newsrackblog.com

Blogging will be sparse at best. Meanwhile some items worth paying attention to:

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Vital unresolved anthrax questions and ABC News (Glenn Greenwald) — Greenwald makes a pretty good case that the government’s case against Bruce Ivins (the Fort Detrick germ lab scientist who committed suicide), the m.o. of the anthrax terrorist, and ABC News’s false insistence at the time that lab results pointed to Iraq all add up to a case that urgently requires Congressional investigation. Whoever gave ABC the false “bentonite additive” story has a lot to answer for — very arguably the Iraq war.

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Wal-Mart mobilizing against EFCA, pressuring “associates” on how to vote — That’s illegal, and that’s arguably what they’re doing by raising Obama’s support for the Employee Free Choice Act in in-store meetings. The charge is based on a Wall Street Journal article “Wal-Mart Warns of Democratic Win“:

The Wal-Mart human-resources managers who run the meetings don’t specifically tell attendees how to vote in November’s election, but make it clear that voting for Democratic presidential hopeful Sen. Barack Obama would be tantamount to inviting unions in, according to Wal-Mart employees who attended gatherings in Maryland, Missouri and other states.

The main link leads to “Americans Rights At Work,” where you can add your name to a petition urging the FEC to investigate Wal-Mart for potential election law violations.

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Last and definitely not least, the ACLU is sounding the alarm about a jaw-dropping legislative initiative by Bush and Attorney General Mukasey:

After years of litigation, the Supreme Court recently ruled in Boumediene v. Bush that detainees held at Guantánamo have a right to challenge their detention through habeas corpus — the ancient freedom that protects people from being thrown in prison illegally, with no help, no end in sight and no due process. Habeas proceedings could allow detainees to bring up the fact that the evidence that the government has against them came from hearsay, or even torture and abuse. Courts could also release people who are detained indefinitely without charge. Attorney General Michael Mukasey wants to make sure neither of these things happen. That’s why he’s calling on Congress to authorize indefinite detention through a new declaration of armed conflict. He is also proposing that Congress subvert the right of habeas corpus with a new scheme to hide the Bush administration’s past wrongdoing — an action that would undermine the constitutional guarantee of due process and conceal systemic torture and abuse of detainees.

More here. Join the ACLU petition to your Representative and Senators here urging them to oppose this misbegotten idea. Thanks to Mick Arran and the Talking Dog for sounding the alarm as well. As Mick says: “Please let’s not give them this one.”

An occasional review of further developments in stuff I’ve written about before.

# Terraforming Today, October 19, 2002 — As I wrote in 2002, it’s been established for some time that phytoplankton “blooms” — surges of growth of marine single celled plants– can be caused simply by adding relatively small amounts of iron to areas of open ocean. (Iron is a trace element the organisms need to grow and multiply.) Much of the biomass that isn’t converted into plankton-eaters eventually settles to the bottom of the ocean. The questions have been whether this could result in significant net removal of carbon from the atmosphere — and even if it did, would it be a good idea? Now we can add another one: is it commercially viable as a “carbon credit” scheme? In early May, the New York Times’ Matt Richtel reported in “Recruiting Plankton to Fight Global Warming“:

In an effort to ameliorate the effects of global warming, several groups are working on ventures to grow vast floating fields of plankton intended to absorb carbon dioxide from the atmosphere and carry it to the depths of the ocean. It is an idea, debated by experts for years, that still sounds like science fiction — and some scholars think that is where it belongs. [...]

In Europe, where there is a market for carbon credits, it is now worth only $2 to offset a ton of carbon emissions. But not long ago, that figure was $35, and it is expected to rise again as the limits imposed under the Kyoto Protocol on global warming start to bite. Planktos believes that it can make a healthy profit if it receives $5 a ton for capturing carbon dioxide. [...]

….[but] one unresolved question is whether regulatory bodies will even endorse iron fertilization as a valid means of carbon sequestration that would be allowed under any so-called cap-and-trade system to limit global warming gases.

One objection to the “Geritol tablet” global cooling theory are that at least some of the biomass settling to the bottom of the ocean may wind returning to the atmosphere later on as methane or nitrous oxide, both of which are worse greenhouse gases than carbon dioxide. Another problem is that large scale carbon and biomass dumps to the deep sea might well change the chemistry of the deep sea environment, disrupting ecosystems there.

Meanwhile, though, at least two companies — Planktos and Climos — are looking at the idea. Planktos is sending a ship, Weatherbird II, to the Pacific Ocean area near the Galapagos Islands to measure carbon uptake after iron releases.

# Wal-Mart wins another one, February 25, 2005; WalMartWorkersRights.org, July 17, 2005; Employee Free Choice Act, June 13, 2005 — Human Rights Watch (HRW) has published a study of Wal-Mart labor practices this month — Discounting Rights: Wal-Mart’s Violation of US Workers’ Right to Freedom of Association. From the introduction:

Wal-Mart is a case study in what is wrong with US labor laws. It is not alone among US companies in its efforts to combat union formation, following the incentives set out in unbalanced US labor laws that tilt the playing field decidedly in favor of anti-union agitation. It is also not alone in violating weak US labor laws and taking advantage of ineffective labor law enforcement. But Wal-Mart stands out for the sheer magnitude and aggressiveness of its anti-union apparatus and actions.

Between January 2000 and July 2005, even the NLRB (National Labor Relations Board) found 15 labor law violations by Wal-Mart. The next closest “competitor” was Kroger — with 2. The HRW report describes a variety of illegal Wal-Mart anti-labor tactics in detail, including Discriminatory Hiring, Firing, Disciplining, and Policy Application; Union Activity Surveillance; “Unit Packing” and Worker Transfers to Dilute Union Support; Addressing Worker Concerns to Undermine Union Activity; Threatening Benefit Loss if Workers Organize; Interrogating Workers about Union Activity; Illegal No-Talking Rules; Discriminatory Application of Solicitation Rules; Illegal No-Solicitation Rules; and Confiscating Union Literature. There’s also a chapter on the Loveland, Colorado case I wrote about a couple of times back in early 2005 (see “Wal-Mart wins another one”.)

