Will Congress Act to End the War in Afghanistan?

This week, Senators Rand Paul and Tom Udall introduced a joint resolution to end the war in Afghanistan. This legislation gives the Department of Defense 45 days to formulate a plan for the withdrawal of all U.S. troops within one year. This new plan would accelerate the Trump administration’s current timetable to withdraw after 5 years. President Trump campaigned on leaving Afghanistan and has reiterated this interest since taking office. This bill will give him the opportunity to make good on his campaign promise during his first term.

My colleague Christopher Preble argues in The National Interest:

The case for this resolution is simple and straightforward. The U.S. military has achieved its core objectives spelled out after 9/11. Bin Laden is dead. Al Qaeda is crippled. The Department of Defense reported last June: “The Al Qaeda threat to the United States and its allies and partners has decreased and the few remaining al Qaeda core members are focused on their own survival.”

…The Paul-Udall resolution is consistent with the wishes of the American people, 61 percent of whom support withdrawal, whereas advocates for war-without-end openly defy public sentiment. The latter should explain why the American people’s views are irrelevant.

Many in Washington don’t want to leave until America “wins” the war, though it’s not clear at this point what victory would look like. They fear a complete U.S. withdrawal and a return to Taliban rule will make Afghanistan a sanctuary for terrorists to launch transnational attacks against America and its allies. But as I argue in the New York Daily News, the fear of a safe haven is misplaced:

Al-Qaeda’s presence Afghanistan in the lead up to 9/11 did not have real operational utility in perpetrating the attacks on New York and Washington. The attacks were also planned from Germany and Malaysia, and even the United States itself. In an age of instant global communications, a territorial haven in remote, land-locked Afghanistan isn’t much help to terrorist groups plotting to attack the west.

In any case, terrorism is not some kind of existential peril warranting perpetual war. It is a relatively minor and manageable threat. One estimate, employing standard risk analysis, found that in order to even begin to justify the $75 billion in annual anti-terrorism homeland security expenditures, there would have to have been about three 9/11 attacks every four years.

Afghanistan has cost about $2 trillion on top of that. Most people who attempt to commit terrorist attacks here in the United States are home-grown and there is no evidence – none – that battling insurgents there has deterred terrorist attacks here. Clearly, the resources we spend on the war exceed any plausible benefit to national security.

In any case, in negotiations with Zalmay Khalilzad, Trump’s special envoy to Afghanistan, the Taliban have agreed in principle to deny al Qaeda a presence in the country going forward. We should take that as a fair compromise and begin the business of getting out.

Critics are right to warn that things may get nasty following U.S. withdrawal, but, as with Iraq, that will be true no matter when we decide to leave. Another five years won’t erase that problem.

As I conclude in my op-ed: “Watching democracy roll back in Afghanistan will be difficult, but it should serve as a reminder that the nation-building mission we elected to adopt after the fall of the Taliban in 2001 was a lost bet from the beginning…Policymakers must learn the limits of U.S. power and refrain from adopting ambitious missions for peripheral interests. Refusing to fight unwinnable and unnecessary wars is the first step to not losing them.”

If adopted, this resolution could have implications beyond Afghanistan, as it calls for a repeal of the 2001 Authorization for the Use of Military Force, which the executive branch continues to dubiously rely on as the legal permission to engage in hostilities in numerous countries around the world. As my other colleague Gene Healy and I argued in the New York Times last year, repealing (and not replacing) the AUMF is long overdue. 

President Trump’s Campus Speech Order

President Trump has waded into the ongoing campus free speech controversy—or should I say “cannonballed” in off the high dive. Though lacking in details for now, Trump promised conservative activists at CPAC in Washington, D.C. that he would soon issue an executive order “requiring colleges and universities to support free speech if they want federal research dollars.”

Though debate rages over the nature and extent of the problem—after all, higher education is a vast and complex domain—it must be said that Trump’s objective is highly defensible. Who except would-be censors and narrow-minded political activists thinks free speech is not vital to higher education and the country? And fair minded observers agree that free speech is at least embattled in many institutions, if not in worse shape at others. So who can argue against Trump’s promise?

Alas, my experience in free speech politics and higher education informs my concern that Trump’s end does not justify his means for at least two reasons. First, do we really need yet another executive order to deal with a problem that is already being addressed by many concerned citizens? We the People and our legislative representatives have kicked too many problems over to the executive/administrative branch of government to solve, weakening democratic consensus and self-government in the process. Many critics, including me, chided President Obama’s issuance of a unilateral executive order requiring transgender access to every public school bathroom in America. Though not opposed to transgender rights, we thought it best for each school or state to work out its own policy in this delicate area as a matter of principle. Is Trump’s order any different? This is true apart from the constitutional issues implicit in Trump’s statement which require separate consideration once we know the details.

