Conservatives in Congress are trying to derail the health reform bill by arguing that it allows people to purchase private insurance that covers abortion. Conservatives are demanding that the bill include language prohibiting even private insurers from paying for an abortion. Many of these conservatives are the same people who have denounced the public option as creeping socialism. Republican House minority leader John Boehner has called the health insurance reform bill, “the greatest threat to freedom that I have seen in the 19 years I’ve been in Washington.”

Why do conservatives who fear the heavy hand of the state interfering with the freedom of insurance companies nevertheless support government restrictions on women who want to use their own money to purchase insurance that covers abortion? There are really two issues raised by that question: First, how “free” is our health care market now? And second, are restrictions on women the fairest and most effective way to reduce the number of abortions?

As to the first issue it is already too late to argue for a free market in health care. We have had socialized medicine in the United States for generations; we just have it done badly.

Forty years ago Republicans were denouncing Medicare as socialism. Most people over 65 are pretty happy with socialized Medicare. We spare no expense taking care of the elderly, but we leave their grandchildren unprotected. That seems irrational.

People who are lucky enough to work for employers that provide health insurance are also the beneficiaries of socialized medicine. In fact, private insurance is a form of socializing risk. The young and healthy workers pay premiums that subsidize older and sicker workers.

But our insurance system is hugely inefficient. It generates windfall profits for insurers and creates perverse incentives for doctors to order unnecessary procedures. That’s why we have the most expensive health care in the world, but the World Health Organization ranks the quality of our health care 37^th – lower than any other western industrialized country and just behind Costa Rica. And the soaring cost of employer-based insurance hurts the competitiveness of our exports. For example, on average the sticker price of an automobile produced by a U.S. manufacturer is inflated by about $1500 to pay health insurance for workers. That burden on U.S. manufacturers is one more reason for our trade deficit, sinking dollar, and the loss of manufacturing jobs.

Everyone who doesn’t get socialized Medicare or socialized health care from their employers relies on community health clinics and emergency rooms for socialized medicine. And the rest of us pay for this through our taxes. The lack of universal health care also reduces the quality of our health care system for everyone. Anyone who has gone to an emergency room knows just how long you may wait while ER doctors are treating uninsured people with bellyaches and colds because they can’t afford their own doctor. When people with infectious diseases don’t get treated, all of us are exposed. And when people wait until they are very sick to see a doctor, it is far more expensive to treat them. All these costs are passed on in the form of higher hospital costs for everyone.

So pretending that we have a free market to defend against the threat of socialism is nonsense. We have the worst form of medical socialism already – bloated, inefficient, and unfair. Right now decisions about our health care are dictated by the vagaries of our employment status, the terms of our insurance, or the dictates of an HMO bureaucrat. Doesn’t it make more sense to allow the government to establish policies to reduce paperwork, guarantee access, and treat all Americans the same regardless of pre-existing illnesses?

The second issue is whether restricting a woman’s right to buy insurance that covers abortion is the fairest and most effective way to reduce the number of abortions? It doesn’t matter whether you oppose abortion or not. It’s hypocritical for conservatives who are concerned with “freedom” in the health care market to argue that women should not be free to purchase private insurance that provides a medical treatment that is constitutionally protected.

Let’s be clear that the proposed law is not providing any subsidies for abortions. The Supreme Court has said that government has a right to discourage women from seeking an abortion by subsidizing childbirth without providing equivalent benefits for abortion. Federal law has long denied women any federal funds for abortion, and there’s no doubt that Congress will continue to ban federal funds for abortion.

The freedom to choose to bring a child into this world is only meaningful if one can afford it. One way to encourage women to carry their fetuses to term would be to provide women with the necessities of life for themselves and their children. Health care is one of the necessities that young mothers require. That’s why abortion opponents should be marching in the street demanding health reform with a government option and loads of subsidies that would reduce the cost of health care.

The critics are right about one thing. The health reform bill is about freedom: freedom from the fear that in America being sick can be a financial catastrophe. The health reform plan will give more American families the freedom to choose a plan that works for them.

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The Association of Community Organizations for Reform Now (ACORN) provides assistance to low-income families. Among other activities ACORN has crusaded for a living wage, aid for the Gulf Coast after Hurricane Katrina, and relief for families facing foreclosure. Perhaps ACORN is based known for registering minority and poor voters in record numbers in the 2008 election.

It is hardly surprising therefore that ACORN has been a favorite target of conservative pundits and politicians. In the 2008 election Republicans charged that ACORN canvassers were engaged in voter fraud when a number of canvassers registered suspicious sounding names like “Donald Duck.” Of course, there was no evidence that Mr. Duck or any of a number of other cartoon characters voted. Nor was there any reason to suspect that ACORN had intentionally engaged in fraudulent voter registration. (Presumably, if one really wanted to commit voter fraud one would have used a more credible name like John Doe.)

Now we learn that a few ACORN employees were secretly filmed providing assistance to a couple posing as a pimp and a prostitute. The phony couple and the filming were supported by Biggovernment.com, a right-wing website. ACORN employees allegedly advised the couple how to apply for a mortgage without disclosing that they planned to operate a house of prostitution and how to avoid paying income taxes.

Obviously, the video looks bad for ACORN and suggests that ACORN needs to improve its management and do a better job of training its employees. ACORN has acknowledged its mistakes, and they promptly dismissed the employees who fell for this ruse. Nevertheless, the right-wing is not satisfied and is trying to inflate the issue into something more.

The Democratic majority in the Senate, terrified of the right-wing blogosphere, immediately pushed through a measure to punish ACORN by denying it any federal aid to assist low-income people in obtaining mortgages. And the Census Bureau has ended its partnership with ACORN to count low-income families in the upcoming census. The overreaction of the media and the federal government to ACORN’s management problems is a symptom of what’s wrong with American politics.

First, it should be noted that there is no evidence that ACORN is engaged in a pattern of criminal activity. The same tricksters visited many ACORN offices around the country. In most cases they were tossed out, and in at least one case, the Philadelphia office of ACORN phoned the police on them. The advice offered by ACORN employees to obtain a mortgage and avoid taxes was pretty banal – stuff like don’t mention you’re a prostitute. These were not criminal masterminds.

Second, ACORN employees are generally hired from low-income communities with minimal education and job experience. Perhaps they were overly solicitous, but is it really fair to blame poor people for a lack of professional experience? It’s one thing when corporate executives engage in price-fixing conspiracies; it’s another when people working at a nonprofit for a minimum wage are entrapped in a rightwing sting operation.

Third, cutting off ACORN’s access to federal housing funds hurts poor people, and it saves the federal government nothing more than pocket change. According to one congressional report ACORN received less than $54 million over the last 15 years. The Senate’s measure won’t make a dent in the face of a $1.2 trillion federal deficit.

Perhaps the most disturbing aspect of this whole affair is that Senators, who knew or should have known, voted overwhelmingly for a punitive measure that is expressly prohibited by the Constitution as a “bill of attainder.” A bill of attainder is any legislation that imposes a penalty on a particular individual or group; it is the equivalent of Congress acting like a judge and jury in violation of the separation of powers. The Framers of our Constitution expected the Senate to cool down the fever of the popular will and allow time for a deliberative response to a public demand.  The Framers did not expect that the Senate’s first response to a public relations fiasco would be to toss the Constitution overboard.

The same senators who angrily denounced ACORN were noticeably silent when billions of tax dollars went unaccounted for in Iraq or were paid to private contractors for work that was never done properly in Iraq and Afghanistan. But of course those contractors did not do work for poor people; they were major campaign contributors.

Finally, in all the reporting on ACORN it has hardly been mentioned that the conservative group that secretly filmed ACORN violated state laws that prohibit secret videotaping. California Attorney General Jerry Brown has called for an investigation of the illegal taping.

The ACORN scandal is just another danger sign that American democracy is in trouble. Congress deadlocks over any attempt to reform health care, taxes, budgets, or education, but a stupid prank turns into a national news story, and Congress has a knee-jerk reaction that overtly violates the Constitution.

ACORN needs new management, but that is hardly a national problem. The real problems that our country faces – unemployment, housing, health care, education – are the very problems that ACORN works on everyday. If Congress spent its time addressing the real problems of our nation, ACORN wouldn’t be needed.