# ICJ: Srebrenica was genocide. Serbian police were involved… (yet Serbia cleared of genocide), February 26, 2007 — In early April, the New York Times’ Marlise Simons reported “Genocide Court Ruled for Serbia Without Seeing Full War Archive“:

Lawyers interviewed in The Hague and Belgrade said that the outcome might well have been different had the International Court of Justice pressed for access to the full archives, and legal scholars and human rights groups said it was deeply troubling that the judges did not subpoena the documents directly from Serbia. At one point, the court rebuffed a Bosnian request that it demand the full documents, saying that ample evidence was available in tribunal records. [...]

As part of its ruling, the court said that the 1995 massacre of nearly 8,000 Muslim men and boys at Srebrenica, a designated United Nations safe haven in eastern Bosnia, was an act of genocide committed by Bosnian Serb forces, but that it lacked proof in this case that the forces were acting under Serbia’s “direction” or “effective control.”

The ruling raised some eyebrows because details of Serbian military involvement were already known from records of earlier tribunal cases. For instance, evidence showed that in late 1993, more than 1,800 officers and noncommissioned men from the Yugoslav Army were serving in the Bosnian Serb army, and were deployed, paid, promoted or retired by Belgrade.

These and many other men, including top generals, were given dual identities, and to help handle that development, Belgrade created the so-called 30th personnel center of the general staff, a secret office for dealing with officers listed in both armies. The court took note of that, but said that Belgrade’s “substantial support” did not automatically make the Bosnian Serb army a Serbian agent.

However, lawyers who have seen the archives and further secret personnel files say they address Serbia’s control and direction even more directly, revealing in new and vivid detail how Belgrade financed and supplied the war in Bosnia, and how the Bosnian Serb army, though officially separate after 1992, remained virtually an extension of the Yugoslav Army. They said the archives showed in verbatim records and summaries of meetings that Serbian forces, including secret police, played a role in the takeover of Srebrenica and in the preparation of the massacre there.

I’ve meant to write about this in its own post, but couldn’t figure out what else to say beyond spluttering in disgust. So rather than lose sight of it altogether, I’m just putting down a marker here. It seems to me there’s a back story waiting to be reported on this. One involves the “controversy” of whether Serbia and Montenegro could be held to account under international law, since this “rump Yugoslavia” was not strictly the former republic of Yugoslavia (FRY) in and of itself. A second, deeper controversy involved some judges’ 1996 opposition to the whole idea of holding nations — rather than individuals — accountable for genocide:

In [Judges Shi Jiuyong's and Vereshchetin's] view, the Convention on Genocide was essentially and primarily designed as an instrument directed towards the punishment of persons committing genocide or genocidal acts and the prevention of the commission of such crimes by individuals, and retains that status. The determination of the international community to bring individual perpetrators of genocidal acts to justice, irrespective of their ethnicity or the position they occupy, points to the most appropriate course of action. Therefore, in their view, it might be argued that the International Court of Justice is not the proper venue for the adjudication of the complaints which the Applicant has raised in the current proceedings.

A remarkable view for a judge on the International Court of Justice! This view didn’t prevail in 1996, but it was co-authored by a judge (China’s Shi Jiuyong) who was among the majority finding against Bosnia this February. As before, it seems to me that justice for Bosnians and Srebrenicans has foundered on legal pedantry and shortsightedness.

# Starbucks Challenge, November 20, 2005 — Just got a comment to this post alerting me to the documentary “Black Gold,” by Nick and Mark Francis, about Ethiopian coffee farmers and their struggle to get a decent price for their crop:

Tadesse Meskela, the representative of the Oromia Coffee Farmers Cooperative Union in Southern Ethiopia, seeks to circumvent the global commodity exchanges by tirelessly traveling the world selling premium grade coffee directly to coffee roasters who will pay more for his high grade product and who support the idea of paying farmers a living wage. He returns the profits to the cooperative members who use the extra income to build the schools and infrastructure needed to develop their communities.

At the Cancun conference, one African delegate explains, “Trade is more important than aid.” Seven million Ethiopians are dependent on aid and Africa exports a smaller percentage of world trade today than 20 years ago - only 1%. If that figure only doubled it would represent 70 billion dollars, five times the amount of aid the continent receives.

# Send some good thoughts Steve Gilliard’s way, March 9, 2007 — Mr. Gilliard is not getting better; a post-operative “system-wide infection” has him back in the ICU at his hospital. In addition to good thoughts, consider visiting his web site and clicking through on some ads, donating some money, or buying some of his handsome “Fighting Liberals” or “We Fight Back” t-shirts, coffee mugs or other items.

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NOTES: “Recruiting Plankton” item via Enrique Gili (”commonground”), who also linked my 2002 post (thanks); Human Rights Watch Wal-Mart report via Jonathan Tasini. Gilliard via digby and Avedon Carol.

An occasional review of further developments in stuff I’ve written about.

Babel, 12/4/06 — I really liked the movie, so I’m pleased the Academy Awards people nominated it for Best Picture, Best Director, and two Best Supporting Actresses including Rinko Kikuchi, who I misidentified as Yuko Marata though crediting her with a “really memorable performance.” It also got well deserved Oscar nominations for best original screenplay, film editing, and music score.

Appeal for Redress from the War in Iraq, 12/18/06 — The appeal reads: “As a patriotic American proud to serve the nation in uniform, I respectfully urge my political leaders in Congress to support the prompt withdrawal of all American military forces and bases from Iraq. Staying in Iraq will not work and is not worth the price. It is time for U.S. troops to come home.” Last week that petition, signed by over a thousand military personnel, was delivered to Capitol Hill. From the LA Times account by Noam Levey:

When the campaign began three months ago, White House Press Secretary Tony Snow dismissed the first signatories as “65 people who are going to be able to get more press than the hundreds of thousands who have come back and said they’re proud of their service.” The 1,000 signatories still represent a tiny fraction of the military personnel who have served in and around Iraq since the 2003 invasion. But according to the group, those who have signed the appeal include about 100 officers. Approximately 70% of the signatories are active-duty military, while the rest are reservists or members of the National Guard, said Madden, who added that the group would not reveal the names of the signatories to protect them.

