Archives: 05/2017

Dual-Capable Cruise Missiles: Past Performance No Guarantee of Future Results

Earlier this week I attended a very thoughtful and stimulating debate on the modernization of U.S. nuclear missiles hosted by the Project on Nuclear Issues (PONI) at CSIS. The debate addressed the merits and downsides of two planned U.S. nuclear delivery system recapitalization efforts: the Ground Based Strategic Deterrent intended to replace the Minuteman III ballistic missile system, and the Long-Range Stand-Off (LRSO) cruise missile that is supposed to replace the AGM-86 air-launched cruise missile (ALCM). The ALCM is a dual-capable missile, meaning it can carry either a nuclear or conventional payload. While the LRSO is planned to be only used for nuclear missions, in a conflict scenario it would be hard to discern between it and a conventionally-armed cruise missile until the moment of impact.

One topic raised during the debate was the effect of the LRSO on strategic stability, an important and hotly debated issue. The advocates of the LRSO downplayed the destabilizing potential of the system by pointing out that the United States has used dual-capable cruise missiles in past conflicts. Concerns about strategic stability should be kept in mind, they argued, but the United States has a track record of using dual-capable cruise missiles while safely navigating such concerns.

This argument may be technically true, but it ignores a critical fact: all past uses of dual-capable cruise missiles were in conflicts with countries that did not have nuclear weapons—not between two nuclear-armed countries. Policymakers should be wary of arguments that use historical evidence to dismiss or downplay the negative effects of LRSO on strategic stability because there are no adequate past cases to test such arguments against.

Immigrants Trust American Governmental Institutions

Hudson Institute historian and political scientist John Fonte has written that immigrants are not patriotically assimilating.  Fonte blames this supposed development on many factors but frequently credits changes in public school curricula away from the nation building Americanization Movement of the Progressive Era toward a multicultural ethos today.  In previous posts, I have challenged Fonte’s claims about a lack of patriotic assimilation amongst today’s immigrants and have shown that his claims about the success of the Americanization Movement are based on anecdotes and that there as many that show it actually slowed assimilation.  

A more subtle reading of Fonte’s work is that he is worried about immigrants and their descendants weakening American political institutions by not supporting them as much as Americans whose ancestors have been here for many generations.  The General Social Survey (GSS) asks many questions of immigrants and their descendants that can help lessen Fonte’s worries. 

Appeals Court Relies Heavily on Cato Work Against the Immigration Ban

Yesterday, in IRAP v. Trump, the Federal Court of Appeals for the Fourth Circuit—which handles appeals from district courts in Maryland, Virginia, West Virginia, North Carolina, and South Carolina—upheld a preliminary injunction against portions of President Trump’s Executive Order banning entry of individuals from six African and Middle Eastern countries. On critical points, the court’s opinion and the concurring opinions cite or rely upon Cato’s work about the order.

Ten of the 13 judges found that the plaintiffs were likely to succeed in showing that the order violates the Establishment Clause of the Constitution. The court’s opinion cites Cato’s amicus brief to resolve a preliminary matter: whether the executive order—it calls it “EO-2”—“injured” any of the individual plaintiffs. The plaintiffs argued that one man in particular would be separated from his wife due to the order’s ban on visas. The government admitted that this would constitute an injury, but argued that the injury would not be “imminent” because he has offered no reason to believe that the ban on entry “will delay the issuance of [his wife’s] visa.” To this, the court responded (p. 35):

But this ignores that Section 2(c) appears to operate by design to delay the issuance of visas to foreign nationals. Section 2(c)’s “short pause” on entry effectively halts the issuance of visas for ninety days—as the Government acknowledges, it “would be pointless to issue a visa to an alien who the consular officer already knows is barred from entering the country.” Appellants’ Br. 32; see also Brief for Cato Institute as Amicus Curiae Supporting Appellees 25–28, ECF No. 185 (arguing that Section 2(c) operates as a ban on visa issuance).

Indeed, that is exactly what we argued: The executive order was designed to discriminate in the issuance of immigrant visas based on nationality, and it would at the very least delay their ability to travel to the country.

Cities Notice Decline in Latino Crime Reporting Post-Trump

Sir Robert Peel

Effective policing requires that crime witnesses and victims contact the police and that citizens trust law enforcement. Without such trust and communication crimes go unsolved, criminals run free, and victims live in fear. Sadly, it looks as if the Trump administration’s immigration rhetoric could have prompted a chilling effect on Latino crime reporting. 

The father of modern policing, the British statesman Sir Robert Peel, understood how important public approval of the police is in order for police officers to effectively do their jobs. Peel founded London’s Metropolitan Police Force in 1829. The force issued new officers with copies of “General Instructions,” which included the “Peelian Principles” of effective policing.* The second Peelian principle urges officers

To recognise always that the power of the police to fulfil their functions and duties is dependent on public approval of their existence, actions and behaviour and on their ability to secure and maintain public respect. 

Although written for officers in London, the Peelian Principles migrated to the states, where now former New York Police Department Commissioner William J. Bratton featured them on his blog and they continue to be favorably cited by law enforcement and public safety officials.

You Ought to Have a Look: Time for a New “Hiatus” in Warming, or Time for an Accelerated Warming Trend?

As you can tell from our blog volume, there’s been a blizzard of new and significant climate findings being published in the refereed literature, and here’s some things You Ought to Have a Look at concerning the recent “hiatus” in warming and what might happen to our (now) post-El Niño climate.

