Cato Recent Op-eds https://www.cato.org/ The Cato Institute seeks to broaden the parameters of public policy debate to allow consideration of the traditional American principles of limited government, individual liberty, free markets and peace. Toward that goal, the Institute strives to achieve greater involvement of the intelligent, concerned lay public in questions of policy and the proper role of government. en John Lewis, Libertarian Hero https://www.cato.org/publications/commentary/john-lewis-libertarian-hero <p><a href="https://www.cato.org/people/michael-cannon" hreflang="und">Michael F. Cannon</a></p> <div class="lead text-default"> <p>The Civil Rights Movement was a&nbsp;citizens’ rebellion against one of the longest, most brutal episodes of oppression the United States has seen.</p> </div> , <div class="text-default"> <p>Nearly 100&nbsp;years after the 14th and 15th Amendments to the U.S. Constitution supposedly made African‐​Americans free and equal citizens and guaranteed them the right to vote, Southern states denied African‐​Americans the most basic protection governments owe their citizens — protection of bodily integrity — as well as their rights to speak, protest, vote, work, exchange, travel, and marry. Government officials routinely used violence against black Americans who tried to claim equal status or equal protection of the laws. Government officials tolerated and even encouraged groups of white racists that terrorized and murdered black Americans. White majorities in Southern states denied African‐​Americans the right to vote precisely because allowing blacks to vote would threaten this deliberate system of apartheid. Not unimportantly, this system also violated the rights of other Americans to marry, work, exchange, and travel with African‐​Americans.</p> <p>The Civil Rights Movement, whose goal was to enforce the rights of all Americans to be secure in their persons, to vote, to work, to exchange, to travel, and to marry, was a&nbsp;libertarian force. It did more to advance freedom within the United States than any other movement in the past century.</p> <p>One of the last surviving leaders of the Civil Rights Movement is John Lewis of Georgia.</p> </div> , <h3 class="heading"> John Lewis’ Contributions to Human Freedom </h3> , <div class="text-default"> <p>John Lewis has made courageous and principled contributions to human freedom. He has been a&nbsp;libertarian force in his campaigns for individual rights, his advocacy for freedom in moral terms, his commitment to peaceful protest, and his fight to save American society from the forces of savagery.</p> <p>Few in the libertarian movement have suffered as much as Lewis for the cause of freedom. Lewis offered his voice and his body — and sacrificed his right to self‐​defense — to make Americans confront the violence inherent in the Southern system of government‐​imposed white‐​supremacist tyranny.</p> <p>In the early 1960s, Lewis was sacrificing his body and liberty to protest laws restricting the freedoms of movement, association, and exchange. As an undergraduate at Fisk University in Nashville, Lewis organized non‐​violent sit‐​ins at segregated lunch counters</p> </div> , <figure class="figure overflow-hidden figure--default"> <div class="figure__media"> <img width="700" height="540" alt="Two Nashville Police officers carry John Lewis after he refused to obey orders during a protest at Herschel’s Tic Toc restaurant in Nashville in 1962." class="lozad component-image" data-srcset="/sites/cato.org/files/styles/pubs/public/2020-01/Lewis-John_Nashville-arrest1961-1170x903.jpg?itok=YOY22hfb 1x, /sites/cato.org/files/styles/pubs_2x/public/2020-01/Lewis-John_Nashville-arrest1961-1170x903.jpg?itok=5_uiPiE0 1.5x" data-src="/sites/cato.org/files/styles/pubs/public/2020-01/Lewis-John_Nashville-arrest1961-1170x903.jpg?itok=YOY22hfb" typeof="Image" /> </div> <figcaption class="figure__caption"> <div class="modifiers modifiers-id-paragraph-110416 modifiers-type-paragraph modifiers-bundle-caption modifiers-display-default figure-caption text-sans-alternate"> <p>Photo: The Tennessean</p> </div> </figcaption> </figure> , <div class="text-default"> <p>As a Freedom Rider, Lewis spent years putting himself in danger to protest laws prohibiting blacks and whites from sitting beside each other on public transportation. He was the first Freedom Rider to encounter violence by white supremacists, who bludgeoned him on multiple occasions. <a href="https://www.smithsonianmag.com/history/the-freedom-riders-then-and-now-45351758/?c=y&amp;page=1"><em>Smithsonian</em></a> magazine reports that in 1961:</p> <p><blockquote>While trying to enter a whites-only waiting room in Rock Hill, South Carolina, two men set upon [Lewis], battering his face and kicking him in the ribs. Less than two weeks later, Lewis joined a ride bound for Jackson.</blockquote></p> </div> , <figure class="figure overflow-hidden figure--default"> <div class="figure__media"> <img width="700" height="392" alt="John Lewis 2" class="lozad component-image" data-srcset="/sites/cato.org/files/styles/pubs/public/2020-01/t_1470669143142_name_20160908_FreedomTN.jpg?itok=-B7dIJ4k 1x, /sites/cato.org/files/styles/pubs_2x/public/2020-01/t_1470669143142_name_20160908_FreedomTN.jpg?itok=-KKdHyLq 1.5x" data-src="/sites/cato.org/files/styles/pubs/public/2020-01/t_1470669143142_name_20160908_FreedomTN.jpg?itok=-B7dIJ4k" typeof="Image" /> </div> <figcaption class="figure__caption"> <div class="modifiers modifiers-id-paragraph-110433 modifiers-type-paragraph modifiers-bundle-caption modifiers-display-default figure-caption text-sans-alternate"> <p>(Birmingham Public Library)</p> </div> </figcaption> </figure> , <figure class="figure overflow-hidden figure--default"> <div class="figure__media"> <img width="700" height="350" alt="John Lewis 3" class="lozad component-image" data-srcset="/sites/cato.org/files/styles/pubs/public/2020-01/635676614304984377-80364-1.jpg?itok=KRzifwuX 1x, /sites/cato.org/files/styles/pubs_2x/public/2020-01/635676614304984377-80364-1.jpg?itok=OVkw4nCP 1.5x" data-src="/sites/cato.org/files/styles/pubs/public/2020-01/635676614304984377-80364-1.jpg?itok=KRzifwuX" typeof="Image" /> </div> <figcaption class="figure__caption"> <div class="modifiers modifiers-id-paragraph-110434 modifiers-type-paragraph modifiers-bundle-caption modifiers-display-default figure-caption text-sans-alternate"> <p>Photo: AP Photo / The Tennessean</p> </div> </figcaption> </figure> , <div class="text-default"> <p>As Lewis later <a href="https://www.cnn.com/2001/US/05/10/access.lewis.freedom.rides/">explained</a>, the violence followed them across the South:</p> <blockquote><p>It was very violent. It was 13 of us on the original ride — seven whites and six blacks…</p> <p>We were beaten in Birmingham, and later met by an angry mob in Montgomery, where I&nbsp;was hit in the head with a&nbsp;wooden crate. It was very violent. I&nbsp;thought I&nbsp;was going to die. I&nbsp;was left lying at the Greyhound bus station in Montgomery unconscious.</p></blockquote> <p>In 1961, Lewis spent 37&nbsp;days in Mississippi’s Parchman Penitentiary after his arrest for violating a&nbsp;segregation law. He had <a href="https://www.vox.com/2014/7/7/5877957/rep-john-lewis-memories-of-a-mississippi-prison-during-the-freedom">used</a> a&nbsp;whites‐​only restroom.</p> </div> , <figure class="figure overflow-hidden figure--default"> <div class="figure__media"> <img width="680" height="522" alt="John Lewis Mug" class="lozad component-image" data-srcset="/sites/cato.org/files/styles/pubs/public/2020-01/Br8gBJnCcAAo_Ig.jpeg?itok=XIkIv4Yp 1x, /sites/cato.org/files/styles/pubs_2x/public/2020-01/Br8gBJnCcAAo_Ig.jpeg?itok=MkKMg9Jv 1.5x" data-src="/sites/cato.org/files/styles/pubs/public/2020-01/Br8gBJnCcAAo_Ig.jpeg?itok=XIkIv4Yp" typeof="Image" /> </div> <figcaption class="figure__caption"> <div class="modifiers modifiers-id-paragraph-110435 modifiers-type-paragraph modifiers-bundle-caption modifiers-display-default figure-caption text-sans-alternate"> <p>@repjohnlewis via Twitter</p> </div> </figcaption> </figure> , <div class="text-default"> <p>On August 28, 1963, Lewis at the age of 23 was the youngest <a href="https://en.wikipedia.org/wiki/March_on_Washington_for_Jobs_and_Freedom#/media/File:March-on-washington-jobs-freedom-program.jpg">speaker</a> at the March on Washington for Jobs and Freedom.</p> </div> , <figure class="figure overflow-hidden figure--default"> <div class="figure__media"> <img width="700" height="470" alt="John Lewis MOW" class="lozad component-image" data-srcset="/sites/cato.org/files/styles/pubs/public/2020-01/DL_1963.08LewisMOW.jpg?itok=ZnzUstmB 1x, /sites/cato.org/files/styles/pubs_2x/public/2020-01/DL_1963.08LewisMOW.jpg?itok=FUZdVlZN 1.5x" data-src="/sites/cato.org/files/styles/pubs/public/2020-01/DL_1963.08LewisMOW.jpg?itok=ZnzUstmB" typeof="Image" /> </div> <figcaption class="figure__caption"> <div class="modifiers modifiers-id-paragraph-110436 modifiers-type-paragraph modifiers-bundle-caption modifiers-display-default figure-caption text-sans-alternate"> ©Danny Lyon / Magnum Photos </div> </figcaption> </figure> , <div class="text-default"> <p>He was <a href="https://snccdigital.org/events/march-on-washington/" id="E488" target="_blank">the most forceful</a> of the day’s speakers in demanding freedom for African‐​Americans. In terms that will be familiar to libertarians, he <a href="http://voicesofdemocracy.umd.edu/lewis-speech-at-the-march-on-washington-speech-text/" id="E494" target="_blank">implored</a> his countrymen to fight the tyranny under which African‐​Americans lived, and called on them to fulfill the ideals of the American Revolution:</p> <blockquote><p>While we stand here there are students in jail on trumped‐​up charges. Our brother James Farmer, along with many others, is also in jail…</p> <p>It is true that we support the administration’s civil rights bill. We support it with great reservations, however. Unless [Congress <a href="https://www.justice.gov/crt/title-iii-civil-rights-act-1964-42-usc-2000b" id="E527" target="_blank">strengthens</a> the bill], there is nothing to protect the young children and old women who must face police dogs and fire hoses in the South while they engage in peaceful demonstrations. In its present form, this bill will not protect the citizens of Danville, Virginia, who must live in constant fear of a&nbsp;police state. It will not protect the hundreds and thousands of people that have been arrested on trumped charges. What about the three young men, SNCC field secretaries in Americus, Georgia, who face the <a href="https://www.crmvet.org/docs/641205_sncc_pr_americus.pdf" id="E536" target="_blank">death penalty</a> for engaging in peaceful protest?…</p> <p>By and large, American politics is dominated by politicians who build their careers on immoral compromises and ally themselves with open forms of political, economic, and social exploitation…</p> <p>Where is the political party that will make it unnecessary to march in the streets of Birmingham? Where is the political party that will protect the citizens of Albany, Georgia? Do you know that in Albany, Georgia, nine of our leaders have been indicted, not by the Dixiecrats, but by the federal government for peaceful protest? But what did the federal government do when Albany’s deputy sheriff beat Attorney C.B. King and left him half‐​dead? What did the federal government do when local police officials kicked and assaulted the pregnant wife of Slater King, and she lost her baby?…</p> <p>We do not want our freedom gradually, but we want to be free now! We are tired. We are tired of being beaten by policemen. We are tired of seeing our people locked up in jail over and over again. And then you holler, “Be patient.” How long can we be patient? We want our freedom and we want it now. We do not want to go to jail. But we will go to jail if this is the price we must pay for love, brotherhood, and true peace.</p> <p>I appeal to all of you to get into this great revolution that is sweeping this nation. Get in and stay in the streets of every city, every village and hamlet of this nation until true freedom comes, until the revolution of 1776 is complete.</p></blockquote> <p>In 1964, Lewis organized voter‐​registration drives as part of the Mississippi Freedom Summer. Lewis sought to register previously disenfranchised black voters because he knew, as Friedrich Hayek <a href="https://books.google.com/books?id=EyNHBAAAQBAJ&amp;pg=PA110&amp;lpg=PA110&amp;dq=%E2%80%9Cis+an+obstacle+to+the+suppression+of+freedom%22&amp;source=bl&amp;ots=eCRk3U0zo8&amp;sig=dnj-BouOkzT65Lo__e56SFSm3n4&amp;hl=en&amp;sa=X&amp;ved=0ahUKEwiEv-jr0tzXAhUpY98KHcCuBmwQ6AEILjAC" id="E588" target="_blank">explained</a>, “democracy…is an obstacle to the suppression of freedom.”</p> <p>On March 7, 1965, Lewis led a&nbsp;peaceful march across the Edmund Pettus Bridge in Selma, Alabama. The purpose of the march was to secure voting rights for African‐​Americans, in the hope of ending government tyranny against blacks.</p> </div> , <figure class="figure overflow-hidden figure--default figure--no-caption"> <div class="figure__media"> <img width="700" height="344" alt="John Lewis Selma" class="lozad component-image" data-srcset="/sites/cato.org/files/styles/pubs/public/2020-01/12328_2006_001_pr.jpg?itok=Kix_H7OK 1x, /sites/cato.org/files/styles/pubs_2x/public/2020-01/12328_2006_001_pr.jpg?itok=Gs0QENPD 1.5x" data-src="/sites/cato.org/files/styles/pubs/public/2020-01/12328_2006_001_pr.jpg?itok=Kix_H7OK" typeof="Image" /> </div> </figure> , <div class="text-default"> <p>Historians call that date “Bloody Sunday” because government agents, including many on horses, attacked the peaceful demonstrators with tear gas and billy clubs. An Alabama policeman fractured Lewis’ skull.</p> <p>Various government agents <a href="http://www.creativeloafing.com/news/article/13075925/congressman-john-lewis-adds-arrest-no-45-at-least-to-rap-sheet" id="E648" target="_blank">arrested</a> and imprisoned Lewis more than 40 times for peacefully protesting tyranny. Lewis watched government agents and domestic terrorists kill his friends, colleagues, political patrons, and mentors. Lewis knew these men would never face prosecution.</p> <p>Yet Lewis never responded with violence. He had a&nbsp;right to use violence to defend himself. He set aside that right to bring freedom to others.</p> <p>Instead, Lewis has demonstrated civility, magnanimity, and forgiveness toward his oppressors. Decades after two men assaulted him in that South Carolina waiting room, one of them apologized to him. Lewis did something he didn’t have to do. He graciously <a href="http://abcnews.go.com/print?id=6813984" id="E703" target="_blank">accepted</a> his assailant’s apology:</p> <blockquote><p>“I’m so sorry about what happened back then,” [Elwin] Wilson said breathlessly.</p> <p>“It’s okay. I&nbsp;forgive you,” Lewis responded before a&nbsp;long‐​awaited hug.</p></blockquote> <p>Lewis has advanced other libertarian causes. He peacefully protested South Africa’s policy of racial apartheid, leading to two <a href="http://www.creativeloafing.com/news/article/13075925/congressman-john-lewis-adds-arrest-no-45-at-least-to-rap-sheet" id="E726" target="_blank">arrests</a> outside that nation’s embassy in Washington, D.C. He peacefully protested Sudan’s genocide in Darfur, leading to two <a href="http://www.creativeloafing.com/news/article/13075925/congressman-john-lewis-adds-arrest-no-45-at-least-to-rap-sheet" id="E739" target="_blank">arrests</a> outside the Sudanese embassy. He has protested the Iraq War, <a href="https://www.youtube.com/watch?v=ThqtmcWoUg8&amp;feature=youtu.be" id="E747" target="_blank">introducing</a> legislation to postpone tax cuts until the United States ends its wars in Iraq and Afghanistan. He has protested in favor of immigrant rights, leading to his <a href="https://www.upi.com/8-members-of-Congress-arrested-at-immigration-reform-demonstration/88761381213800/" id="E756" target="_blank">arrest</a> near the U.S. Capitol.</p> </div> , <h3 class="heading"> Weighing Lewis’ Contributions </h3> , <div class="text-default"> <p>Some libertarians will protest that Lewis has taken un‐​libertarian positions over the course of his career. I&nbsp;certainly disagree with many of his positions.</p> <p>Yet libertarians routinely venerate the words and accomplishments of <a href="https://www.washingtonexaminer.com/jefferson-memorial-exhibit-update-will-acknowledge-slavery-record" id="E778" target="_blank">Thomas Jefferson</a>, <a href="https://www.montpelier.org/visit/mere-distinction" id="E781" target="_blank">James Madison</a>, and <a href="https://www.washingtonpost.com/local/education/gmu-to-erect-memorial-honoring-more-than-100-people-enslaved-by-george-mason/2019/09/28/5b993076-e142-11e9-be96-6adb81821e90_story.html" id="E785" target="_blank">George Mason</a>, even though these men enslaved other humans. Libertarians honor these men not because they are perfect, but because these imperfect men moved their imperfect world in the direction of greater freedom.</p> <p>Lewis’ contributions to human freedom likewise far outweigh his imperfections. If libertarians can honor Founding Fathers who participated in “<a href="https://avalon.law.yale.edu/18th_century/debates_606.asp" id="E819" target="_blank">the most oppressive dominion ever exercised by man over man</a>,” we can honor John Lewis even though he supports single‐​payer health care.</p> <p>In May, the Cato Institute will present its 10th biennial <a href="https://www.cato.org/friedman-prize" id="E836" target="_blank">Milton Friedman Prize for Advancing Liberty</a>. If I&nbsp;were on the selection committee, my vote would go to John Lewis.</p> </div> , <h3 class="heading"> Show a&nbsp;Little Love </h3> , <div class="text-default"> <p>Libertarians often wonder why our movement is not broader or more diverse. One reason might be that it has yet to honor the libertarian goals and successes of the Civil Rights Movement, or the sacrifices its <a href="https://www.crmvet.org/vet/vethome.htm" id="E850" target="_blank">participants</a> made.</p> <p>Libertarians often claim, for example, that Americans are less free now than they were 100&nbsp;years ago, when the federal government was smaller. Such claims either ignore or undervalue the <a href="https://reason.com/2010/04/06/up-from-slavery/" id="E862" target="_blank">tremendous</a> <a href="https://www.cato.org/blog/slavery-continued" id="E865" target="_blank">gains</a> in freedom African‐​Americans have seen over that time. When we casually elide the oppression others have suffered, they tend to notice. John Lewis was a&nbsp;driving force behind those gains.</p> <p>Lewis struggled long and hard to secure for African‐​Americans freedoms that most white Americans never lacked. Along the way, his efforts helped to expand the freedom of whites and others to speak, protest, vote, work, exchange, travel, and marry and procreate with African‐​Americans.</p> <p>At age 79, Lewis is the <a href="http://www.businessinsider.com/john-lewis-speech-march-on-washington-50th-anniversary-martin-luther-king-i-have-a-dream-2013-8" id="E896" target="_blank">last</a> surviving speaker from the March on Washington. He has beaten the <a href="https://www.cdc.gov/nchs/data/nvsr/nvsr68/nvsr68_07-508.pdf" id="E899" target="_blank">actuarial tables</a> for African‐​American men. But he will not live forever. Last month, Lewis announced he has <a href="https://www.cnn.com/2019/12/29/politics/john-lewis-pancreatic-cancer/index.html" id="E905" target="_blank">stage four pancreatic cancer</a>.</p> <p>On this Martin Luther King Jr. Day, throw a&nbsp;little love to all those in the Civil Rights Movement who gave their minds, gave their bodies, and sacrificed for the cause of freedom. In particular, throw a&nbsp;little love to John Lewis. He could probably use it right now. He most certainly deserves it.</p> </div> Fri, 17 Jan 2020 16:14:43 -0500 Michael F. Cannon https://www.cato.org/publications/commentary/john-lewis-libertarian-hero The Administration’s Crude Warsaw Pact‐​Like Approach to Iraq https://www.cato.org/publications/commentary/administrations-crude-warsaw-pact-approach-iraq <p><a href="https://www.cato.org/people/ted-galen-carpenter" hreflang="und">Ted Galen Carpenter</a></p> <div class="lead text-default"> <p>A policy statement that the State Department issued on January 10&nbsp;<a href="https://www.state.gov/the-u-s-continued-partnership-with-iraq/" target="_blank">asserts</a>&nbsp;that “America is a&nbsp;force for good in the Middle East.” It adds, “We want to be a&nbsp;friend and partner to a&nbsp;sovereign, prosperous, and stable Iraq.” Yet the Trump administration’s recent conduct toward Iraq indicates a&nbsp;very different (and much uglier) policy. Washington is behaving like an impatient, imperial power that has concluded that an obstreperous colony requires a&nbsp;dose of corrective discipline.</p> </div> , <div class="text-default"> <p>Washington’s&nbsp;<a href="https://www.jpost.com/Middle-East/Report-US-forces-launch-attack-on-Kataib-Hezbollah-base-in-Iraq-612478" target="_blank">late December airstrikes</a>&nbsp;on Iraqi militia targets, in retaliation for the killing of an American civilian contractor working at a&nbsp;base in northern Iraq, greatly provoked the Iraqi government and population. Massive anti‐​American demonstrations erupted in several cities, and an assault on the U.S. embassy in Baghdad forced diplomats to take refuge in a&nbsp;special “<a href="https://thehill.com/policy/international/middle-east-north-africa/476318-protesters-storm-us-embassy-in-baghdad-after" target="_blank">safe room</a>.”</p> <p>The drone strike on Iranian General Qassem Soleimani outside Baghdad a&nbsp;few days later was an even more brazen violation of Iraq’s sovereignty. Carrying out the assassination on Iraqi territory when Soleimani was there at the invitation of Prime Minister Adel Abdull Mahdi to discuss&nbsp;<a href="https://www.dailymail.co.uk/news/article-7854971/Soleimani-Iraq-discuss-escalating-tensions-Saudis-killed-PM-says.html" target="_blank">a&nbsp;new peace feeler from Saudi Arabia</a>&nbsp;was especially clumsy and arrogant. It created suspicions that the United States was deliberately seeking to maintain turmoil in the Middle East to justify its continued military presence there. The killing of Soleimani (as well as two influential Iraqi militia leaders) led Iraq’s government to pass a&nbsp;resolution calling on Mahdi&nbsp;<a href="https://www.axios.com/iraq-parliament-us-troops-iran-soleimani-39f46292-b6b5-4070-bacd-92cfae1f586c.html" target="_blank">to expel U.S. forces</a>&nbsp;stationed in the country, and he promptly began to prepare legislation to implement that goal.</p> </div> , <aside class="aside--right aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>The U.S. has occasionally exerted pressure on democratic allies, but never treated them like servile pawns. Until now.</p> </div> </div> </aside> , <div class="text-default"> <p>Trump’s initial reaction to the prospect that Baghdad might order U.S. troops to leave was akin to a&nbsp;foreign policy temper tantrum. He threatened America’s democratic ally&nbsp;<a href="https://www.bbc.com/news/world-middle-east-51003159" target="_blank">with harsh economic sanctions</a>&nbsp;if it dared to take that step. As Trump put it, “we will charge them sanctions like they’ve never seen before, ever. It’ll make Iranian sanctions look somewhat tame.”</p> <p>Over the following days, it became apparent that the sanctions threat was not just a&nbsp;spontaneous, intemperate outburst on the part of President Trump. Compelling Iraq to continue hosting U.S. forces was official administration policy. Senior officials from the Treasury Department and other agencies began&nbsp;<a href="https://www.washingtonpost.com/business/2020/01/06/trump-administration-begins-drafting-possible-sanctions-against-iraq-following-trumps-economic-threat/" target="_blank">drafting specific sanctions</a>&nbsp;that could be imposed. Washington explicitly warned the Iraqi government that it&nbsp;<a href="https://www.wsj.com/articles/u-s-warns-iraq-it-risks-losing-access-to-key-bank-account-if-troops-told-to-leave-11578759629" target="_blank">could lose access to its account</a>&nbsp;held at the Federal Reserve Bank of New York. Such a&nbsp;freeze would amount to financial strangulation of the country’s already fragile economy.</p> <p>U.S. arrogance towards Baghdad seems almost boundless. When Mahdi asked the administration to “<a href="https://thehill.com/policy/defense/policy-strategy/477651-iraqi-prime-minister-tells-pompeo-to-prepare-a-mechanism-for" target="_blank">prepare a&nbsp;mechanism</a>” for the exit of American forces and commence negotiations towards that transition, Secretary of State Mike Pompeo&nbsp;<a href="https://www.cnn.com/2020/01/10/politics/iraq-pompeo-troop-withdrawal-mechanism/index.html" target="_blank">flatly refused</a>. Indeed, the State Department’s January 10 statement made it clear that there would be no such discussions: “At this time, any delegation sent to Iraq would be dedicated to discussing how to best recommit to our strategic partnership — not to discuss troop withdrawal, but our right, appropriate force posture in the Middle East.”</p> <p>Throughout the Cold War, U.S. leaders proudly proclaimed that NATO and other American‐​led alliances were voluntary associations of free nations. Conversely, the Warsaw Pact alliance of Eastern European countries formed in response to NATO was a&nbsp;blatantly imperial enterprise of puppet regimes under the Kremlin’s total domination. Moscow’s brutal suppression of even modest political deviations within its satellite empire helped confirm the difference. Soviet tanks rolled into East Germany in 1953, Hungary in 1956, and Czechoslovakia in 1968 to crush reform factions and solidify a&nbsp;Soviet military occupation. Even when the USSR did not resort to such heavy‐​handed measures, it was clear that the “allies” were on a&nbsp;very short leash.</p> <p>Although the United States has occasionally exerted pressure on its allies when they’ve opposed its objectives, it has not attempted to treat democratic partners as servile pawns. That is why the Trump administration’s current behavior towards Iraq is so troubling and exhibits such unprecedented levels of crudeness. America is in danger of becoming the geopolitical equivalent of a&nbsp;middle school bully.</p> <p>If Washington refuses to withdraw its forces from Iraq, defying the Baghdad government’s calls to leave, those troops will no longer be guests or allies. They would constitute a&nbsp;hostile army of occupation, however elaborate the rhetorical facade.</p> <p>At that point, America would no longer be a&nbsp;moral “force for good” in the Middle East or anywhere else. The United States would be behaving as an amoral imperial power imposing its authority on weaker democratic countries that dare adopt measures contrary to Washington’s policy preferences. America might not yet have replaced the Soviet Union as (in Ronald Reagan’s words) the “evil empire,” but it will be disturbingly far along the path to that status.</p> </div> Ted Galen Carpenter, a&nbsp;senior fellow in defense and foreign policy studies at the Cato Institute and a&nbsp;contributing editor at The American Conservative, is the author of 12 books and more than 850 articles on international affairs. Fri, 17 Jan 2020 09:32:20 -0500 Ted Galen Carpenter https://www.cato.org/publications/commentary/administrations-crude-warsaw-pact-approach-iraq Note to Trump: Iraq Is Not a U.S. Colony https://www.cato.org/publications/commentary/note-trump-iraq-not-us-colony <p></p> <div class="lead text-default"> <p>The U.S. treated Iraq as occupied territory when it launched the deadly airstrike on Iran’s Qassem Soleimani and several other Iraqi officials. Now the Trump administration is refusing to comply with Baghdad’s demand to withdraw American forces. Washington soon may find itself one demonstration away from disaster.