Topic: Foreign Policy and National Security

Still No Halbig v. Burwell Ruling, But Plenty of Halbig Chatter

The latest bit of chatter about a someday-forthcoming ruling from the D.C. Circuit in Halbig v. Burwell is the banter between myself and Washington & Lee University law professor Timothy Jost. (For a quick primer on the Halbig cases, click here. For a comprehensive reference guide to the cases, click here.) Or as my email traffic has described it, “The subtle repartee between Michael Cannon and Tim Jost continues.” And, “What a summer! Argentina vs. Germany, Cannon vs. Jost. What’s next?“ 

Jost’s contribution appeared on the oped page of the Washington Post. Mine…didn’t.

Jost explains that while the Supreme Court’s ruling against the government in Hobby Lobby will not have much of an impact on the Patient Protection and Affordable Care Act, “a number of ACA lawsuits percolating up through the courts could be much more destructive. The theory of these suits seems to be that the drafters of the ACA planted a secret bomb in the heart of the statute.” Jost, along with a federal judge he quotes approvingly, thinks it’s “preposterous” that Congress would have intended to give states the power to block the expansion of health-insurance coverage that’s supposed to happen through the PPACA’s health-insurance “exchanges.”

Never mind that Congress did exactly that with the other coverage expansion – the Medicaid expansion – in the very same bill. Or that Congress has allowed states to block the entire Medicaid program for the past 49 years. Or that that’s how Jost himself proposed Congress could set up the bill’s health insurance Exchanges. Or that in 2009, both Republicans and Democrats introduced legislation that would have conditioned health-insurance subsidies on states establishing Exchanges. Or that, in particular, the other leading bill advanced by Senate Democrats in 2009 also gave states the power to block Exchange subsidies. Or that that’s what Jost admits the plain language of the PPACA “clearly” says.

Forget all that. Following the clear, consistent, uncontradicted language of the statute, which is completely consistent with the law’s legislative history, would be preposterous. Why? Because if the courts implement the law as Congress intended, then not even ObamaCare’s supporters would like how ObamaCare works. 

Kennan on Iraq, June 1944

Cato hosted a discussion of The Kennan Diaries today. Editor Frank Costigliola read the following entry, from June 1944, which George Kennan wrote during a three-day stop in Baghdad, on his way to Moscow. I can’t help but hear echoes of Colin Powell’s infamous pottery barn warning, and other cautionary notes that went unheeded in the weeks and months before the invasion of Iraq in 2003. And, as further evidence that we haven’t learned the right lessons from Iraq, there are still those wishing that we had never left Iraq, or that we should go back in. They might ponder these words from a man who knew little about Iraq, but who knew his own country all too well.

[The Iraqi] people has now come just enough into contact with Western life so that its upper class has a thirst for many things which can be obtained only in the West. Suspicious and resentful of the British, they would be glad to obtain these things from us…

If we give them these things, we can perhaps enjoy a momentary favor on the part of those interested in receiving them. But to the extent that we give them,…we acquire, whether we wish it or not, responsibility for the actions of the Iraqis. If they then begin to do things which are not in our interests, which affect the world situation in ways unfavorable to our security,…we then have ourselves at least in part to blame, and it is up to us to take the appropriate measures.

Are we willing to bear this responsibility? I know, and every realistic American knows, that we are not. Our Government is technically incapable of conceiving and promulgating a long-term consistent policy toward areas remote from its own territory….

Those few Americans who remember something of the pioneer life of their own country will find it hard to view the deserts of Iraq without a pang of interest and excitement at the possibilities for reclamation and economic development. If trees once grew here, could they not grow again? If rains once fell, could they not again be attracted from the inexhaustible resources of nature? Could not climate be altered, disease eradicated?

If they are seeking an escape from reality, such Americans may even pursue these dreams and enter upon the long and stony road which could lead to their fruition. But if they are willing to recall the sad state of soil conservation in their own country, the vast amount of social improvement to be accomplished at home, and the inevitable limitations on the efficacy of our type of democracy in the field of foreign affairs–then they will restrain their excitement at the silent, expectant possibilities of the Iraqi desert, and will return, like disappointed but dutiful children, to the sad deficiencies and problems of their native land.