Employee Free Choice Act, 6/13/05 — This perennial progressive wish list item may have the best prospects in years. The measure allows for union locals to be formed once enough signatures are gathered — rather than via up or down votes notoriously susceptible to management pressure and bullying tactics. You can learn more about “card check” systems via American Rights at Work, and you can send your congressman a message you support this sensible measure via a AFL-CIO Working Families petition: “Some 58 million workers would join a union if they could. But, as Human Rights Watch has documented, employers routinely harass, coerce, intimidate and stall to block workers’ freedom to choose union representation. In fact, every 23 minutes a worker is fired or penalized for supporting a union.” The Senate bill is S. 842, and the House version is H.R. 1696; I’m happy to learn my congressman, Chris Van Hollen (D-MD-8), is a co-sponsor.

Security Council votes 12-0-3 for UN troops in Darfur, 8/31/06 — One of the three abstentions was China. Now that nation is signaling a slightly different stance — but still no real pressure. The New York Times is running the headline China’s Leader to Visit Sudan and Seek End to Darfur Conflict, with Howard French reporting that Chinese officials announced President Hu Jintao will visit Sudan in early February and “press for a diplomatic solution to the conflict in that country’s western Darfur region.” However, a Chinese foreign ministry spokesman said that, “while China intended to use its diplomatic influence to encourage a settlement of the Darfur crisis, it would not press Sudan publicly or threaten it with sanctions.”

Fair Share Health Care: canary in the ERISA coal mine, 12/15/06 — Last Thursday The U.S. Court of Appeals for the 4th Circuit upheld last year’s ruling overturning Maryland’s “Fair Share Health Care” law on the grounds that it conflicted with federal law, specifically the Employee Retirement Income Security Act (ERISA). The Baltimore Sun’s Matthew Dolan et al report:

…A divided three-judge panel ruled that the state’s Fair Share Health Care Act was incompatible with federal rules that promote uniform treatment of employees.

“In short, the Fair Share Act leaves employers no reasonable choices except to change how they structure their employee benefit plans,” Judge Paul V. Niemeyer wrote for the majority, adding that such a constricted choice also violates the federal Employee Retirement Income Security Act, or ERISA.

One of the three judges disagreed; Judge M. Blane Michael held that the law was “‘a permissible response to the problem’ of escalating Medicaid costs.” While the article reports that most Maryland legislators don’t want to revisit the legislation, Senate Leader Mike Miller is an important exception:

“We’re going to try to work around what the [court's] majority said and comply with the law,” Miller said. “But at the same time, we can’t allow 60 percent of Wal-Mart employees’ kids to go without health insurance and use the emergency rooms for care. There has got to be some relief for Maryland and the other states.

Emphasis added. And even though he counsels against appealing the verdict, I also agree with Sen. Thomas M. Middleton, a Charles County Democrat and chairman of the Senate Finance Committee: “First of all, Congress needs to loosen up the ERISA laws.” More on the 4th Circuit’s ruling another time, I hope. For now, I’ll just reprint dissenting Judge Michael’s final words:

Because a covered employer has the option to comply with the Act by paying an assessment — a means that is not connected to an ERISA plan — I would hold that the Act is not preempted.

Yes! Jiminy Christmas, that ought to be the ballgame — at least one judge gets it.

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NOTES: Fair Share court ruling via Steve Fine (”fineline”)
EDIT, 1/25: Judge Michael’s final words and my comment added.

On November 30, the 4th U.S. Circuit Court of Appeals took up an appeal of a July district court RILA v. Fielder ruling that Maryland’s “Fair Share Health Care” act infringed on federal law.

Earlier in the month, the National Academy for State Health Policy published an extremely valuable and informative issues brief, “ERISA Implications for State Heath Care Access Initiatives: Impact of the Maryland “Fair Share Act” Court Decision,” by Dr. Patricia Butler. That brief suggests to me that what’s at stake in RILA v. Fielder may be the ability of states to innovate in health care reform — and not “just” incremental reform like the Fair Share bill, but broader initiatives reformers hope to legislate in Maryland and elsewhere.

As AP’s Zinie Chen Sampson wrote, the Fair Share act “would require nongovernment employers with 10,000 or more workers to spend at least 8 percent of their payroll on health care or cover the difference in taxes.” In his July ruling, Judge Motz held — incorrectly, I think — that Maryland was essentially imposing a mandate on targeted companies to improve their health plans, in defiance of federal law insisting such matters must be administered in a uniform way across the country.

The federal law that the Fair Share act is argued to conflict with is the Employee Retirement Income Security Act, or ERISA for short. That law governs employee benefit plans including health plans, and holds that its provisions “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described” (Title 29, Section 1144). The trouble is that the word “relate” is vague and subject to shifting interpretations. Butler:

Because ERISA’s preemption provisions are not particularly clear on their face, courts have been interpreting them in the 32 years since ERISA was enacted. For two decades, the U.S. Supreme Court took an expansive view of ERISA state law preemption. The Court noted, for example, that the preemption clause was “conspicuous in its breadth,” and overturned state laws with any impact on or reference to an ERISA plan’s benefits, structure, or administration. [...]

The Court has held in Travelers and subsequent cases that it would not presume (without clear evidence to the contrary) that Congress intended ERISA to preempt laws in areas of traditional state authority. Despite greater flexibility granted to state laws, however, the Supreme Court’s two basic tests for preemption remain. A state law will be preempted if it:

• Refers to an ERISA plan, either explicitly or by requiring reference to an ERISA plan in order to comply with the state law, or
• Has a connection with an ERISA plan by substantially affecting its benefits, administration, or structure.

But echoing arguments like Professor Phyllis Borzi’s during debate about the law, solicitor general Steven M. Sullivan argued beore the 4th Circuit Court — correctly, I think — that the law didn’t actually force targeted companies like Wal-Mart “to offer health care; it gives companies the choice of spending at least 8 percent on employee health benefits or covering the costs with increased taxes.”

