold voted for the Patriot Act in 2001, and why Kerry, Edwards, and Hillary Clinton voted to authorize the Iraq invasion in 2002. The 2002 and 2004 elections were disasters, mostly because moving to the center gave Democrats a mushy image and no issues to run on.

Moving to the center wouldn't work any better for Republicans now. Changing your basic philosophy to try to match the American people's philosophy is a losing strategy because (unlike the talking heads on TV) most Americans do not have a political philosophy. Instead, they have lives. They have hopes and fears and experiences. So in order to win elections you need to

1. stand for something
2. connect what you stand for to ordinary people's hopes, fears, and experiences.

Republicans are failing at step 2, not step 1. Getting fuzzy about what they stand for -- like Kerry in 2004 -- will just create a new problem without fixing the original one.

If you look at the pillars of Reagan conservatism -- small government, low taxes, strong defense, traditional values -- they all still sound good in the abstract. But the trains of reasoning that once connected those core Republican principles to people's hopes and fears have derailed. Who still believes that cutting rich people's taxes will create her next job? Who feels personally safer because we have troops in Iraq? Who worries that gay marriage threatens his own family? That diehard 22%, and nobody else.

On the other hand, the connections between American hopes/fears and an active liberal government are strong right now. When banks start falling like dominoes, what's our last line of defense against a second Great Depression? Whose helicopters are going to pull us out of the floodwaters? Who's going to keep our food safe? Who will make sure we (and our kids) get medical care if we lose our jobs? Active, competent government, that's who.

But that doesn't mean that the American people have a liberal philosophy now, any more than they had a conservative philosophy a few years ago.

Think about how the pendulum swung to the Right between LBJ and Ronald Reagan. It wasn't a philosophical change, it happened because the Right spoke to everyday fears (some real and some imaginary). People were afraid they'd be mugged, afraid their children would be forced into unsafe schools, afraid affirmative action would rig the system against them, afraid environmental regulations would shut down their local factory. They had sticker shock whenever they walked into a store, and conservatives convinced them that liberal social spending had caused that inflation.

The conservative sound bites -- "tax-and-spend liberals", "law and order", "soft on defense", "family values" and so on -- all had long tails. They were part of a network of ideas, repeated in every campaign, that connected everyday life to conservative principles. That's what it means to have a good political brand.

From 9/11 into Bush's second term, Democrats struggled unsuccessfully to connect Bush's horrible policies with everyday life. The war could only kill you if you volunteered for the military. Nobody you knew was being tortured. But the conservative brand started to unravel with Katrina: They would leave me to fend for myself. Then came $4 gas and the tainted-food scares and your 401(k) tanking and not knowing whether your job was safe or not. Nobody's looking out for me.

That's been the switch. Rather than being afraid of government, Americans are now afraid of government neglect. All the rhetoric about freedom and individual responsibility falls flat if you're thinking about a Katrina-like situation: You're free to take responsbility for your own drowning.

The GOP's problem right now is that they are stuck in abstraction, not that they're stuck in conservative abstraction. They've lost their line into everyday life. Gay marriage won't affect you if you're not gay. Nobody's going to force you to get an abortion. Republicans are in the position Democrats were in a few years ago: trying to make people care about things that have no direct impact on them. And they're trying to compensate by raising their rhetoric. If calling Obama liberal didn't work, let's call him socialist or Marxist or even fascist.

That won't get it done. Reinvigorating the GOP has to start with everyday life, not with philosophy -- and certainly not with name-calling. What are ordinary people's hopes and fears? How can small government, low taxes, strong defense, and traditional values address those hopes and fears?

Democrats shouldn't get cocky; there's no reason those questions can't have convincing answers again.

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Short Notes

So there I am, sitting in an Italian restaurant and futilely trying to remember somebody's name while the background music croons away. What else could I do? I wrote the song parody "That's Aphasia! " to the tune of Dean Martin's classic "That's Amore!"

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A number of bloggers caught this gaffe by Byron York of the Washington Examiner:

[President Obama's] sky-high ratings among African-Americans make some of his positions appear a bit more popular overall than they actually are.

Because those silly opinion polls count blacks as if they were people or something.

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Maybe Hell sets a bad example. A Pew survey says that frequent church-goers are more likely to support torture.

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Charles Krauthammer has thoughtfully written a column in the WaPo explaining when torture is justified. I'm hoping it's the first of a trilogy. The sequel could examine when slavery is justified, and in the conclusion Charles might tell us when genocide is justified.

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Greg Mitchell marks the sixth anniversary of "Mission Accomplished" by looking back at the glowing coverage of President Bush's most famous photo op. Meanwhile, 19 American soldiers died in Iraq in April, the most in any month since September. The death toll is up to 4284, compared to 139 when Bush declared victory.

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Devilstower has a very good article on the disasters that led to government regulations:

No one implemented health, safety, and environmental legislation because they thought it would be fun. We didn't do it because we hate corporations, because we wanted to make jobs for government bureaucrats, or out of some desire to snatch power away from states. We did it because that kind of freedom, marketplace freedom, was literally killing us.

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