 

North Korea Threatens the World: Washington Should Talk to Pyongyang

North Korea has imprisoned one American since 2012 and announced its intention to try two other U.S. citizens recently arrested for “perpetrating hostile acts.”  Having no diplomatic relations with the Democratic People’s Republic of Korea, the Obama administration cannot even inquire as to the prisoners’ welfare. The U.S. should open official ties with the DPRK.

Recognition confirms geopolitical reality rather than validates government policy. Nevertheless, politics long has dominated diplomacy surrounding the Korean peninsula.

Washington and Pyongyang never recognized each other. South Korea and Japan also do not have relations with the North. Throughout the Cold War the Soviet Union and People’s Republic of China did not deal with the Republic of Korea. 

But after the end of the Cold War Russia and then China recognized the South. In contrast, two decades later the allied powers still have not formally acknowledged North Korea’s existence.

America’s Relationship with Poland: Military Alliance or Social Club?

Polish Ambassador Ryszard Schnepf has a tough job: making nice with American officials after his boss in Warsaw, Foreign Minister Radoslaw Sikorski, indiscreetly denounced Poland’s alliance with America as “worthless.”  The ambassador responded to my earlier article and made a convincing case that Poles and Americans are friends.  He had less success in explaining why Washington should extend a security guarantee to Warsaw, putting U.S. citizens at risk in any the war that might result.

NATO is a military alliance.  But as I point out in my latest article in National Interest online, “in the aftermath of the Cold War American policymakers treated the organization like a venerable social club.  When a bunch of old friends showed up after the Iron Curtain collapsed, the decent course seemed to be to invite them to join.”

Notably absent from the discussion at the time was consideration of the most important characteristic of military alliances:  a willingness to go to war.  In the euphoria of the moment that possibility was simply assumed away. 

However, Vladimir Putin’s Crimean adventure set off fevered demands from NATO’s newer members for the alliance to return to its old purpose.  Polish officials, including Minister Sikorski, have been particularly insistent that the U.S. put its full military faith and credit on the line for Poland. 

The advantage of this approach for Poland is obvious.  But the benefits for America are not.  “Friendship and mutual trust,” cited by Ambassador Schnepf, are not the same as strategic interest. 

There’s a wonderful history, of course, with such celebrated figures as “Kosciuszko and Pulaski who aided Washington in the American Revolution,” noted the ambassador.  But the memory is no justification for Washington going head-to-head with a nuclear power, if necessary, more than two centuries later. 

More recently Polish personnel have served “responding to the challenges faced by the global community, such as humanitarian disasters or terrorist threats.”  Presumably Warsaw took those stands to serve the “global community,” and not as a pay-off for an American defense guarantee. 

If Poland did act for more self-interested reasons, the U.S. got by far the worse deal.  Warsaw provided marginal aid in wars that America should not have fought.  In exchange Washington is supposed to prepare for global war with Russia. 

Yet the Polish government seems to assume a sense of entitlement.  Minister Sikorski and his colleagues insist on concrete “reassurance.”  At the same time, Poland won’t sacrifice to build up its own military. 

Ambassador Schnepf proudly announced that “Polish authorities pledged to spend 2% of GDP on defense expenditures, thus being one of very few Alliance members to reach this NATO benchmark.”  That’s not much of a standard, however.

Despite enjoying rapid economic growth, Warsaw has made no extra effort to improve its defenses as a “front-line state.”  Instead of doing more, Poles want America to do the job for them, by establishing a military tripwire at their border.

Which leaves the ambassador to argue, who cares about strategic importance?  Washington should guarantee Poland’s security because the Poles are nice people.  Of course, it’s always easier to be generous with other people’s lives and money, especially on your own people’s behalf.

Moreover, there are lots of nice people in the world.  But that’s no reason to turn Washington into the guardian for them all.  The U.S. should maintain alliances only when doing so makes Americans safer.  Backing Poland against Russia does not. 

There is much to appreciate about Polish-American ties over the years, even centuries.  So, too, should Americans sympathize with the fact that Poland is located in a bad neighborhood.

However, neither point is an argument for defending Poland.  The promise to go to war should be limited to cases where the American people have fundamental, even vital interests at stake.

