Archive for March, 2008

We were continuing our discussion about higher education in email and Prescott, perceiving the possibility of an intellectual challenge, asked me if I could be specific about the kinds of knowledge that is needed, but is not possessed, by current college graduates.

Here’s my list and explanations why they’re necessary:

AEY, one of many defense contractors hired to supply US armed forces, is not a name that inspires confidence among those that know it. “They weren’t reliable, or if they did come through, they did after many excuses,” said one federal official. But then no one asks the troops to fill out comment cards. No one looks to see that contracts are being fulfilled responsibly. And on the rare occasions when some reporter actually bothers to tell us about it, the Bush administration sticks its fingers in its ears and shouts, “La-la-la-la-la! Can’t hear you! La-la-la!” And the beat goes on.

The Story So Far…

Defense contractor AEY has had its contracts with the government suspended as Congress begins investigating the company for fraud. The company was paid to supply a variety of different types of ammunition to Afghan forces combating the Taliban resurgence and Al-Qaeda remnants. Now I know what you’re thinking. But Diogenes, can’t we just pay one of the usual crony corporations ungodly amounts of money to do it? Well, yes, we could, but the thing is, they don’t do arms trading, just production. And the Afghans were armed with old Soviet weapons, as those things can be bought on any street corner for less than cab fare. None of the usual suppliers do, say, ammo for AK47’s, which means it has to be bought from them what has it. Enter a variety of unsavory types ala Nick Cage in Lord of War, though I imagine their performances were more convincing. The vetting form was apparently pretty straightforward. There were two questions: “How much?” and “How would you like your name spelled on the check?” AEY was the low bid. The company claimed that the ammo it was offering was from Hungary, but the rounds the company shipped to Afghanistan were in fact Chinese in origin, up to forty years old, corroded, decomposing, and unusable.

The gear wasn’t all bad. Some was from climate-controlled stockpiles in the old eastern block. Some was scrap off Soviet junk heaps. But AEY’s contact with the government did not distinguish between these different grades of ammunition. The only requirement, according to an official at Army Sustainment Command, was that the ammunition fit in the weapon for which it was intended. Because the Soviet-made arms used by the Afghan fighters are considered “nonstandard,” that is, not kept as part of the regular inventory for the US Army, it is mostly unregulated.

While providing useless ammo may not be enough to get AEY in trouble, shipping arms from China is illegal under US government contract. And it has been enough to set off an investigation in Washington of the company and its practices along with its 22-year-old operator.

That’s right! The company president is 22 years old. Efraim E. Diveroli took over the company from his father when he was 19, netting a $5.7 million dollar contract to supply rifles to the Iraqi military. Let me say that again. The DoD gave the contract for supplying guns to the people in charge of securing Iraq to a teenager!

Diveroli’s father had started AEY as a printing company. But according to his grandfather, Angelo Diveroli, Efraim was a genius when it came to guns. Angelo laid it out like this. “His passion is weapons, since he was a child,” the AP reports. “I used to take him to gun shows. He knew every weapon.” Somewhere along the way, Efraim got AEY listed as a defense contractor and began bidding on government contracts. Public documents state that the company has received more than $300 million worth of contracts from the government since 2004. Diveroli claims to have done somewhere in the neighborhood of $600 million.

The New York Times broke the story on Thursday. It states that the Army will continue to accept ammo it has already ordered from the company, which, as of March 21, totaled $155 million worth. American munitions inspectors are examining all rounds for small arms provided by AEY.

Same As It Ever Was

AEY (no one seems to know what, if anything, this stands for) is by no means the first shady contractor to do something questionable in the name of profit. Endless stories over the last few years detail how Halliburton and its subsidiaries lost 363 tons of cash, supplied contaminated water to troops in Iraq, and billed the government for countless services never provided. What has happened is the take-over of the American government by politicians who do not believe in oversight, but rather put their faith in the magic of privatization. The prevailing dogma is that government is inherently inefficient and ineffective whereas corporations will invariably find the most efficient way of getting the job done in order to maximize profit. It is a philosophy advocated by those who seek to break government and then declare with glee, “See? It’s broken! Told ya!”

What is even more startling than the complete lack of any accountability is the apparent belief that government has no role in the market even when it is the sole customer. Even the most rabid Thomas Friedmanite would tell you that part of the whole free market deal is that you, as a consumer, may stop doing business with a company should you be dissatisfied with the product you’re given. However, when government is the customer, the implication that it may have a legitimate role within the free market paradigm seems to cause a short circuit in the mental wiring of the neo-cons. The result is a complete paralysis of any and all mechanisms that might kick the greedy little piggies to the curb.

