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September 20, 2019 4:59PM

Interventionists Evade Responsibility for Their Policy Disasters

As I point out in a new National Interest Online article, a multi-sided struggle for power in Libya continues to fester more than eight years after the United States led an air war to help rebels oust longtime dictator Muammar Qaddafi. Libya joins Iraq and Syria as a classic example of the failed U.S. regime-change strategy.

Fighting between Field Marshal Khalifa Haftar’s so-called Libyan National Army (LNA) and the even more misnamed Government of National Accord (GNA) has intensified in and around the capital, Tripoli. The LNA boasted on September 11 that its forces had routed troops of the Sarraj militia, a GNA ally, killing some 200 of them. That claim may be exaggerated, but there is no doubt that the situation has become increasingly violent and chaotic in Tripoli and other portions of Libya, with innocent civilians bearing the brunt of the suffering. Throughout the years of chaos, more than a million Libyans have become refugees, many of them trying to flee across the Mediterranean in fragile, overcrowded boats and perishing in the process.

The country has become the plaything not only of rival domestic factions but major Middle East powers, including Egypt, Saudi Arabia, Turkey, Qatar, and the United Arab Emirates. Those regimes are waging a ruthless geopolitical competition, providing arms and in some cases even launching airstrikes on behalf of their respective clients.

Given the appalling aftermath of the original U.S.-led intervention, one might hope that advocates of an activist policy would be chastened, but that is not the case. The latest confirmation of continuing arrogance can be found in the new book by Samantha Power, an influential NSC staffer in 2011 and later U.S. Ambassador to the United Nations. Power’s response to the Libya horror the Obama administration created is shocking flippant. “We could hardly expect to have a crystal ball when it came to accurately predicting outcomes in places where the culture was not our own,” she contends. American Conservative analyst Daniel Larison excoriates her argument. “If Libyan culture was so opaque and hard for the Obama administration to understand,” Larison responds, it “should never have taken sides in an internal conflict there.”

Moreover, prudent foreign policy experts warned Power and her colleagues about the probable consequences of intervening in a volatile, fragile country like Libya. Indeed, Robert M. Gates, Obama’s secretary of defense, confirms in his memoir that the administration itself was divided about the advisability of intervention. The Joint Chiefs of Staff, Vice President Joe Biden, and Gates were opposed. Among the most outspoken proponents of action, though, were Power and her mentor, Secretary of State Hillary Clinton.

The existence of a sharp internal division is sufficient evidence in itself that Power’s attempt to absolve herself and other humanitarian crusaders of responsibility for the subsequent tragedy is without merit. They were warned of the probable outcome yet chose to plunge forward.

The stance of Power and other interventionists seems to be that armed global crusaders never have to say they’re sorry, no matter how disastrous the results of their policies. The American people need to reject that attitude and hold the architects of catastrophe accountable for their blunders. Such a standard should apply equally to the neocons who brought us the Iraq debacle and the progressives who created the Libyan and Syrian fiascos.

September 20, 2019 3:42PM

“We Give Qualified Immunity to Just About Everybody”

On Wednesday, the U.S. Court of Appeals for the Fourth Circuit heard oral argument for a special appeal in Betton v. Belue (18-1974). The case stems from a federal civil rights lawsuit brought by Julian Betton, who was shot and paralyzed when police officers raided his home on a marijuana charge. Officer David Belue was one of several South Carolinian 15th District Drug Enforcement Unit (DEU) officers who participated in the raid, and this week’s argument was his appeal of the district court’s denial of qualified immunity for his actions.

By now, regular readers know that Cato has been leading a campaign to abolish the qualified immunity doctrine, which unlawfully shields police officers from civil liability for violating individuals’ constitutional rights. Although the oral argument indicates that Officer Belue is going to lose his appeal, the case nevertheless shows that our civil rights laws are essential to curbing the hyperviolent police conduct that can lead to unnecessary deaths and injuries.

The facts of the case, as established by the district court, state that DEU officers used a battering ram to knock-down and enter Mr. Betton’s home without identifying themselves as officers, nor were any of the officers wearing police uniforms or other obvious indications that they were law enforcement. Mr. Betton withdrew a gun from his waistband and had it by his side when he was struck by 9 of 29 rounds fired by the intruding officers. Each of the participating officers falsely claimed that they had knocked and announced their presence before breaking into the home. At least some of the officers also falsely claimed that Mr. Betton had raised his weapon and had shot at the officers before they returned fire. For the use of force from this botched raid, Officer Belue sought qualified immunity.