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The ninth circuit federal court of appeals in San Francisco has held that former Attorney General John Ashcroft is personally liable for illegally detaining American citizens after 9-11. The court’s decision represents a stunning victory for the principle that no one is above the law.

The ninth circuit’s opinion arose out of a case brought by an American citizen born in Wichita, Kansas, to parents of U.S. citizenship. His given name was Lavoni Kidd. He was a football star at the University of Idaho. Sometime in college he decided to convert to Islam and changed his name to Abdullah al-Kidd. In 2003 al-Kidd received a scholarship to study Arabic and Islamic law at a university in Saudi Arabia. On his way to Saudi Arabia al-Kidd was approached by federal agents at Dulles Airport and arrested. He was not charged with any crime. The government claimed that al-Kidd was a material witness in the criminal trial of another Islamic man he knew at the university, who was being prosecuted for visa fraud. The government claimed that al-Kidd was fleeing the jurisdiction and that he had a one-way $5,000 business class ticket on him. In fact, al-Kidd was travelling on a $1700 roundtrip coach class ticket, and he had left his wife and children behind in Nevada.

It turned out that the government never had any reason to call al-Kidd as a material witness. It was merely a pretext for detaining him. He was detained for more than two weeks, subjected repeatedly to humiliating body searches, kept in a brightly lit high-security prison cell 23-hours per day, and handcuffed and shackled whenever he was moved. For fifteen months after his release from federal prison the government required him to remain at home in Nevada, limit his movements out of the house, surrender his passport, and report regularly to a probation officer.

Al-Kidd sued Attorney General Ashcroft with the help of the American Civil Liberties Union (ACLU), alleging that as a consequence of his detention, he lost his job, his opportunity for study abroad, and his marriage.

As attorney general John Ashcroft authorized the use of the federal material witness statute to detain Islamic men whom the Justice Department thought might possibly be terrorists. But the material witness statute was not intended for preventative detention, which is generally prohibited by the Constitution. The federal statute only allows the government to detain a person who is a material witness in a criminal trial for a temporary period if the government reasonably believes that there is a likelihood that the witness might otherwise disappear while a trial is pending. The men detained by Ashcroft were not necessarily material witnesses to any pending criminal trials.

In the law suit Ashcroft made the extravagant claim that as attorney general he was absolutely immune from civil liability. The Supreme Court has said that federal prosecutors may have absolute immunity from a narrow class of claims arising out of a prosecutor’s actions in court. But the Supreme Court has made it clear that this is a very limited exception and that prosecutors are not immune for illegal actions or decisions that take place outside of a courtroom.

In its decision in al-Kidd v. Ashcroft, the ninth circuit reaffirmed this traditional limitation on the absolute immunity of prosecutors. In this case it’s clear that Ashcroft made a policy decision to use the federal material witness statute as a license for preventative detention of Islamic and Arab men. It had nothing to do with prosecuting crime in court; it was merely a tool for waging the war on terror.

The Framers of our Constitution did not permit arbitrary or preventative detention, even of persons who might be thought dangerous. The generation that fought the American Revolution was not naïve about foreign risks to our domestic security. They certainly understood the vulnerability of a democratic society to spies and saboteurs, as my book UNLIKELY ALLIES attests. But the Framers preferred to err on the side of personal liberty rather than to create a police state that might be safer, but stultifying.

In this regard the Framers of our Constitution were choosing to protect liberties that were not necessarily protected by the British Constitution. Britain was much more inclined to sacrifice the rights of British citizens to serve the cause of state security. In UNLIKELY ALLIES the French Foreign Minister Vergennes wryly observed that “only a government as free as England’s would be so suspicious of its own subjects.” That was precisely what the Framers did not want to happen in America.

Our Founding Fathers revolted against arbitrary rule and fought for the proposition that even the king’s representatives in the colonies should be held accountable for their actions. The ninth circuit has struck a blow against arbitrary government. In doing so it has opened up the possibility of more claims being brought against other former government officials who established or implemented anti-terrorism policies that were exceeded the limits of our Constitution. The full scope of the Bush Administration’s chilling excesses in the war on terror is carefully chronicled in Jane Mayer’s excellent book, THE DARK SIDE. After reading Mayer’s well-balanced account, I am more grateful to our Framers than ever that under our Constitution, our leaders will be held to account for their abuses of power.