But what I really liked about her piece — in addition to taking on a subject few have paid attention to during the crisis — is her description of a new subprime documentary, set in Baltimore.

In a new documentary film about the subprime crisis, “American Casino,” solid black citizens — a high school social studies teacher, a psychotherapist, a minister — relate how they lost their homes when their monthly mortgage payments exploded. Watching the parts of the film set in Baltimore is a little like watching the TV series “The Wire,” except that the bad guys don’t live in the projects; they hover over computer screens on Wall Street.

As TWI noted last week, lawsuits over racial discrimination in subprime lending are winding their way through the court system. Some of the allegations are nothing short of shocking; in one suit recently classified as a class action case, Wells Fargo is accused of using loan software with discounts on rates and fees in white communities, but forbidding loan officers in minority communities from access to it.

Wells Fargo has strongly denied these and other charges. But Ehrenreich’s report is further evidence that the conversation over the racial implications of subprime lending is shifting. It’s no longer just about blaming poor and minority borrowers for the crisis. Instead, the focus is turning to questions about the the morality of lenders, who discovered a gold mine in selling high-rate mortgages to minority communities, and took full advantage of it.

Here are some excerpts from Freedman’s letter that I hope capture the point. (The whole thing is kind of too long to publish.) Setup:

In order for there to be *a war* the adversary must be an actual or nascent nation-state, that is, an entity capable of entering into a treaty to end the hostilities. Examples include the Confederate States of America and the Barbary States (with whom we entered into treaties despite earlier denunciations of their corsairs as *pirates*) and the former government of Afghanistan, which the United States defeated in a war in 2001.

The elementary reasons for this limitation are that *war* was so understood at the time the Constitution was ratified and that, as a practical matter, a *war* will end with an exchange of prisoners.

But there is a much deeper reason.  The framers were intensely worried about abuses of military power.  During a war enemy captives may be held without charges until the end of the conflict.  In contrast, when the military uses force in other situations captured prisoners must be brought to trial.  The Constitution mandates that the second situation be the norm * whether the evildoers be denominated *pirates* or *terrorists.*

And payoff:

In its court filings regarding the roughly 230 Guantanamo detainees who face indefinite detention (as opposed to the roughly 15 who might face military commissions in some form or another) the Obama Administration has rejected the term *enemy combatants* and thus abandoned the Bush Administration*s confabulation that the country is engaged in a *war* with al-Qaeda.  The government still argues, however, that it may detain members of al-Qaeda indefinitely without charges because Congress authorized the use of force against them.  But because such detentions are an incident of war, not of the use of force, this is incoherent.

If President Obama is half the politician we know him to be, he will realize that triangulation in pursuit of liberty is no virtue. If fundamental matters of Constitutional law become mere policy differences that change with control of the White House, then a President Sarah Palin will be free to re-write whatever rules President Obama creates.  For both short-term and long-term reasons he needs to wrap himself in the flag of a return to long-held consensus values and to marginalize the Bush Administration  claims as the radical assertions they were.

I wonder what he makes of this point Brookings’ Benjamin Wittes made to Daphne, though: “… the laws of war unambiguously detain a group of people who are frankly not the real problem in the counter-terrorism arena. And they give you only very ambiguous detention authority with respect to people who are the molten core of the problem … so why not have a detention authority that is designed for the group of people you actually want to detain?”