Operation Decisive Failure

A front page story in today’s Washington Post highlights that the failure of the U.S.-backed, Saudi-led coalition campaign in Yemen is already becoming apparent:

Two weeks into a Saudi-led military campaign in Yemen, airstrikes appear to have accelerated the country’s fragmentation into warring tribes and militias while doing little to accomplish the goal of returning the ousted Yemeni president to power, analysts and residents say.

Foreign Policy makes similar points:

Through its backing of Saudi Arabia—with bombs, intelligence, refueling, and search-and-rescue capabilities—and Riyadh’s military intervention in Yemen, the United States is effectively at war with the impoverished land that occupies the southwestern heel of the Arabian Peninsula. That war is going spectacularly badly.

None of this should be surprising. Yemen’s history is replete with tribal conflict and failed invasions, as I highlighted yesterday in the New York Times. Yemeni insurgencies have defeated the British, the Egyptians, and the Saudis in the last 50 years alone.

Cuba and the State Sponsors of Terrorism List

President Obama has signaled that his administration may remove Cuba from the state sponsor of terrorism list. The change should have occurred years ago, but would be particularly appropriate now, at a time when the United States is trying to resume economic and diplomatic ties with the country. Cuba’s inclusion on the list is a major sticking point in these negotiations. 

It is reasonable to surmise that the defenders of the Cold War-era embargo, including Senator Marco Rubio and the editors of the Wall Street Journal, oppose a change in Cuba’s terror sponsor designation because they want to thwart normalization. They ignore the fact that the embargo has failed to bring about regime change in Havana, and has similarly failed to expand the freedoms of innocent Cubans caught in the middle of the running dispute between Washington and Havana. The WSJ notes, for example, that the Cuban government’s repression of political dissidents and human right activists continues, but doesn’t explain how a continuation of the status quo will force a change in Havana’s behavior. 

Indeed, the embargo hasn’t merely failed. It denies Americans their basic rights to trade with and travel to the country. It also functions as a convenient excuse for the Castros and their cronies when they are pressed to explain why Cubans lag well behind others in the Western Hemisphere in terms of economic development and basic living standards. It says a lot about the magnanimity of the Cuban people, who have been lied to for so long about U.S. intentions, and who have been told that America is to blame for their misery, that they still retain a measure of affection for their neighbor to the north. If removing Cuba from the list hastens the process toward normalization, that might be reason enough to do so.

But the best reason for removing Cuba from the state sponsor of terrorism list may be because Cuba does not appear to be a state sponsor of terrorism. As a story in today’s Washington Post notes, “In many ways, the U.S. designation, first imposed in 1982, is a Cold War relic. Although the United States strongly objects to Cuba’s domestic policies, it has offered no evidence for decades that Cuba is actively involved in terrorism abroad.”

This situation is not unique to Cuba. The terror sponsor list has become a catch-all for countries we don’t like very much, including for other reasons – human rights abuses, weapons proliferation, and general roguish behavior. Countries should be scorned, and perhaps even sanctioned, for such activities, but casting them as terrorist sponsors when they clearly are not renders the entire enterprise farcical. CFR’s Micah Zenko makes a great case for abolishing the state sponsor of terrorism list entirely. 

The president is unlikely to make such a dramatic step, of course, but he could push to ensure that it includes those states that actually do sponsor terrorism. An accurate list would likely include a number of long-time U.S. allies, which, no doubt, would make for some awkward embassy cocktail parties.

Is Rand Paul Arnie Vinick?

Rand Paul might take some inspiration from the final season of NBC’s late, lamented The West Wing. In that final 2005 season, presidential candidates battled to succeed President Jed Bartlet (Martin Sheen). The eventual nominees were Democratic Rep. Matthew Santos (Jimmy Smits) and Republican Sen. Arnold Vinick (Alan Alda).

Peter Funt, son and heir of Candid Camera creator Allen Funt, wrote in 2008 that the West Wing writers were in touch with Obama strategist David Axelrod as they created the Santos character, who was sort of a “test market” to “soften up millions of Americans for the task of electing the first minority president.” And he noted that Obama’s staffers “especially like the ending” of the West Wing plot, in which Santos narrowly defeats Vinick.