Second, such an order could well backfire. To begin, the Feds often intervene with a jackhammer, unintentionally breaking things in the process. Recall how the expansive application of Title IX in sexual misconduct cases led to the evisceration of due process in campus hearings for many years. Only recently has the pendulum balancing justice for the accuser and the accused begun swinging back toward an appropriate position. As the president of the University of Chicago, perhaps the nation’s leading institution in supporting campus free speech, wrote in response to Trump’s declaration, such intervention “makes the government, with all its power and authority, a party to defining the very nature of discussion on campus.” Such power undermines institutional responsibility and could readily include chilling the voices of those whose politics differ from whatever group or party controls the government at the time.

Such an order could also undermine faculty free speech activists who have worked hard over the years to restore free speech and liberty on campus. If I have learned anything from the campus politics of free speech, it is that the defense of free speech must be non-partisan in both substance and appearance. Presidents are partisan, and Trump is certainly no exception. In Wisconsin, state campuses construed the state legislature’s 2017 campus free speech bill as partisan, a perspective only reinforced by other legislative measures that intruded upon university autonomy and challenged the academic freedom of some instructors. Trump’s executive order is hardly guaranteed to be helpful to local free speech activists.

There is a way that the administration could help free speech on campus while avoiding these potential pitfalls. In 2003 the assistant secretary of the Office of Civil Rights in the federal Department of Education wrote a letter to colleges and universities affirming the institutions’ obligation to apply existing harassment law in a manner that does not violate the First Amendment: “I want to assure you in the clearest possible terms that OCR’s regulations are not intended to restrict the exercise of any expressive activities protected under the U.S. Constitution.”

Rather than calling for a sweeping policy dictating how higher education institutions should deal with harassment and speech, the 2003 letter simply reaffirmed what was already obvious: in applying harassment policy, be sure not to confuse protected speech with harassment, leaving the implications to each institution and its litigation concerns. A similar letter by Secretary Betsy DeVos might help campus free speech activists, rather than complicate their cause.

*Donald Downs is is the Alexander Meiklejohn Professor of Political Science Emeritus, and the Affiliate Professor of Law, and Journalism Emeritus at UW-Madison. He is currently writing a book on campus free speech for the Cato Institute.

Trump and Congressional Democrats both Engage in Petty Partisanship about the Hanoi Summit

The recent U.S.-North Korea summit in Hanoi has become the latest domestic partisan battlefield. President Trump now implies that congressional Democrats were at least partly responsible for the failure of negotiations with North Korean dictator Kim Jong-un. His allegations are exaggerated, but they are not entirely erroneous.

The summit ended abruptly without an agreement on any issue or even the publication of a joint communique. That outcome was a surprise to many experts. Widespread expectations existed that the two leaders would issue a declaration officially ending the Korean War, and that they would establish liaison offices as the first step toward full diplomatic relations. Optimists also hoped for an agreement on initial measures toward North Korea’s denuclearization in exchange for the lifting of some U.S. and international economic sanctions.

For days following the summit, the president insisted that the meeting had not been a failure, merely one step in a very long, difficult process. He also contended that it became necessary to walk away from the negotiations in Hanoi because Kim insisted on the lifting of all sanctions merely for closing the Yongbyon reactor complex—just one of North Korea’s known or suspected nuclear facilities. The North Korean government denied Trump’s version of events, insisting that their negotiators had sought only a partial lifting of sanctions for that concession.

In a March 3 tweet, though, Trump seemed to change his argument, attacking the Democrat-controlled House Oversight Committee for holding hearings featuring the president’s former personal attorney, Michael Cohen. Trump stated that the hearings were a nasty distraction that may have “contributed to the ‘walk.’” His revised explanation is unconvincing. As late as the weekend television talk shows, National Security Adviser John Bolton was still arguing that the cause of the summit breakdown was Kim’s excessive demand for sanctions relief. Yet when Trump issued his tweet on the afternoon of March 3, it somehow became the Democrats’ fault.

The administration’s handling of the summit warrants criticism. Preparations for those delicate, complex negotiations seemed inadequate, even slipshod. The apparent confusion about the nature and extent of North Korea’s position on sanctions especially suggests a lack of professionalism or even basic competence.

