Topic: Foreign Policy and National Security

A Look at the OAS Report on Drug Policy in the Americas

Last Friday, the Organization of American States released a groundbreaking report on the future of drug policy in the Americas. The OAS received the mandate to produce this document at the Summit of the Americas last year in Cartagena, Colombia, where some presidents aired their frustration with the war on drugs and even suggested legalization as an alternative to fight the cartels.  

The document is based on solid premises:

  1. Drug violence is one of the greatest challenges facing the Americas
  2. The current approach is a failure isn’t working
  3. New policy alternatives need to be discussed and implemented
  4. Drug use will remain significant by 2025

These premises might seem pretty obvious, but when it comes to drug policy, stating the obvious hasn’t been the norm for those who believe in the status quo: for example, in 1988 the UN held an event titled “A drug-free world: we can do it” (consumption of marijuana and cocaine has increased by 50 percent since then). Or the latest National Drug Control Strategy, which claims that the greatest accomplishment of the Mérida Initiative with Mexico has been “the mutual fostering of security, protection and prosperity” (never mind the 60,000 people killed in drug violence in six years in Mexico).

The OAS report avoids recounting this fairy tale. It also avoids making recommendations, given the lack of consensus among its authors about where drug policy should be headed in the next 12 years. Instead, the document lays out four different interpretations of the “drug problem” and presents the scenarios of what the response should be. The report also presents the challenges facing each scenario (name in bold):

Together: Under this scenario, the problem is not drug laws but weak institutions. It foresees greater security and intelligence cooperation among nations, more expenditure in the security and judiciary apparatuses and tougher laws dealing with corruption, gun trafficking and money laundering.

Latin American countries indeed suffer from weak institutions. The shortcoming of this scenario is that prohibition actually exacerbates the problem since it inflates the profit margins of the cartels to stratospheric levels, thus increasing their corrupting and violent power. In 2010 all seven Central American countries combined spent nearly $4 billion in their security and judiciary apparatuses (a 60 percent increase in five years). And yet that fell terribly short of the estimated revenues of the Mexican and Colombian cartels which, according to a report from the Justice Department, could reach up to $39 billion a year.

The report foresees another challenge with this approach: a disparity among countries in their institution-building efforts, which would lead to the balloon effect of criminal activities. This is perhaps the main feature of the drug business in the Americas: its high capacity to adapt to changing circumstances. For example, in the early 1990s, as pressure grew on coca growers in Peru they moved to Colombia. Now, after a decade of eradication programs in that nation, they are moving back to Peru. Overall the Andean region continues to produce the same amount of cocaine as it did 20 years ago.

Over the years the common denominator of the war on drugs in Latin America has been the attempt to export the problem to your neighbor. Greater cooperation, harmonization of efforts, and same-pace institution building seems unrealistic.

Political Bloviation in Doha, Qatar

The 13th Doha Forum has convened, with your loyal correspondent in attendance. It is an impressive gathering, filling the luxurious Ritz-Carlton. Cars are checked for bombs before approaching the hotel. Guests have to go through a metal detector both entering the hotel and inside heading to the conference. The meeting room was full, with just about every citizen of Qatar (who only make up something like 15 percent of the population) seeming to line the hallway before the Emir arrived.

There are few more tragic figures than onetime national leaders who have fallen away from the centers of power. For instance, after the Qatar royals, who still do matter, opened the gathering, to the stage strode a frustrated former British prime minister trying to remain relevant. The Right Honorable Gordon Brown, who finally grabbed the premiership from his frenemy Tony Blair only to lose it in the 2010 election, twice quoted John F. Kennedy while chattering on about the importance of interdependence.

Brown also urged the creation of a North African-Middle Eastern development bank to promote economic growth in such nations as Egypt—which, he failed to note, has been buried in foreign aid for years without generating economic growth. The former PM was introduced as preventing a new Great Depression (who knew!) and later lauded for his “profound” ideas (apparently defined as previously advanced by his hosts in Qatar).

Francois Fillon, a former prime minister of France, followed, telling us that we needed to solve the Syrian conflict, create a Middle Eastern financial institution, and “defend European civilization,” whatever that means. The moderator declared his ideas to be “fascinating” and his mention of Europe to be an example of “self-reflection.”

Amadou Bondou, the vice president of Argentina—which has made a practice of looting the productive and stealing people’s retirement savings—denounced austerity. These policies are having “negative repercussions” on poor people, he complained. No doubt, they are. However, if you have a wild party, you can’t very well expect everyone else to pay the clean-up costs. Next time countries, especially his own, should think before blowing their budgets to enrich favored interests and win votes.