But Funt left out the part that might make Paul supporters optimistic. After the libertarianish Vinick got the Republican nomination, former Democratic strategist Bruno Giannelli (Ron Silver) went to him and told him that with his image he could win a landslide victory: You, he said, “are exactly where 60 percent of the voters are: Pro-choice, anti-partial birth, pro-death penalty, anti-tax, pro-environment and pro-business, pro-balanced budget.”Now, that’s not exactly Rand Paul’s policy portfolio. But Paul’s positions similarly cut across partisan divides and just might appeal to that same 60 percent majority.

The high point of the West Wing campaign was a debate that broke the rules of both presidential debates and television drama: The “candidates” threw out the usual formal debate rules and just questioned each other, and the actors improvised their questions and answers on live television from a partially written script. They actually did two live performances that night, for the East Coast and the West Coast.

Republicans Are Poised to Raise Spending

Republicans control both chambers of Congress. Republicans trumpet their desire to cut federal spending and control the growth in entitlement programs, but a number of their actions over the last month suggest otherwise.  

First, Congress is supporting large increases to defense spending. The Budget Control Act (BCA) of 2011 sets defense spending at $523 billion for fiscal year 2016, but both chambers want to provide more funding while getting credit for honoring its previous promises. Each chamber authorized $96 billion in additional funding for 2016, using the Overseas Contingency Operations (OCO) slush fund to get around BCA spending caps. That exceeds the $58 billion requested by President Obama for OCO. It also exceeds the $74 billion spent in OCO for fiscal year 2015. In total, Congress will authorize $619 billion in defense spending for fiscal year 2016.

Second, Congress is set to increase spending with its repeal of the Sustainable Growth Rate (SGR). The SGR, passed in 1997, attempts to limit the growth in Medicare spending by cutting payments to doctors if Medicare grows too quickly. Historically, Congress has been hesitant to actually allow the payment cuts to go into effect, so it instead has delayed the cuts 17 times in 13 years.

House Speaker John Boehner and House Minority Leader Nancy Pelosi negotiated a deal in March to eliminate the SGR permanently. In exchange, small reforms to Medicare would be made. However, the deal would expands the deficit. The Congressional Budget Office estimated that the SGR repeal package would increase the deficit by $141 billion over 10 years.

The House  passed the deal with an overwhelming margin, 392–37, throwing fiscal restraint out the window. The Senate is expected to consider the legislation next week. Several senators are pushing for the Senate to pay for the bill before passing it, but their success is far from certain.

Third, Rep. Paul Ryan (R-WI), chairman of the House Ways and Means Committee, is suggesting that Congress could support higher spending than in its budget resolutions. Ryan voiced support for a deal between Congress and the president to hike spending. As then-chairman of the Budget Committee, he negotiated a similar deal in 2013 that increased spending for fiscal years 2014 and 2015, but promised that spending cuts would resume after that. At the time he said, “We are not turning the sequester [automatic spending cuts] off, we are just giving a little bit of short-term relief for the sequester.” Now, he is suggesting providing more sequester relief for fiscal year 2016, the first year following his original deal.

Ryan has a long history leading the House GOP Conference on budgetary issues. He likely represents the majority view on the issue. Further, the White House has said that it will not support spending bills that match the budget resolution amounts, suggesting that a deal needs to be struck. But Ryan’s statements basically concede the negotiations before they even begin. Higher spending is coming.

It is less than 100 days into the new Republican Congress, and Republicans are already disappointing fiscally conservative voters on spending restraint. Multiple actions over the last month suggest that Republicans may be no more committed to spending restraint than President Obama and the Democrats.

Rule by ‘Dear Colleague’ Letter: The Department of Education’s Stealth Regulation

We’ve noted repeatedly how the U.S. Department of Education, using authority it claims under Title IX and other federal laws, has arm-twisted the nation’s colleges and universities into stripping away procedural protections for faculty and students facing charges of sexual misconduct, sought to regulate speech as “verbal conduct,” and urged colleges to record microaggressive behaviors that do not rise to the level of harassment or assault but might add up in time to some future pattern. The resulting federal pressure has done much to generate a campus atmosphere in which administrators like those at the University of Virginia react even to unsubstantiated and soon-refuted assault claims with harsh crackdowns directed at whole groups of students against whom no misconduct whatsoever has been charged.