Supreme Court Grants Cert In Wartime Suspension of Limitations Act Case

Should courts allow the federal government to ignore time deadlines for filing suit on the grounds that there’s a war on, even though it’s been 70 years since the end of the war on which such a delay was premised? On Tuesday the U.S. Supreme Court granted certiorari in a case raising that question, Kellogg Brown & Root Services, Inc. v. United States ex rel. Carter. I wrote about the issue last year; an excerpt:

War is the health of the state,” wrote Randolph Bourne a century ago—from the special war taxes that can linger for a century, to the mohair subsidy program from Korean War days, to New York City’s wartime emergency rent controls, to the many incursions on civil liberties that don’t get rolled back afterward. War, it now turns out, can even give a boost to the lawyers who represent the federal government in civil litigation, magically transmuting losing cases into winners….

In 1942, not long after the Japanese attacked Pearl Harbor, Congress passed the Wartime Suspension of Limitations Act (WSLA), providing that the statute of limitations would be suspended (or “tolled”) on claims of defrauding the federal government until hostilities had ended. When the Japanese surrendered three years later, Congress left WSLA on the books, where nearly everyone forgot about it. …

A few years ago the U.S. Department of Justice decided that the old law entitled it to file various civil fraud lawsuits for which the ordinary statute of limitations had passed, because we were after all at war in Iraq and Afghanistan – even though the original statute applied on its face to criminal rather than civil cases, although the newer wars unlike World War II do not call for all-consuming national focus that might pre-empt the ordinary course of business, and although the subject matter of most of the cases has nothing whatever to do with national defense or war or Afghanistan or Iraq. A couple of appeals courts have agreed with DoJ’s excuse, which has emboldened the government to roll out the theory to many other cases. That leaves business lawyers to fret, as I wrote last year, about “when, if at all, they can safely advise clients that a potential dispute is too old to worry about. If truth is the first casualty of war, perhaps the fairness of dispute resolution is the next.”

The Supreme Court now offers them a ray of hope – and in a more sensible world Congress would do so as well, by agreeing to revisit WSLA.

RIP Christian Führer, East German Peace Activist

In the early 1980s a church in Leipzig, East Germany’s ­second-­largest ­city, began holding “peace prayers” on Monday night. Two young pastors, Christian Führer and Christoph Wonneberger, at the Nikolaikirche, or St. Nicholas Church, led the services. As Andrew Curry wrote in the Wilson Quarterly, it was a dangerous undertaking, but the church was the only place where any dissent could be cautiously expressed. “The church was the one space someone could express themselves,” Führer said. “We had a monopoly on freedom, physically and spiritually.”

Through the 1980s, as Curry reported, the Monday meetings grew. Gorbachev’s reforms gave Eastern Europeans hope. But they knew their history.

In 1953, workers in 700 East German cities declared their opposition to the Unified Socialist Party of Germany, or SED, the party that was synonymous with the East German state, and demanded the reunification of the country. Soviet soldiers fired on demonstrators, and more than 100 were killed. In the years since, all opposition movements in the Soviet bloc had met the same fate: “’53 in Germany, ’56 in Hungary, ’68 in Prague, ’89 in ­China—­that’s how communism dealt with critics,” ­Führer says. 

Suddenly in 1989, with a breach in the Iron Curtain between Hungary and Austria, and Solidarity winning an election in Poland, more people started showing up for peace prayers, more than the small church could hold. People started flooding out of the church and marching with candles through Leipzig. Week by week that fall, more people joined the marches – hundreds, then thousands, then 70,000, 150,000, 300,000. And then, unbelievably, the Communist Party fell, the Berlin Wall opened, and East Germans were free after more than 40 years. As a Leipzig politician told me in 2006, “As it says in the Bible, we walked seven times around the inner city, and the wall came down.”

I was saddened to read that Christian Führer died Monday in Leipzig at 71. “Führer” is a German word meaning “leader.” Christian Führer was truly a Christian leader.

