Archives: April, 2013

SCOTUS Gets It Right in Kiobel

My reaction to today’s Supreme Court decision in Kiobel v. Royal Dutch Petroleum:

Just as the United States should not play policeman to the world, so our courts should not play tort-suit venue to the world. Today the U.S. Supreme Court unanimously and decisively buried the misguided, decades-long hope of some lawyers and academics that they could turn the Alien Tort Statute (ATS) into a wide-ranging method of hauling overseas damage claims into American courts. All nine Justices agreed with the Second Circuit that the statute does not grant jurisdiction for our courts to hear a controversy over alleged assistance in human rights violations outside the U.S. against non-U.S. plaintiffs by a non-U.S. business.A majority of five justices reiterated and relied on our law’s strong traditional presumption against extraterritoriality, that is to say, presumption against applying the law to actions that take place in other countries. While parting from this reasoning, four concurring justices nonetheless endorsed a view of ATS as applicable extraterritorially only to very extreme misconduct comparable to piracy, and also as sharply limited by considerations of comity with foreign sovereigns.

It is a good day for a realistic and modest sense of what United States courts of justice can successfully do, namely: do justice within the United States.

Don’t Fall For Obama’s Gun Control Folly

Washington Post Columnist Courtland Milloy says he isn’t falling for Obama’s gun control proposal.  Here’s an excerpt from his column today:

Politicians would do well to learn how the real war on gun violence is being fought. For example:

In federal court last week, 23-year-old Ezra Griffith was convicted of unlawful possession of a firearm by a felon. D.C. homicide detectives had confiscated a 9mm Glock with an extended 30-round magazine during a search of Griffith’s apartment in Southeast Washington. The U.S. Attorney’s Office successfully prosecuted the case.

Another gunman off to jail. Another gun off the streets. That’s how it’s done. Go after the criminal. Take his illegal gun. Leave everybody else alone.

The proposed national gun control legislation would make it harder for law-abiding citizens to purchase guns — and, if passed, would surely be hailed as a victory over the “gun lobby.” But it would do nothing to curb gun violence where the problem is at its worse — in black neighborhoods. Nor would it do much to stop the kind of carnage that occurred in Newtown last year.

Obama’s Hospital Admission

My latest, at National Review Online:

Buried deep within President Obama’s $3.77 trillion budget is a tiny little proposal to increase Medicaid spending by $360 million. In a budget as large as this one, $360 million is scarcely worth mentioning. It amounts to less than one-hundredth of one percent of total outlays. But this 0.01 percent is worth mentioning, because it proves the president’s health-care law will not work…

With this proposal, President Obama has admitted that:

1. The PPACA is not likely to reduce uncompensated care in 2014…

2. The PPACA won’t reduce the deficit…

3. Hospitals can stop crying poverty…

4. States don’t need to expand Medicaid to protect hospitals.

The Washington Post reports that rescission of the DSH cuts “could make it a bit easier for states not to expand the Medicaid program. If they know the additional dollars are coming in, there’s a bit less worry about turning down the Medicaid expansion funds.” At the same time, the president has undercut expansion supporters by admitting that expanding Medicaid will not reduce uncompensated care.

The president’s budget shows that the brave state legislators who have been fighting the Medicaid expansion in states like Ohio and Florida were right all along — and it makes expansion supporters, like Governors Rick Scott (R., Fla.) and John Kasich (R., Ohio), look rather silly.

This relatively small spending item is a big admission that the president’s health-care law simply won’t work, and it should provide encouragement to state officials who are still resisting the massive increase in deficit spending, government bureaucracy, and health-care costs the PPACA embodies.

Read the whole thing.

CISPA’s Vast Overreach

Last summer at an AEI-sponsored event on cybersecurity, NSA head General Keith Alexander made the case for information sharing legislation aimed at improving cybersecurity. His response to a question from Ellen Nakashima of the Washington Post (starting at 54:25 in the video at the link) was a pretty good articulation of how malware is identified and blocked using algorithmic signatures. In his longish answer, he made the pitch for access to key malware information for the purpose of producing real-time defenses.

What the antivirus world does is it maps that out and creates what’s called a signature. So let’s call that signature A. …. If signature A were to hit or try to get into the power grid, we need to know that signature A was trying to get into the power grid and came from IP address x, going to IP address y.

We don’t need to know what was in that email. We just need to know that it contained signature A, came from there, went to there, at this time.

[I]f we know it at network speed we can respond to it. And those are the authorities and rules and stuff that we’re working our way through.

[T]hat information sharing portion of the legislation is what the Internet service providers and those companies would be authorized to share back and forth with us at network speed. And it only says: signature A, IP address, IP address. So, that is far different than that email that was on it coming.

