The Phony Tough-on-Terror Crowd
Republicans and Democrats are championing bills to further militarize the prosecution of terrorists, beyond anything even President George W. Bush proposed.
They want Americans to believe the legislation will keep the country safer. In fact, these bills could end up tying the hands of F.B.I. agents and other law enforcement officials trying to disrupt terrorist plots. They are likely to deprive prosecutors of their most powerful weapons in bringing terrorists to justice. And they come perilously close to upending the prohibition, which dates back to Reconstruction, against the military’s operating as a police force within the United States.
There is no sign that the White House tried to stop the House from passing a particularly awful version of these bills, which would move most, if not all, terrorism cases from civilian courts to military tribunals. And there is no sign the White House tried to stop the Senate Armed Services Committee from approving only a slightly better one.
Democrats on that committee insist they defeated far worse proposals. There are, however, some issues that require an unwavering stand. Preserving the role of law enforcement agencies in stopping and punishing terrorists is one of them. This country is not and should never be a place where the military dispenses justice, other than to its own.
President Obama must push the Democratic leadership to amend the Senate bill — and make it clear that he will veto any bill that turns over proper law enforcement functions to the military.
For decades, terrorism has been prosecuted — with great success — in civilian courts. The Bush team insisted, falsely, that these courts were not tough enough for the war on terrorism and pushed the use of military courts for some “unlawful combatants.”
Both the Senate and the House versions of the bills now remove the possibility of civilian trial and mandate military detention and military trial for anyone deemed to be a member of Al Qaeda “or an affiliated entity.” Under current political thinking, that means pretty much anyone arrested for carrying out or plotting a terrorist act anywhere. The bills exclude American citizens, and the Senate bill appears to exclude lawful residents of this country, but government lawyers fear that is not clear enough.
The Senate bill allows the secretary of defense to transfer a prisoner to law enforcement custody in consultation with the secretary of state and the director of national intelligence. The likelihood of that happening given current politics is infinitesimal, but more important, it is the statutory job of the attorney general to decide when and how to prosecute federal prisoners. Cutting him out of the process is an effort to turn all terrorism cases into matters of war, not law.
Attorney General Eric Holder Jr. and the Obama team are to blame in part for feeding the political paranoia that led to this pass. Mr. Holder properly decided to try Khalid Shaikh Mohammed and other 9/11 plotters in a federal court in New York, but failed to consult with New York politicians, who scurried for cover and scuttled the prosecution.
The most basic truth — which almost no politician will dare to admit — is that federal court trials work. The military tribunals (which started with Mr. Bush’s kangaroo courts and now involve a system that is somewhat more refined but still flawed) have managed to extract a few minor plea deals. They have yet to render a verdict or impose a stiff sentence on a single high-profile terrorist.
Since 9/11, hundreds of prisoners have been convicted of terrorism or related crimes in civilian courts. Federal prosecutors have many more charges they can file against prisoners than military prosecutors do. Sentencing in federal court is by a judge using tough guidelines. Military commissions have no experience handling capital-punishment cases. And many countries will not send a prisoner to the United States if he will face military prosecution.
Government lawyers say some countries will not even provide evidence if it will be used in a military trial. In short, it seems unlikely that a military tribunal could ever hold a trial or impose a sentence that would stand up to American or global democratic values.
The Senate and House bills also could cripple F.B.I. investigations of terrorists and terrorist plots. Lawyers in the Obama administration say that if an agent interrogating a prisoner decided the suspect was a member of Al Qaeda or any “affiliated” group, he would have to stop the questioning, no matter how well it was going, and have the prisoner flown to Guantánamo or a military brig in this country.
The peddlers of fear and the phony tough-on-terrorism crowd have dominated the national security debate for too long. The president must step in and stop this march toward endless war and the perpetual undermining of American constitutional values.
Whose Stimulus?
Big businesses are telling Washington that they are willing to do their bit for the economy — if the price is right. Multinational companies say they could repatriate hundreds of billions in foreign profits and pump them into domestic investment and hiring, but only if Congress and the White House agree to cut the tax rate on those profits to 5.25 percent from 35 percent. They call their plan “the next stimulus.” Sounds more like extortion.