Wolfgang Ischinger, chairman of the Munich Security Conference, concluded the first session with a discussion about the importance of solving the Syrian conflict. He suggested a comprehensive conference to end the fighting and conduct of proxy wars in the region. Alas, what evidence is there that the parties are prepared to settle or that their backers are prepared to stay out? He also urged more humanitarian assistance for Syrians. He worried that if the Europeans fail to give more aid they may be left with no friends at all in Syria. Given the way that conflict is going, why would that be such a bad thing? Trying to make friends is about the dumbest reason one can imagine for getting involved in such a war.

Well, that’s the start here in Doha. I just can’t wait for additional “fascinating” observations from more “profound” thinkers like Messrs. Brown, Fillon, Bondou, and Ischinger!

Debating Global Affairs in Doha

Qatar is much in the news, as the small Persian Gulf sheikdom attempts to extend its influence. It promoted revolution in Libya and is doing the same in Syria. Of course, the ruling family is less enthused with Iranian revolutionaries and looks askance at Shia democracy protestors in Bahrain. (So does the U.S., of course, which is threatening to bomb the regime in Tehran and has said little about Bahrain’s Sunni monarchy as it busily represses the country’s Shia majority.)

However, Qatar also engages in more mundane activities, such as hosting the annual Doha Forum, which brings together world leaders to discuss important international topics. Qatar takes the event seriously. Explains the official website: “Held in the presence of His Highness Sheikh Hamad bin Khalifa Al Thani, Emir of the State of Qatar, who will preside over the opening ceremony on May 20th, the forum will commence with an address by His Excellency Sheikh Hamad bin Jassim Al Thani, Prime Minister and Minister of Foreign Affairs.”

Lesser personages also participate, which explains why I’ve been invited to attend. I will be flying over this weekend. The conference begins on Monday and sessions will cover international politics and the global economy, Arabs and the changing world, global economic development, challenges facing new Arab democracies, international cooperation, human rights, and digital media.

I’m looking forward to the event and, frankly, even more to discussions outside of the formal sessions. It has been several years since I’ve been to Qatar, so it will be interesting to see how the country is adjusting to the Arab Spring. It also will be illuminating to compare Qatar to Dubai, another small but ambitious Gulf state, which I visited last week.

The Persian Gulf remains the fulcrum of important world events and potential American military intervention. In fact, my nephew has been deployed there in recent weeks, though hopefully will be returning home soon. Although travel to the region doesn’t turn one into an instant expert, it does help give a practical feel to events which too often are viewed primarily through the skewed prism of Washington.

After the AUMF

Georgetown University’s Jennifer Daskal, and Stephen Vladeck, an associate dean in the College of Law at American University, have posted a working paper (.pdf) regarding the 12+ year old Authorization for Use of Military Force (AUMF) at the Lawfare blog that is receiving, and deserves, some attention. The shorter version in today’s New York Times is receiving even more attention, presumably.

“After the AUMF” is written, in part, as a response to a Hoover Institution proposal (.pdf) that would replace the existing AUMF with, as Daskal and Vladeck describe it, “a new blanket framework statute authorizing the use of military force against as-yet-undetermined future terrorist organizations, and to delegate to the Executive Branch the authority to delegate those organizations against which such force may be used if and when the time comes.”

The crux of the Daskal-Vladeck critique rests on their claim that such a framework is unnecessary, and, worse, counterproductive. They explain that we should be trying to end, rather than extend, the war on terror, and that existing authorities (including many that have expanded since 9/11) are more than sufficient to protect the country against terrorist attacks. Should those authorities prove insufficient in the future (for example, if an as-yet-unknown terrorist organization materializes and plots attacks against the United States), Congress would retain the ability to pass a new AUMF–and would likely do so quite quickly, if past history is any guide. Lastly, they claim that the war frame, in general, undermines the nation’s counterterrorism goals by engendering hostility and resistance across a broad spectrum, from innocent civilians to heads of nation states, who resist being drawn into a never-ending war.

Although I am broadly sympathetic with the idea that we should move away from thinking of counterterrorism as a war, thus demanding a military response (about which I have written book chapters here and here), I believe that the most important of the Daskal-Vladeck objections revolves around the Hoover proposal’s apparent disdain for Congress, and its willingness to grant more power to the Executive Branch. The Hoover proposal claims that this would be an improvement over the current system, because it would give “the president the flexibility he needs to address emerging threats” and would “render more transparent and regularized the now very murky process by which organizations and their members are deemed to fall within the September 2001 AUMF.”

Elsewhere the Hoover paper claims that such a blanket predelegation of authority is required because “Congress probably cannot or will not, on a continuing basis, authorize force quickly or robustly enough to meet the threat.”