The substance of what the feds have been doing in this area has rightly stirred outrage, but another side of it also deserves scrutiny: it’s based on sheer fiat, on a series of “because we say so” edicts. A few recent items:

  • Early this year, the Senate Health, Education and Labor Committee released “Recalibrating Regulation of Colleges and Universities,” the lengthy report of a group called the Task Force on Federal Regulation of Higher Education with assistance from the American Council on Education. The federal government, according to the report, has entangled colleges in a continually expanding “jungle of red tape” (the Department of Education now “issues official guidance to amend or clarify its rules at a rate of more than one document per work day”). Not only does the department’s regulatory process (see pp. 32 et seq.) generate new rulemakings that are not well grounded in statutory authority, but it regularly takes the form of “Dear Colleague” letters, informal field advisories, and other “subregulatory guidance” that dodges the important legal safeguards of actual rulemaking, such as notice and comment to the public and the generating of a decisionmaking record well suited to judicial review (pp. 35–37). The crackdown on college discipline famously has taken the form of a “Dear Colleague” letter and associated guidance, not a formal regulation.
  • Both the task force report and our friend Hans Bader of the Competitive Enterprise Institute show how the Department now routinely uses these free-floating processes to extend regulatory burdens across a whole range of issues, not just Title IX: rules on for-profit college performance, Clery-law crime reporting, disability-based harassment (on which more, and note the push for school authority over students’ off-campus social media use), race-conscious K–12 discipline, information collection, and on and on.
  • Boston College Prof. R. Shep Melnick, an expert on regulatory procedure, casts a critical eye on the enforcement practices of the Department’s Office for Civil Rights (OCR) in this Liberty Law Forum podcast (and don’t miss Michael Greve’s eloquent reactions here and here, focusing on OCR’s interpretation of “disparate impact” theory to devise new guidance on what it calls “resource comparability” between schools). Relatedly, a symposium in the Federalist Society’s Harvard Journal of Law and Public Policy last year examined possible remedies to stealth or back-door regulation [see John Graham and James Broughel’s summary]

All that brings us to the big question: were someone to challenge OCR’s kangaroo-court regulations on college discipline, would they stand up in court? David Bernstein at Volokh Conspiracy in November offered three reasons why they might not. It may be difficult to persuade a college to serve as a test case, given the annihilating possibility of a federal funds cutoff as the penalty of its presumption. But given the spectacular collapse of the University of Virginia allegations, might this not be a good time to try?

Event Monday: Is the FBI Creating Terrorist Plots to Stop Them?

This Monday at noon, Cato hosts “The Newburgh Sting and the FBI’s Production of the Domestic Terrorism Threat.” The event will consider how the FBI and others elements of our domestic security apparatus now generate a sense of the terrorist danger that they combat. David Heilbroner will show clips from his 2014 documentary on the Newburgh four terrorist case, which aired on HBO. Naureen Shah of Amnesty International and John Mueller of Cato and Ohio State will comment. RSVP here.

You can get a sense of the issue from this 2007 headline, from The Onion: “U.S. Counter-Counterterrorism Unit Successfully Destroys Washington Monument.” The counter-counterterrorism unit, the satirical article says, was “created in 2004 in response to the lack of terror activity since the Sept. 11 attacks,” and tasked with “raising awareness among the American public of the ‘myriad unknown threats’ that still face the country,” by demonstrating vulnerability to terrorism.

That’s make-believe, of course. No U.S. government agency has been bombing monuments, or anything else on U.S. soil. But still, like other good satire, the article gets at truth more effectively than conventional rendering of facts.

The standard view remains that the trauma of the September 11 attacks awakened Americans to their vulnerability to terrorism from without and within—terrorists groups overseas like al Qaeda and the “lone-wolf” self-starters they inspire. While our leaders, over the last decade, have become less prone to warn of imminent apocalyptic attacks, they still mostly contend that skilled terrorists lurk among us, evaluating our vulnerabilities, exploiting technologies and always growing more diabolical. That view, of course, is what justifies several of our ongoing military campaigns, various curtailments of civil liberties, and vast expenditures of our wealth for domestic security. Its proponents cite as evidence the terrorist plots found in the country since 2001.

Postal Service Privatization

For more than a century, the federal government has pursued a misguided witch hunt against perceived monopolies in the private sector. But in a glaring hypocrisy, Congress has long protected one of the nation’s largest businesses against competition. The legal monopoly conferred on the U.S. Postal Service (USPS) is a relic. Government-run mail makes no sense in our email-dominated economy, and other nations are showing that postal privatization works. If the centuries-old Royal Mail can be privatized, then so can our USPS.

In a new study, former Clinton administration economist Robert Shapiro provides useful input to the privatization debate. He looks at the subsidies that Congress confers on the USPS, as well as the extra costs.

Here are some background facts from Shapiro: