Wednesday, June 18, 2008

Supreme Court ruling on Gitmo Detainees

A few days ago the Supreme Court ruled that detainees in Guantanamo Bay have the right to challenge their detentions in US civilian courts.

I am not wild about this decision because I believe that it will result in some frivolous legal proceedings, and could result in the release of true terrorists. Nevertheless, I believe it is the correct decision for a variety of reasons (all with the usual caveats that I'm not a lawyer):
  • We have two legal frameworks under which our government operates: criminal and military. We’ve survived 230 years with these two, and have never had any real problem with putting people under one jurisdiction or the other. I do not see why this system suddenly needs to break down. The detainees are either prisoners of war (whether they are subject to Geneva convention protection is debatable), or they are criminals. Bush is trying to have it both ways: treating this as a military war in every single respect but for one, namely what we call the enemies that we capture. If it walks like a duck and quacks like a duck…
  • Many people have made the argument that because the detainees are not US citizens that they do not have constitutional rights. This is a bad argument: the rights guaranteed in the constitution have never been limited to citizens. Rather, those rights are limitations on what our government can do, how it can treat people, so it applies to official acts of the government even extra-territorially. Again, that’s a criminal statement which is probably void if in a military context, but Bush seems to be arguing against the latter despite all evidence to the contrary. The fact that terrorists don’t wear uniforms and target civilians may exempt them from Geneva conventions, but it doesn’t make their actions any less “military,” especially if that’s what we respond with.
  • Consider the case if the decision had gone the other way. Suppose I firebomb a house. I’m guilty of arson (and probably a few other crimes), but I’m afforded various legal protections before I can be sent to jail for that. If the decision had gone the other way, then if Bush decided that my act was not mere arson but “terrorism”, then according to their logic, they could declare me an unlawful combatant or terrorist and lock me up indefinitely. And there’s nothing I could do about it. This isn't just a hypothetical, this is exactly what they did with Jose Padilla, who was a US citizen detained on American soil. The fact that the president is an honorable person who wouldn’t frivolously do this is immaterial – it’s not a power that our constitution grants, and the framers of our constitution were deliberately (and justifiably) wary of granting unchecked powers to any position and simply trusting that it wouldn't be abused.
  • Another argument in favor of holding the detainees is the historical precedent of holding prisoners of war without any rights to challenge their holding until the end of hostilities. The problem here is that while it is a war in just about every sense of the word, it also is not at all a war because there is no central unified enemy: we’re fighting a bunch of independent ideologues. Yes, some band together to form one group or another (Al Queda, the Taliban, Hamas, Hizbullah, Al Queda in Iraq), but that’s the point: even if you get rid of Bin Laden, Al Queda doesn’t go away or cease hostilities. To the degree that individuals or small autonomous groups are acting on their own, there is no peace treaty, the very notion of “end of hostilities” makes no sense. So we should admit what this is: we're holding people that we suspect are dangerous. This may seem to contradict my earlier assertion that this is truly military, but it actually supports the idea that these guys are either prisoners of war or criminals, or even some blend of the two, but just because they don't fall neatly into one or the other doesn't mean that they fall in some in-between world that is neither.
  • One of the core principles of America is that we do not punish innocent people. While we can be sure that many Gitmo inmates are in fact bad, bad, bad, we also know of quite a number of people who were basically innocent of terrorism, who were in the wrong place at the wrong time or who committed the “terrorism” of driving a car for Bin Laden (for example). As a nation we should find the idea of delaying indefinitely a determination of guilt or innocence abhorrent and reprehensible.
  • I’m sure the detainees are dangerous. So are murderers. And we occasionally have to release a murderer because they’ve served their time or because we couldn’t prove their guilt. And our society has accepted this imperfection as the price of being a just society. But most of the time, if we’re worried about that criminal, we’re able to demonstrate to the court that they are indeed a continued threat and are able to keep them detained. Why do we think we wouldn’t be able to do that if someone challenged their detention? In other words, if we think that giving them Habeas Corpus somehow will lead to a lot of them being freed, then it seems to me that we’re holding them on far flimsier evidence than we should be. Conversely, if we really have good reason to think they’re as dangerous as we’ve been saying they are, then heck – “bring it on.” Let them challenge their detentions, show the judge (secretly, if necessary) why we think they’re baddies, and watch how quickly the courts affirm that they are indeed a threat and can remain locked up. Frankly, I don't have a problem with military commissions (including the less protective rules of evidence) as opposed to civilian courts because I don't think these are ordinary criminals, nor do I think that ordinary jurisdiction applies. But we do need to have some sort of legal process here.
In short, I think that the biggest problem with the way that we are holding these detainees is that we are making it up as we go along. (Indeed, the Seattle Times had a story on just this topic today.) Our nation is built upon a framework of laws and checks and balances precisely to avoid this sort of legal improvisation. There have indeed been times when we have had to work outside of that framework, but in the past presidents have explicitly suspended habeas corpus; our current president has decided not to do this, and this to me means that he is trying to have it both ways.