Daskal and Vladeck disagree. They counter that “no examples exist of cases where Congress either could not or would not provide the necessary authority–or why, in the interim, the President’s Article II authorities, criminal law, and other existing counterterrorism authorities weren’t sufficient to meet the threat.” On the contrary, the Congress has consistently demonstrated the ability and willingness to authorize wars quite quickly (too quickly, some might say), including within three days of the 9/11 attacks, and within five days of the supposed attack in the Gulf of Tonkin in August 1964. Thus, Daskal and Vladeck conclude, if a new terrorist group “were to emerge, nothing would or should stop Congress from providing a new, narrow and specific authorization to use force.”

They continue, with emphasis:

Proposals to delegate such future—and momentous—decisions to the President lack any historical precedent, and for good reason. It is Congress, not the Executive, that is given the authority under our Constitution to declare war. An authorization to use military force…should not be an ex ante delegation to the President to make unreviewable decisions to go to war at some future date. This is something our Founding Fathers understood well. Thus, proposals to delegate such a determination to the President threaten the carefully calibrated balance of powers enmeshed within the Constitution, essentially asking Congress to surrender one of its most important functions to the Executive.

This is an important and interesting discussion, and one that should not reduce to the predictable partisanship in Washington today. Some liberal Democrats agree with conservative Republicans that the president should be given more powers; other liberals and conservatives are joined in opposition to such suggestions. This timely–indeed, overdue–assessment of the powers that exist, and will be needed in the future, to deal with terrorist threats should and will be getting more attention in the weeks and months ahead.

 

Once More Unto the Treaty-Power Breach

The Carol Anne Bond saga continues. Now in her second trip to the Supreme Court—and with Cato’s support for the fourth time—Bond is still hoping to avoid federal punishment stemming from her attempts to get back at her erstwhile best friend for having an affair with her husband.

Bond, a microbiologist, spread toxic chemicals on her friend’s car and mailbox. Postal inspectors discovered this plot after they caught Bond on film stealing from the woman’s mailbox. Rather than leave this caper to local law enforcement, however, a federal prosecutor reached into his bag of tricks and charged Bond with violating a statute that implements U.S. treaty obligations under the 1993 Chemical Weapons Convention.

Yes, rather than being charged with attempted murder and the like, Bond is essentially accused of chemical warfare.

Bond challenged the federal government’s power to charge her with a crime, arguing that Congress lacks constitutional authority to pass general criminal statutes and cannot somehow acquire that authority through a treaty. Before a court could reach this issue, however, there was a question whether Bond could even make that argument under the Tenth Amendment, which reaffirms that any powers not delegated to Congress are reserved to the states or to the people. On Bond’s first trip to the Supreme Court, the Court unanimously accepted the argument, offered in an amicus brief by Cato and the Center for Constitutional Jurisprudence, that there’s no reason in constitutional structure or history that someone can’t use the Tenth Amendment to challenge the constitutionality of the statute under which she was convicted.

On remand to the Philadelphia-based U.S Court of Appeals for the Third Circuit, and now with standing to challenge that law, Bond raised the argument that Congress’s limited and enumerated powers cannot be increased by treaties. We again filed in that case in support of Bond. The Third Circuit disagreed, however—if reluctantly—based on one sentence written by Justice Oliver Wendell Holmes in the 1920 case of Missouri v. Holland, which has been interpreted to mean that treaties can indeed expand Congress’s powers. With Cato supporting her bid to return to the Supreme Court on that treaty power question, Bond’s case reached the high court.

Now, in a brief authored by professor Nicholas Quinn Rosenkranz and joined by the Center for Constitutional Jurisprudence, the Atlantic Legal Foundation, and former attorney general Edwin Meese III—in what we hope will be our final filing in the case—we argue that a treaty cannot give Congress the constitutional authority to charge Bond. Allowing Congress to broaden its powers via treaties is an astounding manner in which to interpret a document that creates a federal government of limited powers.

Not only would this mean that the president has the ability to expand federal power by signing a treaty, but it would mean that foreign governments could change federal power by abrogating previously valid treaties—thus removing the constitutional authority from certain laws. This perverse result makes Missouri v. Holland a doctrinal anomaly that the Court must either overrule or clarify. We also point out how the most influential argument supporting Holland is based on a clear misreading of constitutional history that has been repeated without question.

Although Holland is nearly 100 years old, there is thus no reason to adhere to a precedent that is not only blatantly incorrect, but could severely threaten our system of government. We’re in a constitutional quagmire with respect to the treaty power, one that can only be escaped by limiting or overturning Missouri v. Holland.