In the audio file posted on the U.S. Court of Appeals for the Fourth Circuit website, the empaneled judges seemed uniformly outraged by the conduct of the officers during this raid. In particular, Judge Barbara Milano Keenan lamented, “It’s so shocking what happened in this case for a two-bit marijuana deal.”

Unfortunately, this is how our state, federal, and local governments have prosecuted and continue to prosecute the drug war. More than a decade ago, our former colleague Radley Balko wrote about the paramilitarization of American police in his seminal Cato report "Overkill," documenting hundreds of botched raids by police departments, many of which were launched against non-violent drug offenders. He subsequently wrote an excellent book about the widespread use of SWAT teams, Rise of the Warrior Cop.

The police use of “dynamic entry”—the sudden and disorienting SWAT-style raids as in the present case—are dangerous not only for the raid targets, but for the officers themselves who can be shot by individuals who don’t know the police are coming. As the court contemplates during the argument, citing the Supreme Court’s holding in D.C. v. Heller (2008), it is perfectly reasonable for a gun owner to defend himself and his home in a way that Mr. Betton did when faced with unidentified armed intruders. Here is one exchange between the court and the officer’s counsel on Wednesday*:

Counsel: “Where I think the court is drawing concern is that Mr. Betton is in his home…”

Court: “That’s pretty important: He’s in his home.”

Counsel: “Yes, sir.”

Court: “And people break down the door.”

Counsel: “Yes, sir.”

Court: “And they don’t say who they are.”

Counsel: “Yes, sir.”

Court: “And they’re not dressed as police officers. And they come in.”

Counsel: “Yes, sir.”

Court: “[So] What did [Mr. Betton] do that was unreasonable?”

The implication that any gun owner who found himself in Mr. Betton’s situation could be shot for merely possessing his gun in his home was outrageous to the judges. The judges were even more appalled by the unseriousness of marijuana possession as the reason for such over-the-top DEU action. It could only have gone worse for the officer had his counsel said, “But this is how we do our jobs!”

But given what we know about SWAT teams and dynamic entry raids, this probably is how DEU regularly does its job.

Thankfully, there is a case on point in the Fourth Circuit—Cooper v. Sheehan, 735 F.3d 153 (4th Cir. 2013)—that establishes that merely possessing a firearm in one’s home is not sufficient for police to initiate deadly force. Thus, the DEU officers’ actions violated “clearly established” constitutional protections and will not be protected by the qualified immunity doctrine.

But had the facts been just slightly different, the court may have felt its hands were tied to award Officer Belue the immunity for which he appealed. As one judge said toward the end of argument, "We give qualified immunity to [just] about everybody."

So the police continue to enforce bad laws, and they choose to do so in ways that endanger the public and themselves. Shielding officers from legitimate lawsuits not only injure those who have had their rights violated but also protect the bad laws and policies that lead to horrific and predictable tragedies.

You can listen to the argument audio at the Fourth Circuit's website. Check out Cato's work on qualified immunity at our Unlawful Shield website.

*All quotes transcribed by the author in lieu of available transcript. Although not identified in the audio, the judge asking the questions here is likely Judge Joseph R. Goodwin, who previously spoke at Cato on the out-sized role of plea bargaining in the criminal system. Judge Robert B. King is the third judge on the panel.

September 20, 2019 1:36PM

How About Retroceding Washington, D.C. to Maryland?

Yesterday the House Committee on Oversight and Reform held a hearing on proposals to make the District of Columbia a state, and as he has done before, Roger Pilon, founder of Cato’s Robert A. Levy Center for Constitutional Studies, testified against the idea.

Speaking for myself, what would make more sense than D.C. statehood? Retroceding the city of Washington, or at least its residential portions, to the state of Maryland. One plan, promoted by activist David Krucoff, would turn it into Douglass County, Maryland, named after the great Frederick Douglass and conveniently retaining the initials D.C.

Maryland retrocession was long dismissed as politically impractical, perhaps because of reluctance in the Old Line State to accept the deal, but those calculations might reasonably begin to shift now that the capital city has grown exceedingly prosperous (thus making it a better fiscal bet) and has politics that no longer diverge as spectacularly from those of its neighbors to the north as in the days of former Mayor Marion Barry.