Now it’s intersting to note, I think—you know, I’m not a lawyer but you could see this—it’s interesting to note that a bad guy sent that attack in there. Now the issue is what about all the good people that are sending their information in there, are you reading all those. And the answer is we don’t need to see any of those. Only the ones that had the malware on it. Everything else — and only the fact that that malware was there — so you didn’t have to see any of the original emails. And only the ones that had the malware on it did you need to know that something was going on.

It might be interesting to get information about who sent malware, but General Alexander said he wanted to know attack signatures, originating IP address, and destination. That’s it.

Now take a look at what CISPA, the Cybersecurity Information Sharing and Protection Act (H.R. 624), allows companies to share with the government provided they can’t be proven to have acted in bad faith:

information directly pertaining to—

(i) a vulnerability of a system or network of a government or private entity or utility;

(ii) a threat to the integrity, confidentiality, or availability of a system or network of a government or private entity or utility or any information stored on, processed on, or transiting such a system or network;

(iii) efforts to deny access to or degrade, disrupt, or destroy a system or network of a government or private entity or utility; or

(iv) efforts to gain unauthorized access to a system or network of a government or private entity or utility, including to gain such unauthorized access for the purpose of exfiltrating information stored on, processed on, or transiting a system or network of a government or private entity or utility.

That’s an incredible variety of subjects. It can include vast swaths of data about Internet users, their communications, and the files they upload. In no sense is it limited to attack signatures and relevant IP addresses.

What is going on here? Why has General Alexander’s claim to need attack signatures and IP addresses resulted in legislation that authorizes wholesale information sharing and that immunizes companies who violate privacy in the process? One could only speculate. What we know is that CISPA is a vast overreach relative to the problem General Alexander articulated. The House is debating CISPA Wednesday and Thursday this week.

Entitlement Spending Is America’s Biggest Fiscal Challenge, but Discretionary Spending Is Still Far too High

If America descends into Greek-style fiscal chaos, there’s no doubt that entitlement programs will be the main factor. Social Security, Medicare, Medicaid, and Disability are all fiscal train wrecks today, and the long-run outlook for these programs is frightful.

Just look at these numbers from the Bank for International Settlements and OECD to see how our fiscal future is bleaker than many of Europe’s welfare states.

Simply stated, if we don’t implement the right kind of entitlement reform, our children and grandchildren at some point will curse our memory.

But that doesn’t mean we shouldn’t worry about other parts of the budget, including the so-called discretionary programs that also have been getting bigger and bigger budgets over time.

That’s why I want to add some additional analysis to Veronique de Rugy’s recent piece in National Review Online, which might lead some to mistakenly conclude that these programs are “shrinking” and being subject to a “Big Squeeze.”

…there is another number to look at in that budget. It’s the shrinking share of the budget consumed by discretionary spending (spending on things like defense and infrastructure) to make space for mandatory spending and interest. This is the Big Squeeze. …in FY 2014 mandatory spending plus interest will eat up 67 percent of the budget, leaving discretionary spending with 33 percent of the budget (down from 36 percent in FY 2012). Now by FY 2023, mandatory and interest spending will consume 77 percent of the total budget. Discretionary spending will be left with 23 percent of the budget.

She’s right that discretionary spending is becoming a smaller share of the budget, but it’s important to realize that this is solely because entitlement outlays are growing faster than discretionary spending.

Here’s some data from the Historical Tables of the Budget, showing what is happening to spending for both defense discretionary and domestic discretionary. And these are inflation-adjusted numbers, so the we’re looking at genuine increases in spending.

Discretionary Spending FY62-14

As you can see, defense outlays have climbed by about $100 billion over the past 50 years, while outlays for domestic discretionary programs have more than tripled.

If that’s a “Big Squeeze,” I’m hoping that my household budget experiences a similar degree of “shrinking”!

Veronique obviously understands these numbers, of course, and is simply making the point that politicians presumably should have an incentive to restrain entitlement programs so they have more leeway to also buy votes with discretionary spending.

But I’d hate to think that an uninformed reader would jump to the wrong conclusion and decide we need more discretionary spending.

Particularly since the federal government shouldn’t be spending even one penny for many of the programs and department that are part of the domestic discretionary category. Should there be a federal Department of Transportation? A federal Department of Housing and Urban Development? A federal Department of Agriculture?

No, NO, and Hell NO. I could continue, but you get the idea.

The burden of federal government spending in the United States is far too high and it should be reduced. That includes discretionary spending and entitlement spending.

P.S. For those who don’t have the misfortune of following the federal budget, “entitlements” are programs that are “permanently appropriated,” which simply means that spending automatically changes in response to factors such as eligibility rules, demographic shifts, inflation, and program expansions. Sometimes these programs (such as Social Security, Medicare, Medicaid, etc) are referred to as “mandatory spending.”