The Supreme Court will hear oral arguments in Bond v. United States in October.

Iran: Political and Religious Persecution Proceeds Apace

The Islamic Republic of Iran will soon hold a presidential election. The result is in doubt—the clerical elite itself is split—but the country’s overall direction unfortunately is not. Iran has a deteriorating human rights record. Although Tehran is not the bloodiest or most tyrannical government in the Middle East, repression is increasing and the space available to regime opponents is diminishing.

Most attention has been focused on the unpleasant potential of an Iranian nuclear weapon. There is good reason to maintain an active campaign to forestall such a prospect. However, war almost certainly is a worse option. Bombastic rhetoric is common in Tehran, but the diverse political and religious figures now bitterly battling over power and wealth seem pragmatic, not suicidal. There is no reason to believe that the United States (as well as Israel) cannot deter Iran even if the latter developed an atomic bomb.

Iran’s worsening religious persecution is far less publicized. As I note in my latest Forbes online column, Tehran has generated a not-so-enviable record in brutalizing religious minorities—Baha’is, Christians, Jews, Zoroastrians, and Sunni Muslims. Such behavior belies a lack of confidence in the dominant theology which underlies the regime.

Sadly, there isn’t a lot the U.S. government can do. But people of goodwill around the world might achieve more. As I argue in Forbes online:

The West’s leverage over Iran is minimal. Some activists have criticized the Obama administration for not doing more, but it is not clear what more could be done, given the sanctions already imposed regarding the nuclear issue.

There may be a better hope of using international popular pressure. Explained [Indiana University Professor Jamsheed] Choksy, “Despite their heavy-handed actions, the Islamic Republic’s hard-liners seek to present their rule as benevolent and humane,” and therefore the regime has been “exhibiting rising concern about negative public perceptions of its rule.”

Individuals, groups, and activists, especially those which have not been at the forefront of the campaign to sanction and even bomb Iran, should press the Iranian government and other entities, from media to business, and protest the manifold violations of human rights. Visiting officials should be embarrassed by protestors. The regime should understand that its fight against sanctions for its nuclear activities continues to be undermined by its brutality at home.

Ahmed Shaheed, the UN Special Rappoteur, confirmed that public pressure works. In March he noted that “At least a dozen lives were saved because of the intervention of international opinion.” More such action is needed.

In 1979 the Iranian people overthrew the Shah, a corrupt thug long supported by Washington. Alas, the Iranian revolution delivered even more tyranny. The Iranian people desperately await a revolution which actually liberates.

Encouraging Continued Reform in Burma

Burmese President Thein Sein will be visiting Washington next week. It’s the first trip by a Burmese head of state in nearly five decades and reflects the reform winds blowing through Naypyitaw.

Burma, or Myanmar, languished under brutal military rule for a half century before the armed forces moved into the background and created a nominal civilian government. Thein Sein is a former general and the retired junta leaders undoubtedly remain influential, though their exact role remains hidden.

Nevertheless, Burma has come far in the last couple of years. Many political prisoners have been released. Many restrictions over the media have been lifted. Nobel Laureate Aung San Suu Kyi has been freed from house arrest and elected to parliament. Fighting has ceased against many separatist ethnic groups. Naypyitaw has distanced itself from its former patron, China.

There’s still more to be done. Conflict with the ethnic Kachin continues to ravage parts of Burma, while Buddhist mobs have been conducting a different form of war against Muslim Burmese. Nor is it certain that the military is prepared to fully yield power in 2015, when the next election is scheduled. Indeed, Tomas Ojea Quintana, the United Nations Special Rapporteur on human rights in Burma, recently issued a report citing the need for additional reforms, which I discussed in a recent article in National Interest online.

Nevertheless, after spending years vying with North Korea for distinction as the world’s worst government, Burma now offers its people hope of liberating change. Ultimately enduring reform will come from inside Burma. But the West can help.

The best reward for Naypyitaw for continuing reform is steadily eliminating remaining economic sanctions. Foreign investment and trade will help moderate poverty, expand the middle class, and provide resources for democratic activism. Expanding the economic pie also would give government and security personnel a stake in a freer society in which their power is more limited.

But Washington and other democratic states should not bury Naypyitaw in foreign aid. Alas, history demonstrates that foreign “assistance” more often deserves to be called foreign hindrance, actually slowing reform and entrenching corrupt elites. Burma desperately needs a broader civil society as the foundation for a freer and more prosperous future.

There is a lot of bad news in the world today. Burma offers some welcome good news. Washington should use Thein Sein’s visit to encourage continuing political and economic reform.

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