I talked about the Monday prayers and the fall of communism in this 2012 speech:

Dear ISIS, Welcome to State-building…

ISIS’s public declaration that it has restored the caliphate has been noted as a bold move, potentially changing some elements of their revolutionary calculus.  Even without such a pronouncement, however, rebel groups like ISIS always share some of the same challenges as states do—broadly speaking, both rebels and states are better off if the majority of their residents comply with their demands.  Far from a declaration of outright victory, ISIS’s announcement has simply underscored a number of interrelated challenges that all rebels and states face.

In other words, ISIS now faces the same problems as its enemies.

  1. Factionalization, and disarmament:  The very Sunni militias who facilitated ISIS’s sweep into Iraq may now pose a similar threat to ISIS control as they did to the Iraqi state.  Elements of the Iraqi military scattered in the face of ISIS’s most recent onslaught, due to a variety of factors, including commanders who were incompetent or had other loyalties, and lack of local support.  The strength of the partnership between ISIS and local discontents seems variable at best.  Tension is already showing in these partnerships, which may fracture entirely if ISIS does not undertake serious efforts to solidify these alliances—efforts which may well involve negotiating and compromising around contradictory aims, and tensions between grander ideological goals and local dissatisfactions.
  2. Disarmament: ISIS now faces the same risk as the Iraqi state—erstwhile allies, if left out of the group’s internal processes, or holding different goals or religious/political preferences may resist ISIS control.  Seemingly well aware of this possibility, ISIS is now attempting its own version of DDR (the practice of disarming, demobilizing and reintegrating combatants that often bedevils post-conflict resolution), demanding local fighters swear allegiance to ISIS, and lay down their weapons.
  3. Territorial control: Factionalization also gives ISIS the same challenge of territorial control as the Iraqi state.  The loss of Mosul and other areas of northern Iraq was a political and military setback for the Iraqi state.  Even before the pronouncement, ISIS touted much of its claims to victory in territorial terms, and has certainly sought to retain the control it has gained in Syria.  In Iraq, participation of local Sunni resistance aided ISIS’s territorial sweep.  Loss of local allies may yet cost ISIS some of this control.   After all, many of these local Sunni forces are the same that first joined in resistance to American forces, and welcomed, but then expelled ISIS’s precursor Al Qaeda in Iraq.
  4. Running the caliphate:  As the BBC’s Jim Muir notes, “if the caliphate project is to take root, it will need administrators and experts in many fields, whom Abu Bakr al Baghdadi is clearly hoping will flood to heed his call.”  ISIS has demonstrated some capacity to do this in Syrian cities like Raqqa, where observers note its extensive and coercive reach into residents’ lives.  But as any administrator will tell you, competent technocrats are not necessarily easy to come by.  For ISIS, much may depend on how its declaration of the caliphate is taken among well-qualified individuals elsewhere, and the group’s willingness to engage in the compromise and politicking to build alliances.  It is possible well-qualified personnel may find ISIS’s announcement attractive (augmented by the group’s ability to pay them, at least for now).  But such individuals often bring with them their own political and religious preferences.  If ISIS refuses to compromise, it will be fishing for administrators in a doubly shallow pool of those with sufficient competence and affinity for its particular ideological brand.  Moreover, if ISIS does attract quality personnel, using them for administrative demands means the group cannot simultaneously use their skills in leading or planning attacks to expand or defend ISIS territory.

ISIS’s breathtaking victories and their proclamation that it has reestablished the caliphate have produced widespread alarm.  But this headline-ready proclamation simply emphasizes a wider irony—ISIS’s conquests saddle them with the same challenges of state building as the Iraqi state they’ve pushed back.  The past decade has ample evidence that proclaiming, “mission accomplished” vis-à-vis Iraq does not guarantee success.

ISIS’s success, and the weaknesses of the Iraqi state it highlights, cannot be dismissed.  But neither can their military and media victories indefinitely paper over the hard realties of governance. 

At the moment, ISIS has the advantage of momentum, cash, and an internally dysfunctional adversary.  But it is early days yet, and it remains to be seen how ISIS will fare against these challenges.  It must decide how much it is willing to compromise and negotiate to build robust alliances out of partnerships that may thus far have been more opportunistic.  It must recruit and allocate both financial and personnel resources to managing the territory it holds, and in which its pronounced caliphate resides.  ISIS’s ability to further expand its territories or pose a threat to other states depends in large part on its choices and abilities to address these challenges.