As every schoolchild is aware, the structure of the U.S. Senate was controversial then and now for allowing an equal voice to states of greatly differing populations, even though this means that less populated states like Delaware, North Dakota, and Alaska can wield the same clout in the upper House as California, Texas, and Florida. D.C. statehood proposals, understandably popular among capital city residents, would launch the fledgling 51st state near the top of the rankings, enjoying a degree of overrepresentation comparable only to Vermont, Wyoming, and perhaps one or two other states. Both the expanded and the current Maryland, by contrast, come out close to the middle of the pack, somewhere around 16th or 19th in rank. The Douglass County idea, or something similar, would as a result not materially worsen the practical disparity between big and small state representation complained of by Senate critics.

Some plans would retain a National Capital Service Area of non-residential nature (except for the White House?) to be administered directly by federal legislation. It might be noted, however, that many large and vital installations of the federal government seem to operate fine in states like Virginia (the Pentagon), Maryland (National Security Agency, Nuclear Regulatory Commission), Kentucky (Fort Knox), and so forth.

Congress originally created the District of Columbia out of land ceded by the states of Maryland and Virginia. The former sections of the capital south of the Potomac River, which now form Arlington and part of the city of Alexandria, were retroceded to Virginia in 1847.

September 20, 2019 10:05AM

R.I.P. Earl Ravenal (1931−2019)

I was saddened to learn of the recent passing of Earl Ravenal, a one-time member of Cato's board of directors, long-time senior fellow and distinguished senior fellow, and an important voice in the development of the case against global interventionism in the 1970s and 1980s.

He taught international affairs for many years at Georgetown University, and was the author of several books and monographs, as well as countless papers and articles, including Never Again: Learning From America's Foreign Policy Failures (Temple University Press, 1978), and this gem, from way back in the Cato archives, "Reagan's 1983 Defense Budget: An Analysis and an Alternative" (Policy Analysis no. 10).

In his sweeping history of the libertarian movement, Radicals for Capitalism, Brian Doherty describes Ravenal as "a foreign policy intellectual of real-world heft." He was active in Libertarian Party politics, and was responsible for writing LP presidential candidate Ed Clark's campaign statement on foreign and defense policies in 1980.

Ted Galen Carpenter, who preceded me as Cato's vice president for defense and foreign policy studies, recalls "Earl was nearly unique in the 1970s and 1980s in being regarded as a serious scholar by much of the foreign policy establishment, despite his unorthodox views. That status made him a true trailblazer for those of us who reinforced the case for realism and restraint. Without his pioneering work, our task would have been far more difficult."

Another Cato colleague remembers Earl's dogged effort to assess the share of the Pentagon's budget that was geared toward defending Europe and Asia during the waning days of the Cold War. This was a daunting task, given that such spending is fungible, and the things that it buys mobile. A ship in Norfolk can be deployed to the Mediterranean, but also to the Persian Gulf, or even the Pacific Ocean (it just takes longer). Planes fly. Even troops can be relocated -- though their bases less easily. In the face of such complexity, most people simply shrugged their shoulders: "Who knows?" Ravenal improved public understanding of America's military posture in the early 1980s by forcing a discussion of these costs into the debate.

As a young Cato fan in the late 1980s and early 1990s, I encountered many of Ravenal's books and articles on foreign and defense policy. The most influential was arguably Designing Defense for a New World Order, published in 1991. I (somehow) managed to locate it on my bookshelf, and discovered countless highlighted passages, and earnest comments and questions in the margins.

Earl's family reports that he passed away on August 31, 2019. He was 88 years old. I extend to them my sincere condolences.

A memorial service will be held in his honor next month at the Cosmos Club on Sunday, October 27 at 2 pm. The public is welcome.

September 20, 2019 10:02AM

Federal Protection of Cave Spiders Is Driving Property Owners Up the Wall

Much like lawyers, spiders don’t drum up warm feelings for most people. It’s probably because both are known for spinning webs. Unlike lawyers, however, the federal government has placed some spiders on the endangered species list—and not just big ones, but ones so small that it takes 14 surveys of a cave to even make sure they’re there. One such spider, the near-invisible bone cave harvestman, is found only in a small section of Texas and resides in an unknown number of underground caves.