</p> </div> , <div class="text-default"> <p>Iraqi prime minister Adel Abdul‐​Mahdi denounced the U.S. attack as “an aggression on Iraq as a&nbsp;state, government, and people” and requested that the Trump administration prepare to withdraw its 5,300 military personnel. The State Department responded dismissively: any American delegation going to Iraq “would be dedicated to discussing how to best recommit to our strategic partnership — not to discuss troop withdrawal.”</p> <p>President Donald Trump even threatened to impose sanctions “if there’s any hostility, that they do anything we think is inappropriate.” Later he retreated slightly: “I’m only talking sanctions if we’re not treated with respect.” Though he added that the penalties would make those used against Saddam Hussein, from whom the country was liberated 17&nbsp;years ago, “look somewhat tame.”</p> </div> , <aside class="aside--right aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>Other nations cannot miss the message today: invite American forces in and they might not go home, ever.</p> </div> </div> </aside> , <div class="text-default"> <p>One possibility, according to the administration: closing Iraq’s Federal Reserve Bank of New York account, which contains $35 billion. The mere threat of this further unsettled Iraqi markets. Trump complained: “The United States has paid Iraq billions of dollars a&nbsp;year, for many years. That is on top of all else we have done for them.”</p> <p>Trump insisted that Baghdad pay up or be occupied even though the original agreement authorizing Washington’s presence acknowledged Iraqi ownership of bases used by Americans and recognized “the sovereign right of the government of Iraq to request the departure of U.S. forces from Iraq at any time.” The president is treating Iraq like an occupied power, as if the call for assistance against the Islamic State was permission for renewed American domination.</p> <p>However, Secretary of State Mike Pompeo said not to worry. Unnamed Iraqi “leaders” assured him that they want Washington to stay. No doubt some want the U.S. to prevent the reemergence of the Islamic State.&nbsp;Other Iraqis probably told the secretary what he wanted to hear to avoid taking responsibility, and perhaps in hopes that the administration would go easy on them. No sanctions, for instance, and especially no personal penalties, such as denial of visas. After all, they imply, they are helpless before the baying mob.</p> <p>Ironically, the president’s threats and insults only make it harder for Iraqis to back a&nbsp;continued U.S. presence. However, supposed secret support is meaningless. It can’t be measured or proved, and thus leaves Washington in the same impossible position: violating Iraqi sovereignty by occupying it against its expressed will. That is why American forces left the first time in December 2011 (only to return in June 2014): there was neither parliamentary nor popular support for them to stay. If Iraqi leaders are unwilling to make the case to their people, Washington shouldn’t play the heavy.</p> <p>Architects of the Iraq war, who refuse to accept blame for the disastrous invasion, contend that continuing the original occupation would have rescued the country from its future travails. That is unlikely. Even if U.S. personnel had stayed out of internal Iraqi politics, they would not have halted the country’s slide to partisan Shia rule, which spurred the rise of ISIS. And if Americans had interfered, they would have faced attacks from Sunnis angry over their loss of status after Saddam Hussein’s ouster and from Shiites opposed to Washington’s effort to remake Iraq. For instance, Moqtada al‐​Sadr, a&nbsp;Shia leader who favors “Islamic democracy,” violently opposed the U.S. occupation at the start and was active in the sectarian conflict that enveloped Iraq after the invasion. He threatened to use his Mahdi Army militia against a&nbsp;permanent garrison. (Equally important, the American people wanted to bring home their relatives and friends.)</p> <p>To force Baghdad to accept the continued presence of U.S. troops would be counterproductive, even stupid. Iraqi nationalism recently emerged through large‐​scale demonstrations, which crossed religious lines and targeted foreign interference as well as government corruption and incompetence. Washington was not exempt from criticism, but Iran received the most attention.</p> <p>Then came the initial U.S. strikes on the Iraqi Shia militia Kata’ib Hezbollah, in retaliation for the missile attack that killed a&nbsp;U.S. contractor, which shifted the conversation. Noted Alissa Rubin and Ben Hubbard of the&nbsp;<em>New York Times</em>, Washington’s action made it “the focus of public hostility, reducing the heat on Tehran and its proxies.” Next came the assassination of Soleimani, who was popular in Iraq for leading the campaign against ISIS, and Iraqi militia leaders. This effectively ended the protests, united perennially antagonistic Shia political factions, created sympathy for Tehran, and focused attention on the U.S.</p> <p>Washington’s insistence that it can forcibly occupy Iraq reinforces the latter factors. Noted Sajad Jiyad of Baghdad’s Al‐​Bayan Center: “Our politics has also taken on a&nbsp;strong anti‐​American voice.” An anonymous Iraqi official told the&nbsp;<em>Financial Times</em>: “Trump has accelerated Soleimani’s work in Iraq. They created a&nbsp;mess because they couldn’t understand Iraq.”</p> <p>Civilian boycotts and protests might be the least of Washington’s problems. Violent resistance is possible and will be encouraged by Iran. Iraqi groups that battled Islamic State forces already have reportedly contacted Tehran seeking support.</p> <p>Such efforts may receive the acquiescence if not the support of the Baghdad government. Veteran journalist Elijah Magnier quoted sources in Abdul-Mahdi’s office who complained that “the U.S. is unwilling to listen to reason, to the Iraqi government or the parliament. It has the intention of bringing war upon itself and transforming Iraq into a&nbsp;battlefield, by refusing to respect the law and withdraw its forces. The U.S. will be faced with strong and legitimate popular armed resistance, even if some Iraqis (in Kurdistan) will break the law and will accept the U.S. presence in their region.”</p> <p>Even revered (and moderate) Shia cleric Ayatollah Ali al‐​Sistani criticized the U.S. assassination of Soleimani and offered condolences to Iran’s supreme leader Ayatollah Ali Khamenei. The spokesman for Kata’ib Hezbollah, headed by the late Abu Mahdi al‐​Muhandis, killed alongside Soleimani, urged “lovers of martyrdom” to sign up to attack Americans. A&nbsp;new Shia militia, Saraya Imam al‐​Husayn al‐​Istishhadiya, formed with the explicit intent to target U.S. personnel.</p> <p>Moreover, al‐​Sadr, now one of Iraq’s most influential political leaders who opposes outside interference by any party, reactivated the Mahdi Army after the U.S. strike on Soleimani. Al‐​Sadr initially urged Iraqis to be patient and allow the U.S. and Iran to deescalate tensions. However, he then demanded the expulsion of all foreign forces, called for the closure of the U.S. “embassy of evil,” and backed a&nbsp;boycott of American products. He also argued that the parliamentary resolution to expel American forces was not enough and called on “the Iraqi resistance factions in particular and the factions outside of Iraq for an immediate meeting to announce the formation of international resistance groups.”</p> <p>Some, maybe most, anti‐​American declarations are simple bombast. However, the sources of discontent and anger are many. Iraqis are unlikely to remain quiescent in the face of another American occupation. U.S. military facilities, especially those located within Iraqi bases, will not be easy to defend. American deaths are likely and will lead to retaliation — against Iraqis, which will trigger more attacks. It would take only one violent protest to trigger a&nbsp;crisis.</p> <p>Moreover, other nations cannot miss the message: invite American forces in and they might not go home, at least not without presenting a&nbsp;hefty bill backed by a&nbsp;threat to ruin your economy. Forcibly occupying Iraq for a&nbsp;second time would also undermine administration criticism of foreign authoritarian regimes, such as China in Hong Kong.</p> <p>However, the most important reason for Washington to withdraw U.S. troops is because it is in America’s interest to do so. The Middle East no longer has any claim to being “vital.” The U.S. is now the world’s biggest energy producer. Natural gas and petroleum sources have multiplied worldwide. Israel is a&nbsp;nuclear‐​armed regional superpower well able to defend itself.</p> <p>Nor does Washington need to occupy Iraq or the Mideast to stop Iran. Tehran has little ability to reach America and is most interested in deterring Washington’s hegemonic aims. Other nations in the region are capable of balancing against Iran. Yet America’s presence in Iraq is the most important flashpoint with Tehran. U.S. forces there pose the most direct threat to the Islamic Republic and constitute the most tempting targets, as retaliation or preemption.</p> <p>As for ISIS, the U.S. intervened at the height of its power and destroyed the movement’s pretense of being a “caliphate,” or quasi‐​nation state. The group’s personal adherents and ideological tenets live on, but the entire region — Shia and Sunni, monarchies and republics, governments and separatists — is united against the Islamic State. Washington should leave prevention of a&nbsp;revival to the nations most affected. They will do so as long as they cannot rely on Washington to do the job for them.</p> <p>Of course, President Trump has repeatedly found it difficult to act on his campaign promise to stop endless wars, since his own staffers routinely join with outside interests to thwart his policy. The Iraqis have offered a&nbsp;way out. He should respect Iraq’s sovereignty and announce that U.S. forces are leaving, immediately — and permanently.</p> <p>Unfortunately, the president has been captured by Washington’s conventional wisdom. “Eventually we want to be able to let Iraq run its own affairs,” he allowed. “But this isn’t the right point.” However, Washington cannot reoccupy Iraq against its government’s and especially its people’s will. The consequences of imposing an American presence, backed by threats of economic sanctions if not military action, are likely to be catastrophic. Two wars with Iraq are enough.</p> <p>Pompeo said the U.S. will work with Iraq’s leaders “to get to the right place” on American forces in Iraq. The right place is out.</p> </div> Doug Bandow is a&nbsp;senior fellow at the Cato Institute. He is a&nbsp;former special assistant to President Ronald Reagan and the author of several books, including Foreign Follies: America’s New Global Empire. Thu, 16 Jan 2020 09:27:39 -0500 https://www.cato.org/publications/commentary/note-trump-iraq-not-us-colony The UK and the EU Need a New Approach to Trade Remedies https://www.cato.org/publications/commentary/uk-eu-need-new-approach-trade-remedies <p><a href="https://www.cato.org/people/simon-lester" hreflang="und">Simon Lester</a></p> <div class="lead text-default"> <p>Whatever your view is on the merits of the European Union, it would be hard to dispute that it is one of the most innovative international economic arrangements ever created. Its founders had a&nbsp;general vision, but it took a&nbsp;wide range of institutional and policy innovations during implementation to make it all work.</p> </div> , <div class="text-default"> <p><strong>Seeking institutional innovation</strong></p> <p>As the UK and the EU undertake the difficult process of undoing their relationship and developing a&nbsp;new one, there will be a&nbsp;need for some additional innovation. Trying to use traditional trade agreement obligations as a&nbsp;replacement for this deep and complex economic relationship will be insufficient.</p> <p>One area of particular difficulty will be trade remedies, which include tariffs imposed in response to import prices that are deemed too low (anti‐​dumping duties) and to foreign government subsidies (countervailing duties).</p> </div> , <aside class="aside--right aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>As the UK and the EU undertake the difficult process of undoing their relationship and developing a&nbsp;new one, there will be a&nbsp;need for some additional innovation.</p> </div> </div> </aside> , <div class="text-default"> <p>The term ‘dumping’ is sometimes thrown around loosely in trade policy discussions, but it has a&nbsp;technical meaning that involves a&nbsp;determination of whether the export price of a&nbsp;product is ‘unfairly’ low. A&nbsp;tariff can then be imposed to counteract the impact of this pricing. With regard to subsidies, there is a&nbsp;calculation of the amount of the subsidy, and, similarly, a&nbsp;tariff is imposed to counteract it.</p> <p>The EU is one of the rare trade agreements that eliminates the use of trade remedies on internal trade. As a&nbsp;result, trade between the UK and other EU countries is not subject to trade remedies.</p> <p>I have argued previously that tariffs imposed as trade remedies are unnecessary and problematic here, and should be kept out of the UK-EU economic relationship. This relationship would be permanently soured by recurring claims of ‘unfair trade’ by one side or the other.</p> <p>Nevertheless, trade remedies are an established part of domestic trade policy and are difficult to avoid. Interest groups demand them, and it is hard to have a&nbsp;proper debate over their merits.</p> <p>The UK has already set up a&nbsp;Trade Remedies Authority to oversee a&nbsp;domestic trade remedies regime, and trade remedies are likely to be part of the future UK-EU economic relationship.</p> <p>But perhaps there is room for some innovation here that can make the situation better.</p> <p>One of the issues with the imposition of trade remedies is allegations of bias on the part of the domestic agencies who oversee things. These agencies are thought by many to favour the point of view of domestic industries who complain about unfair foreign trade, and to discount the arguments of importers and foreign producers.</p> <p>But what if the these bias concerns could be addressed with an institutional innovation? Perhaps the trade remedy process could be moved to the international level, with neutral adjudicators, rather than domestic agency officials, deciding the issues.</p> <p><strong>The WTO and NAFTA approach to resolving trade remedy disputes</strong></p> <p>As things stand now, domestic trade remedies are subject to challenge pursuant to the rules of the World Trade Organization on these issues (the Anti‐​Dumping Agreement and the Agreement on Subsidies and Countervailing Measures).</p> <p>If a&nbsp;government does not like how its companies were treated in a&nbsp;domestic trade remedy proceeding, it can bring a&nbsp;WTO complaint against the government responsible. As part of this complaint, the determinations by domestic agencies are reviewed to see whether — loosely speaking — they were reasoned and adequate, and consistent with WTO obligations. That process is useful, but it takes a&nbsp;good deal of time, and given resource constraints only a&nbsp;few domestic determinations&nbsp;are challenged each year.</p> <p>In the North American Free Trade Agreement — NAFTA — there is a&nbsp;unique set of rules that allow the companies subject to the trade remedy proceedings to bring a&nbsp;complaint against the determination themselves. A&nbsp;NAFTA panel will be set up to review the domestic agency’s decision for consistency with domestic law.</p> <p><strong>Going further</strong></p> <p>The WTO/NAFTA approach still allows the domestic agency to hear the case first. But instead of domestic agencies hearing the case initially, and then an international body reviewing that decision, we could start with an international body that would take the place of the domestic agency and examine each of the trade remedy elements:&nbsp;Whether dumping and subsidization took place, and in what amounts; and whether the domestic industry suffered injury as result.</p> <p>To this end, an international Trade Remedies Tribunal could be established by the UK and the EU and staffed with experts who would evaluate all of these issues and render a&nbsp;decision.</p> <p>If we take the traditional approach to trade remedies, it is sure to create tension between the UK and the EU. Companies subject to trade remedies generally believe the foreign agency that is imposing tariffs on them is behaving unfairly.</p> <p>They see these determinations as inherently biased, and a&nbsp;years long process of review at the WTO is of only limited help. If, on the other hand, the initial determination was international in nature, and therefore seen as more objective, it would have more credibility.</p> <p>It might seem like the wrong moment for international tribunals in UK-EU relations. The people in the UK who support Brexit are looking to get out from under institutions such as the ECJ.</p> <p>But tariffs are a&nbsp;special situation. There is not much appetite in the UK or the EU for new tariffs, and people are going to be surprised and unhappy that a&nbsp;tariff‐​free, quota‐​free UK-EU relationship will still involve tariffs under the normal operation of trade remedies.</p> <p>Thus, an independent tribunal that oversees these tariffs and ensures that they are legitimate and necessary could be acceptable here. This tribunal would not interfere with domestic regulation, as the ECJ does; it would only act as a&nbsp;check on tariffs.</p> <p>Ideally, of course, there would be no trade remedies at all between the UK and the EU, as is the case now. But the political realities suggest there will be. If we can limit their abusiveness, the UK-EU relationship will be more peaceful and stable.</p> </div> Simon Lester is the associate director of the Cato Institute’s Herbert A. Stiefel Center for Trade Policy Studies in Washington. Thu, 16 Jan 2020 08:34:01 -0500 Simon Lester https://www.cato.org/publications/commentary/uk-eu-need-new-approach-trade-remedies Fixing FISA after the Carter Page Report https://www.cato.org/publications/commentary/fixing-fisa-after-carter-page-report <p><a href="https://www.cato.org/people/julian-sanchez" hreflang="und">Julian Sanchez</a></p> <div class="lead text-default"> <p>At a&nbsp;Senate Judiciary Committee&nbsp;<a href="https://www.judiciary.senate.gov/meetings/examining-the-inspector-generals-report-on-alleged-abuses-of-the-foreign-intelligence-surveillance-act" target="_blank">hearing</a>&nbsp;held shortly after the release of his&nbsp;<a href="https://www.justice.gov/storage/120919-examination.pdf" target="_blank">scathinging report</a>&nbsp;on the FBI’s investigation of erstwhile Trump aide Carter Page, DOJ Inspector General Michael Horowitz had a&nbsp;telling&nbsp;<a href="https://www.c-span.org/video/?c4838176/user-clip-critical-question" target="_blank">exchange</a>&nbsp;with Sen. Marsha Blackburn (R‑Tenn):</p> </div> , <blockquote class="blockquote"> <div> <p><strong>Blackburn:</strong>&nbsp;Let me ask you this, how often do you find mistakes in a&nbsp;FISA Application?</p> <p><strong>Horowitz:</strong>&nbsp;This is actually the first time my office has done a&nbsp;deep dive into a&nbsp;particular application. We’ve done higher level reviews on the FISA process and have found various issues at a&nbsp;higher level, but this is the first time we’ve been able to delve in this way.</p> <p><strong>Blackburn:</strong>&nbsp;It’s a&nbsp;fairly fairly unusual occurrence?</p> <p><strong>Horowtiz:</strong>&nbsp;Let me put it this way, I&nbsp;would hope so.</p> </div> </blockquote> <cite> </cite> , <div class="text-default"> <p>Presumably Blackburn had expected a&nbsp;rather different response: That the embarrassing catalog of omissions, errors, and misrepresentations that the IG’s office found in applications for FISA surveillance of Page were extraordinary and unprecedented — suggesting some special vendetta against the Trump campaign.&nbsp;Horowitz’s discomfiting, candid reply deserves to be unpacked, because it implies at least three important points worth bearing in mind.&nbsp;</p> <p>First, while surveillance of an advisor to a&nbsp;presidential campaign is certainly an unusual use of the Foreign Intelligence Surveillance Act, there is&nbsp;<em>no reason to suppose that Page’s case is some sort of extreme outlier</em>. On the contrary — as common sense would suggest and Horowitz’s report confirms — investigators were acutely aware that this was an enormously sensitive case certain to draw intense scrutiny. Thus the initial FISA application targeting Page, at least, was unusually detailed, and received additional layers of review before being submitted to the Foreign Intelligence Surveillance Court (FISC). It’s reasonable to infer, then, that many of the thousands of FISA applications filed each year have defects as bad or worse than those Horowitz identified here.</p> <p>Second, if we want an explanation for those errors, Horowitz’s answer suggests one more systemic than a&nbsp;cartoonish anti‐​Trump vendetta: Nobody is doing the kind of thorough investigation that would find and correct those problems. In a&nbsp;criminal investigation, the purpose of a&nbsp;so‐​called Title III wiretap order is to obtain evidence for a&nbsp;criminal prosecution. While the initial application is submitted in secret, defense attorneys will be entitled to discovery at trial, and have ample incentive to hunt for government missteps. What’s more, investigators know they need to keep track of potentially exculpatory information, which they’ll be obligated to turn over. Even in cases where no prosecution results, the target of a&nbsp;Title III wiretap has to be notified once the wiretap ends, and may take legal action. The purpose of FISA surveillance, by contrast, is gathering foreign intelligence, not collecting evidence for use in court: The vast, vast majority of FISA targets will never be prosecuted. Unlike a&nbsp;Title III, a&nbsp;FISA might be “successful” from the government’s perspective — because it yielded foreign intelligence information — without actually validating its initial premise that the target is a&nbsp;foreign agent. In short, while the FISA process looks superficially somewhat similar to its criminal counterpart on the front end, it lacks the adversarial mechanisms on the back end that constitute a&nbsp;critical part of the criminal process.</p> </div> , <aside class="aside--right aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>The most obvious takeaway from the Horowitz report is that we need far more comprehensive “deep dive” investigations into the use of intelligence tools.</p> </div> </div> </aside> , <div class="text-default"> <p>Third, we should be wary of the temptation to think about potential FISA reforms exclusively in terms of this case, and the findings of this one report. Not merely because we don’t yet know which of the problems identified by Horowitz are most pervasive — and thus most indicative of the need for a&nbsp;remedy at the policy level — but because Horowitz focused almost entirely on Title I&nbsp;of FISA, which most closely resembles the traditional warrant process, with judges making particularized probable cause determinations. An intelligence investigation in which a&nbsp;FISA order was sought assuredly made use of myriad other intelligence tools, most of which involve far&nbsp;<em>less</em>&nbsp;oversight: Business records orders (§215), pen registers to collect communications metadata (§214), and National Security Letters for certain categories of financial or telecommunications records. Horowitz says little about these, perhaps because these other tools had not been as central to the public controversy surrounding the Page investigation. But if corners are cut to the extent documented by Horowitz even in the case of Title I&nbsp;orders, the most rigorously scrutinized, we can hardly suppose everything’s copasetic with authorities that effectively operate on the honor system.</p> <p><strong>Title I&nbsp;FISA Orders</strong></p> <p>The most obvious takeaway from the Horowitz report is that we need far more comprehensive “deep dive” investigations into the use of intelligence tools, both to discover how pervasive the defects Horowitz identified are in other Title I&nbsp;FISA applications, and whether there are comparable problems with other surveillance authorities. As the Inspector General’s report demonstrates, there are serious issues that will not be identified by “higher level” reviews, such as the omission of information that would tend to undermine the government’s case. But such “deep dives” need not just serve as a&nbsp;guide for policymakers: They can also serve as a&nbsp;partial remedy, precisely by replicating (imperfectly) the mechanisms and incentives that serve as checks on criminal investigations.</p> <p>While, of course, it is not realistic to expect reviews this exhaustive for any significant percentage of FISA investigations, a&nbsp;deeper review of a&nbsp;representative sample of U.S. person FISA applications — not simply verification that facts asserted in the application have documentary support, but a&nbsp;review of the case file and correspondence for material omissions — may help to reproduce some of the incentives that exist on the criminal side. Case agents will be conscious of the possibility — the risk, if not the certainty — that they will be called to explain why some fact favorable to the target of surveillance was omitted from an application. Even if only a&nbsp;small fraction of FISA applications can be so reviewed, such a&nbsp;process would introduce an incentive to focus on potentially exculpatory information currently absent from FISA.</p> <p>On the front end, the role of existing FISC amici could be expanded to permit discretionary intervention in applications being submitted to the Court — not merely in cases in which the FISC itself seeks their perspective — at least in cases designated “special investigative matters” because of their potential implications for religious, political, or press freedoms. The current remit of the amici is to advise the Court in cases involving “novel or significant” legal interpretations or requiring technical expertise. But civil liberties interests need not be “novel” to require an advocate to make them sufficiently salient to a&nbsp;judge. The participation of amici would add a&nbsp;dimension not typically provided by existing internal oversight, which tends to be more focused on formalistic compliance than weighing competing equities and interests.</p> <p>Finally — and perhaps most importantly — the presumption that FISA surveillance will be permanently covert should be ended. Currently, the only FISA targets who normally become aware of surveillance are the small fraction the government ultimately chooses to prosecute for a&nbsp;crime — which is to say, those whose wiretaps did indeed produce strong evidence confirming the government’s suspicion that they were engaged in wrongdoing. A&nbsp;target whose surveillance proves to have been unjustified, perversely, has no remedy, because they will never learn of it. While there will doubtless be cases in which the protection of sources and methods precludes such notice — where publicizing even the identities of erroneous targets would feed too much vital information to genuine adversaries — this should no longer be the default. At the termination of FISA surveillance of a&nbsp;U.S. person, there should be a&nbsp;rebuttable presumption of notice parallel to that required by Title III surveillance, unless the government can demonstrate to the FISC that such notice would entail a&nbsp;concrete national security harm sufficiently grave to outweigh the target’s interests. (Here, too, FISC amici should have an opportunity to represent those interests.) As the Supreme Court wrote in&nbsp;<a href="https://supreme.justia.com/cases/federal/us/388/41/#60" target="_blank"><em>Berger v. New York</em></a>, the requirement that targets of a&nbsp;search be given notice absent exigent circumstances “would appear more important in eavesdropping, with its inherent dangers, than that required when conventional procedures of search and seizure are utilized.” Indeed, notice is an important component of what makes a&nbsp;search “reasonable” in Fourth Amendment terms. It was the absence of notice that particularly sparked Lord Camden’s ire in the seminal English case of&nbsp;<a href="https://constitution.org/trials/entick/entick_v_carrington.htm" target="_blank"><em>Entick v. Carrington</em></a>:</p> </div> , <blockquote class="blockquote"> <div> <p>[The warrant] is executed by messengers with or without a&nbsp;constable (for it can never be pretended, that such is necessary in point of law) in the presence or the absence of the party, as the messenger shall think fit, and without a&nbsp;witness to testify what passes at the time of the transaction; so that when the papers are gone, as the only witnesses are the trespassers, the party injured is left without proof.