This case is exemplary of the utter disaster that the privatization of war has been for both the federal budget and the troops on the ground who must now deal with the complete and total lack of accountability that is being brought to bear against those who cut every corner to enrich themselves at the expense of those serving. This is what the Bush administration calls, “supporting the troops.” When it comes to stomping around and waving the flag, there is no equal. If Congress attaches one string to one dollar, even something as simple as, say, demanding a receipt, the Bushies are out in front of the cameras saying that Congress doesn’t support the troops. By not shoveling more money down the gullets of these contractors, they argue, Congress is denying the troops the equipment and supplies they need to “win.” But at the end of the day, they just don’t care what’s happening. As long as the check clears and no one asks any serious questions, there’s nothing to worry about. It’s someone else’s problem.

The argument invariably comes back that the case of AEY proves the system works. Any company supplying a substandard product will lose its contracts. But AEY isn’t in trouble for supplying substandard products. It has been doing so for years and no action has been taken. What landed Diveroli in hot water was shipping arms from China. The quality of the arms has nothing to do with the pending fraud charges against the company.

By law, the first loyalty of a corporation is to profit. When oversight is non-existent, when Congress is infested by an entire political party dedicated to obstructing any investigation of its contributors, the idea that any contractor that fails to perform up to a certain standard will face repercussions for their actions is either naïve or deluded. Taped conversations make it clear that when it came to where the munitions were coming from, Diveroli took the Sergeant Schultz line. “I hear nothing, I see nothing, I know nothing!” It seems that he and his employers have something in common.

Earth Day. Live Earth. And, now, Earth Hour.

The latest bright idea from the country that gave us “Crocodile Dundee” is to have everyone across the globe turn off their lights for an hour at 8 p.m. Saturday.

Apparently, a bunch of neo-Luddites in Sydney did this last year and it made them feel good about themselves, so they’ve decided to give the rest of the world a chance to achieve a similar sense of self-worth.

Because, if we are being honest, Earth Hour, like its forefathers, is not about environmental policy–it is about social networking and self-importance.

Earth Hour is for those consumed with monitoring their carbon footprint and confused about why they do it.

The desire to be relevant and to have a positive impact on the world is a good instinct. But it’s lost in the self-involved nature of exercises like Earth Hour.

The Gandhian ideal “to be the change you wish to see in the world” requires thoughtful, measured action toward an end bigger than one’s self.

Earth Hour, by contrast, smacks of desperation for self-actualization.

Rather than creating a platform for compelling, fact-intensive arguments about eco-threats or creative ideas for green energy, Earth Hour is another in an endless series of symbolic events that define intergalactic participation in “something” as an end in itself.

I understand that there are those who believe that rapture is upon us because, over the past 100 years, the temperature on Earth has gone up a little less than 1 degree Fahrenheit.

That, some may argue, is the higher calling to which Earth Hour is responding.

But, even accepting the premise, is the Earth Hour response on point?

Energy consumption is the problem. Turn off your lights for an hour is the answer. Really?

Maybe for a household in the short term, but for nations in the long term?

Along this line of logic, I should counteract America’s dependence on foreign oil by riding my bicycle to work–but just for one day?

The reality is that we do not want to live in the dark and we do not want to take a date out on our Razor Scooter. Viable eco-friendly policies will not come at the expense of our quality of life and the mobility we currently enjoy.

The other reality is that the impact of Earth Hour and these other faux call-to-arms events is negligible, if not outright counterproductive, relative to actual conservation or even to advancing a particular remedy.

That’s why the explicit mission of these events is routinely the cleverly nebulous and unquantifiable raising of “awareness.”

Think about Al Gore doing his excruciatingly awkward hipster routine with Leonardo (or “Leo” as he calls him) DiCaprio at his Live Earth concert last July.

How much wattage was required and how many metric tons of garbage were created so Kelly Clarkson could screech on about her man troubles? That was conservation? That was a global wakeup call?

No, it was a platform for self-congratulatory celebrities and a few bloated politicians to “raise awareness” of their deep-seeded sense of social responsibility prior to taking off in their Escalades and Lear jets.

Fast forward to Saturday. You are sitting in the dark hoping CBS will re-run the episode of “How I Met Your Mother” you are missing (be sure to turn that TiVo off). You are thinking about what you’re going to do with that cool $1.20 you’re saving off of your ComEd bill this month.

And, wait, what was the point of this again?

No one is for capricious destruction of the environment. Truly being “green,” however, demands more than annual self-esteem boosters.

http://redeye.chicagotribune.com/red-032708-proft,0,6335659.story

For those interested in international and constitutional law, the Supreme Court yesterday handed down an incredibly important decision in the case of Medellin v. Texas. You can read the full decision by Chief Justice Roberts (joined by Justices Kennedy, Scalia, Thomas, and Alito), along with Justice Stevens’ opinion concurring in the judgment and Justice Breyer’s dissenting opinion (joined by Justices Ginsberg and Souter) here (PDF). Opinio Juris (which is just an all around fantastic legal blog) has a whole series of posts discussing the decision and its many implications.