It’s easy to imagine a property owner’s shock when he finds out his land is teeming with these small spiders and that he could face hefty fines if he accidentally steps on one. This sort of mistaken squashing, defined as a “take,” is prohibited by the Endangered Species Act (ESA). The ESA is a well-known and popular law, but its scope is much bigger than bald eagles and polar bears. The ESA takes an all-or-nothing approach to species preservation: save all the species, all the time, no matter where they are, no matter the cost. That may sound good in theory, but individual property owners are often immensely harmed due to the presence of an endangered species--whether insect or soaring eagle--on their property. People often speak of the ESA in high-minded, collectivist language: "we have decided that we want to preserve these species forever and in order to do so we will pay whatever the cost." In reality, the costs are often paid by Bob the farmer or Ted the logger, who never get compensation for the costs they are purportedly bearing for "us." In reality, most people would be willing to pay relatively little to preserve most of the species on the endangered species list, but they are quite willing to let Bob and Ted bear the costs.

As an act of Congress, the application of the ESA to the bone cave harvestman must be constitutionally authorized. This is different than justifying the ESA more generally. The ESA covers many species, and many of those species have some connection to commerce and thus they have a connection to Congress's power to regulate interstate commerce. But the bone cave harvestman is utterly devoid of commercial value—it’s not a delicacy, no one is making necklaces out of them, and no one is traveling from other states to see them, etc.—but the government still claims the Commerce Clause allows it to list the spider as endangered and impose harsh penalties for a “take.”

Article 1, Section 8 of the Constitution grants Congress the limited power to regulate commerce between states. Taken at face value, the Commerce Clause would allow the federal government to control the movement and sale of goods that affect the national market—for example, gasoline and other commodities. It wasn’t written to justify federal regulation of noncommercial activities, goods, or species. Yet, the government does precisely that when it uses the ESA to punish property owners for interfering with a nearly undetectable spider that has no commercial value at all.

Cato, joined by the Southeastern Legal Foundation and the Mountain States Legal Foundation, has filed a brief in the Fifth Circuit Court of Appeals in Yearwood v. Department of the Interior. We argue that listing the bone cave harvestman under the ESA goes too far in the otherwise admirable goal of preserving wildlife. In NFIB v. Sebelius--the challenge to Obamacare’s individual mandate--the Court ruled that someone who hasn’t purchased health insurance could not be forced to do so under the Commerce Clause (but, alas, they can be made to pay a “tax”). Despite ultimately losing that case, the decision is still an important precedent for the limits of the Commerce Clause. The bone cave harvestman is like someone who hasn’t purchased health insurance. The creatures are not in the stream of commerce and their mere existence can’t be said to put them in congressional jurisdiction. If that were true, then every animal in the country would be within Congress's Commerce Clause jurisdiction, a ridiculous result. Exempting the tiny spider would not require striking down the entire ESA. Surely, the safety of red wolves, blue whales, and spotted owls does not depend on a tiny spider’s appearance on the Endangered Species List. The Commerce Clause has grown far too many legs, and the Fifth Circuit should prevent it from endangering our constitutional order.

September 19, 2019 4:05PM

Justice Department Responds in Steel Tariffs Case

The Justice Department today filed its brief in American Institute for International Steel v. United States before the U.S. Court of Appeals for the Federal Circuit. At issue are President Trump’s steel tariffs. Last month, the Cato Institute filed a brief in support of the appellants, who are businesses that rely on imported steel and have been harmed by the tariffs. 

The government’s response brief, alas, is excellent.

Faced with arguments that the president is unbound, the government points to putative procedural rigor behind the tariffs. In response to arguments that the Constitution empowers Congress—not the president—to regulate foreign commerce, the government stresses the president’s executive authority over foreign affairs. Quite obviously, the Justice Department's brief reflects the work of skilled lawyers.  

Notably, Cato’s brief seems to have registered with the government. On the one hand, the government dismisses Cato's input altogether. In the brief’s first footnote (page 15), the Justice Department alleges that we tried to “expand the issues of the appeal beyond those presented by the appellant in its opening brief,” and, therefore, that the court should not pay attention to our arguments. Notwithstanding this footnote, the government references the Cato Institute by name in the body of the brief and, furthermore, spends an entire subsection (III.B) addressing Cato’s arguments about judicial oversight.