</p> <p>If this injury falls upon an innocent person, he is as destitute of remedy as the guilty: and the whole transaction is so guarded against discovery, that if the officer should be disposed to carry off a&nbsp;bank bill he may do it with impunity, since there is no man capable of proving either the taker or the thing taken.</p> </div> </blockquote> <cite> </cite> , <div class="text-default"> <p>While the facts of specific cases may justify delaying or waiving notice to a&nbsp;target, that justification should still need to be made on a&nbsp;case‐​by‐​case basis: It should not simply be categorically presumed that the government’s&nbsp;<em>ex ante</em>&nbsp;foreign intelligence purpose in seeking a&nbsp;wiretap automatically provides sufficient&nbsp;<em>ex post</em>&nbsp;grounds for leaving a&nbsp;target “destitute of remedy.”</p> <p><strong>Other Surveillance Authorities</strong></p> <p>While the Horowitz report says relatively little about other investigative tools deployed in the Page investigation, government acquisition of detailed financial and telecommunications metadata can&nbsp;<a href="https://www.pnas.org/content/early/2016/05/10/1508081113.full?sid=ddfe42c7-3c2c-4505-83f8-9081c29096e1" target="_blank">in many ways be as intrusive</a>&nbsp;as the collection of content. Yet multiple authorities — including the aforementioned §215, §214, and National Security Letters — permit such information to be obtained with little more than an assertion of “relevance to an investigation.” In the case of National Security Letters, judicial approval is not even required. The FBI could have used this panoply of tools to conduct incredibly revealing surveillance of Page without risking similar criticism, because they would not have needed to establish probable cause to believe he was acting as a&nbsp;foreign agent. It would be enough that the case agents regarded his activities as potentially relevant to their probe. That bar should be raised.</p> <p>Here, current law provides a&nbsp;straightforward mechanism for strengthening civil liberties protections while still allowing investigators enormous flexibility. FISA’s business records authority (§215) specifies that records are&nbsp;<em>presumptively</em>&nbsp;relevant to an intelligence investigation if they pertain to:</p> </div> , <blockquote class="blockquote"> <div> <p>(a) a&nbsp;foreign power or an agent of a&nbsp;foreign power</p> <p>(b) the activities of a&nbsp;suspected agent of a&nbsp;foreign power who is the subject of such an authorized investigation, or</p> <p>© an individual in contact with, or known to, an agent of a&nbsp;foreign power who is the subject of such authorized investigation.</p> </div> </blockquote> <cite> </cite> , <div class="text-default"> <p>All three of the aforementioned authorities should be amended to require a&nbsp;showing that records are relevant to the investigation&nbsp;<em>and</em>&nbsp;fall into one of these three quite broad categories. This would help ensure both that the net of “relevance” is not cast so wide it encompasses individuals without a&nbsp;concrete link to a&nbsp;valid investigative target, and that peripheral associates of a&nbsp;target are not automatically or indiscriminately subject to invasive monitoring without some specific basis for believing their records are needed, beyond the mere fact of association with a&nbsp;target.</p> <p>In the case of National Security Records, the scope of telecommunications records obtainable should be restricted to “basic subscriber information” — such as name, address, length of service, and billing address — while more detailed “electronic communications transaction records” and “toll billing records” require use of an authority subject to judicial approval, such as §215. This should give investigators the necessary latitude — and enough initial information — to assess whether a&nbsp;court order should be sought without exposing a&nbsp;detailed roadmap of individuals’ digital activities before a&nbsp;judge is involved.</p> <p>In Page’s case, of course, these changes would not in themselves have made much difference, since the FBI had successfully persuaded the FISC that he was probably a&nbsp;foreign agent. But they might have limited the collateral damage to friends and associates whose finances, phone records, and online activity all became automatically available to the government as a&nbsp;result. While only Page himself was directly subject to full‐​content FISA surveillance, everyone in contact with him would have become “presumptively” subject to extensive metadata surveillance as a&nbsp;result of that association.</p> <p>In addition to being advisable in themselves, then, reforming these metadata authorities can be thought of as a&nbsp;backstop or supplement to FISA Title I&nbsp;reform. Even with the best imaginable procedures, the government will sometimes target people for surveillance improperly, or for longer than is justifiable. Narrowing the government’s power to acquire metadata ensures that such errors are at least not compounded by authorizing granular monitoring of their entire social universe.</p> </div> Julian Sanchez is a&nbsp;senior fellow at Cato and focuses primarily on issues at the busy intersection of technology, privacy, civil liberties, and new media — but also writes more broadly about political philosophy and social psychology. Wed, 15 Jan 2020 13:15:48 -0500 Julian Sanchez https://www.cato.org/publications/commentary/fixing-fisa-after-carter-page-report It’s Time to Make Congress Great Again https://www.cato.org/publications/commentary/its-time-make-congress-great-again <p><a href="https://www.cato.org/people/william-yeatman" hreflang="und">William Yeatman</a></p> <div class="lead text-default"> <p>In contemporary American government, the presidency is dominating Congress in our system of separate‐​but‐​competing branches. This constitutional imbalance is a&nbsp;growing threat to liberty, and the only solution is to make Congress great again.</p> </div> , <div class="text-default"> <p>Let’s start with first principles: The Constitution sets forth our governmental structure in its first three Articles.</p> <p>Article I&nbsp;of the Constitution establishes Congress. Article II creates the presidency. And Article III renders the Supreme Court.</p> <p>Did you notice that Congress is number one?</p> <p>That’s not by accident. The Founding Fathers took it for granted that Congress is first among equals within our tripartite government.</p> <p>Indeed, the Founders feared Congress most of all. In Federalist 47, James Madison worried that Congress’s “impetuous vortex” would swallow up the authority wielded by its coordinate branches.</p> <p>Ultimately, the Founders feared most the concentration of power, which Madison described as being the “very definition of tyranny.”</p> <p>For most of its history, Congress has lived up to these expectations. Now, however, our once‐​grand legislature is a&nbsp;shell of its former self.</p> <p>With respect to current events, the best evidence of Congress’s fall is the ongoing impeachment debacle.</p> <p>The Founding Fathers intended impeachment to be Congress’s ultimate weapon in a&nbsp;permanent competition with the presidency. In Federalist 66, Alexander Hamilton wrote that impeachment is Congress’s “essential check” on “encroachments” by the executive branch.</p> <p>In accordance with these expectations, past impeachments have been part and parcel of structural battles between Congress and the presidency.</p> <p>Consider President Richard Nixon. Sure, Congress put him through the impeachment wringer, but lawmakers also enacted reforms to shift the balance of power towards Congress. The Legislative Reorganization Act of 1970, for example, beefed up congressional staff and resources. And the Budget Impoundment and Control Act of 1974 attempted to reassert Congress’s power over the purse.</p> <p>Similarly, the 19th century impeachment of President Andrew Johnson was emmeshed within a&nbsp;larger struggle between the elected branches of government.</p> <p>Today’s impeachment of President Donald Trump, by contrast, has nothing to do with checking executive power. Instead, it’s all about winning the presidency on behalf of the two political parties.</p> <p>Getting two‐​thirds of the Senate to go along with removing President Trump was never going to happen, so instead House Democrats are using the impeachment inquiry to sway next November’s vote.</p> <p>For their part, Senate Republicans are embracing a&nbsp;trial, reportedly in the hope that a&nbsp;drawn‐​out process will keep Democratic presidential candidates in the Senate off the campaign trail during the crucial first primaries in Iowa and New Hampshire.</p> <p>Meanwhile, neither the House nor Senate currently is trying to enact substantive reforms that would rein in executive overreach. Rather than competing with the president, both chambers in Congress are leveraging the proceedings to conduct partisan political campaigns for the presidency.</p> <p>What’s going on here? Why have the House and Senate, through the impeachment process, become willing cogs in the oily machinery of the 2020 presidential contest?</p> <p>The answer involves a&nbsp;tectonic shift in American government, from a&nbsp;functioning separation of powers to one that is alarmingly out of whack. To appreciate today’s perverted impeachment process, one must understand how the president supplanted Congress as policymaker‐​in‐​chief.</p> <p>Our imbalanced constitutional process results from three interrelated historical developments.</p> <p>The first is that Congress, over the last century, has given away, or “delegated,” much of its policymaking initiative to the executive branch. For the most part, Congress delegates to pass the buck. When voters want something done, lawmakers could legislate policy specifics, but they’ll get blamed if they err. By delegating, Congress can escape accountability by having agencies make tough choices.</p> <p>Thus, Congress has delegated into existence an alphabet soup’s worth of regulatory agencies, which are collectively known as the administrative state.</p> <p>The second historical development is the centralization of power in Congress under the control of party leaders. When Congress first started giving away its power, lawmakers took pains to oversee their delegations through a&nbsp;system of strong committees in the House and Senate. From the New Deal to the Reagan era, powerful committee chairs vied with presidential appointees for influence at regulatory agencies.</p> <p>During the last 40&nbsp;years, however, Congress changed. Demographic shifts led to the end of blocs of southern Democrats and northeastern Republicans. Without these moderate voices, the two parties became more uniform in outlook.</p> <p>As hive‐​mentalities were taking hold in Congress, opportunistic leaders, such as former House Speaker Newt Gingrich (R‑GA) and Senate Majority Leader George Mitchell (D‑ME), consolidated power with rules changes, procedural maneuvering, and the distribution of party resources. As power shifted from committees to party leadership, Congress lost the capacity to oversee its delegations.</p> <p>This brings us to the third historical development. As Congress lost interest in managing agency policymaking, modern presidents have seized undisputed supremacy over the administrative state. Since Nixon, an unbroken succession of presidents tightened the Oval Office’s grip over agency spending and regulatory output, primarily through the administrative state’s brain — the Office of Management and Budget within the Executive Office of the President.</p> <p>The upshot is that policy now flows from the White House rather than Capitol Hill. In 2018, federal agencies issued 12 rules and regulations for every law Congress passed (3,367 agency rules, compared to Congress’s 291 laws).</p> <p>Nor are these middling measures. Major economic and social policies — identical to those that Congress considered but ultimately rejected — now regularly emanate from the executive branch.</p> <p>For example, Congress couldn’t pass immigration reform, net neutrality, nor a&nbsp;carbon dioxide cap‐​and‐​trade, but President Barack Obama achieved the same results unilaterally using the power that Congress already had given away.</p> <p>Republican presidents, alas, are no less guilty of executive excess. To wit, lawmakers denied President Trump funding to build a&nbsp;border wall, but then he exercised his delegated authority to expand the wall without Congress.</p> <p>In a&nbsp;celebrated law review article written when she was a&nbsp;professor at Harvard University, Supreme Court Justice Elena Kagan wrote that contemporary government is defined by “presidential administration” due to the president’s “comparative primacy [relative to Congress] in setting the direction and influencing the outcome of administrative process.” Today, the president doesn’t merely set the agenda; he controls its creation and execution.</p> <p>In this context — where the president calls the shots and Congress is beholden to party leadership — half the legislature always is unbothered with unbound executive authority whenever “their guy” occupies the White House.</p> <p>It’s a&nbsp;vicious feedback loop. The more powerful the president becomes, the more our party‐​centric Congress rationally believes that the Oval Office is the most efficient means to implement the planks of a&nbsp;given party’s platform.</p> <p>Of course, the parties whine about executive overreach, but only when they don’t occupy the White House. Neither party seeks to claw back power from the presidency, because each side wants its respective team to exercise executive authority.</p> <p>So, congressional Republicans cried foul about executive power when President Obama resorted to his “phone and pen,” but then rallied to the support of President Trump when he disregarded Congress’s “power of the purse” in funding the border wall. And Democratic lawmakers now complain about presidential power, even though they gave President Obama an ovation when he threatened to bypass Congress on climate change during the 2013 State of the Union address.</p> <p>Today’s supine Congress would be unrecognizable to the Founding Fathers. They understood that a&nbsp;concentration of power threatens individual liberty, so they designed a&nbsp;government with three branches — executive, legislative, and judicial — and gave each the means to check the other. By dispersing power into competing institutions, the Founders’ constitutional design serves to protect our individual liberty. At present, this constitutional design is buckling.</p> <p>As noted above, the Founding Fathers feared congressional power most of all. Federalist 62 warns that an “excess of lawmaking” is a “disease” to which “our government is most liable.” For this reason, the Constitution makes it hard to pass laws. Statutes must be passed by both chambers of Congress, and then signed by the president. It’s an arduous journey for a&nbsp;bill to become a&nbsp;law.</p> <p>By contrast, it’s far easier for the president to impose a&nbsp;regulation. All he needs to do is pick up the phone to get the ball rolling.</p> <p>Because all regulations carry the force of law, a&nbsp;government characterized by “presidential administration” incubates the “disease” of “excessive lawmaking” no less than a&nbsp;government controlled by Congress. Overweening government is a&nbsp;threat to liberty, regardless whether it’s flowing from the executive or legislative branch of government.</p> <p>The solution, of course, is to bring balance back to our separation of powers. Congress must rediscover its institutional ambition, and once again engage in robust competition with the presidency.</p> <p>So, how do we make Congress great again?</p> <p>Congress might be compelled to get its act together, even if it doesn’t want to.</p> <p>For almost 80&nbsp;years, the Supreme Court has refused to police how much power Congress transfers to the executive branch. Under its “nondelegation doctrine,” the Court allows any delegation, as long as it is bounded by an “intelligible principle.”</p> <p>In practice, however, the Court construed “intelligible principle” so broadly that the concept has no meaning. Even a&nbsp;phrase as nebulous as “public interest” has met the standard.</p> <p>For the first time since the New Deal‐​era, a&nbsp;majority on the Supreme Court has expressed a&nbsp;willingness to revisit the nondelegation doctrine. Were the Court to add teeth to its “intelligible principle” test, then Congress would be forced to curtail the breadth of its delegations to the executive branch.</p> <p>Turning from the Supreme Court to Congress, there are many institutional reforms that the legislature could take to empower itself vis‐​a‐​vis the presidency.</p> <p>Starting with the easiest measures, Congress could remedy its anemic staffing. In fact, the current level of committee staffing is commensurate with levels from the early 1970s, even though government has grown much larger and more complex in the five decades since.</p> <p>And it’s not just congressional committees that are understaffed. Congress also has starved support agencies, such as the Congressional Research Service, the Congressional Budget Office, and the Government Accountability Office. These organizations employed 6,354 professionals in 1991; in 2015, the number stood at 3,833.</p> <p>Congress also could create new institutions to better compete. In the early 1980s, the president unilaterally established the Office of Information and Regulatory Affairs (within the Office of Management and Budget) to manage regulations out of the White House. Yet Congress has no commensurate capacity. There is an obvious need for Congress to create its own comparable mechanism to oversee agency rules.</p> <p>Congress could adopt simple legislative fixes. For example, lawmakers used to regularly limit the clock on their delegations, such that an agency’s regulatory authority expired after a&nbsp;given time. These “sunset” provisions force Congress to periodically review the programs it creates, before these regimes are re‐​authorized.</p> <p>Or lawmakers could make greater use of “resolutions of disapproval,” which allow them to veto individual regulations. Since Congress created these “legislative vetoes” more than two decades ago, lawmakers have employed this device fewer than 20 times — far less than two percent of the total number of major rules promulgated by agencies during that span.</p> <p>If it wanted to get bold, Congress could pass more comprehensive reform. The Regulatory Accountability Act, for example, would require agencies to better justify rules that cost more than $100 million.</p> <p>And if Congress wanted to regain the upper hand in one fell swoop, the House and Senate would get behind the REINS Act, which would require both chambers of Congress to approve all major regulations before they took effect.</p> <p>These reforms are fantastic ideas, to be sure, but they’re all nonstarters for as long as love of party trumps institutional pride in Congress. You can lead a&nbsp;horse to water, but you can’t make it drink. Even were Congress to pass REINS, no doubt the House and Senate could find a&nbsp;way to avoid accountability.</p> <p>Most likely, we need a&nbsp;new type of lawmaker, one who is cut from old cloth. Lawmakers of the not too distant past understood that the presidency — and not merely its office‐​holder — is the Congress’s constitutional rival. To restore crucial safeguards for “We the People,” we must Make Congress Great Again.</p> </div> William Yeatman is a&nbsp;research fellow in the Cato Institute’s Robert A. Levy Center for Constitutional Studies. Wed, 15 Jan 2020 11:03:23 -0500 William Yeatman https://www.cato.org/publications/commentary/its-time-make-congress-great-again Amtrak’s Big Lie https://www.cato.org/publications/commentary/amtraks-big-lie <p><a href="https://www.cato.org/people/randal-otoole" hreflang="und">Randal O&#039;Toole</a></p> <div class="lead text-default"> <p>Recent&nbsp;<a href="https://www.foxbusiness.com/money/amtrak-break-even-profitability" target="_blank" data-saferedirecturl="https://www.google.com/url?q=https://www.foxbusiness.com/money/amtrak-break-even-profitability&amp;source=gmail&amp;ust=1579099600109000&amp;usg=AFQjCNEMVO1Ysu8WpFD0KXZpQMTFY4Z_4g">articles</a>&nbsp;in respected&nbsp;<a href="https://www.wsj.com/articles/surging-amtrak-seeks-green-light-from-congress-11577889706" target="_blank" data-saferedirecturl="https://www.google.com/url?q=https://www.wsj.com/articles/surging-amtrak-seeks-green-light-from-congress-11577889706&amp;source=gmail&amp;ust=1579099600109000&amp;usg=AFQjCNGGmb-U7dpQw4_nbqf4_t4E-2L2LA">business journals</a>&nbsp;report that Amtrak lost only $29.8 million in 2019 (out of $3.3 billion in total revenues) and that it expects to make a&nbsp;profit in 2020. This is a&nbsp;remarkable turnaround for a&nbsp;company that cost taxpayers more than $100 billion in its first 49&nbsp;years of existence. Amtrak accomplished this using a&nbsp;simple yet apparently effective technique: It’s called lying.</p> </div> , <div class="text-default"> <p>Amtrak’s accounting system is so full of lies that even the pro‐​passenger train&nbsp;<a href="https://www.railpassengers.org/" target="_blank" data-saferedirecturl="https://www.google.com/url?q=https://www.railpassengers.org/&amp;source=gmail&amp;ust=1579099600109000&amp;usg=AFQjCNFO9qrvxyNJuF2Ko61qUQoNd5GiBw">Rail Passengers Association</a>&nbsp;calls it “<a href="https://www.railpassengers.org/site/assets/files/5819/amtraks_route_accounting_-_fatally_flawed.pdf" target="_blank" data-saferedirecturl="https://www.google.com/url?q=https://www.railpassengers.org/site/assets/files/5819/amtraks_route_accounting_-_fatally_flawed.pdf&amp;source=gmail&amp;ust=1579099600109000&amp;usg=AFQjCNFM7xO72-osQBzR4F33aywptcyvPA">fatally flawed, misleading, and wrong</a>.”</p> <p>The first lie is that Amtrak counts taxpayer subsidies from the states as “passenger revenues.” According to Amtrak’s&nbsp;<a href="https://www.amtrak.com/content/dam/projects/dotcom/english/public/documents/corporate/monthlyperformancereports/2019/Amtrak-Monthly-Performance-Report-September-2019.pdf" target="_blank" data-saferedirecturl="https://www.google.com/url?q=https://www.amtrak.com/content/dam/projects/dotcom/english/public/documents/corporate/monthlyperformancereports/2019/Amtrak-Monthly-Performance-Report-September-2019.pdf&amp;source=gmail&amp;ust=1579099600110000&amp;usg=AFQjCNFxrngnaizXRECz7JhlUMj9pSMhQg">unaudited report</a>, 17 state legislatures gave Amtrak a&nbsp;total of $234 million in 2019. The taxpayers in those states were never allowed to vote on these subsidies, and the vast majority don’t ride Amtrak. These subsidies are no more “passenger revenues” than the subsidies given to Amtrak by Congress. Deducting these subsidies from revenues immediately increases Amtrak’s 2019 losses to $264 million.</p> </div> , <aside class="aside--right aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>Amtrak’s accounting system is so full of lies that even the pro‐​passenger train Rail Passengers Association calls it ‘fatally flawed, misleading, and wrong.’</p> </div> </div> </aside> , <div class="text-default"> <p>An even bigger lie is Amtrak’s failure to report depreciation in its operating costs. Ignoring depreciation is an old railroad accounting trick aimed at misleading investors by boosting apparent profits.</p> <p>A classic example was the&nbsp;<a href="https://media.amtrak.com/2019/11/improved-safety-and-customer-experience-drive-record-amtrak-ridership/" target="_blank" data-saferedirecturl="https://www.google.com/url?q=https://media.amtrak.com/2019/11/improved-safety-and-customer-experience-drive-record-amtrak-ridership/&amp;source=gmail&amp;ust=1579099600110000&amp;usg=AFQjCNGTirNGyo20homKYzKBx7ND-5GE_A">Rock Island Railroad</a>, which ran many fast passenger trains throughout the Midwest in the 1950s. Then Rock Island proposed to merge with another railroad, and to improve the merger terms it began deferring maintenance. By the time the federal government approved the merger, Rock Island’s tracks were so decrepit that its passenger trains ran as slow as 10&nbsp;miles per hour. The other railroad backed out, and Rock Island shocked the nation by going out of business.</p> <p>The Interstate Commerce Commission responded by requiring railroads to include depreciation among their operating costs. This represents the amount of money railroads have to spend or save to keep their infrastructure and equipment in good shape, ensuring that investors would never again be misled by deferred maintenance.</p> <p>Amtrak dutifully includes depreciation in its&nbsp;<a href="https://www.amtrak.com/content/dam/projects/dotcom/english/public/documents/corporate/financial/Amtrak-Audited-Consolidated-Financial-Statements-FY2018.pdf" target="_blank" data-saferedirecturl="https://www.google.com/url?q=https://www.amtrak.com/content/dam/projects/dotcom/english/public/documents/corporate/financial/Amtrak-Audited-Consolidated-Financial-Statements-FY2018.pdf&amp;source=gmail&amp;ust=1579099600110000&amp;usg=AFQjCNHk90B2L1clbr8Xn6wLazETcrNN5A">audited financial statements</a>, but it never mentions it in its&nbsp;<a href="https://media.amtrak.com/2019/11/improved-safety-and-customer-experience-drive-record-amtrak-ridership/" target="_blank" data-saferedirecturl="https://www.google.com/url?q=https://media.amtrak.com/2019/11/improved-safety-and-customer-experience-drive-record-amtrak-ridership/&amp;source=gmail&amp;ust=1579099600110000&amp;usg=AFQjCNGTirNGyo20homKYzKBx7ND-5GE_A">press releases</a>&nbsp;about its finances. In 2019, depreciation amounted to $868 million, increasing total losses to $1.13 billion — 38 times as much as claimed.</p> <p>Even with federal capital subsidies, Amtrak is deferring maintenance like crazy. Amtrak passenger cars have expected lifespans of 25&nbsp;years, yet the average car in its fleet is&nbsp;<a href="https://www.bts.gov/content/age-and-availability-amtrak-locomotive-and-car-fleets" target="_blank" data-saferedirecturl="https://www.google.com/url?q=https://www.bts.gov/content/age-and-availability-amtrak-locomotive-and-car-fleets&amp;source=gmail&amp;ust=1579099600110000&amp;usg=AFQjCNG4GDs3v9OSICFk4Xq8CJNYv0GmRQ">well over 30&nbsp;years old</a>. The Boston‐​to‐​Washington corridor, which Amtrak has often claimed to be profitable, has a&nbsp;<a href="https://nec.amtrak.com/readytobuild/" target="_blank" data-saferedirecturl="https://www.google.com/url?q=https://nec.amtrak.com/readytobuild/&amp;source=gmail&amp;ust=1579099600110000&amp;usg=AFQjCNHbmgPeaB36TIyd1IOe0FzS0fmcCA">$38 billion maintenance backlog</a>.