Many news reports of the decision have focused either on its relation to the death penalty or on the Court’s rejection of the President’s claim of broad inherent constitutional power. This is unfortunate because it largely misses the real import of the decision, which relates to (1) when treaties are domestically enforceable in the absence of implementing legislation by Congress, and (2) the circumstances in which decisions by international adjudicative bodies such as the International Court of Justice (ICJ) are binding on domestic courts.

Here’s a brief run-down of what the case is about. The United States is party, along with 170 other nations, to the Vienna Convention on Consular Relations (VCCR), which says in part that any time a foreign national is arrested, that person has a right to consult with consular officials from his or her foreign consulate. The United States had also been a party (until it pulled out in 2005) to the Optional Protocol to the VCCR, which says that the ICJ can exercise jurisdiction in disputes relating to foreign nationals’ access to their consulates. Jose Ernesto Medellin is a Mexican national currently on death row in Texas after being convicted of murder. Medellin was not advised of his rights under the VCCR, and he did not raise objections to this violation until after he had been convicted at trial. The Texas court, as is typical in most US courts, did not allow Medellin to raise this complaint on appeal due to what’s called a “procedural default rule,” in which a claimant is generally considered to have defaulted on (i.e., forfeited) claims that are not raised in a timely manner. Medellin, along with 50 other similarly situated Mexican nationals, filed a complaint in the ICJ, arguing that the Texas court’s application of the procedural default rule in these cases was a violation of the VCCR. The ICJ, in the Case Concerning Avena and Other Mexican Nationals (Avena), agreed with this argument and held that Medellin was entitled to review and reconsideration of his conviction and sentence in Texas courts.

President Bush responded to this decision by walking a fine line. First, he argued that the ICJ’s Avena decision did not bind domestic courts. But at the same time, he issued an official memorandum to the Attorney General saying he would give Avena effect, and he argued that his memorandum was binding on domestic courts as a result of the President’s inherent constitutional power to conduct foreign affairs. Medellin then filed an application for writ of habeas corpus, relying on both the ICJ’s decision and the President’s memorandum. The case made its way up to the Supreme Court, and the Court was then confronted with two questions: (1) Is the ICJ’s Avena decision binding on domestic courts, and (2) Is the President’s memorandum binding on domestic courts?

There’s been plenty of commentary on the second question (which the Court answered, unsurprisingly, “no”), but it’s the first one that is probably of greater importance. The Court held that Article 94 of the UN Charter, which reads that each member party (of which, of course, the US is one) “undertakes to comply with the decision of the [ICJ] in any case to which it is a party,” does not mean that US courts are bound to follow ICJ decisions in cases to which the US is a party. The Chief Justice concedes that this means that the US is in violation of international law, but argues that for an ICJ decision to be binding on US courts, Congress must pass legislation making this as explicit as possible.

My initial reaction to hearing about this decision was fury. I’ve since backed off from that, but it’s still a disappointing decision. The Constitution explicitly makes treaties part of the “supreme law of the land.” It’s true that there has been a long-established distinction between self-executing treaties and non-self-executing treaties (being a non-self-executing treaty basically means that Congress must pass legislation implementing the treaty before it takes full legal effect). But if Article 94 does not impose an obligation on US courts, how exactly is it supposed to be enforced? As Justice Holmes famously declared, an unenforceable law is no law at all. If the Chief Justice first concedes that the US is violating international law, and then concludes that this international law is unenforceable without explicit congressional authorization, he is severely undercutting the credibility of the US’s commitment to respecting international law. If Congress and the President didn’t want to impose a legal obligation to comply with the ICJ, they either wouldn’t have voted to subject themselves to a treaty saying they would undertake to comply with the ICJ, or the Senate would have made its advice and consent contingent on implementing legislation (which it did not do).

One final note: While Justice Stevens’ heart seems to lie with the dissenters, he wrote an opinion concurring in the judgment but which strongly suggested that the Texas attorney general should commute Medellin’s death sentence. This, it appears, is nothing but wishful thinking, as the Texas attorney general announced after the Supreme Court handed down its opinion that he would be continuing to push for Medellin’s execution. Setting aside the implications regarding international law discussed above, it is important to recognize the degree to which the United States’ practice of the death penalty places us outside the norm of international practice, and the regularity with which it causes international tension and conflict.