In the last five years American businesses have kept abroad more than $1 trillion worth of foreign earnings, according to government data. An article by David Kocieniewski in The Times last week noted that Microsoft has $29 billion offshore, Google has $17 billion and Apple has $12 billion.
The Obama administration should not give in to such corporate coercion. The last time big businesses got such a “tax holiday,” in 2005, companies spent most of the money rewarding their shareholders with stock buybacks and dividends, not in hiring.
Truth is, businesses’ decisions to invest or increase employment depend on the state of the economy. If consumer demand is depressed, as it continues to be, corporate chieftains see no business logic in raising production. In the second quarter of 2010, when expectations of recovery were rosier, nonresidential investment jumped 17.2 percent. In the first quarter of this year it grew only 2 percent.
Bringing more money home at lower tax rates isn’t going to change that thinking. What these businesses don’t say is that they are already awash in cash. According to Federal Reserve data, companies in the United States have $2 trillion stashed in bank accounts, Treasury securities and other investment-ready assets. And this excludes cash held abroad by their foreign subsidiaries to avoid taxes.
Businesses will always want a tax cut. And they will always justify it as good for hiring and investing, whether or not it is. We remain perplexed by the Obama administration’s decision to consider businesses’ contention that cutting employers’ contributions to payroll taxes will lead to more jobs. It probably won’t — especially if the break is not specifically tied to new hiring.
The faltering economy needs real stimulus, like extending the payroll tax cut for workers until the end of next year. That would put money directly in the pockets of American workers and stimulate consumption. Investing in infrastructure would also help.
Beyond pleasing shareholders, there is one other guaranteed result of giving employers a big tax break on their foreign profits: less cash to finance government programs or pay down the deficit. According to Congress’s Joint Committee on Taxation, the proposed cut would cost $79 billion over 10 years.
A version of this editorial appeared in print on June 26, 2011, on page SR11 of the New York edition with the headline: Whose Stimulus? Giving multinationals a big tax break on foreign profits won’t create more jobs.
Tapping the Oil Reserve
We have never been enthusiastic about quick fixes. But the Obama administration’s decision to release 30 million barrels of oil from the Strategic Petroleum Reserve — the nation’s emergency stockpiles — makes sense.
It should provide a modest boost to the American economy. It will help consumers at the pump as they head into the summer vacation season. And it sends an important message to the Organization of the Petroleum Exporting Countries that the United States is capable of protecting its domestic market, at least in the short term, even when those countries refuse to increase production.
The initiative is part of a joint effort with the International Energy Agency, whose other members will release an additional 30 million barrels. The total amount, 60 million barrels over 30 days, is aimed at making up the loss of nearly two million barrels a day in exports caused by unrest in Libya and, to a lesser extent, Yemen.
The two million barrels is a tiny fraction of the 89 million barrels consumed daily around the globe. Even so, there should be some relief for consumers. According to the Center for American Progress, a research and advocacy group, past oil sales from the reserve — most recently President George W. Bush’s release of 21 million barrels after Hurricane Katrina — reduced prices by 10 to 15 percent within a month. That would translate today into savings of 25 to 35 cents per gallon of gas at the pump.
The predictable critics weighed in after the announcement. The American Petroleum Institute, the lobby for oil companies profiting from high prices, called the release “ill-timed.” House Speaker John Boehner accused President Obama of “using a national security instrument to address his domestic political problems.” Fred Upton, chairman of the House Energy and Commerce Committee, who is always eager to drill in environmentally fragile areas, said 30 million barrels could be found on Alaska’s outer continental shelf if the administration “would stop blocking permits.”
The strategic reserve, established after the 1973-74 Arab oil embargo, contains 727 million barrels — just over two months’ worth of imports. When it is tapped, the oil usually has to be replaced at higher prices. So this is not something the country should do very often. Given the turmoil in the Middle East and the weak economy, it is justified now.
An important question is what happens next. After OPEC failed this month to agree to increase production, Saudi Arabia said it would pump as much as 1.5 million more barrels a day until the end of the year. The administration and the International Energy Agency now need to hold the Saudis to that promise.
Marvel Superheroes and the Fathers of Invention
Rosalind Kirby Estate
Jack Kirby in 1965. His heirs are fighting for the rights to his work.