While there’s little doubt that would be an unwelcome choice to the Scrooges of Bentonville, it would still be a choice that potentially leaves their so-called national “health plan” intact. Companies like Wal-Mart could calculate the pros and cons of setting up an adequate health care plan for their employees, and then either go ahead — or just cut a check to Maryland’s Medicaid system.

As Butler puts it, courts must decide whether “Supreme Court precedent [prohibits] state laws that merely raise plan costs—in other words, that a spending mandate is not a benefits mandate.” If a court decides — however wrongly — that a state law creates a health plan spending mandate, and that that is equivalent to a benefits mandate, the state law must be overturned under current ERISA law.

Butler’s brief leaves me with the feeling that just about any health care reform law can founder on the shoals of a vague federal ERISA preemption provision, shifting legal interpretations, and individual judicial temperaments. Butler is guardedly cheerful about the prospects for popular new health care reform notions such as a recently enacted Massachusetts law coupling a mandate for individual health insurance by those who can afford it with state-funded health care for those who can not. But in discussing a Vermont health care reform law, she notes that

This law also raises ERISA issues similar to those in the Massachusetts law, though it also may survive a preemption challenge. Because these laws are drafted differently and have different likely impacts than the Maryland act, the RILA decision may not be directly applicable. But, the laws will need to overcome potential challenges based on the Supreme Court’s preemption principles.

In adding the emphases above, I realize that Dr. Butler may feel more confident about the prospects for these and other state health care reform initiatives than she lets on. Yet in reading about the arcane legal issues involved, I’m often put in mind of those scholastic debates about how many angels can dance on the head of a pin. And I recall that a bevy of legal experts — including the state’s attorney general — guessed wrong about the prospects for “Fair Share Health Care” once it came down to at least one district judge. If a clear, fair choice to “pay or play” like Fair Share can be preempted by ERISA, so can any number of other laws.

Butler sets out some guidelines in her conclusion for how “pay or play” plans like “Fair Share” could avoid ERISA preemption. But once she goes beyond “offering real employer choice between paying and covering their workers” – which I, for one, insist “Fair Share” offered — it seems to me the Fair Share Act fits the bill:

• It does not refer to ERISA plans.
• Legislative sponsors are explicitly neutral regarding whether the employer pays the assessment or plays by offering coverage.
• The credit applies to any health care spending on behalf of employees (not only to more traditional health insurance or formal health plan).
• The credit is not conditioned on an employer’s plan meeting benefits or structural requirements such as employer premium sharing standards.
• An employer’s payment of the assessment is not a prerequisite to its employees qualifying for coverage under the public program.

Some critics have rightly pointed out that the Fair Share Health Care law was not a solution for Maryland’s health care crisis. But the law had another important purpose as well. As its name implied, “Fair Share Health Care” was always about both health care and fair competition between decent businesses and robber barons. If a company like Giant Foods can’t compete with Wal-Mart because it’s “dumb” enough to have a decent health plan, we all lose in the long run — and probably in the short run, too. In the glory days a-coming, a national health care plan would moot this concern, but meanwhile, it’s deeply ironic that “Fair Share Health Care” would be tripped up by federal statutes purporting to safeguard employee income security.

At any rate, whether it lives or dies on appeal, “Fair Share Health Care” may have served at least one useful purpose: as a canary in the coal mine, showing that current federal ERISA law is a formidable obstacle to any progressive state legislator hoping to reform health care. Accordingly, Dr. Butler’s suggestion to reform ERISA is worth a look by federal legislators hoping to break the national health care reform logjam.

I started blogging on this site five years ago yesterday. It took me several tries fiddling with the FTP target address, if I recall correctly; at any rate, I still remember the pleased “hey! it worked!” feeling I got when I saw my first post.

It’s a memory tempered these days by what I feel when I re-read that post and others like it early on. There’s nothing all that wrong with that first one, but still if I were to go back in time and take over the keyboard again, I wouldn’t write it or many of the ones that follow that way now, and I might not have written some of them at all.

Still, there they all are. My blog, to me, is half an argument with myself, half a message in a bottle to the rest of the world. In its daily guise, like any journal, it seems declaratory and fairly certain in its statements. Over time, it becomes something else, a journey — and one I sometimes read between my fingers.

It’s actually been a fair amount of work and trouble: late nights reading things, writing things, re-writing them, re-writing them again and yet again; sometimes feeling (and sometimes being told) I’m spending too much time on it.

Has it been worth it? Has it been worth anything?

With regrets
Given my opinions these days, that’s questionable, if influence is the measure of value. For one thing, I’m not all that widely read; for another, that’s not surprising, given my tacks back and forth on Iraq in particular. Starting out leaning against an Iraq war for many of the right reasons, I changed my mind after a long hiatus; one of my most widely read posts was the February 2003 “With regrets — for war on Saddam.” Seemingly independent reports about Iraqi WMD from Germany and arguments like those in “The Threatening Storm” had helped convince me there was a real threat, and that the war was the best way to solve it. Regardless of my sincerity, I was wrong. A lot of people linked to that post, and a lot of people read it and commented* on it, both here and elsewhere.

I’ve since distanced myself from it and rebutted it, at least in part. But that’s been to the tune of perhaps dozens of readers, not hundreds upon hundreds. And I was more than just wrong; in particular, I hadn’t stuck by my own demands for convincing proof of WMD, and my “come what may” line was particularly callow in view of what indeed has come for that country and our soldiers fighting there.

Looking back, I see how furious and on edge I was after 9/11. In part, my trust in the institutions of this country betrayed me — I believed, even of Bush and Cheney, that they would recommend war only when it was truly the least worst option. Wrong. But I’m also afraid that although I would have denied it then, events like 9/11, the anthrax attacks, and the sniper attacks around DC the following year made me more and more jumpy, and more and more open to poorly conceived “solutions” like Iraq. I don’t think I was alone in that. A lot of people who started blogging after 9/11 — the so-called “warblogger” cohort — never really got over it; a better description for many of them may be “post traumatic stress bloggers.”

Writing like this can be, then, a bit of a dangerous hobby. A problem I’ve mentioned before is that it’s easy to become committed not just to the position, but to your public arguments and stand for it. It’s harder for me, at least, to consider unwinding from something I’ve argued for in writing than from something I say in a conversation. I wonder how many bloggers find themselves trapped in their own arguments, unwilling to alienate particular readers or an imagined readership, and therefore unwilling to reverse course.

At the time, I also aspired to bridge a European-American perceptions and risk assessment gap I saw; I would frequently write about German reactions in particular, since I speak the language. While some of that was to the good — I think that on the whole, my German bloggers series posts have been worthwhile — I also spent time and effort arguing with German bloggers and their readers at their sites about U.S. Iraq policy in particular. Given that I was basically wrong about it, that’s fairly painful to recall — public diplomacy in the service of a poor cause.

A reminder
So I’m reminded that humility on my part is in order, certainly more than I like to display. I was against torture, but at first ignored what news there was as “bad apples” at worst — including news e-mailed to me about “American Taliban” John Walker’s treatment, which was a pretty clear sign of trouble ahead. I was less of a stickler than I am now, taking issue with this or that, but reckoning that little things like hoods, or a little sleep interruption, or the ad hoc Guantanamo system were not so bad — details got slightly wrong in hot pursuit perhaps, but not the tip of some iceberg of malfeasance and coolly chosen wrongdoing. Of course, I could not have been more wrong in that, either.

It took Abu Ghraib to viscerally remind me of what I can and can not stand for; I intuited and then confirmed to my (dis)satisfaction that there was much more and worse than what I’d seen. That’s when I pretty much pulled out my red card, once and for all, on an administration I admittedly never had all that much use for. Beware of people who call for changes in the rule books when the game is going badly. Beware of yourself and be aware of yourself if you decide to consider those rule changes.

For all the regrets, shouldas, wouldas, and couldas, I think this blog has been a decent effort. Realizing that I can’t be and don’t want to be a “full service” comment-on-everything blog, I’ve tended to settle on issues and themes that I care about, (e.g., Abu Ghraib etc., Wal-Mart, the “TexasGate” redistricting saga, verified voting, Srebrenica, Katrina, global warming) and come back to them repeatedly. I’ve tried not to let other stories I’ve followed drop either, via the clunkily-named “Department of followups” posts. I’ve also tried to not be too much of a scold — how could I be, given my own inconsistencies — and to lighten things up with a little humor now and then.

Thanks
In conclusion, thanks for reading, for bearing with my long-winded posts, and for commenting when the spirit moves you. Thanks in particular to Paul, eRobin, Gary, Nell, anonymousgf, Karen, and Brett, who are frequent visitors and valued commenters these days, and who I think of as friends whether I’ve met them or not; likewise for Jens, Sven, Scott, and Peter, who drop by occasionally from overseas; and likewise for those like Tom T. who dropped out over the years, possibly as I became too shrill for their taste.

Others drop by regularly as well, I think, but choose not to comment — although they’re welcome to regardless of whether they disagree with me. Other than my own mental grades for posts, comments are how I tell whether I’m writing anything worth the trouble of reading; although I’ve sometimes failed badly, I do welcome opposing views.

But mainly, thanks for dropping in and reading. While this blog has been mainly for my own benefit — I think the practice has improved my writing a little — I hope it’s also occasionally been worth it to you.

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* Although the comments are missing because of a glitch in the prior system, I still have them, and hope to get them reconnected with Haloscan’s help.

Selected Iraq posts:

• Nov 2001: Iraq — what would we be fighting for? — should have quit here.
• Feb 2002: Imbalance of bluster — take issue with “axis of evil”
• Oct 2002: When in doubt — table framed as antiwar arguments and anti-antiwar arguments.
• Jan 2003: On Iraq — closer yet to supporting the war by then.
  
• Feb 2003: With regrets — for war on Saddam — I break with former point of view, friends, and family.
• Mar 2003: Update — where I stand – assuming anyone cared, of course. I continue to support impending war after Drum, Marshall withdraw support.
• Apr 2004: FUBAR — Sadr Brigades uprising.
• Jun 2004: Beyond Fallujah — just how clueless was the occupation? Extremely.
• Oct 2004: A screwed up war; False premises — pre-election reckonings with Bush and myself.
• Jun 2005: Bush’s speech at Fort Bragg: a scorecard — Overall grade: D.
• Feb 2006: The wheels off the bus go round and round — Bush, Iraq, U.S. fortunes plummet.
  
• Jun 2006: Too late for Haditha; Gotcha, you bastard: repeat endlessly – too late to correct course in Iraq? and doubts about how decisive Zarqawi’s death will be.

Selected detainee treatment posts:

• Nov 2001: Military tribunals — against.
• Jan 2002: Augstein demands air conditioning for Camp X-Ray — nettled by German criticism, I claim there’s “nothing to be ashamed of” there.
• Mar 2003: Update — where I stand — as noted above, staying my Iraq war course, but no to torture.
• May 2004: Shared responsibility — Abu Ghraib not just soldiers’ fault, but mine for ignoring warning signs; open up Guantanamo. Part of a week or so of writing about nothing else.
• Jan 2005: A dialogue with Jeff Jarvis: torture by Iran, torture by us — let’s tend to the beam in our own eye first.
• Jun 2005: Look pretty similar to me — in the wake of Durbin’s remarks, I compare reports of KGB, Nazi, and US practices.
  
• Jul 2005: Our sacred Honor — July 4th thoughts.
  
• Jul 2005: Torture commission, detainee treatment votes expected soon — call to contact Senators on these issues; heavily visited thanks to Henley, Tushnet, Poor Man.
  
• Sep 2005: My 9/11 Freedom Perp Walk — I’m arrested for demonstrating at the 9/11 “Freedom Walk” at the Pentagon. Ironic, huh.

After Townhall.com mudslinger Herman Cain and the L.A. Times editorial board fouled out last week, cleanup hitter Sebastian Mallaby stepped to the plate for the Wal-Mart Shills on Monday with “Shopping for Support Down the Wrong Aisle.” Observing that opposition to Wal-Mart has infected even the inner sanctum of the DLC — Biden! Bayh! Clinton! even (gasp) Lieberman! — Mallaby adopts the old “more in sorrow than in anger” tone,* fretting:

How can supposedly centrist Democrats defend this betrayal of their principles?