With President Trump still deciding on U.S. participation in the Paris Climate Agreement, new research suggests the Earth’s global mean surface temperature (GMST) will blow past the so-called 1.5°C Paris target in the next decade. But before making that ominous prediction, Henley and King (2017) provide us with a good history lesson on a taboo topic in climate science circles: the recent global warming “hiatus” or “pause” from 1998-2014. One could be forgiven for thinking the hiatus was “settled science” since it featured prominently in the 2013 IPCC AR5 assessment report. But a concerted effort has been made in recent years to discount the hiatus as an insignificant statistical artifact perhaps based upon bad observational data, or a conspiracy theory to distract the public and climate policymakers. Even acknowledging the existence of the “hiatus” is sufficient to be labeled as a climate change denier.      

Social scientists, psychologists, and theologians of all stripes feared that widespread community acknowledgement of the hiatus would wither support for climate policy at such a pivotal juncture. 

In a 2014 Nature Commentary (Boykoff Media discourse on the climate slowdown) saw the rise of the terms “hiatus and pause” in the media in 2013 as a “wasted opportunity” to highlight the conclusions of the IPCC AR5 report, which in itself ironically struggled with explaining the hiatus/pause (IPCC: Despite hiatus, climate change here to stay. Nature September 27, 2013). Amazingly, in a Nature interview a week prior to AR5’s release, assessment co-chair Thomas Stocker said this:

Comparing short-term observations with long-term model projections is inappropriate. We know that there is a lot of natural fluctuation in the climate system. A 15-year hiatus is not so unusual even though the jury is out as to what exactly may have caused the pause. 

The Renew Act of 2017

The old saying goes, “If you do the crime, you should to do the time.” In reality, however, many ex-offenders find out they’re effectively still being punished after they have served their sentence and have been told they paid their debt to society. These “collateral consequences” of arrest and incarceration include restrictions on potential jobs, housing, and benefits that help people get back on their feet. There are literally tens of thousands of restrictions at the federal, state, and local levels.

One way to alleviate some of these collateral consequences is called expungement. Expungement is a process by which a criminal conviction is effectively erased someone’s record, provided they meet certain criteria. There is already a law that allows first-time, non-violent federal drug possession offenders under the age of 21 to serve one year of probation and have the charges expunged after successful completion.

Today, Rep. Hakeem Jeffries (D-NY) and Rep. Trey Gowdy (R-SC) introduced H.R. 2617, “The Renew Act of 2017,” which expands the same expungement eligibility age from 21 to 25 years old.

Expungement expansion could make a big difference in the lives of young adults who make a mistake. Under current laws and practices, the effects of a criminal conviction can burden someone long after they’ve completed their sentence. As I’ve written before, it is simply unfair to expect ex-offenders to become productive members of society and impede their success at the same time. 

For more details, please check out this post by John Malcolm and John-Michael Seibler of the Heritage Foundation. 

Pushing Back on an Anti-Social Network

Power Ventures, Inc. offers a service to amalgamate various social-media platforms into one system; each user gives the company his usernames and passwords, including for Facebook. Facebook objected to Power Ventures’ use of Facebook in this manner and sent a cease-and-desist letter. When Power Ventures refused to comply, Facebook sued under the Computer Fraud and Abuse Act (“CFAA”).

The CFAA was designed to prevent hackers from accessing a computer system “without authorization” and has criminal penalties of up to five years in prison. The district court found that Power Ventures had indeed accessed Facebook without authorization and the U.S. Court of Appeals for the Ninth Circuit affirmed that decision. Power Ventures has petitioned the Supreme Court to review the case; Cato has filed an amicus brief supporting that petition.

We explain that there’s a split among the circuit courts as to the legal basis for an entry to be “authorized” under the CFAA. The Fifth and Seventh Circuits use agency law (scope of employer permission), the First and Eleventh Circuits use contract law (established policies), and the Second, Fourth, and Ninth Circuits use property law (the common law of trespass). The ideal resolution would involve an analogy to physical trespass, which various members of Congress involved in drafting the CFAA used to discuss the computer crimes that the law was designed to prevent.

In applying trespass law here, the facts begin to look like a landlord-tenant dispute over a third-party guest. A landlord typically can’t prevent a tenant from inviting guests to access the tenants’ property by using the common areas of the building, without a limitation in the lease. Here, Facebook’s users own the data (information, pictures, etc.) they put on the social network, as Facebook acknowledges, and there’s no guest-access restriction in the terms of service.

Many people share social-network, email, or other passwords without considering such actions to be criminal and the common law is presumed to conform to the customs of the people unless there’s explicit statutory text to the contrary. Otherwise millions of people could unwittingly be made criminals.

This is also the reason why the “rule of lenity” applies in Power Ventures’ favor, because an (at best) ambiguous statute cannot be used to punish someone.

The final reason that the Supreme Court should take the case is its importance to the online economy. Power Ventures is trying to compete with Facebook and Facebook’s ban prevents the market from being able to determine who has the better product. Many other companies, including Google, use a method of automated access similar to that which Power Ventures uses and could be imperiled by the lower court’s ruling. Internet companies need clear legal rules so they know what they can do nationwide without the threat of civil liability or criminal prosecution.

The Supreme Court may decide whether to take Power Ventures v. Facebook before it breaks for its summer recess at the end of June, or it could hold the decision over till the start of the next term in the fall.

Pages