The comic book industry began life in the early 20th century as the province of con men who stripped artists of their creations, then moved on to the next mark. The artists who were paid virtually nothing for work on characters that are now worth billions at the movies are nearly all dead. But their heirs are beginning to speak for them through a federal copyright law that practically invites descendants to sue for ownership interests in characters whose current value could never have been imagined at the moment of creation.
Courts have already granted a share of the copyright for Superman to the heirs of a co-creator, and sided with Captain America’s creator in another copyright fight. These cases are small fry compared with the battle now being waged between Marvel and the heirs of the legendary comic artist Jack Kirby, who breathed life into such pop culture icons as the X-Men, the Incredible Hulk, Iron Man, the Fantastic Four, Spider-Man, Thor and the Silver Surfer.
Of course these court battles are about money. They also force the modern entertainment industry to reckon with the often amoral practices of the old comics workshops. And they raise deeper questions about how to credit creative works produced at a time when even the most talented artists were treated as serfs.
Marvel pioneered a new method of comic book production. It broke with the industry’s tradition of requiring artists to draw almost by rote from a pre-existing script. Instead, it gave its best creative minds wide artistic latitude.
The Marvel editor Stan Lee sometimes offered general ideas for characters, allowing the artists to run with them. Mr. Kirby plotted stories, fleshing out characters that he had dreamed up or that he had fashioned from Mr. Lee’s sometimes vague enunciations. Mr. Lee shaped the stories and supplied his wisecrack-laden dialogue. And in the end, both men could honestly think of themselves as “creators.”
But Mr. Kirby, who was known as the King of Comics, was the defining talent and the driving force at the Marvel shop. Mr. Lee’s biographers have noted that the company’s most important creations started out in Mr. Kirby’s hands before being passed on to others, who were then expected to emulate his artistic style.
Mr. Kirby’s life experiences informed the look and feel of the genre. The cinematic movement in his narratives came out of his experience as an animator. The crowded fight scenes in comics like the Fantastic Four and the X-Men are reminiscent of his boyhood days as a street fighter on the Lower East Side during the Depression.
In 2009, shortly after Disney agreed to buy Marvel for $4 billion, the Kirby heirs filed notices of copyright termination. They argue that most of Marvel’s film earnings involve Mr. Kirby’s creations — and that therefore they have a right to a share of the copyrights.
Marvel counters that Mr. Kirby’s work falls under the rubric of “work for hire” — meaning it was done under the direction, supervision and control of the company — which, if true, would invalidate the family’s claim. But that could be difficult to demonstrate at trial, given the poor record-keeping of the era and what is known about how Mr. Kirby worked.
According to court documents, Marvel’s predecessor company fired nearly all of the art staff in 1957 to save money, making Mr. Kirby an independent operator who sold his work to the publisher. If this case comes to trial, Marvel’s star witness would likely be Mr. Lee, former chairman of Marvel Comics. In his 2010 deposition, Mr. Lee seemed to suggest that Mr. Kirby was little more than a talented foot soldier who followed the whims of his boss.
Mr. Lee sang a different tune during the Marvel glory years of the 1960s, when he sometimes described Mr. Kirby as an equal in the creative process. In a 1968 interview later quoted in The Comics Journal, Mr. Lee talked about brainstorming with Mr. Kirby, who, he noted, needed “no plot at all” to produce stories: “He just about makes up the plots for these stories. All I do is a little editing. ... He’s so good at plots, I’m sure he’s a thousand times better than I.” Analyzing published articles from that period, the writer Earl Wells, in his famous 1995 essay “Once and for All, Who Was the Author of Marvel?,” said the record “yields as much evidence that Kirby was the author as it does that Lee was — much of it in Lee’s own words!”
In the years since Mr. Kirby’s death in 1994, the once lawless comics business has been transformed into an industry where creators are more fairly paid, credit is clearly apportioned and rights are meticulously spelled out in contracts. The kinds of legal confusions that have recently flared up in the comic book realm are unlikely to ever be seen, say, in the burgeoning world of online games, where corporate authorship is firmly locked down.
It is up to the courts to decide the legal questions at the heart of the Kirby copyright case. There is no doubt that the King of Comics contributed far more to Marvel — and pop culture — than he has received credit for.
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