… and disingenuously locating the supposed objection to Wal-Mart in Chinese imports, rather than American union-bashing, communities racing to the bottom, workforce exploitation, and rule by fiat over much of the rest of what passes for the American economy these days.

Now of course the cynical answer to Mallaby’s question would be “What principles?” But believe it or not, I don’t like cynical straight up, so I recommend Kevin Drum’s answer as well:

Well, here’s the thing. When every single moderate Dem starts attacking Wal-Mart, maybe nobody’s betraying any principles at all. Instead, maybe they’ve figured out something that Mallaby hasn’t: it’s not the 80s anymore and things have changed. And one of the things that’s changed is that Wal-Mart has gotten a lot bigger, unions have continued shrinking, working class wages have stagnated, and corporate power has grown tremendously. It’s perfectly rational for even moderate, pro-business Dems to look at the record of the past couple of decades and conclude that things have gotten pretty far out of whack and that Wal-Mart is a good symbol of this imbalance.

Drum even stuck a Wake Up Wal Mart button to his post for good measure. And the whole Washington Post editorial board might do well to study where Drum takes the argument next:

In other words, reality matters, not just politics. At one of my panel sessions this weekend, a member of the audience asked if reading blogs for the past four years had made me less willing than before to give George Bush the benefit of the doubt. I answered that it would be silly to pretend that reading people like Digby and Atrios hadn’t affected my political views, but that something much more important had happened during my time reading blogs: George Bush had mismanaged the country for four years. Anyone sentient who has simply watched Bush govern during that time would be less inclined to give him the benefit of the doubt. Hell, even conservatives feel that way.

The same is true more broadly. There’s a reason that so many former moderates are so irate these days, and it’s not because they aren’t moderates anymore. It’s because moderates should be irate over the events of the past decade. People like Mallaby seem unable to figure that out, and therefore assume that any change of heart is motivated not by events, but by a “betrayal” of principles.

There are Democrats I’m willing to believe this about, and there are others I’m less sure of. No matter: they’re all showing up at Wake Up Wal-Mart rallies now. And that speaks volumes about where the political center of gravity is shifting on the issues of Wal-Mart, the “dwindling anti-trade labor movement,” and freeloading as business model. Mallaby may splutter, and Lieberman may have his fingers crossed behind his back, but Wal-Mart’s unscrupulous, unwise, and unAmerican domination of this country’s economy may be nearly over.

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* I imagine a Shirley Temple voice asking “What’s happening to my very favoritest party ever?”

(…hat tips: L.A. Times, Lee Scott)

The Los Angeles Times may not use the word “Hezbocrats“, but they seem to share many of hired mudslinger Herman Cain’s basic premises in a Wednesday op-ed titled “Democrats’ Shameful Wal-Mart Demonization.” Shameful? Shameful!? Talk about Rovian “accuse them of what you deserve yourself” tactics!

In part, the Times reaches for the old “I’m warning you for your own good” ploy, in which the editorial board holds forth on the supposed primary vs. general election appeal of getting after Wal-Mart:

The gusto with which even moderate Democrats are bashing Wal-Mart is bound to backfire. Not only does it take the party back to the pre-Clinton era, when Democrats were perceived as reflexively anti-business, it manages to make Democrats seem like out-of-touch elitists to the millions of Americans who work and shop at Wal-Mart.

As Avedon Carol (”The Sideshow”) responds:

Right, because all businesses are exactly like Wal-Mart, objecting to Wal-Mart’s practices is ‘anti-business’. You could just as easily say the same about the Mafia - they are, after all, a business. But not all businesses are quite the same, and being against the Mafia, or loan sharks, or Wal-Mart, is not the same thing as being anti-business.

Moreover, if you’re actually a Democrat worried where Wal-Mart voters are trending, a Zogby poll recently found that 51% of frequent Wal-Mart shoppers agreed that it was “time for the Democrats to take over and run” Congress versus 31% percent who think “Republicans deserve to retain control” — after 85% support for Bush in the 2004 election.*

As Ms. Carol also noted, the editorial made another interesting assertion: “Most Americans do not want their politicians ganging up on one company.”

Hmm.

You know what? That’s actually not a bad idea — just do it through the Justice Department or its equivalents at the state level. In a Harper’s article “Breaking the Chain” (July, 2006), the New America Foundation’s Barry Lynn lays out “The antitrust case against Wal-Mart” — and it’s pretty compelling.

Summarizing, it turns out that what are essentially anti-trust cases aren’t confined either conceptually or by statute to attacking producer monopolies on behalf of the consumer. Seller “monopsonies” — a market form with one buyer — can be and have been taken to court as well. The grocery chain Atlantic & Pacific, for example, was taken to court from the 1940’s on, with one case concluding in 1979. Thus, statutes like the Sherman Act and the Robinson-Patman Act are also intended to protect suppliers from monopsonistic pressures to cut prices to levels demanded by 800 pound gorilla retailers like Wal-Mart.

As Lynn puts it, “Monopsony arises when a firm captures the ability to dictate price to its suppliers, because the suppliers have no real choice other than to deal with that buyer.” The classic treatment of monopsony considers labor markets,** but in this case Lynn is talking about Wal-Mart’s well known impact on its suppliers:

Kraft, meanwhile, is a producer that only four years ago was celebrated by Forbes for “leading the charge” in a “brutal industry.” Yet since 2004, Kraft has announced plans to shut thirty-nine plants, to let go 13,500 workers, and to eliminate a quarter of its products. Most reports blame soaring prices of energy and raw materials, but in a truly free market Kraft could have pushed at least some of these higher costs on to the consumer. This, however, is no longer possible. Even as costs rise, Wal-Mart and other discounters continue to demand that Kraft lower its prices further. Kraft has found itself with no other choice than to swallow the costs, and hence to tear itself to pieces.