</p> <p>Fixing just these two line items in Amtrak’s accounting shows that Amtrak did not come close to earning a&nbsp;profit in 2019, it won’t earn a&nbsp;profit in 2020, and it never will earn a&nbsp;profit. This is because, after counting all subsidies, Amtrak spends four times as much to move a&nbsp;passenger one mile as the airlines. The difference between Amtrak and intercity buses is even greater, which means Amtrak can’t compete in any market without heavy subsidies.</p> <p>Of course, airlines and highways are also subsidized, and we should end those subsidies as well. But federal, state, and local subsidies to air and highway travel average around a&nbsp;penny per passenger mile, whereas Amtrak subsidies were 34 cents per passenger mile in 2019.</p> <p>Amtrak’s biggest lie is that passenger trains are somehow vital to the nation’s economy. Last year, Americans traveled an average of 15,000&nbsp;miles by automobile, 2,100&nbsp;miles by plane, and 1,100&nbsp;miles by bus. Amtrak’s contribution was less than&nbsp;<a href="https://www.bts.dot.gov/content/us-passenger-miles" target="_blank" data-saferedirecturl="https://www.google.com/url?q=https://www.bts.dot.gov/content/us-passenger-miles&amp;source=gmail&amp;ust=1579099600110000&amp;usg=AFQjCNGeokqbTa3N9wNwPt1aVBNEEvxyaA">20&nbsp;miles per person</a>. Even in the Northeast Corridor, Amtrak reluctantly admits that it carries&nbsp;<a href="http://www.amtrak.com/ccurl/214/393/A-Vision-for-High-Speed-Rail-in-the-Northeast-Corridor.pdf" target="_blank" data-saferedirecturl="https://www.google.com/url?q=http://www.amtrak.com/ccurl/214/393/A-Vision-for-High-Speed-Rail-in-the-Northeast-Corridor.pdf&amp;source=gmail&amp;ust=1579099600110000&amp;usg=AFQjCNH-yzwB13To91SIcWDSEiTIAh56Qw">only 6%</a>&nbsp;of intercity travelers.</p> <p>According to the best available estimates, Americans bicycle&nbsp;<a href="https://bikeleague.org/benchmarking-report" target="_blank" data-saferedirecturl="https://www.google.com/url?q=https://bikeleague.org/benchmarking-report&amp;source=gmail&amp;ust=1579099600110000&amp;usg=AFQjCNEUbTYKXdyDh4xwQlbwUb_YZNg0wQ">8.5 billion passenger miles</a>&nbsp;a&nbsp;year compared with 6.5 billion passenger miles on Amtrak. Being less important than bicycles, Amtrak certainly doesn’t deserve the $2 billion in annual subsidies that it requires to run a&nbsp;supposedly almost‐​profitable operation.</p> <p>Rather than give Amtrak billions of dollars to restore or build infrastructure that it can’t afford to maintain, Congress should simply agree to pay Amtrak a&nbsp;given amount for every passenger mile it carries. This will give Amtrak an incentive to focus on passengers, not politics.</p> <p>Over time, Congress should reduce that amount until Amtrak receives no more per passenger mile than airlines or highways. Any trains that can truly be profitable will survive, but if they do, it will be because Amtrak has found ways to efficiently transport people, not because of lies in its accounting system.</p> </div> Randal O'Toole is a senior fellow with the Cato Institute and author of</em> <a href="https://www.cato.org/events/romance-rails-why-passenger-trains-we-love-are-not-transportation-we-need" target="_blank" data-saferedirecturl="https://www.google.com/url?q=https://www.cato.org/events/romance-rails-why-passenger-trains-we-love-are-not-transportation-we-need&amp;source=gmail&amp;ust=1579099600110000&amp;usg=AFQjCNHzZ-e862HvF3VDHqApXCGn0Ky4hg">Romance of the Rails</a>: Why the Passenger Trains We Love Are Not the Transportation We Need. Tue, 14 Jan 2020 15:20:55 -0500 Randal O'Toole https://www.cato.org/publications/commentary/amtraks-big-lie Putin’s Russia Is Not the Soviet Union Reborn https://www.cato.org/publications/commentary/putins-russia-not-soviet-union-reborn <p><a href="https://www.cato.org/people/ted-galen-carpenter" hreflang="und">Ted Galen Carpenter</a></p> <div class="lead text-default"> <p><strong>Key Point:</strong>&nbsp;U.S. foreign policy must catch up with the developments of the past thirty years and reassess its relationship with Russia.</p> </div> , <div class="text-default"> <p>The American public and U.S. policymakers both have an unfortunate tendency to conflate Russia with the Soviet Union. That habit emerged again with the media and political reaction to the Helsinki summit between President Trump and Russian President Vladimir Putin. Trump’s critics accused him <a href="https://www.denverpost.com/2018/07/16/trump-putin-helsinki-munich/" target="_blank">of appeasing</a>&nbsp;Putin <a href="http://dailycaller.com/2018/07/16/brennan-trump-treason/" target="_blank">and even</a>&nbsp;of <a href="http://thehill.com/homenews/house/397456-hoyer-trump-committed-treason-in-helsinki" target="_blank">committing treason</a>&nbsp;for not doing enough to defend American interests and for being far too solicitous to the Russian leader. They regarded that as an unforgivable offense because Russia supposedly poses a&nbsp;dire threat to the United States. Hostile pundits and politicians charged that Moscow’s alleged interference in the 2016 U.S. elections constituted an attack on America akin to <a href="https://www.politico.com/magazine/story/2018/07/16/putin-russia-trump-2016-pearl-harbor-219015" target="_blank">Pearl Harbor</a>&nbsp;and <a href="https://theintercept.com/2018/02/19/a-consensus-emerges-russia-committed-an-act-of-war-on-par-with-pearl-harbor-and-911-should-the-u-s-response-be-similar/" target="_blank">9 – 11</a>.</p> </div> , <aside class="aside--right aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>Thirty years after the end of the Cold War, it’s time the foreign policy establishment learned the difference.</p> </div> </div> </aside> , <div class="text-default"> <p>Trump’s supplicant behavior, opponents contended, stood in shameful contrast to the behavior of <a href="https://www.mccain.senate.gov/public/index.cfm?p=press-releases&amp;id=A99FDA26-673D-4560-B4EA-5AEDF0685EC5" target="_blank">previous presidents</a>&nbsp;toward tyrants, especially toward the Kremlin’s threats to America and the West. They trotted out Ronald Reagan’s <a href="https://www.washingtonpost.com/politics/after-a-jaw-dropping-news-conference-what-does-america-first-really-mean/2018/07/16/2b728b12-892e-11e8-a345-a1bf7847b375_story.html?utm_term=.63058cbba598" target="_blank">“evil empire”</a>&nbsp;speech and his later demand that Mikhail Gorbachev to tear down the Berlin Wall as examples of how Trump should have acted.</p> <p>The problem with citing such examples is that they applied to a&nbsp;different country: the Soviet Union. Too many Americans act as though there is no meaningful difference between that entity and Russia. Worse still, U.S. leaders have embraced the same kind of uncompromising, <a href="https://www.washingtonpost.com/opinions/who-is-the-bully-the-united-states-has-treated-russia-like-a-loser-since-the-cold-war/2014/03/14/b0868882-aa06-11e3-8599-ce7295b6851c_story.html?utm_term=.c418d37fab71" target="_blank">hostile policies</a>&nbsp;that Washington pursued to contain Soviet power. It is a&nbsp;major blunder that has increasingly poisoned relations with Moscow since the demise of the Union of Soviet Socialist Republics (USSR) at the end of 1991.</p> <p>One obvious difference between the Soviet Union and Russia is that the Soviet governing elite embraced Marxism‐​Leninism and its objective of world revolution. Today’s Russia is not a&nbsp;messianic power. Its economic system is a&nbsp;rather mundane variety of corrupt crony capitalism, not rigid state socialism. The political system is a&nbsp;conservative autocracy with aspects of a&nbsp;rigged democracy, not a&nbsp;one‐​party dictatorship that brooks no dissent whatsoever.</p> <p>Russia is hardly a&nbsp;Western‐​style democracy, but neither is it a&nbsp;continuation of the Soviet Union’s horrifically brutal totalitarianism. Indeed, the country’s political and social philosophy is quite different from that of its predecessor. For example, the Orthodox Church had no meaningful influence during the Soviet era — something that was unsurprising, given communism’s official policy of atheism. But today, the Orthodox Church has a&nbsp;<a href="http://carnegieendowment.org/2017/02/09/russian-orthodoxy-and-politics-in-putin-era-pub-67959" target="_blank">considerable influence</a>&nbsp;in Putin’s Russia, especially on social issues.</p> <p>The bottom line is that Russia is a&nbsp;conventional, somewhat conservative, power, whereas the Soviet Union was a&nbsp;messianic, totalitarian power. That’s a&nbsp;rather large and significant difference, and U.S. policy needs to reflect that realization.</p> <p>An equally crucial difference is that the Soviet Union was a&nbsp;global power (and, for a&nbsp;time, arguably a&nbsp;superpower) with global ambitions and capabilities to match. It controlled an empire in Eastern Europe and cultivated allies and clients around the world, including in such far‐​flung places as Cuba, Vietnam, and Angola. The USSR also intensely contested the United States for influence in all of those areas. Conversely, Russia is merely a&nbsp;regional power with very limited extra‐​regional reach. The Kremlin’s ambitions are focused heavily on the near abroad, aimed at trying to block the eastward creep of the North Atlantic Treaty Organization (NATO) and the U.S.-led intrusion into Russia’s core security zone. The orientation seems far more defensive than offensive.</p> <p>It would be difficult for Russia to execute anything more than a&nbsp;very geographically limited expansionist agenda, even if it has one. The Soviet Union was the world’s number two economic power, second only to the United States. Russia has an economy roughly the size of Canada’s and is no longer ranked even in the <a href="http://statisticstimes.com/economy/countries-by-projected-gdp.php" target="_blank">global top ten</a>. It also has only three‐​quarters of the Soviet Union’s territory (much of which is nearly‐​empty Siberia) and barely half the population of the old USSR. If that were not enough, that population is shrinking and is afflicted with <a href="https://www.theglobalist.com/russia-public-health-alcoholism/" target="_blank">an assortment</a>&nbsp;of public health problems (especially rampant alcoholism).</p> <p>All of these factors should make it evident that Russia is not a&nbsp;credible rival, much less an existential threat, to the United States and its <a href="http://thehill.com/opinion/national-security/397213-russia-is-the-greatest-threat-to-our-democracy" target="_blank">democratic system</a>. Russia’s power is a&nbsp;pale shadow of the Soviet Union’s. The only undiminished source of clout is the country’s sizeable nuclear arsenal. But while nuclear weapons are the ultimate deterrent, they are not very useful for power projection or warfighting, unless the political leadership wants to risk national suicide. And there is no evidence whatsoever that Putin and his oligarch backers are suicidal. Quite the contrary, they seem wedded to accumulating ever greater wealth and perks.</p> <p>Finally, Russia’s security interests actually overlap substantially with America’s — most notably regarding the desire to combat radical Islamic terrorism. If U.S. leaders did not insist on pursuing <a href="https://www.cato.org/publications/commentary/nato-pushing-russia-towards-retaliation" target="_blank">provocative policies</a>, such as <a href="https://www.cato.org/publications/commentary/simple-reason-russia-america-keep-inching-towards-crisis" target="_blank">expanding NATO</a>&nbsp;to Russia’s border, undermining longtime Russian clients in the Balkans (Serbia) and the Middle East (Syria), and excluding Russia from key international economic institutions such as the G‑7, there would be relatively few occasions when vital American and Russian interests collide.</p> <p>A fundamental shift in U.S. policy is needed, but that requires a&nbsp;major change in America’s national psychology. For more than four decades, Americans saw (and were told to regard) the Soviet Union as a&nbsp;mortal threat to the nation’s security and its most cherished values of freedom and democracy. Unfortunately, a&nbsp;mental reset did not take place when the USSR dissolved, and a&nbsp;quasi‐​democratic Russia emerged as one of the successor states. Too many Americans (including political leaders and policymakers) act as though they are still confronting the Soviet Union. It will be the ultimate tragic irony if, having avoided war with a&nbsp;totalitarian global adversary, America now stumbles into war because of an out‐​of‐​date image of, and policy toward, a&nbsp;conventional, declining regional power. Yet unless U.S. leaders change both their mindsets and their policies toward Russia, that outcome is a&nbsp;very real possibility.</p> </div> Ted Galen Carpenter, a&nbsp;senior fellow in defense and foreign policy studies at the Cato Institute and a&nbsp;contributing editor at the National Interest, is the author of 10 books, the contributing editor of 10 books, and the author of more than 700 articles on international affairs. This piece was originally featured in July 2018 and is being republished due to reader’s interest. Tue, 14 Jan 2020 08:51:14 -0500 Ted Galen Carpenter https://www.cato.org/publications/commentary/putins-russia-not-soviet-union-reborn Targeting the World’s Worst Religious Persecutors https://www.cato.org/publications/commentary/targeting-worlds-worst-religious-persecutors-0 <p><a href="https://www.cato.org/people/doug-bandow" hreflang="und">Doug Bandow</a></p> <div class="lead text-default"> <p>Christmas is typically a&nbsp;joyous time for Christians. But many believers were not able to celebrate their most important holiday this past year. Or any other. By numbers, Christianity is the most persecuted faith.</p> </div> , <div class="text-default"> <p>For example, confronting a&nbsp;population with more Christians than Communist Party members, the Chinese government has launched a&nbsp;brutal and intensive campaign against all faiths, especially when operating outside of government‐​controlled bodies. In the Middle East persecution is state policy in such nations as Saudi Arabia and Iran and favored activity of outside forces in Iraq and Syria.</p> <p>No faith is exempt. Judaism remains a&nbsp;perennial target of the most malevolent actors in many societies. Yazidis, Baha’is, and other non‐​traditional religions are particularly vulnerable to Islamist extremists. Being the “wrong” kind of Muslim can lead to great hardship, even death, in Islamic nations.</p> <p>The&nbsp;<a href="https://www.uscirf.gov/" target="_blank">United States Commission on International Religious Freedom</a>&nbsp;(USCIRF) makes an annual report on the status of religious liberty around the world. Persecution is surprisingly widespread. The situation is best in North and South America, though traditionally free countries, such as Canada, are moving in the wrong direction as socially conservative believers increasingly face exclusion and punishment. Africa, Asia, and the Middle East feature extensive religious cleansing and mass murder of people of faith.</p> </div> , <aside class="aside--right aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>Americans of serious religious faith increasingly and justifiably worry about the security of their liberties at home as support for religious freedom becomes just become another partisan issue.</p> </div> </div> </aside> , <div class="text-default"> <p>The State Department has named nine particularly egregious offenders as “<a href="https://www.uscirf.gov/news-room/press-releases-statements/uscirf-welcomes-the-state-department-s-designations-the-world-s" target="_blank">Countries of Particular Concern</a>.” The winners of the just concluded year’s contest for worst of the worst are Burma, China, Eritrea, Iran, North Korea, Pakistan, Saudi Arabia, Tajikistan, and Turkmenistan. Although rhetorically clumsy, the label is highly substantive, reflecting severe and systematic persecution. State generally follows the commission’s recommendations, though typically offers Realpolitik leniency based on other geopolitical considerations. USCIRF’s latest assessment details the offenders’ many crimes.</p> <p><strong>Burma.</strong>&nbsp;One of the most tragic cases covered by the commission, Burma, also known as Myanmar, seemed headed toward a&nbsp;democratic future four years ago when the military relaxed its hold on power and Nobel Laureate Aung San Suu Kyi’s National League for Democracy won an overwhelming majority of parliamentary seats. But the military continues to dominate security affairs, and Suu Kyi turned out to be a&nbsp;Burman nationalist more worried about strengthening her party’s reelection chances than remedying widespread human rights abuses.</p> <p>USCIRF reported on “widespread atrocities” against the Rohingya Muslims. Although these attacks have been particularly severe, other groups have suffered as well. Noted the commission, “Victims of severe human rights and religious freedom violations have little hope for justice; this includes Rohingya and other Muslims, Buddhists, Christians, and Hindus, as well as ethnic Kachin, Shan, Karen, Rakhine, and Chin.” In the case of some ethnic groups, the military and nonstate forces appear to be guilty of “crimes against humanity and even genocide.” The NLD‐​led government has restricted media freedom to report on such violations of human rights.</p> <p><strong>China.</strong>&nbsp;Although economic reform and engagement failed to deliver political liberalization in the People’s Republic of China, the death of Mao Zedong did yield a&nbsp;looser form of authoritarianism. Churches spread, and there are now more Christians than Communist Party members, especially those who join out of political ideology and not personal ambition.</p> <p>But Xi Jinping, who was selected as president and party general secretary in 2012, has fostered a&nbsp;return to Mao and Maoism. The Commission reported that at least 800,000 and perhaps as many as two million Muslim Uighurs have been sent to reeducation camps. Even those not detained face severe repression of their religious and personal liberties.</p> <p>Other believers also face serious and increasing attacks by the Chinese government. The commission reported that in 2018 the regime “effectively banned ‘unauthorized’ religious teachings and required religious groups to report any online activity. Moreover, the Chinese government continued to persecute all faiths in an effort to ‘sinicize’ religious belief, a&nbsp;campaign that attempts not only to diminish and erase the independent practice of religion, but also the cultural and linguistic heritage of religious and ethnic communities.” One senses the ghosts of Madame Mao and the Gang of Four with every new pronouncement from Beijing.</p> <p><strong>Eritrea.</strong>&nbsp;This North African country has been called the North Korea of Africa, which is not a&nbsp;compliment. After winning its independence from Ethiopia through a&nbsp;long and bitter war, Eritrea turned inward, creating a&nbsp;totalitarian horror.</p> <p>The regime recognizes only Sunni Islam and the Orthodox, Catholic, and Evangelical Churches. USCIRF explained, “Even these official religious groups are unable to practice their faith freely because the Eritrean government regulates and interferes in their affairs. The government does not allow any other religious groups to register and treats them as illegal.” Conscripts are not allowed to practice their faith. Those arrested often are imprisoned in inhumane conditions.</p> <p>Despite making peace with Ethiopia in 2018, Eritrea has not relaxed domestic repression. The commission noted that “hundreds of people are currently imprisoned for their religious beliefs, but in the extremely secretive and closed‐​off society there are no official figures.” The only escape is flight, and the number of Eritrean refugees going to Ethiopia has jumped.</p> <p><strong>Iran.</strong>&nbsp;The self‐​styled “Islamic republic” grew out of the overthrow of the U.S.-backed Shah. The regime has been under siege ever since, barely surviving an invasion by Saddam Hussein’s Iraq, supported by the Reagan administration, and subsequent sanctions and threats by Washington. Unsurprisingly, religious liberty has suffered.</p> <p>In 2018, USCIRF reported, Tehran heightened “its systematic targeting of Muslims (particularly Sunni Muslims and Sufis), Baha’is and Christians. The government arbitrarily detained, harassed, and imprisoned Baha’is based on their religion and continued its long‐​term practice of egregious economic and education persecution of the community. Hundreds of Sufis were arrested and scores were sent to solitary confinement and beaten in prison. Christians faced a&nbsp;dramatic uptick in arrests from previous years, and Muslim converts to Christianity continued to face severe persecution.” Jews and Shia reformers also suffered:</p> </div> , <blockquote class="blockquote"> <div> <p>Three years ago President Hassan Rouhani promised to liberalize the government’s policy toward religious minorities. However, that effort, if ever launched, was stillborn. The system has grown less tolerant. In fact, the situation today is far worse. The repressive religious order is able to suppress popular dissent only with difficulty; this battle over the regime’s survival is not helping religious liberty. The situation is likely to get worse before it improves.</p> </div> </blockquote> <cite> </cite> , <div class="text-default"> <p><strong>North Korea.</strong>&nbsp;The Democratic People’s Republic of Korea sets the global standard for repressive rule. The Kim family dynasty is treated as godly; anyone who promotes a&nbsp;higher loyalty to someone or something else, namely God, poses a&nbsp;severe threat to the system.</p> <p>The commission noted, “The North Korean regime has an appalling human rights record and places unjust restrictions on its people’s inherent right to freedom of religion or belief. The North Korean government maintains totalitarian control over society.” Only a&nbsp;handful of official churches are allowed to exist, mostly, it is believed, for show.</p> <p>In contrast, USCIRF explained, “Any expression of religion outside this heavily regulated sphere happens in secret, and anyone caught practicing religion or even suspected of harboring religious views in private is subject to severe punishment.” Defectors returned from China are most harshly punished if they have contact with Christian activists and churches active across the border. As many as 50,000 believers are thought to be imprisoned in North Korean labor camps.</p> <p><strong>Pakistan.</strong>&nbsp;Although the government sought to combat Islamic extremism, in 2018 “religious freedom conditions generally trended negative,” the commission stated. “During the year, extremist groups and societal actors continued to discriminate against and attack religious minorities, including Hindus, Christians, Sikhs, Ahmadis, and Shi’a Muslims. The government of Pakistan failed to adequately protect these groups, and it perpetrated systematic, ongoing, egregious religious freedom violations.”</p> <p>Among the most brutal tools of religious repression are the nation’s extreme blasphemy laws, which often are used against religious minorities and manipulated as part of personal, social, and financial disputes. Religious hatred also is a&nbsp;vote winner. USCIRF explained that “the entry of extremist religious parties into the political arena during the election period led to increased threats and hate speech against religious minorities.” Even the best of intentions of political leaders have been frustrated by Islamist demagogues.</p> <p><strong>Saudi Arabia.</strong>&nbsp;President Donald Trump criticized the Kingdom of Saudi Arabia during the campaign but has since acted as if Riyadh was the superpower and America the helpless supplicant. Yet the KSA is one of the most repressive states on earth. Even after recent social liberalization, the royal regime maintains essentially totalitarian religious and political restrictions: no dissent of any kind is permitted, and dissidents abroad risk kidnapping, murder, and dismemberment.</p> <p>Saudi officials have, the commission reported, pledged “to promote interfaith dialogue and the flourishing of different faith traditions as part of the kingdom’s domestic reforms,” but nothing has yet changed in practice. The regime “maintained a&nbsp;ban on non‐​Muslim public religious observance and continued to arrest, detain, and harass individuals for dissent, blasphemy, and apostasy. The Saudi government continued to violate the rights of Shi’a Muslims and non‐​Muslim minorities, and to advocate doctrine of religious intolerance.”</p> <p>The latter is particularly important. The royals made a&nbsp;proverbial deal with the devil, promoting the intolerant doctrines of Wahhabism in the kingdom and around the world in return for support for the al‐​Saud dynasty. Yet “after more than 15&nbsp;years of incremental progress, the Saudi government showed backsliding on improvements to its textbooks that continued to propagate intolerance and advocate violence against religious minorities” and others. The result is likely to be creation of more violent terrorists and murder of more innocents.</p> <p><strong>Tajikistan.</strong>&nbsp;This authoritarian former Soviet republic fears not only extremism, as it should, but faith, which it should not. Explained USCIRF, the government continues its “repressive policies, suppressing displays of public religiosity and persecuting minority communities, especially actual and alleged Salafists. Authorities pursued a&nbsp;crackdown on various attributes of faith, including restrictions on wedding and funerary banquets, and pursued extralegal bans on beards and hijabs. Higher Islamic religious education was all but decimated.” More than 2,000 mosques were closed.</p> <p>Such brutality obviously is unjust. It also is likely to spur extremist thought and action. If the only way to pursue a&nbsp;life of faith is illegally, then the potential for illicit teaching and association is far greater.</p> <p><strong>Turkmenistan.</strong>&nbsp;None of the Central Asian states turned out well after independence. Alas, the commission warned, “Turkmenistan is widely considered the most closed of the former Soviet states, and this was reflected in the range and severity of the government’s religious freedom violations.”</p> <p>The regime imprisoned conscientious objectors and “continued to be suspicious of all independent religious activity and maintained a&nbsp;large surveillance apparatus that monitors believers at home and abroad.” The government “requires religious groups to register under intrusive criteria, strictly controls registered groups’ activities, and bans and punishes religious activities by unregistered groups.”</p> <p>Those accused of religious offenses often are tried in communicado, receive secret sentences, and disappear “in the state’s prisons system and are presumed to be held without any contact with the outside world.” Their fate can only be presumed, however, since “the full extent of religious persecution is unknown due to the nearly complete absence of independent news media and the threat of retaliation by the government against communities, family members, and individuals who publicize human rights and religious freedom violations.”</p> <p>Unfortunately, there are plenty of also‐​rans in the race for the bottom. For instance, in its latest report the commission noted that globally “both state and nonstate actors increasingly used religion as a&nbsp;tool of exclusion to isolate, marginalize, and punish the ‘other’ through discrimination and violence.”</p> <p>State also places some countries — oppressive, but behind the CPCs — on a&nbsp;Special Watch List. This year those nations are Comoros, Cuba, Nicaragua, Nigeria, Russia, Sudan, and Uzbekistan. Their characters vary, but the results are similar, gross interference with freedom of conscience and the ability to live out one’s faith.