For those interested in international and constitutional law, the Supreme Court yesterday handed down an incredibly important decision in the case of Medellin v. Texas. You can read the full decision by Chief Justice Roberts (joined by Justices Kennedy, Scalia, Thomas, and Alito), along with Justice Stevens’ opinion concurring in the judgment and Justice Breyer’s dissenting opinion (joined by Justices Ginsberg and Souter) here (PDF). Opinio Juris (which is just an all around fantastic legal blog) has a whole series of posts discussing the decision and its many implications.

Many news reports of the decision have focused either on its relation to the death penalty or on the Court’s rejection of the President’s claim of broad inherent constitutional power. This is unfortunate because it largely misses the real import of the decision, which relates to (1) when treaties are domestically enforceable in the absence of implementing legislation by Congress, and (2) the circumstances in which decisions by international adjudicative bodies such as the International Court of Justice (ICJ) are binding on domestic courts.

Here’s a brief run-down of what the case is about. The United States is party, along with 170 other nations, to the Vienna Convention on Consular Relations (VCCR), which says in part that any time a foreign national is arrested, that person has a right to consult with consular officials from his or her foreign consulate. The United States had also been a party (until it pulled out in 2005) to the Optional Protocol to the VCCR, which says that the ICJ can exercise jurisdiction in disputes relating to foreign nationals’ access to their consulates. Jose Ernesto Medellin is a Mexican national currently on death row in Texas after being convicted of murder. Medellin was not advised of his rights under the VCCR, and he did not raise objections to this violation until after he had been convicted at trial. The Texas court, as is typical in most US courts, did not allow Medellin to raise this complaint on appeal due to what’s called a “procedural default rule,” in which a claimant is generally considered to have defaulted on (i.e., forfeited) claims that are not raised in a timely manner. Medellin, along with 50 other similarly situated Mexican nationals, filed a complaint in the ICJ, arguing that the Texas court’s application of the procedural default rule in these cases was a violation of the VCCR. The ICJ, in the Case Concerning Avena and Other Mexican Nationals (Avena), agreed with this argument and held that Medellin was entitled to review and reconsideration of his conviction and sentence in Texas courts.

President Bush responded to this decision by walking a fine line. First, he argued that the ICJ’s Avena decision did not bind domestic courts. But at the same time, he issued an official memorandum to the Attorney General saying he would give Avena effect, and he argued that his memorandum was binding on domestic courts as a result of the President’s inherent constitutional power to conduct foreign affairs. Medellin then filed an application for writ of habeas corpus, relying on both the ICJ’s decision and the President’s memorandum. The case made its way up to the Supreme Court, and the Court was then confronted with two questions: (1) Is the ICJ’s Avena decision binding on domestic courts, and (2) Is the President’s memorandum binding on domestic courts?

There’s been plenty of commentary on the second question (which the Court answered, unsurprisingly, “no”), but it’s the first one that is probably of greater importance. The Court held that Article 94 of the UN Charter, which reads that each member party (of which, of course, the US is one) “undertakes to comply with the decision of the [ICJ] in any case to which it is a party,” does not mean that US courts are bound to follow ICJ decisions in cases to which the US is a party. The Chief Justice concedes that this means that the US is in violation of international law, but argues that for an ICJ decision to be binding on US courts, Congress must pass legislation making this as explicit as possible.

My initial reaction to hearing about this decision was fury. I’ve since backed off from that, but it’s still a disappointing decision. The Constitution explicitly makes treaties part of the “supreme law of the land.” It’s true that there has been a long-established distinction between self-executing treaties and non-self-executing treaties (being a non-self-executing treaty basically means that Congress must pass legislation implementing the treaty before it takes full legal effect). But if Article 94 does not impose an obligation on US courts, how exactly is it supposed to be enforced? As Justice Holmes famously declared, an unenforceable law is no law at all. If the Chief Justice first concedes that the US is violating international law, and then concludes that this international law is unenforceable without explicit congressional authorization, he is severely undercutting the credibility of the US’s commitment to respecting international law. If Congress and the President didn’t want to impose a legal obligation to comply with the ICJ, they either wouldn’t have voted to subject themselves to a treaty saying they would undertake to comply with the ICJ, or the Senate would have made its advice and consent contingent on implementing legislation (which it did not do).

One final note: While Justice Stevens’ heart seems to lie with the dissenters, he wrote an opinion concurring in the judgment but which strongly suggested that the Texas attorney general should commute Medellin’s death sentence. This, it appears, is nothing but wishful thinking, as the Texas attorney general announced after the Supreme Court handed down its opinion that he would be continuing to push for Medellin’s execution. Setting aside the implications regarding international law discussed above, it is important to recognize the degree to which the United States’ practice of the death penalty places us outside the norm of international practice, and the regularity with which it causes international tension and conflict.