Wal-Mart’s “Category Management” practices, whereby Wal-Mart allocates shares of its market — effectively the market — to the most compliant suppliers is an even more blatant example of the excessive market power Wal-Mart has. Effectively, Bentonville is midwifing captive monopolies:

These days, Wal-Mart and a growing number of other retailers ask a single supplier to serve as its “Category Captain” and to manage the shelving and marketing decisions for an entire family of products, say, dental care. Wal-Mart then requires all other producers of this class of products to cooperate with the new “Captain.” One obvious result is that a producer like Colgate-Palmolive will end up working intensely with firms it formerly competed with, such as Crest manufacturer P&G, to find the mix of products that will allow Wal-Mart to earn the most it can from its shelf space. If Wal-Mart discovers that a supplier promotes its own product at the expense of Wal-Mart’s revenue, the retailer may name a new captain in its stead.

An unwary consumer may applaud this in the short term, but in the long run the suppliers stocking the soft-drinks, dental care, shaving products, and other shelves and aisles controlled this way become essentially oligopoly-going-on-monopoly playthings of Wal-Mart; it can then dial those prices up or down more or less at will, yet dictate ever more onerous prices to its own suppliers.

As Lynn tells it, the seeds of Wal-Mart’s success were planted in the Reagan years as anti-trust activity was drastically curtailed (and, of course, as anti-union policies came into vogue). Far from being “elitist” or even anti-free market, then, taking on Wal-Mart would be a step in the right direction to a market that is more free, more fair, and better for more people than the current aberrant market system is. As Lynn concludes:

…We must restore antitrust law to its central role in protecting the economic rights, properties, and liberties of the American citizen, and first of all use that power to break Wal-Mart into pieces.

Lynn also finds a somewhat surprising voice of support (emphasis added):

As we make our case, we should be sure to call one expert witness in particular. Last year, Wal-Mart CEO Lee Scott called on the British government to take antitrust action against the U.K. grocery chain Tesco. Whenever a firm nears a 30 percent share of any market, Scott said, “there is a point where government is compelled to intervene.” Now, Wal-Mart has never been shy about using antitrust for its own purposes. In addition to the Toys R Us case, the firm was also the instigator of a Sherman Act suit against Visa and MasterCard. And so such a statement, by the CEO of a firm that already controls upward of 30 percent of many markets and has announced plans to more than double its sales, sets a new standard for hubris. It also sets a simple goal for us—elect representatives who will take Citizen Scott at his word.

I actually laughed when I read that. Who says economics has to be the dismal science?

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* The link is to “Wal-Mart economics — and Wal-Mart Voters” in this blog; Zogby data via Ryan Sager (”RealClearPolitics”) are cited there.
** Wal-Mart also effectively undermines free-market wage levels, in my opinion, via the combination of its size crowding out competing retailers, anti-union tactics, and time shaving. This may amount to a labor monopsony as well, but since Lynn isn’t arguing that point, I won’t either.

“Working Families for Wal-Mart” board member and Townhall.com columnist Herman Cain is labeling Democrats speaking out against Wal-Mart’s business practices “Hezbocrats.” It’s no throwaway line, either. Cain thinks he’s hit a rhetorical home run, using it in the column’s title, and leading paragraph after paragraph with the term — and naming names you might not expect. From “Hezbocrats Attack Wal-Mart“:

Leading Hezbocrats, including Sen. Joe Biden (D-DE), Sen. Evan Bayh (D-IN) and Gov. Bill Richardson (D-NM), attended rallies in Des Moines to slam Wal-Mart, the nation’s largest private employer. Wal-Mart’s crime? According to the Hezbocrats, Wal-Mart has abandoned the middle class by not paying what they consider a “living wage” or providing its employees free healthcare coverage.

At one rally, Sen. Biden stated, “My problem with Wal-Mart is that I don’t see any indication that they care about the fate of middle-class people.” Sen. Bayh added, “Wal-Mart has become emblematic of the anxiety around the country, and the middle-class squeeze.”

The rallies were organized by Wake Up Wal-Mart.com and Wal-Mart Watch; I hope readers will support Wake Up Wal-Mart’s demand for an apology.

Meanwhile, it’s gratifying to see skepticism about Wal-Mart hit the mainstream to this extent; the signature moment was when Joe Lieberman and Ned Lamont showed up at the same WakeUpWalMart rally in Connecticut early this month. But pace Bayh, there’s nothing merely “emblematic” about Wal-Mart. The company is exerting a gigantic, Jupiter-like gravitational pull downwards on American wages and health benefits, and resisting that is what Democratic politics should be all about. It’s telling that should be met with puerile name-calling.

I lifted that headline from WakeUpWalMart.com, which noted on Monday:

…Wal-Mart just announced to its workers that the long-term associates will never get another raise again, not even a penny.

But, the most disturbing part, is that Wal-Mart coupled this cruel announcement with what would have otherwise been a good thing by slightly raising the starting salary of its employees (and they probably thought they were going to get away with it).

So, if you are a Wal-Mart employee here’s the message you just got: Do not apply here if you want a career, and if you have worked here for awhile, please leave because you cost us too much.

A related story illustrates the personal impact of that message. Touring in Ohio, a WakeUpWalMart bus passenger was approached by a man who “told us his wife had come home crying today from work”:

Guess where she worked? You guessed it, Wal-Mart. And, she had just had her in-store meeting to learn that she is now capped out and will never get a raise working at Wal-Mart again. The woman was literally in tears and her husband had come over to the diner to get her some food so she wouldn’t have to cook dinner after such a long day.

WakeUpWalMart director Paul Blank comments:

Like most of Wal-Mart’s recent publicity stunts, the company takes one step forward and two cruel steps backwards. Here is what Wal-Mart is really doing: cutting wage increases, imposing salary caps for workers who already get paid poverty-level wages, and shifting hundreds of thousands of full-time workers to low pay, part-time jobs. Wal-Mart should be ashamed of itself.

Instead of doing what is right and raising the salaries of its employees, so they can live above poverty, Wal-Mart has coupled this so-called ’salary change’ with a salary cap on long-term workers that will not only destroy employee morale, hurt Wal-Mart workers’ families, but will force many long-term associates to leave the company.