Sunday, June 08, 2008

A self-fulfilling prophecy in reverse?

So Hillary Clinton has finally conceded (sort of) that Obama won the nomination. And in doing so, she has proven that her failure to be nominated was the right decision.

Allow me to explain, and to first disclaim that I didn't particularly care which of these candidates won the nomination.

It's been obvious to most observers for a while now that Obama's lead was mathematically insurmountable. And yet she stayed in the race well past that point, and despite it's essentially irrefutable logic. I think this showed a disturbing inability to recognize reality and deal with it, instead clinging to an alternate reality despite any inconvenient (yet obvious) evidence to the contrary.

Pretty much all Democrats/liberals (and even most conservatives at this point) point out that Bush's single biggest flaw as a president has been that he has wrapped himself in a bubble and has refused to acknowledge even the most obvious data that is contrary to his world view.

So regardless of whether or not her winning or losing was the right decision by the Democratic primary process, in delaying her recognition of the obvious she has demonstrated quite convincingly (to me, anyway) that she suffers from precisely the same character flaw that Democrats have been railing against (directly or indirectly) in Bush for his entire term.

And thus she has proven that if she were to be elected, she would likely be just like him, only with a different political lens. I.e., she's campaigning on the message that we need to replace Bush, yet she has proven herself to suffer his worst flaw! And thus, in selecting someone else, the Democratic party has created a reverse self-fulfilling prophecy!

More on Airline fees and a-la-carte pricing.

I've posted in the past about airline fees and my recommendations, and lo and behold American Airlines is now taking my advice...sort of.

I think I simply forgot about the fact that *how* you go about this matters as much as going about it. And American Airlines is doing it all wrong, and in the process showing that they hate their customers.

The problem is not that American is charging for checking the first bag. The problem is that they are treating this as a penalty, as a surcharge, as punishment.

Consider two scenarios:

Scenario A: American (or any other airline) announces that they are going "A la carte." Their message to their customers is simple: we're going to keep your cost as low as possible by only charging your for what you need. Our fares (which include fuel, for crying out loud!), are as low as we can make them; you can add to that the services that you want. Each service that you add, whether it is meal service, baggage service, or a cancel/change waiver, is a separate service that we will stand behind independently. Don't like the food you bought? Get your money back. Paid for your golf clubs but they were delayed? We'll rent you a set until we get your clubs to you. If you pay for it, we'll make sure it's right.

Scenario B: American says that you can buy a "low fare" for your flight, but at every turn, whenever you try to do something that a reasonable person might want to do or expect to be included, you have to pay a fee, about which you likely did not know in advance. And even if you pay the fee (for example to check a bag), you get no additional service guarantees with it, you simply take your chances (and you won't get a refund). In fact, you may suffer fees even if you do everything to avoid it, for example if you find that there is insufficient overhead space for your legitimate carry-on bag and are forced to check it. You probably would have been willing to pay more for a ticket that could be changed, but you were never offered any such option because you were simply shown "lowest fares" on the airline website or on travel agency sites such as Expedia or Travelocity, all of which are oriented towards the lowest sticker price possible.

Now I admit that my scenarios are hardly unbiased portraits, but that's because I am biased. Scenario A is McDonalds, where nobody complains about the fact that adding fries to a burger costs more than the burger alone. (And, of course, "value meals" are hardly precluded in this scenario.) Scenario B, which nickels-and-dimes customers is...well, the airlines.

Any legitimate company that seeks to provide value to their customers and make money in the process would naturally implement scenario A; companies that are out to make money however possible but don't give a damn about their customers in the process gravitate towards B as a "revenue optimization" model.

Airlines today are in a really tough spot, and I sympathize with them for that, but unfortunately most of them today are viewing their solution through a Scenario B lens. This is shortsighted on their part, and demonstrates that they simply do not understand their business and what it means to make money by providing value to customers.

Southwest Airlines comes the closest to implementing Scenario A. Southwest Airlines is the only US airline that has consistently made money over the nearly 100 year history of commercial aviation. Am I the only one who thinks that this might not be a coincidence?