But congressional Democrats don’t deserve high marks for their behavior either. Some accusations in Trump’s March 3 tweet were justified. “For the Democrats to interview in open hearings a convicted liar & fraudster, at the same time as the very important Nuclear Summit with North Korea, is perhaps a new low in American politics… . Never done when a president is overseas. Shame!”

That is a valid point. The House Oversight Committee could have postponed those hearings until after the summit—indeed, it could have scheduled them for any other time. Choosing to hold inflammatory sessions on the same days when the president was conducting extremely sensitive negotiations with a difficult foreign power, involving matters of war and peace on the tense Korean Peninsula, was inexcusable. The timing raised understandable suspicions that Democrats were trying to undermine their political opponent—and the nation’s foreign policy—for partisan reasons. Their conduct was petty at best, and dangerously irresponsible at worst.

Moreover, that was not the extent of questionable behavior on the part of Democratic leaders in Congress. Nancy Pelosi, Chuck Schumer, and other senior Democrats spent the weeks before the summit making sneering comments that Trump might well “give away the store” to Kim in exchange for empty promises. Senator Robert Menendez (D-N.J.), ranking Democrat on the Foreign Relations Committee, collaborated with hawkish Republican Senator Ted Cruz (R-Texas) to oppose ongoing U.S.-South Korean efforts to create better relations with Pyongyang. Such unhelpful behavior caused even some on the left who seek to reduce the danger of war in Korea to accuse Democrats of sabotaging prospects for progress at the summit.

The partisan posturing before and after the Hanoi summit does little to alleviate the mounting public disenchantment with both major political parties. Neither Trump nor his opponents deserve even mediocre marks for their behavior. Especially on a matter that involved the challenge of preventing a possible war with nuclear implications, the American people deserved better.

On Empty Purses and MMT Rhetoric

A couple posts ago, I criticized in general terms Modern Monetary Theorist Stephanie Kelton’s suggestion that the expense of the proposed Green New Deal need not make it “a drag on the economy” since the Fed could always foot the bill.

That post steered clear of the technical subtleties of Modern Monetary Theory, focusing rather on some of the bolder lessons its proponents like to draw from it. Today I’ll instead consider one of those subtleties, as found in the following passage from Professor Kelton’s article:

As a monopoly supplier of U.S. currency with full financial sovereignty, the federal government is not like a household or even a business. When Congress authorizes spending, it sets off a sequence of actions. Federal agencies, such as the Department of Defense or Department of Energy, enter into contracts and begin spending. As the checks go out, the government’s bank — the Federal Reserve — clears the payments by crediting the seller’s bank account with digital dollars. In other words, Congress can pass any budget it chooses, and our government already pays for everything by creating new money.

What’s so subtle about that? Actually the subtlety consists, not of any detail Professor Kelton supplies, but of one she chooses to omit. For while she scrupulously has the Fed “crediting the seller’s bank account with digital dollars,” she unaccountably forgets to mention that, to complete the clearing transaction in question, the Fed must also debit the Treasury’s own account, known as the Treasury General Account, or TGA, for short.

What difference does this make? Plenty, actually. For it means that there is, after all, a practical limit to how much Congress can spend, and that limit really isn’t all that different from those faced by ordinary households or businesses: when the rest of us write checks, our banks also end up debiting our checking accounts by corresponding amounts as the checks are returned to them for payment. That matters because at some point, if we spend too much, our bank balances will be depleted, and our checks will start bouncing.

Any Excuse to Raise Tariffs

The Trump administration seems to be looking for every possible excuse to raise tariffs. Early on it intensified the use of anti-dumping/countervailing duties and safeguard measures, which are the built-in protectionism that every administration uses. Then it dusted off some old statutes that had fallen into disuse: Section 232 (national security) to impose tariffs on steel and aluminum from around the world; and Section 301 (used to address unfair trade practices abroad) to impose tariffs on hundreds of billions of dollars of Chinese imports. And now it has a new idea for tariff increases: ending the duty-free access given to imports from some developing countries through the Generalized System of Preferences (GSP) program, and charging normal tariffs instead. Yesterday, the U.S. Trade Representative’s Office made the following announcement:

At the direction of President Donald J. Trump, U.S. Trade Representative Robert Lighthizer announced today that the United States intends to terminate India’s and Turkey’s designations as beneficiary developing countries under the Generalized System of Preferences (GSP) program because they no longer comply with the statutory eligibility criteria. 

