“One free man will say with truth what he thinks and feels amongst thousands of men who by their acts and words attest exactly the opposite. It would seem that he who sincerely expressed his thought must remain alone, whereas it generally happens that every one else, or the majority at least, have been thinking and feeling the same things but without expressing them. And that which yesterday was the novel opinion of one man, to-day becomes the general opinion of the majority. And as soon as this opinion is established, immediately by imperceptible degrees, but beyond power of frustration, the conduct of mankind begins to alter.”
—Leo Tolstoy

Twenty-five years ago, on June 4, 1989, the Chinese government launched a brutal military crackdown on student-lead demonstrations assembled in Beijing’s Tiananmen Square. For seven weeks prior, protestors swelled into the hundreds of thousands (over a million at the height of the protests, according to some reports) and called for freedom of speech, freedom of press, government accountability, and an end to cronyism and corruption. Although the fledgling Chinese Democracy Movement was composed of many factions with many different agendas, broadly speaking, it aimed for liberal reforms.

Dissension permeated inside the People’s Liberation Army and even some of the upper echelons of the Chinese Communist Party sympathized with protestors, but in the end, hardliners won out. Orders were given to use military force to clear the Square. To this day, government censorship, obfuscation, and denial have made details of the resulting massacre’s death toll difficult to verify, with some estimates as low as 200 to others over 2,500. [Update: In 2017, a declassified British government cable cited a death toll over 10,000.]

One of the most iconic photographs of the 20th century, “Tank Man,” was taken during the military crackdown and has since become an enduring symbol of the individual versus State oppression.

Sadly, it seems that this famous image and the events of June 4, 1989 have largely faded from the collective consciousness of the Chinese people due to an Orwellian campaign of official repression and self-imposed censorship. Here’s how a Chinese millennial describes the current situation: “We’re just walking dead… We’ve been brainwashed.” One disturbing documentary captures the sociopolitical atmosphere:

Many foreign observers discover themes of mass ignorance and apathy: “Chinese students are so apolitical, so focused on jobs and wealth, that they’re not even aware of their own powerful history.” Another story reports a similar message: “After years of enforced silence, many young people have little idea if any of [the rumored details of the massacre] took place. Others have come to believe that the crackdown was inevitable or even necessary for the sake of stability.” A Chinese journalist in Beijing laments “even those who are well-aware of the state’s meddling make little effort to seek truth and push for change.”

Nevertheless, it is impossible to completely rewrite history and enforce ideological silence in a country with more than one billion people. Many who lived through the events of 1989 are still alive in China today, and dissidents in Hong Kong, Taiwan, and elsewhere overseas have not forgotten. Perhaps it is not surprising that the Chinese government has launched its strongest censorship campaign to date on the 25th anniversary of the Tiananmen Square massacre. Even commemorations held in private are prohibited. Britain’s Sky News reports that central Beijing is currently in a state of “lockdown.” According to NPR reporter Anthony Kuhn, “There are police at every downtown intersection, and lots of security checkpoints and bag-checks around the square itself. Police kept foreign reporters, myself included, out of the square… online, even the most indirect references to June fourth and Tiananmen Square are blocked or deleted.”

Still, online activists have shown ingenuous creativity in dodging the authorities and getting the message out, including with the use of Legos, playing cards, rubber ducks, confetti, and even a pornographic video.

Let us not forget the events of this tragedy and join the efforts of people across world in commemoration. As Tolstoy noted, it takes only a single act of courage from one freethinking individual to create a ripple that will become a tidal wave. Even as we deal with overzealous economic regulations and see ominous signs of the growing police state in the United States, we should keep in mind that many people across the world have it much worse. The message of liberty carries universal appeal, and we should always stand together against government attempts at oppression no matter where they happen to be.

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In 1999 for the 10th anniversary, the Independent Institute hosted a Policy Forum with several distinguished experts to discuss the actual story behind the Tiananmen events and the future of China. See here for the transcript. Much of what was discussed remains highly relevant today.

If Obama is right about the NDAA, he should start releasing far more prisoners from Guantánamo. A firestorm has erupted over the Obama administration’s release of five Guantánamo captives in exchange for the Taliban’s release of American soldier Bowe Bergdahl. Putting aside all the rest of the strategic, moral, and practical arguments, I want to focus on the legal side. Many of Obama’s critics say that his move violated the NDAA notification requirement, signed by Obama (who issued a signing statement suggesting he thought it was unconstitutional). The requirement mandates that the president inform Congress of Guantánamo releases.

Now, as an aside, I don’t think signing statements are valid as line-item vetoes. If part of a law is unconstitutional, the president shouldn’t sign the law if he wants to abide by the Constitution.

But was the president correct that the notification requirement violates the Constitution? I think he was. I do not think Congress has the authority to restrict the executive branch’s authority to release war captives.

See here for some of the relevant arguments on both sides by Ilya Somin and Michael Ramsey.

Here’s my argument. A lot of the disagreement pertains to controversy over the meaning of Congress’s constitutional authority to “make Rules for the Government and Regulation of the land and naval Forces.” Everyone agrees there are limits to this authority: Congress can’t micromanage every tactic undertaken at battle. Most everyone agrees there is substance strength to this authority: Congress can ban torture and establish certain rules for military tribunals.* (Of course, during the Bush administration many conservative theorists argued that Congress had almost no role in regulating detentions and military trials at all, but that’s another story.)

It seems clear to me that the president has the plenary authority to release war captives, people captured by the executive branch itself. It would be perverse indeed if the president could set up a military prison at Guantanamo, round up prisoners in the theaters of operation of his choice (as legitimized generally by AUMF and other authority) and stick them in that prison, but then couldn’t release them.

Of course, most of the hundreds of Guantánamo detainees were released by executive prerogative. Most of the tens of thousands of war captives in the Iraq war were also released that way.

But here’s what makes it all the more obvious to me: The president has, except in cases of impeachment, plenary pardon authority. He can release anyone, except in cases of impeachment, from any federal detention at any time and for any reason.

It would be twisted indeed if this power did not apply to the captives the president himself is most directly responsible for detaining as part of a war. The implication would be that if somehow he decided to transfer these prisoners to civil judicial hearings, or if Congress decided to to so, and a grand jury indicted the detainees, and a jury of citizens convicted the detainees, and the detainees lost all their appeals and habeas corpus pleas, then at that point, somehow, the president could pardon and release the prisoners as casually as a turkey in a Thanksgiving White House celebration, but when he was most directly responsible for the detention authority, he could not.

In short, if the president can release any non-impeachment related federal prisoner, even one convicted by a jury, surely he can release his own military war captives. There is nothing I see in the Constitution that allows Congress more authority to stop prisoner releases at Guantánamo than at Rikers.

Another implication of calling the president’s activities unlawful is to defend the Obama administration in having failed to release Guantánamo inmates in general. He and his defenders have claimed that the president’s hands are tied—that Congress won’t let him do what he promised.

Most of Obama’s detractors would probably agree with that, and indeed would not fault Obama for failing to release detainees nearly as frequently as Bush did. They are fine with the result: the continuing detention of many people at Guantánamo, including many who were cleared for release.

Now, I have consistently argued that this argument is bunk. Obama is morally and legally responsible for the continuing detention of people at Guantánamo, full stop. Anyone who wants to criticize him for this, using legal arguments, can’t also criticize him for supposedly breaking the law in releasing the five inmates.

On the other hand, Obama has shown the president can release who he wants, within his authority. And so those who actually care about his campaign promises to uphold human rights finally can point to the president’s own actions, and demand that he fulfill his promise by, at a very minimum, immediately releasing those cleared for release.

In short, the president is inconsistent, as is anyone who faults him for not unilaterally releasing Guantánamo prisoners while somehow blaming him for breaking the law here. To the contrary, his unilateral actions to release prisoners from Guantánamo should be repeated.

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* If someone wants to know why Congress should be allowed to restrict interrogation procedures but not releases, well, maybe the Constitution has at least something of a presumption against certain awesome exercises of authority, such that checks and balances favor less government coercion rather than more in many contexts. We see this in a lot of areas. Either Congress or the president (except facing a supermajority) can kill most bills. Either the judiciary or president can release many detainees judicially authorized detentions. Checks and balances in many respects are meant to decrease government power, not enhance it, and releasing prisoners and not torturing them are both things that checks and balances should logically favor in any system supposedly bent toward protecting liberty at all.

That’s what scholars at Stanford University and University of California, San Francisco, concluded in an article in Health Affairs. The authors compare two policies: banning the use of food stamps for the purchase of soda pop, or giving an extra subsidy of thirty cents on the dollar for the purchase of fruits and vegetables. They conclude that the ban on soda pop would have a greater impact on obesity:

A ban on sugar-sweetened beverage purchases would be expected to reduce kilocalorie intake from these beverages by a net average of 24.2 kcal per person per day among SNAP participants (95% CI: 22.8, 25.5)—a 15.4 percent decline in calorie consumption from sugar-sweetened beverages, according to our model.

Given this decline in net kilocalorie intake, overall obesity rates declined over the simulated period.

When accounting for baseline type 2 diabetes rate differences among cohorts, our model estimated that the largest type 2 diabetes incidence decline would be expected among adults ages 18–65….

Here is where the ivory tower falls: The authors assume that food stamps are used only to buy food, and that if the government changes the relative prices of food available, consumption will change. However, in the real world, some share of food stamps are not used to buy food. Instead, they are converted into other currency, at very high exchange rates.

Phoenix Veterans Affairs Healthcare System

In 2011, New York Times columnist Paul Krugman wrote that the federal Veterans Affairs (VA) healthcare system is a “huge policy success story, which offers important lessons for future health reform.”

Let’s examine Krugman’s arguments for why the VA is a national model for healthcare in light of recent revelations:

1) Krugman says the VA has “led the way in cost-saving innovation.”

Denial of needed care is not an acceptable “cost-saving innovation,” but it’s how the VA has held down costs from its inception. The VA has a long history of providing inferior healthcare, as revealed by many news reports and studies over the years including Failure to Provide: Healthcare at the Veterans Administration (2010) by history professor and Independent Institute Research Fellow Ronald Hamowy.

And now we know that denial of care is worse than ever. According to a preliminary VA inspector general’s report released May 28, at least 1,700 sick veterans waiting to see primary-care doctors were never scheduled for an appointment or were placed on a secret waiting list for months at the Veterans Affairs Medical Center in Phoenix, raising the question of just how many more may have been “forgotten or lost” in the system. The average wait time was found to be almost four months.

Politico’s Kyle Cheney and Jennifer Haberkorn have made the case that Republican non-collaboration with Obamacare has brought a completely federally controlled healthcare system closer to reality:

Right now, 36 states rely on HealthCare.gov, the federal exchange, to enroll people in health coverage. At least two more states are opting in next year, with a few others likely to follow. Only two states are trying to get out.

That’s precisely the opposite of the Affordable Care Act’s original intent: 50 exchanges run by 50 states.

The federal option was supposed to be a limited and temporary fallback. But a shift to a bigger, more permanent Washington-controlled system is instead underway — without preparation, funding or even public discussion about what a national exchange covering millions of Americans means for the future of U.S. health care. It’s coming about because intransigent Republicans shunned state exchanges, and ambitious Democrats bungled them.

This is a complete misreading of the implications of the unexpected fiasco of the exchange rollout. It is also similar to an argument that was deemed respectable in limited-government circles back in 2010.