</p> <p>All believers are a&nbsp;risk, but Moscow’s intolerance is curiously and narrowly focused, with Jehovah’s Witnesses the most recent target. In most cases malign governments — authoritarian, communist, or Islamist — are to blame. In Nigeria a&nbsp;virulent Islamic insurgency terrorizes Christians and nonviolent Muslims. Only in the case of Sudan is the ranking positive, since the overthrow of Omar al‐​Bashir eased oppression of non‐​Muslims. Khartoum used to be CPC.</p> <p>USCIRF does not stop with these nations. It also surveys a&nbsp;number of other nations in what the commission calls Tier 1&nbsp;and Tier 2. These oppressive extras are Afghanistan, Azerbaijan, Bahrain, Central African Republic, Egypt, India, Indonesia, Iraq, Kazakhstan, Laos, Malaysia, Syria, Turkey, and Vietnam.</p> <p>Although the CPC designation is useful, it is merely a&nbsp;starting point. The U.S. and other nations of goodwill have only limited ability to reach into other societies and improve human rights, whether religious, political, or civil.</p> <p>The application of general sanctions hurts people more than governments, usually without policy effect. Targeted sanctions provide moral satisfaction but have yet to ease, let alone end, persecution anywhere. Who believes that Washington’s criticism will cause Xi Jinping, heretofore the new Chinese Mao, to suddenly channel Thomas Jefferson and speak of the eternal rights to life and liberty?</p> <p>Worse, U.S. policy often ignores and sometimes spurs persecution. Washington usually goes soft when its allies — Egypt and Saudi Arabia are current examples — are the oppressors. Indeed, Riyadh is notably more ruthless than Tehran, but the former’s crimes are almost never mentioned by Secretary of State and noted Evangelical Mike Pompeo. The impact of Washington’s policies can be even worse: the invasion of Iraq created chaos, sparked sectarian war, and spread persecution. The Christian community was ravaged, with many believers forced abroad, including to Syria, where they were victimized again, this time by insurgents backed by Washington. In such cases, the best the U.S. could do is adopt the Hippocratic Oath: first, do no harm.</p> <p>Yet support for the oppressed matters, and not just from governments. In fact, assistance from individuals, congregations, activists, groups, and anyone else who believes in the importance of human life and dignity is critical. Such non‐​political efforts cannot be dismissed as hypocritical cant and pursuit of foreign policy by other means.</p> <p>Private campaigns also can embarrass, hinder, impede, and shame offenders. Equally important, standing for religious liberty lets the victims know that they are not alone. Knowledge that they are backed by a&nbsp;genuine “international community” helps give them strength for what almost certainly will be a&nbsp;lengthy struggle well into the future.</p> <p>Americans of serious religious faith increasingly and justifiably worry about the security of their liberties at home as support for religious freedom becomes just become another partisan issue. Yet believers in the U.S. do not know real persecution. Rather, brothers and sisters in faith abroad are the principal victims of religious intolerance, discrimination and persecution. They require the hopes, prayers, and support of good people around the globe.</p> </div> Doug Bandow is a&nbsp;Senior Fellow at the Cato Institute. He is a&nbsp;former Special Assistant to President Ronald Reagan and author of several books, including Beyond Good Intentions: A&nbsp;Biblical View of Politics and Foreign Follies: America’s New Global Empire. Sun, 12 Jan 2020 09:35:55 -0500 Doug Bandow https://www.cato.org/publications/commentary/targeting-worlds-worst-religious-persecutors-0 Be Skeptical about the Census https://www.cato.org/publications/commentary/counterpoint-be-skeptical-about-census <p><a href="https://www.cato.org/people/matthew-feeney" hreflang="und">Matthew Feeney</a></p> <div class="lead text-default"> <p>This year the Census Bureau will begin conducting the constitutionally required census, which takes place every 10&nbsp;years. Many readers will dutifully fill out the forms, informing the bureau about their household and providing researchers with data. In May, the bureau will begin visiting those who haven’t responded to the census.</p> </div> , <div class="text-default"> <p>But why wouldn’t someone want to contribute to social science and an accurate head count? The history of the census provides ample evidence to justify such reluctance.</p> <p>The census sounds harmless enough. In a&nbsp;representative democracy like the United States where seats in at least part of the legislature are determined by population, it’s important to know how many people live in the country and where they live. The framers of the Constitution codified the decennial census as the mechanism for determining the number of seats each state occupies in the House of Representatives. Yet the information included in the census has been used to violate civil liberties, and it would be a&nbsp;mistake to assume similar abuses won’t occur again.</p> <p>Governments often overreact in the wake of a&nbsp;crisis, and a&nbsp;crucial feature of such overreactions is the collection and analysis of information. During the first Red Scare, a&nbsp;24‐​year‐​old J. Edgar Hoover was put in charge of the so‐​called “Anti Radical Division” formed by the Attorney General A. Mitchell Palmer after a&nbsp;string of anarchist bombings. Hoover, who previously worked at the Library of Congress, used his librarian skills in his hunt for aliens to deport. His team assembled hundreds of thousands of index cards associated with not only individuals but publications and organizations. These notecards aided Department of Justice officials, who conducted the so‐​called Palmer Raids in late 1919 and early 1920. The raids resulted in thousands of people being arrested without warrants, hundreds of whom were deported.</p> <p>Such zeal for data collection was not isolated to the first Red Scare. Other crises have resulted in increased information gathering. And one of the best sources of information available to the government is the census.</p> <p>After the Japanese navy’s air service bombed the U.S. Navy base at Pearl Harbor in December 1941, military officials reached for the census to facilitate one of the most shameful civil liberty abuses in American history: the internment of Japanese‐​Americans. A&nbsp;few months after the attack, President Franklin D. Roosevelt issued Executive Order 9066. The order authorized the secretary of war to exclude those considered national security risks from designated military areas. As result, 120,000 people of Japanese descent — the majority of whom were U.S. citizens — were moved into internment camps.</p> <p>Census officials denied that the bureau had assisted Japanese internment. But in 2000 historian Margo Anderson of the University of Wisconsin and Fordham University statistician William Seltzer uncovered evidence that Census Bureau officials provided information on whereabouts of people with Japanese ancestry. In 2000, the Census Bureau director apologized, but only a&nbsp;few years after the apology the bureau was aiding the surveillance of another minority group.</p> <p>In August 2002 and December 2003, the Census Bureau put together tabulations of Arab‐​Americans for Customs and Border Protection. These tabulations included information on how many Arab‐​Americans lived in specific ZIP codes. The creation of these tabulations was a&nbsp;small part of the U.S. government’s broader overreaction to the 9/11 terrorist attacks, which resulted in widespread and needless infringements on civil liberties.</p> <p>We should expect that in response to the next crisis officials won’t be shy about seeking census data. This risk is more pronounced when the targets of government surveillance come from broad groups such as “Japanese‐​Americans” or “Arab‐​Americans.” The history of American surveillance reveals a&nbsp;list of the targets that is long and diverse. Today the administration is concerned about illegal immigrants. This misguided concern prompted the administration to seek to add a&nbsp;citizenship question to the 2020 census before the Supreme Court ruled against the administration.</p> <p>Future administrations will have different targets. Given that anyone could one day be on the receiving end of government surveillance, it behooves us to be hesitant to volunteer intimate details about our families.</p> <p>Refusing to accurately complete a&nbsp;census form is against the law and could result in a&nbsp;fine. Fortunately, the Department of Justice is hesitant to pursue census refusal cases. It’s true that the census provides researchers with valuable data, but given the history of government overreaction to crises you could forgive those who err on the side of providing less information to the Census Bureau.</p> </div> Matthew Feeney is the director of the Cato Institute’s Project on Emerging Technologies. Sat, 11 Jan 2020 12:28:14 -0500 Matthew Feeney https://www.cato.org/publications/commentary/counterpoint-be-skeptical-about-census Croatia Now Ranks among the Freest Countries in the World https://www.cato.org/publications/commentary/croatia-now-ranks-among-freest-countries-world <p><a href="https://www.cato.org/people/tanja-porcnik" hreflang="und">Tanja Porčnik</a></p> <div class="lead text-default"> <p>With the rise of populism and hybrid forms of authoritarianism, people’s rights and freedoms are under assault in many corners of the globe. Unsurprisingly, among the countries with the most substantial deterioration in freedom in the last year are Angola, Venezuela and Tajikistan. The good news is that freedom has taken root in a&nbsp;diverse set of societies and it is spreading in many of them. Among them is Croatia, which for the first time ranks among the freest countries in the world by quartile.</p> </div> , <div class="text-default"> <p>We recently released the fifth annual Human Freedom Index, the most comprehensive measure of freedom ever created for a&nbsp;large number of countries across the globe. With the index, my co‐​author Ian Vásquez and I&nbsp;cover 162 jurisdictions and use 76 distinct indicators of personal and economic freedom, applying data from 2008 to 2017, the most recent year for which sufficient data are available. Because of inherent value of human freedoms and their contribution to well‐​being, freedoms deserve the most vigorous defense. The report is co‐​published by the Fraser Institute in Canada, the Cato Institute in the United States and the Friedrich Naumann Foundation for Freedom in Germany.</p> <p>In the recently released index, we again rank New Zealand and Switzerland as the two freest countries in the world while we again rank Venezuela and Syria last. Other selected countries rank as follows: Germany (8th place), Sweden (11), United Kingdom (14), the United States (15), Japan (25), Chile (28), France (33), Poland (40), Argentina (77), Kenya (79), Mexico (92), India (94), Brazil (109), Russia (114), Turkey (122), Saudi Arabia (149) and Iran (154).</p> <p>How do the former Yugoslav republics rank? The freest country is Slovenia (35), followed by Croatia (37), Montenegro (53), Bosnia and Herzegovina (55), Serbia (58) and, the least free, North Macedonia (65).</p> <p>The index confirms that global freedom remains in retreat as the average human freedom rating for 2017 again falls. At a&nbsp;country level, human freedom tumbles in more countries than not, with some 88 countries experiencing a&nbsp;decline in their freedom ratings compared to 70 countries increasing its freedom since last year. Within the latter group, Croatia experienced the 20th highest increase in the world by increasing its level of human freedom from 7.72 (43rd rank) in 2016 to 7.86 (37th rank) in 2017. Before this significant leap on the Index, Croatia has consistently ranked in the second quartile of countries included. In the recently released report, Croatia for the first time ranks among the freest countries in the world by quartile.</p> <p>Notably, while Croatia has increased both personal and economic freedom in the last decade, it is its economic freedom that has seen flourishing recently, which resulted in the country’s jump from the 73rd position on economic freedom to 56th rank globally, with which the country surpassed Poland and Hungary and is not closely trailing Slovenia and Slovakia.</p> </div> , <figure class="figure overflow-hidden figure--default figure--no-caption"> <div class="figure__media"> <img width="677" height="250" alt="Croatia Economic Freedom Index Ranking" class="lozad component-image" data-srcset="/sites/cato.org/files/styles/pubs/public/2020-01/tanja-article-1-10-20.png?itok=PcBk0qmV 1x, /sites/cato.org/files/styles/pubs_2x/public/2020-01/tanja-article-1-10-20.png?itok=iT_CaXqK 1.5x" data-src="/sites/cato.org/files/styles/pubs/public/2020-01/tanja-article-1-10-20.png?itok=PcBk0qmV" typeof="Image" /> </div> </figure> , <div class="text-default"> <p>So what advances did Croatia see during the first year of Prime Minister Andrej Plenković centre‐​right government to increase the country’s economic freedom? Granted, some of these strides were spillovers from 2016 when the government was led by former Prime Minister Tihomir Orešković.</p> <p>First, on regulations, Croatia decreased restrictions on the sale of real property measured in days and costs required to register and transfer ownership of property; cut financial barriers to obtain a&nbsp;construction license; maintained commitment to the implementation of a&nbsp;one‐​stop shop business registration not only to save time and cost but also can make procedural requirements more transparent and accessible; and cut the risk that businesses become more costly due to the regulatory environment, including compliance and bureaucratic inefficiency and opacity.</p> <p>Second, on the size of government, Croatia reduced the extent of government borrowing relative to borrowing by the private sector, decreased the government investment as a&nbsp;share of total investment in the country and reduced the degree to which the state owns and controls capital in the industrial, agricultural and service sectors.</p> <p>Third, on monetary parameters, in light of pursued sound monetary policy by the Croatian National Bank (Hrvatska narodna banka – HNB) and its resistance to devaluate the Croatian currency, the kuna, in order to stimulate export demand, Croatia decreased both the average annual growth of the money supply and the standard deviation of the inflation rate.</p> <p>However, not everything went in the right direction for Croatia in 2017, as the country weakened the rule of law even more than it used to be, with gaining lower scores for judicial independence, the impartiality of courts, protection of property rights and reliability of police. The inability to strengthen the rule of law is actually a&nbsp;common problem of former socialist economies in the Balkans.</p> <p>Finally, the evidence shows the importance of freedom for development. Indeed, the Human Freedom Index report finds a&nbsp;strong relationship between the level of freedom and income. The freest countries in the world by quartile enjoy much higher income per person ($40,171) compared to those in the least‐​free quartile ($15,721). Further, looking at economic freedom specifically, extensive empirical literature reveals that it is</p> <p>positively associated with not only national income but also economic growth, living standards, economic equality, alleviation of poverty and a&nbsp;variety of other desirable social and economic outcomes. That said, Croatians are projected to experience other positive trends than an increase in freedom to pursue their own opportunities and make their own choices.</p> </div> <p>Tanja Porčnik is a&nbsp;Senior Fellow of the Fraser Institute specializing in economic and human freedom studies.</p> Fri, 10 Jan 2020 14:42:22 -0500 Tanja Porčnik https://www.cato.org/publications/commentary/croatia-now-ranks-among-freest-countries-world The Obama Administration Wrecked Libya for a Generation https://www.cato.org/publications/commentary/obama-administration-wrecked-libya-generation <p><a href="https://www.cato.org/people/doug-bandow" hreflang="und">Doug Bandow</a></p> <div class="lead text-default"> <p>Libya’s ongoing destruction belongs to Hillary Clinton more than anyone else. It was she who pushed President Barack Obama to launch his splendid little war, backing the overthrow of Moammar Gaddafi in the name of protecting Libya’s civilians. When later asked about Gaddafi’s death, she cackled and exclaimed: “We came, we saw, he died.”</p> </div> , <div class="text-default"> <p>Alas, his was not the last death in that conflict, which has flared anew, turning Libya into a&nbsp;real‐​life&nbsp;<em>Game of Thrones</em>. An artificial country already suffering from deep regional divisions, Libya has been further torn apart by political and religious differences. One commander fighting on behalf of the Government of National Accord (GNA), Salem Bin Ismail, told the BBC: “We have had chaos since 2011.”</p> <p>Arrayed against the weak unity government is the former Gaddafi general, U.S. citizen, and one‐​time CIA adjunct Khalifa Haftar. For years, the two sides have appeared to be in relative military balance, but a&nbsp;who’s who of meddlesome outsiders has turned the conflict into an international affair. The latest playbook features Egypt, France, Jordan, Saudi Arabia, the United Arab Emirates, and Russia supporting Haftar, while Italy, Qatar, and Turkey are with the unity government.</p> </div> , <aside class="aside--right aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>Such is the cost of America’s promiscuous war‐​making</p> </div> </div> </aside> , <div class="text-default"> <p>In April, Haftar launched an offensive to seize Tripoli. It faltered until Russian mercenaries made an appearance in September, bringing Haftar to the gates of Tripoli. He apparently is also employing Sudanese mercenaries, though not with their nation’s backing. Now Turkey plans to introduce troops to bolster the official government.</p> <p>Washington’s position is at best confused. It officially recognizes the GNA. When Haftar started his offensive, Secretary of State Mike Pompeo issued a&nbsp;statement urging “the immediate halt to these military operations.” However, President Donald Trump then initiated a&nbsp;friendly phone call to Haftar “to discuss ongoing counterterrorism efforts and the need to achieve peace and stability in Libya,” according to the White House. More incongruously, “The president recognized Field Marshal Haftar’s significant role in fighting terrorism and securing Libya’s oil resources, and the two discussed a&nbsp;shared vision for Libya’s transition to a&nbsp;stable, democratic political system.” The State Department recently urged both sides to step back. However, Haftar continues to advance, and just days ago captured the coastal city of Sirte.</p> <p>In recent years, Libya had been of little concern to the U.S. It was an oil producer, but Gaddafi had as much incentive to sell the oil as did King Idris I, whom Gaddafi and other members of the “Free Officers Movement” ousted. Gaddafi carefully balanced interests in Libya’s complex tribal society and kept the military weak over fears of another coup. He was a&nbsp;geopolitical troublemaker, supporting a&nbsp;variety of insurgent and terrorist groups. But he steadily lost influence, alienating virtually every African and Middle Eastern government.</p> <p>Of greatest concern to Washington, Libyan agents organized terrorist attacks against the U.S. — bombing an American airliner and a&nbsp;Berlin disco frequented by American soldiers — leading to economic sanctions and military retaliation. However, those days were long over by 2011. Eight years before, in the aftermath of the U.S. invasion of Iraq, Gaddafi repudiated terrorism and ended his missile and nuclear programs in a&nbsp;deal with the U.S. and Europe. He was feted in European capitals. His government served as a&nbsp;non‐​permanent member of the UN Security Council from 2008 to 2009. American officials congratulated him for his assistance against terrorism and discussed possible assistance in return. All seemed forgiven.</p> <p>Then in 2011, the Arab Spring engulfed Libya, as people rose against Gaddafi’s rule. He responded with force to reestablish control. However, Western advocates of regime change warned that genocide was possible and pushed for intervention under United Nations auspices. In explaining his decision to intervene, Obama stated: “We knew that if we waited one more day, Benghazi…could suffer a&nbsp;massacre that would have reverberated across the region and stained the conscience of the world.” Russia and China went along with a&nbsp;resolution authorizing “all necessary measures to prevent the killing of civilians.”</p> <p>In fact, the fears were fraudulent. Gaddafi was no angel, but he hadn’t targeted civilians, and his florid rhetoric, cited by critics, only attacked those who had taken up arms. He even promised amnesty to those who abandoned their weapons. With no civilians to protect, NATO, led by the U.S., bombed Libyan government forces and installations and backed the insurgents’ offensive. It was not a&nbsp;humanitarian intervention, but a&nbsp;lengthy, costly, low‐​tech, regime‐​change war, mostly at Libyan expense. Obama claimed: “We had a&nbsp;unique ability to stop the violence.” Instead his administration ensured that the initial civil war would drag on for months — and the larger struggle ultimately for years.</p> <p>On October 20, 2011, Gaddafi was discovered hiding in a&nbsp;culvert in Sirte. He was beaten, sodomized with a&nbsp;bayonet, shot, and killed. That essentially ended the first phase of the extended Libyan civil war. Gaddafi had done much to earn his fate, but his death led to an entirely new set of problems.</p> <p>A low level insurgency continued, led by former Gaddafi followers. Proposals either to disband militia forces or integrate them into the National Transitional Council (NTC) military went unfulfilled, and this developed into the conflict’s second phase. Elections delivered fragmented results, as ideological, religious, and other divisions ran deep. Militias were accused of misusing government funds, employing violence, and kidnapping and assassinating their opponents. Islamist groups increasingly attempted to impose religious rule. Violence and insecurity worsened.</p> <p>In February 2014, Haftar challenged the General National Congress (GNC). Hostilities broadly evolved between the GNC/GNA, backed by several militias, which controlled Tripoli and much of the country’s west, and the Tobruk‐​based House of Representatives, which was supported by Haftar and his Libyan National Army. Multiple domestic factions, forces, and militias also were involved. Among them was the Islamic State, which murdered Egyptian Coptic (Christian) laborers.</p> <p>The African Union and the United Nations promoted various peace initiatives. However, other governments fueled hostilities. Most notable now is the potential entry of Turkish troops.</p> <p>In mid‐​December, Turkey’s parliament approved an agreement to provide equipment, military training, technical aid, and intelligence. (The Erdogan government also controversially set maritime boundaries with Libya that conflict with other claims, most notably from Cyprus, Egypt, Greece, and Israel.) Ankara introduced some members of the dwindling Syrian insurgents once aligned against the Assad regime to Libya and raised the possibility of adding its “quick reaction force” to the fight.</p> <p>At the end of last month, the Erdogan government introduced, and parliament approved, legislation to authorize the deployment of combat forces. President Erdogan criticized nations that backed a “putschist general” and “warlord” and promised to support the GNA “much more effectively.” While noting that Turkey doesn’t “go where we are not invited” (except, apparently, Syria), Erdogan added that “since now there is an invitation [from the GNA], we will accept it.”</p> <p>But Haftar refused to back down. Last week, he called on “men and women, soldiers and civilians, to defend our land and our honor.” He continued: “We accept the challenge and declare jihad and a&nbsp;call to arms.”</p> <p>Turkish legislator Ismet Yilmaz supported the intervention and warned that the conflict might “spread instability to Turkey.” More likely the intervention is a&nbsp;grab for energy, since Ankara has devoted significant resources of late to exploring the Eastern Mediterranean for oil and gas. Libya has oil deposits, of course, which could be exploited under a&nbsp;friendly government. Perhaps most important, Ankara wants to ensure that its interests are respected in the Eastern Mediterranean.</p> <p>However, direct intervention is an extraordinarily dangerous step. It puts Turkey in the line of fire, as in Syria. Ankara’s forces could clash with those of Russia, which maintains the merest veneer of deniability over its role in Libya. And other powers — Egypt, perhaps, or the UAE — might ramp up their involvement in an effort to thwart Erdogan’s plans.</p> <p>In response, the U.S. attempted to warn Turkey against intervening. “External military intervention threatens prospects for resolving the conflict,” said State Department spokeswoman Morgan Ortagus with no hint of irony. Congress might go further: some of its members have already proposed sanctioning Russia for the introduction of mercenaries, and Ankara has few friends left on Capitol Hill. Nevertheless it is rather late for Washington to cry foul. Its claim to essentially a&nbsp;monopoly on Mideast meddling can only be seen as risible by other powers.</p> <p>The Arab League has also criticized “foreign interference.” In a&nbsp;resolution passed in late December, the group expressed “serious concern over the military escalation further aggravating the situation in Libya and which threatens the security and stability of neighboring countries and the entire region.” However, Arab League is no less hypocritical. Egypt, the UAE, Jordan, and Saudi Arabia, all deeply involved in the conflict, are members of the league. And no one would be surprised if some or all of them decided to expand their participation in the fighting. Egyptian president Abdel Fatah al‐​Sisi insisted: “We will not allow anyone to control Libya. It is a&nbsp;matter of Egyptian national security.”</p> <p>Although the fighting is less intense than in, say, Syria, combat has gone high‐​tech. According to the&nbsp;<em>Washington Post</em>: “Eight months into Libya’s worst spasm of violence in eight years, the conflict is being fought increasingly by weaponized drones.” ISIS is one of the few beneficiaries of these years of fighting. GNA‐​allied militias that once cooperated with the U.S. and other states in counterterrorism are now focused on Haftar, allowing militants to revive, set up desert camps, and organize attacks. Washington still employs drones, but they rely on accurate intelligence, best gathered on the ground, and even then well‐​directed hits are no substitute for local ground operations.</p> <p>The losers are the Libyan people. The fighting has resulted in thousands of deaths and tens of thousands of refugees. Divisions, even among tribes, are growing. The future looks ever dimmer. Fathi Bashagha, the GNA interior minister, lamented: “Every day we are burying young people who should be helping us build Libya.” Absent a&nbsp;major change, many more will be buried in the future.</p> <p>Yet the air of unreality surrounding the conflict remains. In late December, President Trump met with al‐​Sisi and, according to the White House, the two “rejected foreign exploitation and agreed that parties must take urgent steps to resolve the conflict before Libyans lose control to foreign actors.” However, the latter already happened — nine years ago when America first intervened.</p> <p>The Obama administration did not plan to ruin Libya for a&nbsp;generation. But its decision to take on another people’s fight has resulted in catastrophe. Hillary Clinton’s malignant gift keeps on giving. Such is the cost of America’s promiscuous war‐​making.