India’s termination from GSP follows its failure to provide the United States with assurances that it will provide equitable and reasonable access to its markets in numerous sectors.  Turkey’s termination from GSP follows a finding that it is sufficiently economically developed and should no longer benefit from preferential market access to the United States market.

By statute, these changes may not take effect until at least 60 days after the notifications to Congress and the governments of India and Turkey, and will be enacted by a Presidential Proclamation.

My old colleague Sallie James wrote about the GSP program many years ago. The program is definitely flawed, and she called for some sensible reforms. But rather than reforming the program, it seems like the Trump administration is simply looking for opportunities to raise tariffs.


Unconscious People Can’t Consent to Police Searches

A reasonable expectation of privacy is one of the most fundamental rights people hold in a free society. Accordingly, the Fourth Amendment prohibits warrantless searches, with few exceptions. Police officers in Wisconsin violated that right when they drew Gerald Mitchell’s blood while he was unconscious—to test his blood alcohol content after a drunk-driving arrest. The state has attempted to excuse the officers by citing an implied-consent statute, which provides that simply driving on state roads constitutes consent to such searches.

The right to privacy is not absolute; police are allowed to search for evidence of a crime. But in doing so, they must follow procedures that comport with the Constitution. Before police conduct a search, Johnson v. United States (1948) indicates that the evidence should be judged by “a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.” The Fourth Amendment contains a simple requirement for law enforcement that is an effective bulwark against unreasonable searches: get a warrant first.

Unfortunately for Mitchell, the Wisconsin Supreme Court upheld this unconstitutional search under the “pervasively regulated business” exception, which allows for warrantless administrative inspections of certain highly regulated businesses. But this exception is quite narrow and designed to ensure regulatory compliance, not to facilitate evidence-gathering in cases of suspected of criminal activity.

The U.S. Supreme Court has only recognized four types of business to which the exception applies: liquor sales, firearms dealing, running an automobile junkyard, and mining. None of these resemble the simple act of driving a vehicle. The state court thus erroneously conflated the licensing of a driver with a highly regulated business order to justify an otherwise unreasonable search.

Gerald Mitchell is thus asking the U.S. Supreme Court to overturn the Wisconsin Supreme Court and find that this warrantless, non-consensual search violated his Fourth Amendment rights. Cato has joined the Rutherford Institute in filing an amicus brief in support of his petition. We argue for the basic notion that unconscious people can’t consent to anything, especially police searches, and that inspecting a coal mine for safety compliance—a justified exception to warrantless searches—is not the same as searching a driver’s blood in an attempt to convict him of DUI.

The Unrecognized Lesson of “Meth Crisis 2.0”

On February 21, Charles Fain Lehman wrote an important column in the Wall Street Journal alerting the public to the alarming rise in methamphetamine-related deaths in recent years. This has been occurring under our noses while the press and lawmakers focus their attention on overdoses related to opioids. 

He correctly tells readers that the recrudescent meth crisis, which I like to call “Meth Crisis 2.0: The Mexican Connection,” came about after lawmakers addressed “Meth Crisis 1.0” in 2005 with the Combat Methamphetamine Epidemic Act. That Act made it much harder for allergy sufferers to get the effective decongestant Sudafed by restricting its sales and making it “behind-the-counter” (in Oregon and Mississippi it was made prescription-only) and conducting a military-like crackdown on homegrown meth labs that had organically sprung up in neighborhoods across the country. Lehman then describes how the Mexican cartels quickly stepped in to fill the void and now supply meth users at record levels.

The US pressured Mexico into restricting domestic Sudafed sales, but the cartels quickly shifted to phenyl-2-propanone (“P2P”) to make their meth.

As I read his column, I kept thinking “he is about to explain that this is an example of why prohibition never works—it just drives the prohibited activity underground and makes it more dangerous.” 

Unfortunately, rather than indicting prohibition, he calls for toughening border security and surveillance and beefing up law enforcement, as if somehow doing the same thing we have been doing for the last 50 years, only harder, will make a difference.

To his credit, Lehman gives a nod to harm reduction, specifically to distributing test strips so meth users can screen their meth for fentanyl (an additive seen with increasing frequency) and supporting Medication Assisted Treatment. 

As my Letter to the Editor in today’s journal points out, Lehman came oh so close to making the right policy recommendations, but then disappointed. I’m glad he’s onboard with the idea of harm reduction. But the harms will continue to generate in ever greater numbers until prohibition ends.