Here, I'd be remiss if I failed to rebut the government's incorrect charge that Cato improperly attempted to expand the scope of the appeal before the Federal Circuit. In a nutshell, Cato's brief demonstrates that the trial court mistakenly denied itself the authority to review the president's steel tariffs. Because all federal courts always have jurisdiction to determine the bounds of their own jurisdiction, Cato's contribution falls squarely within the proper purpose of a friend-of-the-court brief. In its amicus brief, moreover, Cato argues that if judicial review is unavailable, then there can be no "intelligible principle" to limit the president's actions, which is precisely what the appellants claim. Of course, the best evidence for the appropriateness of Cato's brief is the fact that the government spent so many words engaging with Cato’s arguments. It doesn't make much sense for the government to say that we should be ignored, but then to respond to us. As always, actions speak louder than words. 

September 19, 2019 1:31PM

Bringing Drug Use Out of the Shadows Reduces Harm to the Community as Well as to Users

Many critics of marijuana legalization raise concerns that marijuana dispensaries might serve as loci for increased local criminal activity. Now there is empirical evidence that just the opposite occurs.

A new study reported in the September issue of Regional Science and Urban Economics examined local crime rate data from 2013 through 2016 in Denver, Colorado, where legal cannabis sales to adults began in 2014. The researchers reported:

The results imply that an additional dispensary in a neighborhood leads to a reduction of 17 crimes per month per 10,000 residents, which corresponds to roughly a 19 percent decline relative to the average crime rate over the sample period. Reductions in crime are highly localized, with no evidence of spillover benefits to adjacent neighborhoods.

The study found that the majority of the crimes reduced were of a nonviolent nature.There were no changes in the number of cannabis-related crimes near dispensaries, but there was a decrease in the number of crimes related to methamphetamine, cocaine, and heroin. The authors speculated that this may be in part due to the increased presence of law enforcement near dispensaries serving as a deterrent to criminal activity.

The authors stated they did “not find increases in marijuana crimes such as cultivation, possession, or sales nearby,” and no increase in crimes associated with marijuana intoxication, “since there is essentially no change in the number of crimes with marijuana as a ‘contributing factor’ near locations that gain dispensaries.”

A 2017 study in Preventive Medicine with a more limited time range looked at crime rates in South Los Angeles, examining local crime rates in neighborhoods surrounding medical marijuana dispensaries (MMDs), tobacco shops, and alcohol retailers, from January through December 2014. The researchers found no increase in crime rates related to the presence of medical marijuana dispensaries, but an increase in crime surrounding tobacco and alcohol outlets:

Results indicated that mean property and violent crime rates within 100-foot buffers of tobacco shops and alcohol outlets—but not MMDs—substantially exceeded community-wide mean crime rates and rates around grocery/convenience stores (i.e., comparison properties licensed to sell both alcohol and tobacco).

While these studies should help alleviate concerns raised by marijuana prohibitionists about the effect that legalization may have on local crime, similar arguments are used by those who oppose the creation of Safe Injection Facilities for IV drug users. As I have written here, SIFs have been working to reduce overdoses and the spread of disease since the 1980s in more than 120 cities in Europe, Canada and Australia, and there is an “underground” SIF functioning in the US illegally since 2014. Federal law prohibits Safe Injection Facilities in this country, and the Department of Justice is stifling efforts to establish them in Philadelphia, Seattle, San Francisco, Boston, and New York City.

Among concerns raised by opponents is that they will be a magnet for IV drug users, creating a visual disturbance to neighborhood residents. The counter-argument is that SIFs will actually bring the drug users in off the streets, letting them use their drugs out of the view of young impressionable children and other nearby residents, and will reduce the presence of used needles on the streets and sidewalks.

Another concern is that SIFs may be loci for criminal activity. But, as in the case of marijuana dispensaries, those concerns, while understandable, are not borne out by the evidence. A 2017 systematic review by Canadian researchers reported in Current HIV/AIDS Reports found Supervised Injection Facilities were “associated with improvements in public order without increasing drug-related crime.”

The takeaway from all of this is that bringing drug use out of the darkness of the underground reduces harms to those who don’t engage in drug use as well as those who do.