“The notion that a radical is one who hates his country is naïve and usually idiotic. He is, more likely, one who likes his country more than the rest of us, and is thus more disturbed than the rest of us when he sees it debauched. He is not a bad citizen turning to crime; he is a good citizen driven to despair.” —H. L. Mencken

My good colleague Lawrence McQuillan has already highlighted the hypocrisy behind Secretary of State John Kerry’s recent comments on NSA whistleblower Edward Snowden. In his remarks, Kerry denounced Snowden as a “coward” and “traitor.” Nevermind the fact that Snowden gave up a six-figure salary and a comfortable life in Hawaii with a loving girlfriend in order to act on his conscience. In addition, contrary to Kerry’s pronouncements, Snowden is no traitor, at least according to a plain reading of the Treason Clause in Article III, Section 3, of the Constitution:

Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

Treason is the only federal crime that’s defined in the Constitution along with the procedural and evidentiary standards spelled out. Its placement in Article III serves to deny even a pretext for executive or Congressional attempts to redefine that crime. The text and case law sets a very high threshold for conviction, and there’s good historical evidence to suggest the Framers intended it to be that way.

A patient with HIV/AIDS can expect to pay over $1,000 out of pocket per month for medicines if he or she buys a policy on the Obamacare health-insurance exchange in Florida.

“Affordable”? Surely not. This perceived injustice has caused legal activists to file a lawsuit alleging discrimination against four insurers that offer plans in the Florida exchange.

Readers of this blog know that we have long warned that Obamacare creates incentives for insurers to avoid covering the sickest patients. Insurers are not allowed to charge premiums appropriate for applicants’ expected medical claims. This is somewhat mitigated by a limited open-enrolment period. However, if applicants have chronic diseases, the rate-restriction provision gives insurers little protection.

Although Obamacare has three methods for transferring money to insurers that over-enroll sick patients, none eliminates the incentives for insurers to design plans that are unattractive to the very sick. This flaw results in a death spiral of antiselection.

Although the statement is commonly attributed to Mark Twain, his friend Charles Dudley Warner was the one who said, “Everybody complains about the weather, but nobody does anything about it.” Regardless of who said it, the statement was and remains fairly accurate.

In contrast, we might observe, “Everybody complains about the economy, and a great many unfortunately try to do something about it.” Economic policy is the name given to such attempts by government officials, their consultants, and their contractors. For the general public, economic policy is a tragic matter because regardless of what the man in the street may think, the government’s actions almost invariably make economic life worse than it would have been had the policy makers kept their hands off of it.

Despite a gigantic outpouring of talking, writing, and studying, at least 90 percent of this yammering is worthless, and much of it is positively harmful. Look, I’m not going to lie to you: I’m an economist. I’m not bragging about this professional status; it’s simply a fact. If I were a plumber or a carpenter, I’d admit being one just as readily. Now, tens of thousands of other people also say that they are economists, but scarcely any of them is so in more than a nominal sense. They may have a Ph.D. in economics, yet it remains the case that their ideas about economics are no better than your average crackpot’s. The overwhelming part of what people learn in graduate school in economics is mathematical mumbo-jumbo whose substance boils down—if it boils down to anything, rather than simply evaporating—to what F. A. Hayek called the pretense of knowledge. In short, these “experts” are ill-educated fakers. My best guess is that no more than a couple thousand real economists exist in the entire world, and I would not be surprised if my estimate were too high by a thousand.

Besides the real and counterfeit pros, perhaps several hundred thousand other people purport to possess genuine knowledge about how the economic world works. At least 95 percent of them haven’t a clue. They are charlatans, whether they know they are or not. One has only to surf the Web, read the articles and comments, and consider the character of this froth. It’s almost all crap.

People are generally sensible enough that they do not go about their lives pretending to know about astrophysics at a professional level. They don’t dish out crackpot ideas about the red shift or the events that occurred in the first millionth of a second after the Big Bang. They realize that pretending to know anything much about astrophysics would only make them appear foolish to anyone who heard what they have to say. If only people had enough sense to realize that with very few exceptions, they actually know no more about economics than they do about astrophysics.

Bear in mind that knowing how to run a business successfully, knowing how to write an economics column successfully for a magazine, newspaper, or news site, knowing how to rise in your profession successfully, and knowing a great variety of other things is not at all the same thing as understanding how an economy works. How much better off the whole world would be if in regard to economics everyone settled for thinking locally and acting locally and, above all, never, never inviting politicians and government bureaucrats to do anything to “improve the economy.”