</p> </div> Doug Bandow is a&nbsp;senior fellow at the Cato Institute. He is a&nbsp;former special assistant to President Ronald Reagan and the author of several books, including Foreign Follies: America’s New Global Empire. Fri, 10 Jan 2020 10:36:37 -0500 Doug Bandow https://www.cato.org/publications/commentary/obama-administration-wrecked-libya-generation Want to Create an Immigration System That Works? Look to Airbnb https://www.cato.org/publications/commentary/want-create-immigration-system-works-look-airbnb <p><a href="https://www.cato.org/people/ryan-bourne" hreflang="und">Ryan Bourne</a></p> <div class="lead text-default"> <p>Plenty of foreigners would value the opportunity to work in the UK for a&nbsp;short period. Lots of UK citizens, meanwhile, would prefer some time out of the labour market to upskill, care for a&nbsp;loved one, or even travel. Yet today these two groups have no means of trading their desires. We have what economists call “a missing market”.</p> </div> , <div class="text-default"> <p>Economists view movements of people for work as synonymous with international trade.&nbsp;<a href="https://www.telegraph.co.uk/business/2019/06/27/need-immigration-system-can-wean-economy-addiction-cheap-labour/" target="_blank">Barriers to immigration prevent workers moving to where they are most productive</a>, making the global economy poorer. But as Brexit showed, completely “open borders” appears a&nbsp;politically unsustainable proposition.</p> <p>Voters want migration controlled. They see their country more as a&nbsp;club than part of a&nbsp;global labour market. So although most evidence suggests immigration enriches the economy, voters place heavier weight on the welfare of adversely affected domestic citizens, the localised impact on public services, or perceptions of cultural damage, than on aggregate benefits including to migrants themselves.</p> <p>Hence the Conservatives have pledged to end free movement for EU citizens after Brexit. They’ve promised instead an “Australian‐​style, points‐​based system”, applied equally to all countries. Our Government would rank potential migrants according to certain characteristics for determining visa eligibility, including educational achievement, language skills, work experience, or having a&nbsp;job offer.</p> <p>Such a&nbsp;bureaucratic approach — setting conditions and allowing all who fulfil them to enter — is one of three broad ways to “control” immigration. The others are quotas (imposing a&nbsp;crude cap on immigrant numbers) or prices (some financial barrier to entry). Most real‐​life systems are hybrids of these approaches.</p> <p>Economically, though, not all immigration controls are created equal. Capping numbers creates obvious absurdities. Suppose a&nbsp;limit is set at 99,999 people per year. Would the UK benefit if an international footballer was denied a&nbsp;Premier League job as number 100,000? The answer is, clearly, no.</p> <p>Nor is the Government likely to do well at centrally planning the labour market&nbsp;<a href="https://www.telegraph.co.uk/business/2019/12/09/switching-points-based-immigration-system-would-mean-uk-economy/" target="_blank">through a&nbsp;points‐​based system</a>. Already ministers are talking up a&nbsp;separate visa route for NHS nurses. Agriculture will surely follow. Whitehall has no knowledge of migrant’s potential for entrepreneurship, nor can it second‐​guess businesses’ needs in an environment in an ever‐​changing economy.</p> <p>Is there a&nbsp;market‐​based immigration policy that could harness most of the benefits of immigration, address some stated public concerns, while avoiding these destructive economic impacts? There is. And it comes back to our “missing market” above.</p> <p>One of the most valuable assets we UK citizens have is our permanent “right to work” in a&nbsp;high‐​wage economy. Yet this is an effective property right we own but can’t currently trade.</p> <p>Suppose instead we had the option to “rent out” this right, leasing it to a&nbsp;foreigner for a&nbsp;contractually agreed period. Technology now exists such that the Government could do for work permits what Airbnb has done for our homes — making ownership of our “right to work” a&nbsp;marketable asset.&nbsp;Just as&nbsp;<a href="https://www.telegraph.co.uk/technology/2019/04/30/airbnbs-rapid-growth-has-changed-face-europe-cities-fighting/" target="_blank">leasing your home on Airbnb temporarily disables you from living in it</a>, leasing out your work right&nbsp;would temporarily prevent you from working.</p> <p>If such trade were allowed, the foreigner would get the time‐​limited right to work in the UK in return for the UK citizen (likely to be in temporary need) getting a&nbsp;cash sum they’d prefer. As a&nbsp;voluntary trade, both sides would be better off. Most gains from immigration would still be realised, but with more of the surplus accruing to participating UK citizens.</p> <p>Economists Martin Ravallion and Michael Lokshin have developed such a&nbsp;proposal. Under their scheme, a&nbsp;government auction website would announce start dates and work permit durations for bidding. Eligible UK citizens could register, setting their minimum asking price for giving up their right to work, with foreign buyers registering maximum bids.</p> <p>Software would then “clear” the market, setting the final price such that demand and supply intersect. Those who bid at least the discovered market price would be matched anonymously with UK citizens willing to sell at or below it. Transactions would be complete when payments were transferred through a&nbsp;clearing system to the seller.</p> <p>After the work permit expires, British participants would regain the right to work. Such a&nbsp;rental scheme brings obvious benefits. An unchanged potential number of workers would somewhat alleviate fears about migrants taking jobs. Much of the black market in foreign labour would be eliminated too — now UK citizens, rather than human traffickers, would be capturing the financial gain.</p> <p>What’s more, UK citizens, would, in effect, now benefit from the option of a&nbsp;time‐​limited, out‐​of‐​work “basic income”. This additional social protection, fully funded by market activity, could be used to retrain, move, cope with unemployment, raise children, or remunerate people for caring for the ill, disabled, or elderly.</p> <p>Other details would need to be thrashed out. UK eligibility might be restricted to those with strong employment histories, to stop it compounding social problems associated with long‐​term unemployment. Some secondary market for people whose situations change will be necessary. Other considerations include whether family members of foreign work permit holders would be able to live in the UK, the lengths of permits, and whether rental payments constitute taxable income.</p> <p>But these are details for a&nbsp;market that’s clearly viable. According to Oxford University’s Migration Observatory, an average of 150,000 immigrants per year (between 2012 and 2016) had stays of just three to 12&nbsp;months for work or study. Between 1990 and 2017, a&nbsp;large majority of non‐​UK nationals who left the country had lived here for five years or fewer.</p> <p>A work permit rental scheme wouldn’t be the complete answer. People migrate for non‐​work reasons too. But if we want to maintain the economic gains of market‐​based immigration for work, while flipping the economic interests of poorer groups affected by or opposed to it, then Boris should harness technology to create a&nbsp;market in work permits. Airbnb points the way.</p> </div> Ryan Bourne is the R&nbsp;Evan Scharf Chair for the Public Understanding of Economics at the Cato Institute. Thu, 09 Jan 2020 18:27:25 -0500 Ryan Bourne https://www.cato.org/publications/commentary/want-create-immigration-system-works-look-airbnb Regime Change Rarely Succeeds. When Will the U.S. Learn? https://www.cato.org/publications/commentary/regime-change-rarely-succeeds-when-will-us-learn <p><span class="text-semibold">Benjamin Denison</span></p> <div class="lead text-default"> <p>Even after watching the chaos produced in Afghanistan, Iraq and Libya following regime change, some in Washington have continued to advocate similar policies toward&nbsp;<a href="https://www.wsj.com/articles/u-s-push-to-oust-venezuelas-maduro-marks-first-shot-in-plan-to-reshape-latin-america-11548888252" target="_blank">Venezuela</a>,&nbsp;<a href="https://www.washingtonpost.com/opinions/2019/07/30/call-your-iran-policy-by-its-true-name/?tid=lk_inline_manual_3" target="_blank">Iran</a>,&nbsp;<a href="https://www.nytimes.com/2018/05/16/world/asia/north-korea-libya-model.html" target="_blank">North Korea</a>&nbsp;and elsewhere. The belief that removing a&nbsp;foreign government can quickly and easily promote U.S. interests by force still resonates, as we have most recently seen in the response to the&nbsp;<a href="https://www.washingtonpost.com/world/middle_east/missile-strike-on-us-bases-did-not-intend-to-kill-says-iranian-commander/2020/01/09/c5c2295c-3260-11ea-971b-43bec3ff9860_story.html?tid=lk_inline_manual_3" target="_blank">escalating tensions</a>&nbsp;with Iran. And that is far from the only example.</p> </div> , <div class="text-default"> <p>The recently released&nbsp;<a href="https://www.washingtonpost.com/graphics/2019/investigations/afghanistan-papers/afghanistan-war-confidential-documents/?tid=lk_inline_manual_4" target="_blank">Afghanistan Papers</a>&nbsp;highlight how, for years, overly optimistic policymakers misled the public about the prospects of building a&nbsp;viable Afghan state. Implicit in most of the documents is a&nbsp;feeling that, with the correct strategy or more investment, the war in Afghanistan could have succeeded.</p> <p>Yet the Afghanistan war was not exceptional. It simply continued the trend of regime change leading to adverse outcomes rather than greater U.S. security.</p> </div> , <aside class="aside--right aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>Regime change operations are a&nbsp;roll of the dice that are unlikely to produce a&nbsp;winner.</p> </div> </div> </aside> , <div class="text-default"> <p>Forcible regime change, or using military force to overthrow a foreign government, can be enticing when a regime appears to be threatening U.S. security. The logic is that when a regime continues to work against U.S. interests, replacing the regime can be a quick and easy way to change this pattern rather than sustained military action or diplomatic negotiation.</p> <p>The problem, however, is that a resounding amount of research has shown that regime change rarely <a href="https://www.cornellpress.cornell.edu/book/9781501730658/covert-regime-change/" target="_blank">succeeds</a>. Regardless of the goal, regime change mostly fails to produce better <a href="https://www.cambridge.org/core/journals/british-journal-of-political-science/article/no-business-like-firc-business-foreignimposed-regime-change-and-bilateral-trade/5C3294FE1468474134B8B34717462CCA" target="_blank">economic</a> conditions, build lasting <a href="https://www.mitpressjournals.org/doi/abs/10.1162/ISEC_a_00117?casa_token=M_LnvGynnWUAAAAA%3AeSa_m3hr_JEcMntzpP20H2DWuhWBSj6ZAxhL9Eakm7cVip45THsy0mE0Bh2O71LIICQJy3LOgTc&amp;" target="_blank">democracy</a> or promote more stable <a href="https://www.mitpressjournals.org/doi/full/10.1162/ISEC_a_00256?casa_token=_kJz0-k-DdcAAAAA%3Ar7OHv5ap2t-cLmVNJKg9OSM5JC9naCj4u49WDIM4FIX4jO_bBhZqlLot83lY6OkdN65-VoAM0Hc" target="_blank">relations</a> to advance U.S. interests. From <a href="https://en.wikipedia.org/wiki/United_States_occupation_of_Haiti" target="_blank">Haiti</a> and the <a href="https://en.wikipedia.org/wiki/United_States_occupation_of_the_Dominican_Republic_(1916%E2%80%931924)" target="_blank">Dominican Republic</a> in the 1910s, to South Vietnam in the 1960s, to Iraq in the 2000s, the United States failed to achieve these goals over 110 years of regime-change missions.</p> <p>And when regime change does not achieve these goals, it can provoke a <a href="https://www.cambridge.org/core/journals/british-journal-of-political-science/article/foreignimposed-regime-change-state-power-and-civil-war-onset-19202004/1226DBF6E9E9DA97534FD3D91A1702F7" target="_blank">civil war</a> &mdash; as it did in <a href="https://www.foreignaffairs.com/articles/democratic-republic-congo/2014-06-16/what-really-happened-congo" target="_blank">Congo</a> following the regime change mission in Léopoldville (now Kinshasa) in 1960 to oust Prime Minister Patrice Lumumba &mdash; degrade respect for <a href="https://journals.sagepub.com/doi/full/10.1177/1065912911417831?casa_token=LhbfmtTncdgAAAAA%3AjTOvLVL1VkCvXcq-uBUsCkYB4P0dzvgu04WBnuObm8vH_fD2Gd6y1bpBqRogmTCorx2xJnKpE3yuUw&amp;" target="_blank">human</a> <a href="https://journals.sagepub.com/doi/full/10.1177/0022343312449032?casa_token=nyzn-2xcQWAAAAAA%3AZx5JxO3_uDnkwUytYw9AXrIDB8gcEYYeI6lCtCM1Kp_AaZ3UKVqM5vm79Fr2m3kHKbDNJFUrdqhnZQ" target="_blank">rights</a> and create <a href="https://www.cambridge.org/core/journals/american-political-science-review/article/political-devolution-and-resistance-to-foreign-rule-a-natural-experiment/D6683A3560C162165826E33CEA72B95D" target="_blank">more</a> <a href="https://www.cambridge.org/core/journals/american-political-science-review/article/political-devolution-and-resistance-to-foreign-rule-a-natural-experiment/D6683A3560C162165826E33CEA72B95D" target="_blank">instability</a>. Worse, rather than being a quick and easy policy success, the instability created after a regime is deposed often leads to lengthy <a href="https://curate.nd.edu/show/j6731260871" target="_blank">nation-building</a> projects that policymakers never intended.</p> <p>There have been some <a href="https://www.rand.org/pubs/monograph_reports/MR1753.html" target="_blank">successful cases</a> of regime change, such as in Germany and Japan after World War II. Some argue that regime change succeeded in these cases because of sustained and substantial <a href="https://www.rand.org/pubs/monograph_reports/MR1753.html" target="_blank">economic investment</a>, such as the Marshall Plan, or because of the correct state-building <a href="https://www.cornellpress.cornell.edu/book/9780801469534/armed-state-building/" target="_blank">strategy</a>. These earlier successes had more to do with the <a href="https://www.mitpressjournals.org/doi/abs/10.1162/ISEC_a_00117?casa_token=hU-WEHSbiHMAAAAA%3ANXi1pdp4TrfhvBXwLVjPOhzlKbI-R3d_RPlOGO5hz8mtfRLHwPVWCBN6zv9IVm0jowFm8_YtrfGj&amp;" target="_blank">preconditions</a> in both countries, such as previous experience with democracy, a robust existing government bureaucracy or high economic modernization. Rather than prototypical cases of regime change, they are exceptions that prove the rule: Even with the best conditions present, regime change is difficult and requires massive investment.</p> <p>Unfortunately, proponents of forcible regime change continue to claim that it can be quick and cheap and will not expand into the lengthy and costly missions that have taken place in Afghanistan and elsewhere. Instead of admitting that they do not know what local conditions will look like after a change of regime, policymakers often ask local opposition movements, who tell them what they want to hear rather than an unbiased picture of what is most likely to happen. This encourages over-optimistic <a href="https://www.cornellpress.cornell.edu/book/9780801456619/waging-war-planning-peace/" target="_blank">assumptions</a> and <a href="https://www.tandfonline.com/doi/full/10.1080/09636412.2011.549023?casa_token=-yixmz90ihwAAAAA%3AY0PtQtP3FgIOTMuPWl1C5y_mujSSSrxnJmK3wxHdHM0Nvj4L0cWXu12Yjl3HCRYUtjgCVD34BegF" target="_blank">biased</a> thinking about how the mission will go, and less consideration of the costs if it turns out differently.</p> <p>To avoid future quagmires, policymakers need to recognize that regime change operations are a roll of the dice that are unlikely to produce a winner. Given the human, economic and security costs that accompany these poor odds, policymakers must instead ask whether regime change would still be worth it if it is not the quick mission they envision.</p> <p>Following the mission to oust Moammar Gaddafi in Libya in 2011, President Barack Obama resisted calls to overthrow Bashar al-Assad in Syria, in part, because there was no credible guarantee it would not devolve into the same chaos as found in Libya or Iraq. Similarly, instead of focusing on how desirable regime change in a particular country might be, policymakers need to ask whether the small chance of success is worth the high probability that regime change will produce a dysfunctional state that still poses a security threat.</p> <p>As the fallout from the killing of Iranian Maj. Gen. Qasem Soleimani continues to unfold, regime-change <a href="https://twitter.com/AmbJohnBolton/status/1213044218689720321" target="_blank">advocates</a> will once again argue this is the first step toward removing the current regime in Tehran. But a key lesson to take from the Afghanistan Papers and more than a century of history is that a better strategy for regime change will not improve the chances that it will succeed. Instead, only by avoiding regime change altogether can the United States avoid future Afghanistan-like quagmires.</p> </div> Benjamin Denison is a postdoctoral fellow with the Center for Strategic Studies at the Fletcher School of Law and Diplomacy at Tufts University, and the author of the just released Cato Policy Analysis &amp;ldquo<a href="https://www.cato.org/publications/policy-analysis/more-things-change-more-they-stay-same">The More Things Change, the More They Stay the Same: The Failure of Regime-Change Operations</em></a>.&rdquo; Thu, 09 Jan 2020 16:25:59 -0500 Benjamin Denison https://www.cato.org/publications/commentary/regime-change-rarely-succeeds-when-will-us-learn How to Take the Shackles Off African Businesses https://www.cato.org/publications/commentary/how-take-shackles-african-businesses <p><a href="https://www.cato.org/people/tanja-porcnik" hreflang="und">Tanja Porčnik</a></p> <div class="lead text-default"> <p>Though African nations have enhanced economic freedom since the beginning of the new millennium, most have a&nbsp;long way to go before fully embracing the rule of law and economic liberalisation, which would unquestionably spur economic growth and prosperity.</p> </div> , <div class="text-default"> <p>The Fraser Institute’s annual <a href="https://protect-za.mimecast.com/s/ehS3Ck5jynFk0W6gc28i0t?domain=fraserinstitute.org" rel="noopener" target="_blank">Economic Freedom of the World</a> report measures the degree to which the policies and institutions of countries support economic freedom. Essentially, the report measures economic freedom through a&nbsp;lens of personal choice, voluntary exchange, freedom to enter markets and compete, and security of the person and privately owned property.</p> <p>The 2019 report, which ranks 162 countries and territories, finds stark differences among African countries, with Mauritius being the freest at ninth place and Libya the least free at 161. Despite its immense wealth in mineral and natural resources, Africa is the most economically unfree continent. Indeed, seven out of 47 African countries that are included in the report are among the bottom 10 when it comes to economic freedom, and more than half of them rank in the lowest quartile. Why should these findings worry Africans?</p> <p>Economic freedom matters. According to more than 1,000 researchers in top peer‐​reviewed academic journals, people living in countries with high levels of economic freedom have higher levels of income, experience more rapid economic growth, have lower poverty rates, enjoy more political rights and civil liberties, and see lower gender and income inequalities. For example, countries in the top quartile of economic freedom had an average per capita GDP of $36,770&nbsp;in 2017, compared with $6,140 for bottom quartile nations.</p> <p>Unfortunately, 28 out of 47 scored African nations fall into this bottom quartile. In the top quartile, the average income of the poorest 10% is eight times higher than in the bottom quartile. Unsurprisingly, in the top quartile only 2% of the population live in extreme poverty, defined as living on less than $1.90 a&nbsp;day, compared with 27% in the lowest quartile.</p> <p>Indisputably, development in Africa is contingent upon the promotion of economic freedom. To achieve this end African countries need strong rule of law and secure property rights, lower and simpler regulation, the African Continental Free Trade Area (AfCFTA), openness to foreign direct investment, stable currencies and good governance.</p> <p>Africa has a&nbsp;unique problem: its informal economy accounts for as much as 80% of the region’s GDP and as much as 80% of employment. Research consistently shows that for business owners in Africa among the main factors pushing people out of the formal economy are overzealous regulatory mandates, high taxes, bureaucracy, corruption and weak rule of law. All of them are a&nbsp;reflection of low levels of economic freedom.</p> <p>Here is the reality: African economies will keep underperforming until businesses that today operate outside the legal framework opt to transfer into the formal economy. Why is this important? The path to unlocking prosperity in Africa is paved with the building blocks that formalise the economy. Registered businesses create more jobs, record higher investment, enjoy legal protection against fraud, and have access to credit and capital, which creates opportunities for higher productivity and growth.</p> </div> , <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>Africa is the most economically unfree continent and that is what keeps it poor</p> </div> </div> , <div class="text-default"> <p>To attract businesses into the formal economy, African governments must increase economic freedom by doing two things: establish secure property rights and strengthen the rule of law, and scale back on regulatory mandates and taxes.</p> <p>First, with private property protections it is crucial to emphasise that formal land titles not only tackle widespread property fraud but are also a&nbsp;prerequisite for Africans to be able to leverage their assets to engage in economic activities such as borrowing money, starting a&nbsp;business or assuring their business.</p> <p>Importantly, establishing secure property rights for assets that are informally held would, as the Peruvian economist Hernando de Soto estimates, unlock $10‐​trillion of “dead capital” across the developing world, much of it in Africa. To unshackle this wealth, governments in Africa need to foster a&nbsp;more robust rule of law.</p> <p>Second, high taxes and onerous regulations, such as lengthy and costly registration requirements, licensing and inspection requirements, are discouraging entrepreneurs in African nations from starting businesses and expanding them, or even pushing them into the informal economy.</p> <p>Though economic freedom in Africa is higher than ever before, the continent has a&nbsp;long way to go before fully embracing free and open markets. Crucially, Africans need to muster the determination to stand up to their ruling elites, who generally oppose reforms towards economic liberalism. For better or worse, with these choices the future is in the hands of Africans themselves.</p> </div> <p>Tanja Porčnik is a&nbsp;senior fellow of the Fraser Institute specializing in economic and human freedom studies.</p> Thu, 09 Jan 2020 14:32:24 -0500 Tanja Porčnik https://www.cato.org/publications/commentary/how-take-shackles-african-businesses Washington Needs to Jettison Its Commitment to Defend the Senkakus https://www.cato.org/publications/commentary/washington-needs-jettison-its-commitment-defend-senkakus <p><a href="https://www.cato.org/people/ted-galen-carpenter" hreflang="und">Ted Galen Carpenter</a></p> <div class="lead text-default"> <p>The United States has an array of defense commitments to allies of which the costs and risks greatly outweigh any potential benefits. Washington’s obligation under Article 5&nbsp;of the North Atlantic Treaty to consider an attack on one member as an attack on all is a&nbsp;graphic example of such imprudence. Adding the three Baltic republics to NATO means that the United States now is obligated to defend small, vulnerable Alliance members located directly on Russia’s border. Such a&nbsp;perilous (and probably unachievable) mission does not serve America’s best interests and should be rescinded.</p> </div> , <div class="text-default"> <p>U.S. leaders even need to re‐​evaluate some aspects of Washington’s bilateral mutual defense treaty with Japan. There is a&nbsp;credible case for maintaining that alliance for at least another decade or so. North Korea remains a&nbsp;disruptive factor in the region, and unlike the situation in Europe, there is no multilateral entity comparable to the European Union to which the United States could transfer significant security responsibilities in East Asia. China’s meteoric economic and military rise also provides an important reason as to why the U.S.-Japan alliance remains important for regional stability and a&nbsp;balance of power.</p> </div> , <div class="text-default"> <p>However, the U.S. security pledge to Tokyo should not be a&nbsp;blank check. It is especially important that a&nbsp;continuing defense relationship with Japan does not include backing Tokyo’s dubious territorial claim to the Senkaku Islands — a chain of small, uninhabited rocks in the East China Sea. Beijing&nbsp;<a href="https://thediplomat.com/2018/08/diaoyu-islands-dispute-a-chinese-perspective/" target="_blank">emphatically disputes</a>&nbsp;Tokyo’s claim to those islets (which China calls the Diaoyus), and some&nbsp;<a href="https://www.washingtonpost.com/world/china-sends-six-ships-into-japanese-waters-as-feud-over-islands-intensifies/2012/09/14/a5acda8a-fe2a-11e1-b153-218509a954e1_story.html" target="_blank">nasty maritime incidents</a>&nbsp;concerning the islands have occurred over the past decade. Worse, the balance of air and naval power in the immediate area appears to be&nbsp;<a href="https://nationalinterest.org/blog/buzz/how-chinas-navy-and-air-force-could-overwhelm-japan-east-china-sea-clash-42862" target="_blank">shifting in China’s favor</a>, making U.S. involvement in the dispute increasingly perilous.</p> <p>Yet U.S. leaders insist&nbsp;that the U.S.-Japan mutual defense treaty include the Senkakus. James Mattis, President Donald Trump’s first secretary of defense, reiterated that position in February 2017, affirming the U.S. commitment to defend all Japanese territory from attack. Mattis&nbsp;<a href="https://asia.nikkei.com/Politics/International-relations/Mattis-included-Senkaku-isles-in-US-Japan-defense-treaty-Japan-official2" target="_blank">specifically asserted</a>&nbsp;that Article 5&nbsp;of the defense treaty covers the Senkaku/​Diaoyu Islands.&nbsp;Trump himself subsequently&nbsp;<a href="https://www.whitehouse.gov/briefings-statements/joint-statement-president-donald-j-trump-prime-minister-shinzo-abe/" target="_blank">reaffirmed</a>&nbsp;that commitment in talks with Japanese Prime Minister Shinzo Abe.</p> <p>Such a&nbsp;bold stance was not always Washington’s official position, though. In fact, it is a&nbsp;rather recent interpretation. Barack Obama was the first U.S. president to state explicitly that the alliance extended to the Senkakus: “The policy of the United States is clear — the Senkaku Islands are administered by Japan and therefore fall within the scope of Article 5&nbsp;of the U.S.-Japan Treaty of Mutual Cooperation and Security,” Obama stated in&nbsp;<a href="https://www.washingtonpost.com/world/qanda-japans-yomiuri-shimbun-interviews-president-obama/2014/04/23/d01bb5fc-cae3-11e3-95f7-7ecdde72d2ea_story.html" target="_blank">a&nbsp;2014 interview</a>&nbsp;with&nbsp;Japan’s Yomiuri Shimbun. “And we oppose any unilateral attempts to undermine Japan’s administration of these islands,” he added.