I had hoped that Maryland’s Fair Share Health Care bill* could have had the effect of encouraging Wal-Mart to move to more full-time employment. Conversely, we may have just seen the RILA v. Fielder ruling striking down that bill (however incorrectly, in my opinion) having the opposite effect: the continued marginalization and, frankly, exploitation and oppression of the Wal-Mart workforce — a huge group in its own right, and a bellwether for the rest of the American economy.

Along with the freeloading as business model I object to so strongly, Wal-Mart’s modus operandi has been to sail into relatively weak rural or urban economies, stamp out the competition, and then hire the conquered as part-time workers on sufferance. Doing that with the help of taxpayer health care subsidies is, as John Edwards puts it, a “double whammy.”

Fair Share Health Care was about much more than health care; it was also about what kind of corporate citizens we intend to put up with in this state and in this country. And it wasn’t just about Wal-Mart: either companies like it change their ways, or their competitors will have to emulate their practices to avoid going out of business.

I strongly urge Maryland legislators and candidates, such as those participating in my recent online forum about Fair Share after RILA v. Fielder, to plan specific legislation to restore “Fair Share Health Care” and otherwise constrain corporate behavior against low-income wage earners.

I respect and support the goal of universal access to health care, which is what most of those candidates preferred to discuss. But the most fundamental source of good health care will always be good jobs — whether those jobs pay for it with payroll deductions, copayments, or income taxes. While it was certainly no panacea, “Fair Share” was a step in that direction. Whether or not “Fair Share” can ultimately be restored, we need policies ensuring our state and our country will have a full time economy, not a part time one.

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* A Maryland law requiring companies to choose between paying at least 8% of payroll into health benefits, or paying the shortfall to a state Medicaid fund. The law was recently overturned in federal court as incompatible with federal health benefits legislation known as ERISA.
EDIT, 8/10: bus tour was also WakeUpWalMart, not WalMartWatch.

As I mentioned on Tuesday, I asked Democratic District 20 candidates to comment on the recent RILA v. Fielder ruling overturning Maryland’s Fair Share Health Care law. The substantive part of my Monday e-mail was as follows:

Dear Democratic District 20 candidates,

As you probably know, a federal judge overturned Maryland’s Fair Share Health Care (FSHC) Act last week. (I posted an item about this decision as “RILA v. Fielder strikes down Fair Share Health Care.”) Colloquially if inaccurately referred to as the “Wal-Mart bill,” FSHC required companies with over 10,000 employees to pay an amount equal to at least 8% of payroll to health benefits, or pay the balance into a state Medicaid fund. As I understand the ruling, the judge found this to be incompatible with the federal Employment Retirement Income Security Act (ERISA), but not a violation of the principle of equal protection for Wal-Mart vs. other companies. The decision will be appealed, but the prospects for success are uncertain.

My question to all of you is:

Assuming the RILA v. Fielder decision stands, what specific legislative steps do you support — if any — to pass a FSHC or similar measure that would withstand judicial scrutiny? By “similar”, I mean measures that address the needs of low-income wage earners with inadequate health care benefits, and/or the “free rider” problem of companies like Wal-Mart which — despite being highly profitable — essentially rely on state Medicaid systems to provide health care for their employees.

I then discussed suggested word limits and formatting,* and asked for responses by this evening. Here are the Assembly and Senate candidate responses I received by this evening, in the order I received them.

Delegate Gareth Murray

As you are aware, I was a strong advocate and voted for the Fair Share Health Care bill and view it as another step toward providing the Maryland workforce the rights and benefits they so richly deserve. I wish this were a problem for which I could give you a quick answer. Unfortunately this is a very complex issue which I do intend on addressing upon my return to Annapolis. The task is to craft legislation that will promote certain behaviors in reference to provision of healthcare by prohibiting or at a minimum removing economic incentive to do otherwise. Given the time required to adequately research and draft such a proposal, I do not have the time during this campaign for re-election.

Lucinda Lessley

It is my understanding that the Wal Mart bill was struck down because it was found to be in violation of the Employee Retirement Income Security Act (ERISA), which essentially creates a federal statute to occupy the regulation of health and benefit plans in order to ensure that firms that employ people in multiple states can maintain a standard, nationwide package of benefits.

I supported the aim of the Wal Mart bill which was to require that Wal Mart either provide health insurance to its employees or pay the State to provide the benefits that many employees obtained through State programs. If it would be possible to craft a bill that meets these objectives without violating the provisions of ERISA, I would support it.

The better way to avoid the problems faced by the Wal Mart bill, however, and to ensure that all Marylanders have access to health care, is to create a system in our State that provides universal care or coverage. While such a system may be a single payer system or it may be a system such as was adopted in Massachusetts that requires all citizens to carry health insurance (and subsidizes coverage for those who cannot afford it), I believe it is shameful that some 700,000 Marylanders lack health insurance. A state with the resources that are available to Maryland can provide universal coverage if such coverage is made a top Statewide priority; if elected, I will work to make universal care this kind of priority.

Diane Nixon

I supported the Wal-Mart bill, and I am sorry that it was struck down. But I thought of it as a stepping stone, not a solution to the health care crisis in Maryland. Since it only applied to employers who have over 10,000 employees, few residents in Maryland would have been affected. I want legislation which will provide universal coverage to all residents, modeled after the bill which passed in Massachusetts this year. Uninsured residents who can afford to buy insurance must buy it or face tax penalties. Businesses with more than ten workers must provide insurance or they will be fined. People below the federal poverty level will be provided with health insurance, without paying premiums or deductibles. Lower income people will be able to buy subsidized policies. The Massachusetts plan reduces the cost of health insurance for people who are already insured. Having fewer people without insurance will lower costs for employers. Adding healthy people, who use less health care, will keep deductibles and premiums down. The cost of health care is too expensive and it getting worse. Massachusetts legislators have shown that providing health insurance to the uninsured is possible. Since this is a new plan, it will probably undergo several changes before it works for everyone. But it does what the Wal-Mart bill failed to do. It comes close to providing universal health care, it makes most businesses responsible for covering their employees, and it offers hope that the broken health care system can be fixed.