Earlier this month, Colorado governor John Hickenlooper signed the nation’s first “right to try” law. The law allows a patient suffering from a disease, for which no medicine has been approved by the Food and Drug Administration (FDA), to try an experimental new medicine before the agency approves it. The law allows, but does not force, drug-makers to provide their experimental drugs to patients. Other states, such as Louisiana and Missouri, are set to follow.

These patients are in dire straits. They suffer from diseases for which there is no other known treatment, and they have short life expectancies. Most of us cannot imagine being in their position: In their search for a cure, they are willing to take far greater risks than most would accept.

Although the FDA has an exemption for “compassionate use,” that exemption requires jumping through too many bureaucratic hoops to be useful. So, scholars at the Goldwater Institute developed the idea of state “right to try” laws that would enable residents to use experimental new drugs without agency approval.

My first reaction when learning about the Goldwater Institute’s successes in moving this legislation through state legislatures was that the FDA would surely assert pre-emption based on the Constitution’s Supremacy Clause. The Goldwater Institute is the home of impressive legal thinking and activism, so they have surely developed a legal strategy, if they need one.

However, maybe the federal government will not react. After all, Colorado allows not only the medicinal use of marijuana, but also the purchase and possession of small amounts of marijuana for so-called “recreational” use. The Obama Justice Department does not litigate against state laws liberalizing marijuana use.

It would reflect a very perverse sense of justice for the U.S. government to act against a state law allowing desperately ill patients to try promising, experimental new medicines, while allowing Colorado’s marijuana market to thrive unmolested.

Obama administration Secretary of State John Kerry told Chuck Todd today on MSNBC: “Edward Snowden is a coward. He is a traitor. And he has betrayed his country.”

Snowden gave documents to journalists that revealed the scope and reach of unconstitutional spying by the federal government on American citizens.

Today Kerry also told CBS This Morning:

He should man up, come back to the United States. If he has a complaint about what’s wrong with American surveillance, come back here and stand in our system of justice and make his case. But instead, he’s just sitting there taking pot shots at his country, violating his oath that he took when he took on the job he took, and betraying, I think, the fundamental agreement that he entered into when he became an employee.

Kerry fails to point out that the oath Snowden took was to “support and defend the Constitution of the United States, against all enemies, foreign and domestic.” And Kerry admits that the debate about privacy and the NSA would not have “risen” to its current level without the Snowden disclosures.

All of this brings to mind Daniel Ellsberg who gave the “Pentagon Papers” to the New York Times, Washington Post, and 17 other newspapers in 1971, which revealed, among other things, that the Johnson administration systematically lied to the public and Congress to escalate the Vietnam War.

In 2002, when Kerry was a U.S. senator and not representing the White House and its military and espionage superpowers, he wrote:

Daniel Ellsberg demonstrated enormous courage during a difficult and turbulent time in America’s history, courage which undoubtedly saved American lives on the battlefield and helped to hold politicians accountable for mistakes they refused to admit. His story reminds us that to fulfill the responsibilities of citizenship is to always ask questions and demand the truth.

How far Kerry has fallen: From principled opponent of illegal government conduct to leading apologist for the surveillance state.

As for returning home to “face the music” as Kerry puts it, Snowden is justified to be leery of facing off against the Obama administration and its Justice Department. The primary reason charges were dropped against Ellsberg was that the Nixon administration had ordered the so-called White House Plumbers to engage in unlawful acts to discredit Ellsberg, including breaking into Ellsberg’s psychiatrist’s office and planning to break into the psychiatrist’s home.

There are few things that government officials won’t do to silence truth tellers, and Snowden knows this.

Postscript: In a May 30, 2014, commentary published in The Guardian, Daniel Ellsberg blasted John Kerry:

John Kerry’s challenge to Snowden to return and face trial is either disingenuous or simply ignorant that current prosecutions under the Espionage Act allow no distinction whatever between a patriotic whistleblower and a spy. Either way, nothing excuses Kerry’s slanderous and despicable characterizations of a young man who, in my opinion, has done more than anyone in or out of government in this century to demonstrate his patriotism, moral courage, and loyalty to the oath of office the three of us swore: to support and defend the Constitution of the United States.