</p> <p>Washington is exposing the United States to an unnecessary security risk by adopting that stance.&nbsp;Beijing’s response to Mattis’ unequivocal support for Tokyo’s claims was quite firm. “Diaoyu and its affiliated islands have been Chinese territory since ancient times. These are historical facts that cannot be changed. The so‐​called U.S.-Japan security treaty was a&nbsp;product of the Cold War, and it should not harm China’s territorial sovereignty and legitimate rights,” Chinese Foreign Ministry spokesman Lu Kang&nbsp;<a href="https://thediplomat.com/2017/02/mattis-senkakus-covered-under-us-japan-security-treaty/" target="_blank">insisted</a>&nbsp;at a&nbsp;press conference. “We urge the U.S. side to adopt a&nbsp;responsible attitude and stop making wrong remarks on the issue of the sovereignty of Diaoyu Islands,” Lu added.</p> <p>Washington needs to rescind any implied commitment to defend the Senkakus. The current U.S. position is based on a&nbsp;strained, revisionist interpretation of the mutual security treaty text that only the last two U.S. administrations adopted. Worse, it needlessly inserts the United States into an emotional territorial dispute between Tokyo and Beijing — one in which it is unclear which party has the better case. </p> <p>It is one thing to continue a&nbsp;security partnership with Japan to maintain stability in East Asia and balance China’s rising power and influence. There are at least respectable arguments in favor of such a&nbsp;policy, despite the risk of exacerbating existing tensions between Washington and Beijing. But inflicting damage on America’s relations with China — and perhaps risking a&nbsp;war with it — over Japan’s murky claim to uninhabited rocks is a&nbsp;case of foreign policy folly. Such risks are imprudent, even though there are valuable fishing grounds and possible energy deposits in the waters surrounding the Senkaku/​Diaoyu chain. The Obama administration’s expansion of the U.S. security obligations to Japan was profoundly unwise. A&nbsp;continuation of the security relationship with Tokyo should be contingent upon the elimination of any U.S. commitment to back Japan’s claim of the Senkakus.</p> </div> Ted Galen Carpenter, a&nbsp;senior fellow in security studies at the Cato Institute and a&nbsp;contributing editor to the National Interest, is the author of 12 books and more than 850 articles on international affairs. Thu, 09 Jan 2020 13:09:43 -0500 Ted Galen Carpenter https://www.cato.org/publications/commentary/washington-needs-jettison-its-commitment-defend-senkakus Trump’s Red‐​tape Revolution https://www.cato.org/publications/commentary/trumps-red-tape-revolution <p><a href="https://www.cato.org/people/william-yeatman" hreflang="und">William Yeatman</a></p> <div class="lead text-default"> <p>Let’s give credit where credit is due: The Trump administration is reintroducing constitutional balance to regulatory policymaking.</p> </div> , <div class="text-default"> <p>His team is doing the yeoman’s work that Congress and the courts have avoided for too long. What makes these developments even more remarkable is that the president is acting contrary to his institutional interests.</p> <p>To be sure, the administration is imperfect on this score. For example, President Trump strained our constitutional structure when he declared an “emergency” to fund a&nbsp;border wall in order to circumvent Congress’s exclusive “power of the purse.”</p> <p>Yet on crucial matters of administrative law, the Trump White House is putting country before executive power. It’s a&nbsp;refreshing break from the past.</p> <p>At issue is an alphabet soup’s worth of domestic regulatory agencies collectively known as the “administrative state.” Think: EEOC, FDA, OSHA, etc. In modern American government, these bureaucracies are the <em>real</em> lawmakers. Last year, for example, federal agencies issued 12 regulations for every law Congress passed, and that was the lowest ratio in a&nbsp;decade.</p> <p>Within the administrative state, unelected bureaucrats can interpret legislation in virtually whatever manner they choose, in effect issuing new laws through regulatory force. In 2009, Congress considered and ultimately failed to pass a “cap‐​and‐​trade” system that would have basically rationed energy use in order to reduce America’s carbon footprint. Yet in 2014, at the <a href="https://obamawhitehouse.archives.gov/the-press-office/2013/06/25/presidential-memorandum-power-sector-carbon-pollution-standards" target="_blank">direction</a> of President Barack Obama, the Environmental Protection Agency issued the <a href="https://archive.epa.gov/epa/cleanpowerplan/fact-sheet-overview-clean-power-plan.html" target="_blank">Clean Power Plan</a>, the “backstop” of which was — wait for it — a&nbsp;cap‐​and‐​trade system that would basically ration energy use in order to reduce America’s carbon footprint. The agency justified its approach based on an expansive reading of an obscure provision in the Clean Air Act, written almost a&nbsp;half‐​century ago.</p> <p>Since the New Deal, the administrative state’s unabated growth reflects a&nbsp;regrettable abdication of authority to the presidency by the legislative and judicial branches of government. In aggrandizing the executive branch, Congress and the Supreme Court are acting contrary to the founders’ constitutional design, which is, of course, characterized by separate but competing branches of government.</p> <p>Let’s start with Congress. For more than a&nbsp;century, the House and Senate have been giving away ever more of their lawmaking power to the administrative state. These “delegations” take the form of statutes that create and empower bureaucracies under presidential management within the executive branch.</p> <p>Why would anyone give away power? The Founding Fathers, after all, built human nature into their constitutional design: They expected power‐​hungry leaders in rival branches to cancel each other out. The idea was to protect our liberty from an overweening state. As James Madison famously explained in <em>Federalist 51</em>, “Ambition must be made to counteract ambition.”</p> <p>By giving away policymaking authority, Congress demonstrates “ambition,” but it’s a&nbsp;perversion of what the founders had in mind. Lawmakers are politicians, and tough choices make for attack ad fodder during reelection campaigns. It is far easier for members of Congress to delegate the hard decisions to regulatory agencies and thereby avoid accountability. They delegate to pass the buck.</p> <p>The Supreme Court has abetted the growth of the administrative state by adopting hands‐​off doctrines of judicial restraint. On the one hand, the court refuses to second‐​guess how much power Congress delegates to regulatory agencies; on the other, the court has adopted various principles of judicial respect, or “deference,” that permit these agencies to define the boundaries of their own power. This allows Congress to continue to pass off more and more decisions onto executive agencies, which in turn are given wide discretion in determining what it is they are permitted to do.</p> <p>Instead of the separate‐​but‐​equal structure the framers of the Constitution intended, we are left with a&nbsp;series of feedback loops, both of which serve to grow the administrate state.</p> <p>The first involves Congress. The president, as manager in chief of bureaucratic governance, has become so powerful that both Republicans and Democrats in Congress now believe that the White House is the most efficient vehicle for achieving their parties’ respective platforms. As a&nbsp;result, half of Congress loses interest in executive overreach whenever “their guy” occupies the presidency.</p> <p>The second feedback loop pertains to federal courts. As the administrative state grows, so does the size and complexity of its policies. Rulemaking records routinely run thousands of pages. Faced with mountains of technical minutiae, courts throw up their hands and rubber‐​stamp an agency’s “expert” decision.</p> <p>As Congress and the Supreme Court looped themselves out of the picture, the president has assumed center stage. Presidents since Richard Nixon have developed successive layers of controls over the management of agency spending and regulatory output. Their purpose has been to tighten the president’s grip over the administrative state.</p> <p>Trump, in his characteristic manner, is finally shaking things up.</p> <p>Consider how the Trump administration took on judicial deference. For almost 80&nbsp;years, the Supreme Court gave binding respect to an agency’s interpretation of the regulations it wrote. The big problem with this principle, known as <em>Auer</em> deference in reference to the 1997 case <em>Auer v. Robbins</em>, is that it allows agencies to take procedural shortcuts.</p> <p>Normally, an agency must involve the public in a&nbsp;rulemaking process before it can issue a&nbsp;binding regulation. Yet agencies can avoid these participatory procedures through <em>Auer</em> deference. All the agency must do is issue a “nonbinding” guidance document, which does not require a&nbsp;period of public comment. Then, the agency goes to court, receives deference, and magically, its “nonbinding” rule becomes indistinguishable from a&nbsp;regulation with the force of law.</p> <p>Regardless of who occupied the Oval Office, the simple legal logic remained the same: The Justice Department is an executive branch agency, and broader deference means more power for the executive branch. However, Trump’s Department of Justice is doing things differently. Last term, in one of its most consequential cases, <em>Kisor v. Wilkie</em>, the Supreme Court reconsidered the doctrine of <em>Auer </em>deference. On behalf of the government, Solicitor General Noel Francisco advanced an unprecedented and extraordinary argument.</p> <p>Simply put, the government’s head Supreme Court lawyer asked the court to scale back the scope of <em>Auer</em> deference drastically. “The doctrine raises significant concerns,” Francisco <a href="https://www.supremecourt.gov/DocketPDF/18/18-15/89588/20190225184823584_18-15bsUnitedStates.pdf" target="_blank">argued</a> in a&nbsp;brief on behalf of the DOJ. “First, its basis is unclear. It is not well grounded historically; this Court has not articulated a&nbsp;consistent rationale for it; and it is … difficult to justify on the basis of implicit congressional intent.”</p> <p>To its credit, the Supreme Court agreed and slashed the scope of <em>Auer</em> deference. The <em>Auer</em> doctrine emerged “maimed and enfeebled,” wrote Justice Neil Gorsuch in his <a href="https://www.supremecourt.gov/opinions/18pdf/18-15_9p6b.pdf" target="_blank">concurring opinion</a>, “in truth, zombified.” Gorsuch is right, and credit should go to the Justice Department. It’s not just the judiciary’s homework that the Trump administration is doing. His team is also performing essential duties long neglected by Congress.</p> <p>Consider, for example, the pressing need for lawmakers to reform the Administrative Procedure Act, also known as the “Constitution of the administrative state.” The act establishes the general framework by which agencies must conduct their business. In this manner, the law provides critical safeguards for the public. The problem is that the APA is almost 75&nbsp;years old, and it’s showing its age.</p> <p>Congress passed it in 1946, and the law is a&nbsp;product of its times. Back then, agencies rendered policy almost exclusively through trial‐​like adjudications. For instance, in the wake of the stock market crash, Congress in 1934 created the Securities and Exchange Commission and delegated to it the authority to regulate securities to promote market efficiency. The SEC brought enforcement actions against parties allegedly acting against the public interest, and, through the resolution of these proceedings, would establish a&nbsp;rule that applied not only in the immediate controversy, but also to the general public. Indeed, this is how American courts long have made rules through common law. The APA focuses on these sorts of processes.</p> <p>Today, formal administrative adjudications are comparatively rare in regulatory policymaking. Instead, agencies now rely on rules and guidance, for which there are inadequate procedural safeguards required by the APA. Despite this glaring need for an update, Congress has refused to revisit the statute, on account of the partisan dynamic described above.</p> <p>Prior presidents had been happy with congressional inaction because it works to the White House’s advantage. If the APA remains outdated, executive branch agencies retain loopholes that make policymaking easier.</p> <p>But once again, the Trump administration is doing things differently. Since entering the Oval Office, Trump has issued four executive orders related to administrative law. Collectively, these directives call for agencies to do what Congress has left undone: namely, to update the Administrative Procedure Act.</p> <p>The first results are coming in, and they look very promising. During the first week of December, for example, the Department of Transportation issued what its officials are calling the “rule on rules.” As the agency explained in the preamble, the rule “prescribes the procedures the Department must follow for all stages of the rulemaking process.”</p> <p>Among its commonsense measures is a&nbsp;requirement for agencies to give closer scrutiny to the costs and benefits of major rules. Another welcome reform is that the agency is providing procedural safeguards for the issuance of guidance documents, memorandums, and other “nonbinding” documents that agencies all too frequently treat as anything but.</p> <p>These reforms are virtually identical to measures in the unpassed Regulatory Accountability Act, which has floundered in Congress for years. By writing the “rule of rules” into the Code of Federal Regulations, the DOT is creating policy that binds the agency. While Congress idles, the agency is reforming itself.</p> <p>Other agencies are soon to follow suit in announcing how they have complied with Trump’s executive orders. If the “rule on rules” is any indication, these efforts have the potential to alter fundamentally the administrative state for the better.</p> <p>Which brings us to what might prove to be the president’s most significant contribution to bringing constitutional order to the administrative state, albeit one that is more indirect than the others described above: the nomination and confirmation of Justices Gorsuch and Brett Kavanaugh, two brilliant judges who had been sounding the alarm about the judiciary’s too‐​passive approach to government‐​by‐​regulation.</p> <p>As advertised, the newest justices are yanking on the reins of the administrative state. For almost 80&nbsp;years, the Supreme Court has refused to police how much power Congress transfers to the executive branch. That’s changing, and, along with Justice Clarence Thomas, Gorsuch and Kavanaugh are leading the charge.</p> <p>Article I&nbsp;of the Constitution vests “all legislative powers” in the Congress. The “nondelegation doctrine” is the idea that it is therefore unconstitutional for Congress to delegate its legislative authority elsewhere, such as to the president or government agencies. The purpose of the nondelegation doctrine is to restrict the ability of Congress to give away its power and responsibility to make laws.</p> <p>Yet it falls to the executive branch to execute the laws, and sometimes doing so requires agencies to make interpretations. As the late Justice Antonin Scalia wrote in 1989, “Once it is conceded, as it must be, that no statute can be entirely precise, and that some judgments, even some judgments involving policy considerations, must be left to the officers executing the law, … the debate over unconstitutional delegation becomes a&nbsp;debate not over a&nbsp;point of principle but over a&nbsp;question of degree.”</p> <p>Under its prevailing understanding of the nondelegation doctrine, the court has allowed any delegation that was limited by an “intelligible principle” of scope and action by which a&nbsp;regulatory agency must conform. In practice, however, the court construed “intelligible principle” so broadly that the concept lost all meaning. Even a&nbsp;phrase as nebulous as “public interest” has met the standard. Yet now, it appears a&nbsp;majority on the Supreme Court wants to revisit the nondelegation doctrine for the first time since the New Deal era.</p> <p>Last term, in <em>Gundy v. United States</em>, three justices signaled support for a&nbsp;masterful dissent written by Gorsuch, in which he issued a&nbsp;clarion call for his colleagues to tame the governmental excesses wrought by the sieve‐​like “intelligible principle” test. Kavanaugh didn’t participate in <em>Gundy,</em> as he wasn’t yet on the court when it was argued. However, just before Thanksgiving, he issued an opinion in <em>Paul v. United States</em> that expressly endorsed Gorsuch’s opinion.</p> <p>That makes for five justices who’ve shown themselves willing to reconsider the nondelegation doctrine. Were the court to add teeth to its “intelligible principle” test, then Congress would be forced to curtail the breadth of its lawmaking power delegated to the executive branch. It would be a&nbsp;welcome and watershed moment for the constitutional status of the administrative state.</p> <p>It bears repeating that such a&nbsp;profound legal outcome would work at a&nbsp;cross‐​purpose with Trump’s interests. These congressional grants of authority are a&nbsp;source of executive power. By restraining the ability of executive branch agencies to write their own laws, the Supreme Court is checking not just our supine Congress but also the president.</p> <p>Perhaps this curious self‐​restraint reflects a&nbsp;silver lining to Trump’s pathological distrust of the bureaucratic careerists who man the administrative state. Alternatively, it may be the result of excellent work by political appointees whose toils are unbeknownst to the president. Most likely, it’s a&nbsp;combination of both.</p> <p>Whatever the cause, we should all be thankful. <em>Federalist 62</em> warns that an “excess of lawmaking” is a “disease” to which “our government is most liable.” For this reason, the Constitution makes it hard to pass laws. By contrast, it’s far easier for the president to impose a&nbsp;regulation. All he needs to do is pick up the phone to get the ball rolling.</p> <p>Because regulations carry the force of law, a&nbsp;government characterized by “presidential administration” incubates the “disease” of “excessive lawmaking” in a&nbsp;manner even worse than that feared by the founders. Overweening government is a&nbsp;threat to liberty, regardless of whether it’s flowing from the executive or legislative branches of government.</p> <p>To a&nbsp;large extent, the genie is out of the bottle when it comes to the administrative state. It’s been here for more than a&nbsp;century, and it’s here to stay, for better or for worse. In this political environment, the question becomes how best to protect liberty. And the obvious answer is to reintroduce checks into contemporary American government. To this end, Trump deserves high praise.</p> </div> <p>William Yeatman is a&nbsp;research fellow at the Cato Institute.</p> Thu, 09 Jan 2020 11:49:49 -0500 William Yeatman https://www.cato.org/publications/commentary/trumps-red-tape-revolution Ninth Circuit Review‐​Reviewed: Major Moves Afoot on APA § 704? https://www.cato.org/publications/commentary/ninth-circuit-review-reviewed-major-moves-afoot-apa-ss-704 <p><a href="https://www.cato.org/people/william-yeatman" hreflang="und">William Yeatman</a></p> <div class="lead text-default"> <p>Welcome back to <a href="https://yalejreg.com/nc/?s=ninth+circuit+review-reviewed"><em>Ninth Circuit Review‐​Reviewed</em></a>, your monthly recap of administrative law before <a href="///C:/Users/dgarcia/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/TPSMJTC0/v">arguably</a> “the second most important court in the land.” Let’s get straight to last month’s cases.</p> </div> , <div class="text-default"> <p><strong>The Supreme Court’s Evolving Doctrine on “Jurisdictional Rules” Has Huge Implications for the APA</strong></p> <p>Given that Article III courts have a&nbsp;duty to police their own (limited) jurisdiction, it is perhaps unsurprising that a&nbsp;landmark <a href="https://www.regulationwriters.com/downloads/apa1941.pdf">1941 report to Congress</a> explained that the “requirement of finality of administrative action as a&nbsp;prerequisite of judicial review [was] formulated by the courts in the absence of legislation.”</p> <p>Congress, of course, codified this prevailing practice five years later by passing the Administrative Procedure Act, whose provisions for judicial review were limited to “final agency action.”</p> <p>For my part, I’ve long taken it for granted that APA § 704’s requirement for “final agency action” is “jurisdictional” — that is, courts are statutorily prohibited from reviewing non‐​final agency action.</p> <p>Due to my (mistaken) presupposition, my curiosity was piqued by the following statement from a&nbsp;Ninth Circuit order last month in <a href="http://cdn.ca9.uscourts.gov/datastore/opinions/2019/12/31/18-15443.pdf"><em>San Francisco Herring Association v. Department of Interior</em></a>: “In this circuit, the final agency action requirement has been treated as jurisdictional.”</p> <p>This sentence seized my attention because its clear implication is that <em>other</em> circuits treat APA § 704 as non‐​jurisdictional, which would mean that those courts retain discretion to entertain judicial review of non‐​final agency action.</p> <p>That was news to me. So I&nbsp;dug around, and I’m glad I&nbsp;did, because there is major reform afoot for a&nbsp;foundational principle of administrative law.</p> <p>Over the last decade or so, the Supreme Court <a href="https://scholar.google.com/scholar_case?case=2228152672755693003&amp;q=133+S.+Ct.+817+&amp;hl=en&amp;as_sdt=20003">has</a> “tried … to bring some discipline to the use of the term ‘jurisdiction.’” Though the Court’s line of cases is uneven, the overall trend is to liberalize access to the courts in the face of statutory limits.</p> <p>The Court’s recent jurisprudence, in turn, has led some circuit courts to question whether the APA’s “final agency action” requirement is subject to judicial discretion in original actions brought before trial courts. And it was this development to which the Ninth Circuit panel was referring in the sentence that caught my attention.</p> <p>I’d known about the Supreme Court’s doctrinal shift on jurisdictional bars to judicial review, but I’d never given any thought to how this change might affect the APA. Now, my mind is blown.</p> <p>This fast‐​moving area of administrative law is a&nbsp;big deal, and it’s worth monitoring. For the whole story, I&nbsp;highly recommend Sundeep Iyer’s 2016 comment in the <em>Yale Law Journal</em>, titled “<a href="https://www.yalelawjournal.org/comment/jurisdictional-rules-and-final-agency-action">Jurisdictional Rules and Final Agency Action</a>.”</p> <p><strong>Panel Pioneers Law on Congressional Review Act</strong></p> <p>In its original form, the legislative veto allowed lawmakers to check administrative action by unicameral, bicameral, or even committee vote. From 1932 to 1975, Congress included 292 of these provisions in various enabling acts.</p> <p>Though employed infrequently, these provisions nonetheless operated as “a central means by which Congress secures the accountability of executive and independent agencies,” according to Supreme Court Justice Byron White. Regulatory agencies feared the legislative veto and, therefore, honored objections registered by lawmakers as rulemakings progressed.</p> <p>Of course, the Supreme Court nixed the legislative veto in <a href="https://scholar.google.com/scholar_case?case=2221871582286121199&amp;q=INS+v.+Chadha+&amp;hl=en&amp;as_sdt=20003"><em>INS v. Chadha</em></a> (1983). Thirteen years later, Congress revived the concept, albeit in a&nbsp;far lesser form, when President Clinton signed the <a href="https://fas.org/sgp/crs/misc/IF10023.pdf">Congressional Review Act</a> (which was part of the Contract w/​America Advancement Act of 1996).</p> <p>Broadly speaking, the Congressional Review Act does two things. The first is a&nbsp;statutory requirement for agencies to send their rules to Congress “[b]efore [they] can take effect.” The second is to amend the House and Senate rules to create a&nbsp;fast‐​track procedure for considering a&nbsp;joint resolution that would permanently nullify an agency regulation, including a&nbsp;prohibition on using the Senate filibuster.</p> <p>Ordinarily under the Act, Congress has 60&nbsp;days to check a&nbsp;new regulation; however, if an agency submits a&nbsp;rule to Congress during the final 60&nbsp;days of a&nbsp;congressional session, or submits the rule when Congress is not in session, the 60‐​day clock does not start to run until the 15th day of the subsequent congressional session. Mind you, these deadlines apply only to days when the House and Senate are in session, which is only a&nbsp;fraction of “normal” working days.</p> <p>Unlike the original legislative veto, resolutions passed under the Congressional Review Act require the president’s signature. Obviously, a&nbsp;sitting president is unlikely to sign legislation that overturns his own regulation. As a&nbsp;result, the Congressional Review Act comes into play only in limited circumstances — basically, it only applies to late‐​term rules promulgated by an outgoing administration when the White House changes party.</p> <p>Before President Trump took office, the Congressional Review Act had been successfully employed only once. As a&nbsp;result, the statute engendered very little jurisprudence.</p> <p>But this is changing. Trump has signed 16 legislative vetoes of Obama‐​era regulations. Legal challenges to these measures are now wending their way through the federal judiciary. The upshot is that courts are making law in uncharted territory.</p> <p>For example, consider the Ninth Circuit panel’s order in <a href="http://cdn.ca9.uscourts.gov/datastore/opinions/2019/12/30/18-35629.pdf"><em>Center for Biological Diversity v. Department of Interior</em></a>, which was filed on the penultimate day of the last decade.</p> <p>At issue was <a href="https://www.federalregister.gov/documents/2016/08/05/2016-18117/non-subsistence-take-of-wildlife-and-public-participation-and-closure-procedures-on-national">a&nbsp;2016 Interior Department regulation</a> that prevented Alaska from allowing certain types of hunting on federal land within the state. In April 2017, Congress passed (and President Trump signed) a&nbsp;<a href="https://www.congress.gov/bill/115th-congress/house-joint-resolution/69">legislative veto of the regulation</a>. An environmental group then challenged the action in federal court. Before the Ninth Circuit, the plaintiff‐​appellant appealed the trial court’s dismissal of the case.</p> <p>In <a href="http://cdn.ca9.uscourts.gov/datastore/opinions/2019/12/30/18-35629.pdf"><em>Center for Biological Diversity</em></a>, the panel’s primary doctrinal contribution pertains to the Congressional Review Act’s controversial “Reenactment Provision,” which prohibits agencies from reissuing a “new rule that is substantially the same” as a&nbsp;rule that had been vetoed.</p> <p>The plaintiff‐​appellant had challenged the Reenactment Provision on nondelegation grounds. To establish standing, the group’s alleged injury “is premised on the assumption that Interior would reissue the [2016 Interior regulation] if a&nbsp;court ruled that the Reenactment Provision were invalid.” But the panel deemed this alleged injury to be too “speculative” to pass constitutional muster.</p> <p>So, what’s the takeaway?