The other big part of the budget is “discretionary spending” or “appropriations.” These are programs funded by annual spending bills from the Appropriations Committees, often divided into the two big categories of “defense discretionary” and “nondefense discretionary.”

Margaret Thatcher and Eastern Europe

A week ago, my colleague Marian Tupy wrote movingly about his personal encounter with Lady Thatcher. Although I never had a chance to speak with her at any length, I echo his sentiments in my recent piece for the Spectator (U.K.), where I argue that both the substance of her policies and the symbolic value of her actions - such as her visit to Gdańsk in November 1988 - played an important role in post-communist transitions:

Symbols matter. In Czechoslovakia, the communist party newspaper, Rudé právo (‘The Red Law’) chose to ignore the Gdańsk episode, providing instead a short notice about her talks with the Polish government about ‘the need to energise economic cooperation between the two countries’. But there was no coming back. In Poland it took less than two months since Thatcher’s visit for the Polish regime to recognise that it was fighting a losing war and start talks with Solidarity, which would lead to dismantling of communism in the country. Czechs and Slovaks had to wait for another year.

The concluding paragraph:

In short, her success in fixing the British economy gave Eastern Europe an example to aspire to. Thanks to her example, Eastern Europeans of the early 1990s understood well that bold and sometimes painful reforms were a necessary condition for Western levels of prosperity. Somehow, I doubt that the current generation of Western leaders are inspiring the same sentiments in citizens of emerging democracies of the world.

Forget North Korea, Weak or Strong: South Korea’s Strength Is Why America Should Come Home

Joshua Keating over at Foreign Policy offered a thoughtful commentary on Rob Montz’s North Korea documentary, “Juche Strong,” after last Thursday’s screening at Cato. Keating contended that the film, which suggests that pervasive regime propaganda has created at least some degree of legitimacy in the minds of many North Koreans, makes a case “that the United States needs to maintain its current military commitment to the region.” 

No doubt, it would be better for the Republic of Korea and Japan if the North was made up of “cowed and terrified people who will abandon their leaders at the first signs of weakness,” as Keating put it. But even popular determination and commitment—so far untested in an external crisis—go only so far. The question is not whether the so-called Democratic People’s Republic of Korea is a threat, but 1) whether it is a threat which cannot be contained by its neighbors and 2) is a sufficient threat to America warranting U.S. led containment. The answers are no. 

First, the DPRK has amassed a large army with lots of tanks, but training is limited and equipment is antiquated. The North’s forces could devastate Seoul with artillery and missile strikes and a 4,000 tank surge might reach the South’s capital, but North Korea would be unlikely to ultimately triumph. The latter is weak in the air and with a decrepit economy can ill afford anything other than an unlikely blitzkrieg victory. Nor could Pyongyang look to Russia or China for support: the Cold War truly is over. 

More important, the ROK, which currently possesses around 40 times the North’s GDP and twice the North’s population, could do much more in its own defense. South Korea has created a competent, modern, and sizeable military. Is it enough? Only Seoul can answer. 

If the South remains vulnerable to a North Korean strike, it is only because the ROK decided to emphasize economic development and rely on America. That made sense during the early days of the Cold War, but no longer. There is no justification for turning what should be a short-term American shield against another round of Soviet- and Chinese-backed aggression into a long-term U.S. defense dole. It doesn’t matter whether the North Koreans are “Juche Strong or Juche Harmless,” as Keating put it. South Korea can defend itself. (Doing so would be even easier if Seoul and Tokyo worked harder to overcome their historical animus. Alas, they feel little pressure to do so as long as they both can rely on Washington for protection.) 

Second, the DPRK poses no threat to America requiring an ongoing military commitment. Even in 1950 the Pentagon did not believe the Korean peninsula to be vital strategically, but the Cold War created a unique context for the conflict. Today a second Korean War would only be a Korean War. Tragic, yes. Threat to America, no. Pyongyang is an ongoing danger to its neighbors, not the United States. 

The North matters to the United States primarily because Washington remains entangled, with troops, bases, and defense commitments. That is, North Korea threatens America because Washington chooses to allow North Korea to threaten America. 

Of course, proliferation would remain a concern even without a U.S. presence in Korea, but America’s garrison does nothing to promote denuclearization. To the contrary, Washington is helpfully providing tens of thousands of American nuclear hostages if the DPRK creates an arsenal of deliverable nuclear warheads. It would be far better for U.S. forces to be far away, out of range of whatever weapons the North possesses. 

North Korea is only one side of the Northeast Asian balance.  It doesn’t much matter if Pyongyang is weak or strong so long as South Korea and Japan are stronger.