</p> <p>The panel’s order indicates that there is only one party that would have standing to bring a&nbsp;constitutional challenge against the Reenactment Provision of the Congressional Review Act. And that party is the federal government.</p> <p>Simply put, the Ninth Circuit won’t perform constitutional review of the Reenactment Provision until a&nbsp;subsequent administration with different politics (than the Trump administration) tries to promulgate a&nbsp;regulation that is either identical or “substantially the same” as a&nbsp;rule that has been vetoed by Congress.</p> <p><strong>Bybee Benchslaps Congress (he speaks the truth)</strong></p> <p>When I&nbsp;first encountered an opinion <em>dubitante</em>, I&nbsp;had to look it up because I&nbsp;didn’t know what the term meant.</p> <p>I was similarly bewildered when I&nbsp;first came across an opinion “respecting the denial of rehearing.” (I <a href="https://www.yalejreg.com/nc/ninth-circuit-review-reviewed-panels-weaponize-standards-of-review-to-launch-preemptive-strikes-against-chevron-by-william-yeatman/">wrote</a> about that experience on this blog).</p> <p>Yet I&nbsp;suffered no such confusion on initially reading Judge Jay Bybee’s excellent contribution to the court’s order in <a href="http://cdn.ca9.uscourts.gov/datastore/opinions/2019/12/05/19-17213.pdf"><em>San Francisco v. Citizenship and Immigration Services</em></a>, even though I’d never before seen an opinion of this type.</p> <p>Indeed, there’s no mistaking the meaning of Judge Bybee’s opinion. He’s “concurring, perplexed and perturbed.” Seriously, that’s the court’s actual categorization of Bybee’s opinion!</p> <p>Obviously, Judge Bybee had something to get off his chest.</p> <p>At issue in <a href="http://cdn.ca9.uscourts.gov/datastore/opinions/2019/12/05/19-17213.pdf"><em>San Francisco</em></a> was a&nbsp;controversial immigration policy promulgated by the Trump administration. It doesn’t matter which one, because Bybee’s opinion addresses them all <em>in toto</em>.</p> <p>After observing that the Ninth Circuit has been deluged with “emergency petitions arising out of the administration’s efforts to administer the immigration laws,” Judge Bybee made two points.</p> <p>The first seemed to be a&nbsp;shot across the bow of trial courts in the Ninth Circuit. Because “no one should mistake our judgments for our policy preferences,” Judge Bybee admonished that judges “must tolerate what personally we may regard as a&nbsp;legislative mistake.”</p> <p>For his second point, Judge Bybee set his sights on Congress, at whom he emptied both barrels. He wrote:</p> </div> , <blockquote class="blockquote"> <div> <p>[S]o far as we can tell from our modest perch in the Ninth Circuit, Congress is no place to be found in these debates … [I]t is time for a&nbsp;feckless Congress to come to the table and grapple with these issues. Don’t leave the table and expect us to clean up.</p> </div> </blockquote> <cite> </cite> , <div class="text-default"> <p>Hear, hear!</p> <p>I highly recommend Judge Bybee’s “perplexed and perturbed” concurring opinion.</p> </div> William Yeatman is a&nbsp;research fellow at the Cato Institute in Washington, D.C. Thu, 09 Jan 2020 11:45:35 -0500 William Yeatman https://www.cato.org/publications/commentary/ninth-circuit-review-reviewed-major-moves-afoot-apa-ss-704 The Limits of Weirdos and Misfits https://www.cato.org/publications/commentary/limits-weirdos-misfits <p><a href="https://www.cato.org/people/ryan-bourne" hreflang="und">Ryan Bourne</a></p> <div class="lead text-default"> <p>It is fast becoming one of the most discussed employment advertisements ever.&nbsp;<a href="https://dominiccummings.com/2020/01/02/two-hands-are-a-lot-were-hiring-data-scientists-project-managers-policy-experts-assorted-weirdos/" target="_blank">Dominic Cummings’ call</a>&nbsp;for No. 10 job applications from data scientists and software developers, quirky economists and policy experts, and other assorted “weirdos and misfits” has drawn reaction from&nbsp;<a href="https://marginalrevolution.com/marginalrevolution/2020/01/what-are-the-most-important-lessons-for-dominic-cummings-and-british-civil-service-reformers.html#comments" target="_blank">global public intellectuals</a>,&nbsp;<a href="https://www.theguardian.com/commentisfree/2020/jan/03/dominic-cummings-whitehall-civil-service-no-10" target="_blank">former civil servants</a>, and&nbsp;<a href="https://www.theguardian.com/commentisfree/2020/jan/03/dominic-cummings-whitehall-civil-service-no-10" target="_blank">experience‐​weary ex‐​government digital experts</a>.</p> </div> , <div class="text-default"> <p>Now, civil service employment practices, SpAds’ competences, and government project management, are outside my “circle of competence,” as Cummings might say. Without in‐​house experience, I’ll avoid passing judgment on whether better physics and maths skills or expertise in the economics of auctions might improve Downing Street’s performance. Others who I&nbsp;respect&nbsp;<a href="https://unherd.com/2020/01/why-we-need-weirdos-like-dominic-cummings/" target="_blank">seem positive</a>&nbsp;about his proposals, particularly as it pertains to quantitative skills and institutionalising analysis of uncertainty.</p> <p>Likewise, some of Cummings’ broad proposals for&nbsp;<a href="https://www.ft.com/content/9ff61dee-2d67-11ea-bc77-65e4aa615551" target="_blank">Civil Service reform</a>&nbsp;seem sensible as an outsider: “red teams” to push back on conventional wisdom; rewards for officials actually seeing through on delivering government projects; redundancy for poorly performing officials; more specialism, less generalism. All have clear rationales, though are easier said than delivered. And some tensions clearly exist between them. Greater longevity for brilliantly specialist civil servants, for example, surely creates an institutional impediment to radically adaptive change.</p> <p>Given all the ink spilt debating these ideas, however, an obvious point has been missed. Cummings’ ideas here are for personnel and structural changes to a&nbsp;technocracy. For “better” management and people to deliver systems for a&nbsp;large enterprise (the state). They do not tell us anything, per se, about what he perceives to be the correct&nbsp;<em>role</em>&nbsp;of government — of&nbsp;<em>when</em>&nbsp;it should act,&nbsp;<em>what</em>&nbsp;it should do, and&nbsp;<em>why</em>. Yet without knowing what recruits and the civil service will be working on, it’s impossible to assess claims of the supposed “trillions of dollars lying on the sidewalk” from the “low‐​hanging fruit” of improved government performance.</p> <p>Yes, yes, we have breadcrumbs signalling towards certain “ends.”&nbsp;<a href="https://www.conservativehome.com/thetorydiary/2020/01/white-hot-heat-of-the-technological-cummings.html" target="_blank">This site’s editor</a>&nbsp;thinks Cummings seeks a&nbsp;world of politics as “enterprise association,” harnessing AI, science, big data, cutting‐​edge communications in pursuit of regional rebalancing, science‐​led industrial strategies, and value‐​for‐​money procurement. Brexit, as Cummings acknowledges, brings necessary major policy change in other areas too, not least the promised immigration system.</p> <p>But reading Cummings’ blog suggests a&nbsp;more romantic and expansive view of what an effective technocracy can achieve. He places central importance on “people,” reading as if tons of government failures would dissipate, and other projects become viable, if only more brilliant physicists, data scientists, or mathematicians, armed with cutting‐​edges models of uncertainty and understanding of non‐​linearities, were in government. Policy failure and other challenges, in other words, are downstream. “Bad management” or “the wrong skills” or “incompetent people” are held up as the root cause of bad government; better rational planners could be transformative.</p> <p>My central gripe is that I&nbsp;doubt this is true. Government action ultimately reflects a&nbsp;decision to deliver collective action through the political process. And politics causes a&nbsp;range of structural problems that explain government failure, particularly on economics, irrespective of the brilliance of officials and project managers:</p> <ul> <li>Political incentives and short‐​termism: civil servants ultimately work for politicians, and politicians can be myopic and ignorant, while wanting results conducive to re‐​election or pleasing interest groups. How else to explain prestige projects such as HS2 when other transport projects clearly could deliver better bang for the buck? Or moving from hugging huskies to denouncing “green crap” to meeting Greta within a&nbsp;decade? Or police spending levels with inflexion points at elections? If civil servants come and go, so do Ministers. There have been five transport secretaries alone since 2010. It’s all very well lamenting a&nbsp;lack of error correction in the civil service, but what about politicians continually demanding things with little record of success in their role as local champions (see current debates about high streets and activist government regeneration).</li> <li>Knowledge problem: Data can help inform better policy, of course. But some significant economic problems are complex and intractable, even to the smartest brains or the newest methods. Politicians and planners seek “a solution,” often creating huge unintended consequences. Markets, by being open forums to fulfil individual wants and needs, instead find tailored solutions for different people. Economies are not predictable systems — if they were, then machine learning could make socialism a&nbsp;reality. Even “the best people” or “the best models” can’t forecast the macroeconomy with decent accuracy because “the British economy” is really 66.4 million people and 6&nbsp;million businesses, each acting relatively freely.</li> <li>Centralisation: Cummings might want to replicate successful private sector innovation. But market‐​based activity tends to start small and expand when signals like profits or consumer surveys suggest success. The public sector usually doesn’t have these signals. They could be mimicked by experimentation at local level, or hospital level, or school, with best practice spreading organically. That though, means decentralising power and accepting “post‐​code lotteries,” which governments are reluctant to do. Instead,&nbsp;<a href="https://twitter.com/mayerandrew/status/1213578787352383488?s=20" target="_blank">project failure is met with new money</a>&nbsp;and large‐​scale solutions. Without profit and loss, and the threat of financial failure, finding the correct “efficient scale” for much government activity is difficult, no matter what modeling or expertise you have.</li> <li>Scope: Government engages in an extraordinarily diverse range of activities. Yes, individual‐​focused projects, such as the Apollo programme Cummings highlights, can be successful; but healthcare is more complex. Different policy areas often have conflicting objectives too (see the lower VAT rate on domestic fuel vs. policies to make fossil fuels less attractive). Reformers constantly run into&nbsp;<a href="https://en.wikipedia.org/wiki/Wikipedia:Chesterton%27s_fence" target="_blank">Chesterton Fences</a>&nbsp;– not least because no man can account for all of what the state does. Having a&nbsp;framework of what constitutes core activities and why (whether it’s delivering public goods, solving other market failures, redistributing or more) is, therefore, an important prerequisite for the type of management, resources and approach required.</li> <li>Crowd out: government projects or the hiring of more “brilliant people” would suck individuals and resources out of the private sector, where they could benefit society more. It also disincentives individuals and businesses from finding their own solutions to problems, often creating de‐​facto monopolies less responsive to users/​consumers and technological change.</li> </ul> <p>Now, if Cummings is just laser‐​focused on improving delivery of core functions or projects, necessary Brexit‐​related change, or solving market failures, then this critique is neutered somewhat. His ideas could well generate improvements to delivery of activities government would be undertaking anyway. But my fear, reading between the lines, is that these hires reflect an ambition for projects encompassing greater government economic activism. In that case, it’s worth revisiting why governments fail where markets succeed. There are limits to what talented weirdos and misfits can achieve.</p> </div> Ryan Bourne holds the R&nbsp;Evan Scharf Chair in Public Understanding of Economics at the Cato Institute. Wed, 08 Jan 2020 18:09:35 -0500 Ryan Bourne https://www.cato.org/publications/commentary/limits-weirdos-misfits Bernie Sanders Is on to Something in Education https://www.cato.org/publications/commentary/bernie-sanders-something-education <p><a href="https://www.cato.org/people/neal-mccluskey" hreflang="und">Neal McCluskey</a></p> <div class="lead text-default"> <p>Presidential candidate Bernie Sanders is taking the federal No Child Left Behind Act (NCLB), and test‐​centric education policy, to task. “We do not need an education system in which kids are simply taught to take tests,” Sanders writes in&nbsp;<a href="https://www.usatoday.com/story/opinion/2020/01/08/bernie-sanders-education-no-child-left-behind-testing-column/2827348001/" target="_blank" data-ga-track="ExternalLink:https://www.usatoday.com/story/opinion/2020/01/08/bernie-sanders-education-no-child-left-behind-testing-column/2827348001/"><em data-ga-track="ExternalLink:https://www.usatoday.com/story/opinion/2020/01/08/bernie-sanders-education-no-child-left-behind-testing-column/2827348001/">USA Today</em></a>. “We need a&nbsp;system in which kids learn and grow in a&nbsp;holistic manner.”</p> </div> , <div class="text-default"> <p>Sanders is right that federal law has narrowed education largely to a&nbsp;test score (though it has&nbsp;<a href="https://townhall.com/columnists/nealmccluskey/2016/01/07/draft-n2101008" target="_blank" data-ga-track="ExternalLink:https://townhall.com/columnists/nealmccluskey/2016/01/07/draft-n2101008">moved away from that a&nbsp;bit</a> with NCLB’s successor). Unfortunately, he is way off when it comes to solutions.</p> <p>NCLB was signed into law in early 2002 to improve the academic outcomes for all students, especially those in schools with the worst test scores. And it was passed with&nbsp;<a href="https://www.govtrack.us/congress/votes/107-2001/s371" target="_blank" data-ga-track="ExternalLink:https://www.govtrack.us/congress/votes/107-2001/s371">strong bipartisan support</a> , because a&nbsp;lot of people had reached the logical conclusion that too many families, especially low‐​income, were powerless. They had far too little political capital to change their districts, and could not afford the cost of homes in “good” ones. The only hope for them, many concluded, was for the federal government to&nbsp;<em>force</em>states and districts to pay attention to everyone.</p> </div> , <aside class="aside--right aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>Bernie Sanders is right that NCLB‐​style reform — blunt, top‐​down control — is no way to run an education system. But he is wrong to attack the opposite of such reform: school choice.</p> </div> </div> </aside> , <div class="text-default"> <p>The intentions behind NCLB were good, and the assessment of a&nbsp;fundamental public schooling flaw — families have little power — was dead on. But the practical effect was to concentrate power even further from families and communities, putting it in Washington, D.C. And the law relied on essentially one measure — standardized test scores — to determine “good” or “bad” performers, and did so without accounting for unique situations, from poverty levels to English‐​language learner concentrations, before slapping labels and sanctions on schools and districts.</p> <p>Senator Sanders is right to criticize NCLB. But he is greatly mistaken to also attack school choice, which he does based on some charter schools being managed by for‐​profit companies, most being non‐​union, and none supposedly being “publicly accountable.”</p> <p>The fact is, only school choice empowers&nbsp;<em>families</em> to hold their schools accountable by controlling education dollars, especially low‐​income families who cannot afford to buy expensive homes to escape schools they feel are not serving them well. “Public” accountability, in contrast, is dependency, forcing the poor to rely on political processes and bureaucracies to make schools work. But such processes tend to leave the poor and political minorities largely powerless; they have neither the elite political networks, nor often the sheer size, to significantly influence political decisions.</p> <p>There is one other thing: All children, families, and communities are different, so <a href="https://www.cato.org/publications/policy-analysis/why-we-fight-how-public-schools-cause-social-conflict" target="_blank" data-ga-track="ExternalLink:https://www.cato.org/publications/policy-analysis/why-we-fight-how-public-schools-cause-social-conflict">no one system could serve them all equally</a> no matter how much political power they had.</p> <p>In addition to shunting choice aside, Senator Sanders suggests that “underinvestment in our schools” is a&nbsp;major problem.</p> <p>How one defines “underinvestment” is, of course, crucial, but by what measures we have it is tough to see anything like major underfunding. For one thing, we spend <a href="https://nces.ed.gov/programs/coe/indicator_cmd.asp" target="_blank" data-ga-track="ExternalLink:https://nces.ed.gov/programs/coe/indicator_cmd.asp">more per‐​pupil on elementary and secondary</a> education than almost any other industrialized nation. Moreover, as the graph below shows, while there was a&nbsp;decrease in inflation‐​adjusted spending as a&nbsp;result of the Great Recession, it came after decades of almost unremitting spending increases, and we are almost back at record levels. What has <a href="https://nces.ed.gov/programs/digest/d18/tables/dt18_211.50.asp?current=yes" target="_blank" data-ga-track="ExternalLink:https://nces.ed.gov/programs/digest/d18/tables/dt18_211.50.asp?current=yes">been stagnant</a> , at least since the late 1980s, is average teacher salaries, but that is because the money has been spent elsewhere, especially <a href="https://www.edchoice.org/wp-content/uploads/2017/06/Back-to-the-Staffing-Surge-by-Ben-Scafidi.pdf" target="_blank" data-ga-track="ExternalLink:https://www.edchoice.org/wp-content/uploads/2017/06/Back-to-the-Staffing-Surge-by-Ben-Scafidi.pdf">on other staff</a>.</p> </div> , <figure class="figure overflow-hidden figure--default figure--no-caption"> <div class="figure__media"> <img width="700" height="507" alt="McCluskey-image-1-8-2020.jpg" class="lozad component-image" data-srcset="/sites/cato.org/files/styles/pubs/public/2020-01/McCluskey-image-1-8-2020.jpg?itok=N6zLHlxG 1x, /sites/cato.org/files/styles/pubs_2x/public/2020-01/McCluskey-image-1-8-2020.jpg?itok=NRSt5l7Y 1.5x" data-src="/sites/cato.org/files/styles/pubs/public/2020-01/McCluskey-image-1-8-2020.jpg?itok=N6zLHlxG" typeof="Image" /> </div> </figure> , <div class="text-default"> <p>Bernie Sanders is right that NCLB‐​style reform — blunt, top‐​down control — is no way to run an education system. But he is wrong to attack the opposite of such reform: school choice, which empowers diverse families and educators alike to seek out and provide education as&nbsp;<em>they</em>see fit.</p> </div> Neal McCluskey is director of the Cato Institute’s Center for Educational Freedom and author of the book “Feds in the Classroom: How Big Government Corrupts, Cripples, and Compromises American Education.” Wed, 08 Jan 2020 10:18:26 -0500 Neal McCluskey https://www.cato.org/publications/commentary/bernie-sanders-something-education Progressive Governments’ Economic War on the NRA Fails in Court https://www.cato.org/publications/commentary/progressive-governments-economic-war-nra-fails-court <p><a href="https://www.cato.org/people/walter-olson" hreflang="und">Walter Olson</a></p> <div class="lead text-default"> <p>Some politicos just can’t stop grandstanding, even if it means their court case goes down in flames. Consider what just happened in a&nbsp;federal court in Los Angeles.</p> </div> , <div class="text-default"> <p>Not long ago, progressive state and local officials nationwide were vowing to take down the hated National Rifle Association by targeting its pocketbook. When city authorities in Los Angeles and San Francisco gave that idea a&nbsp;try, they were following the lead of Governor Andrew Cuomo, who had unleashed New York financial regulators to go after the gun‐​rights organization’s access to insurance and banking services.</p> <p>Now all three are facing a&nbsp;reckoning in court, based not on the Second Amendment but on the First. Without needing to even consider the issue of gun rights, federal courts are recognizing that boycotts enforced by government power can menace free speech and free association.</p> <p>The amusing part is that the public officials themselves are helping to provide the basis for these rulings by tweeting and speechifying about how much damage they intend to do the NRA.</p> </div> , <aside class="aside--right aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>In California and New York, efforts to target the gun‐​rights group’s business relationships are failing on First Amendment grounds.</p> </div> </div> </aside> , <div class="text-default"> <p>In December, a&nbsp;federal court in California granted a&nbsp;preliminary injunction against a&nbsp;Los Angeles ordinance requiring city contractors to disclose any business links to, or memberships in, the gun group. It found the evidence “overwhelming” that the city’s intent in passing the law was “to suppress the message of the NRA.”</p> <p>Public officials have been on notice about this sort of thing for at least two decades, since the 1996 Supreme Court case&nbsp;<a href="https://scholar.google.com/scholar_case?case=1420742315640734083" target="_blank"><em>Board of County Commissioners v. Umbehr</em></a>. In that case, the Court held that a&nbsp;county’s having terminated a&nbsp;government contract in retaliation for the contractor’s persistent and annoying political speech could violate the First Amendment. Controversial and unpopular speech is protected speech; officials cannot yank a&nbsp;contract from some business, or threaten to, just because it has donated to, or partnered in some venture with, the Sierra Club, the NAACP, or the NRA.</p> <p>Lawyers for Los Angeles tried to defend their ordinance by saying all it did was require disclosures from contractors, which wouldn’t necessarily amount to punishing or chilling speech. But this sort of First Amendment claim comes down to a&nbsp;question of intent. And&nbsp;<a href="https://michellawyers.com/wp-content/uploads/2019/12/2019-12-16-Corrected-Minute-Order.pdf" target="_blank">the court found</a>&nbsp;that the city’s lawmakers had made their intent to suppress speech and association utterly clear. They had done so in the text of&nbsp;<a href="https://bca.lacity.org/Uploads/sdo/NRA%20Ordinance%20FINAL%202019.pdf" target="_blank">the ordinance itself</a>, in its legislative history, and in the statements made at the time by its chief sponsor, Councilmember Mitch O’Farrell (Hollywood‐​Silver Lake).</p> <p>The ordinance starts off with a&nbsp;long preamble that, amid much demagogy, cites the NRA’s $163 million (2015) in membership dues and asserts that those dues go toward foiling beneficent legislative ends. That helped establish nicely that part of the bill’s aim was “to cut off revenue to the NRA because of its pro‐​firearm advocacy,” as the court put it.</p> <p>Then there were O’Farrell’s various pronouncements. Earlier in the year, he had motioned the city to “rid itself of its relationships with any organization that supports the NRA” and further moved that the city’s chief legislative analyst “report back with options for the City to immediately boycott those businesses and organizations” that do business with the NRA “until their formal relationship with the NRA ceases to exist.”</p> <p>Were doubt left about his intentions, O’Farrell’s Twitter outbursts through 2018 told of his efforts to jawbone businesses such as FedEx and Amazon into cutting off business relations with the NRA, often tagging friendly accounts such as @everytown, @momsdemand, @shannonrwatts, and @bradybuzz. It was unnecessary to show that the city had actually cut off any businesses, or that any such businesses had cut ties with the NRA for fear of city displeasure. So long as the ordinance was intended to chill speech and association, as it was, it would fall.</p> <p>San Francisco’s similar ordinance, although also the subject of a&nbsp;brief challenge in court, collapsed as a&nbsp;practical matter even more quickly. The measure’s&nbsp;<a href="https://www.wsj.com/articles/liberal-city-tags-speech-as-terrorism-11567969503" target="_blank">tantrum‐​like preamble</a>&nbsp;branded the NRA a&nbsp;domestic terrorist group, in a&nbsp;move calculated to draw wide national attention. The text of the ordinance proclaimed that the city should “take every reasonable step to limit those entities who do business with the City and County of San Francisco from doing business with” the gun‐​rights organization. Commentators promptly pointed out that any such step would fail in court as unconstitutional.</p> <p>Soon thereafter, San Francisco mayor London Breed issued a&nbsp;memo clarifying that “the City’s contracting processes and policies have not changed and will not change as a&nbsp;result of the Resolution” because only an actual ordinance can enact changes to city law. The NRA is suing anyway, but by the city’s own account the measure at this point does nothing except beam out vain hostility.</p> <p>Governor Cuomo was shrewder. He avoided the blatant statements of intent that tripped up his California counterparts. But did he retain enough deniability to survive a&nbsp;court challenge? In April 2018, he issued a&nbsp;statement saying he was directing “the Department of Financial Services to urge insurance companies, New York State‐​chartered banks, and other financial services companies licensed in New York to review any relationships they may have with the National Rifle Association and other similar organizations.” Review such relationships for what, exactly? Well, “the companies are encouraged to consider whether such ties harm their corporate reputations and jeopardize public safety.” In a&nbsp;press release, he made things a&nbsp;tad more explicit, saying that he was directing his financial regulators “to urge insurers and bankers statewide to determine whether any relationship they may have with the NRA or similar organizations&nbsp;<em>sends the wrong message</em>” (emphasis added).</p> <p>Those regulators, of course, have the discretion to make life very unpleasant for insurers and banks dense enough not to take the hint. Sure enough, the NRA in short order was cut off by some long‐​term business partners, notable among them one major insurer and one major insurance broker. The state declared that it had found regulatory infractions in NRA‐​branded insurance‐​affinity offerings, and in the ensuing settlements with the insurer and the broker it got them to promise never to do business with the NRA again, in New York or anywhere else. Yet at the same time, the NRA says, the state took no action against similarly marketed affinity products sold by others. Cuomo’s financial regulator made things a&nbsp;little more explicit still: “DFS urges all insurance companies and banks doing business in New York to join the companies that have already discontinued their arrangements with the NRA.”</p> <p>In November 2018, a&nbsp;federal court in New York&nbsp;<a href="https://casetext.com/case/natl-rifle-assn-of-am-v-cuomo" target="_blank">found that</a>&nbsp;all in all, there was enough plausible evidence of “direct and implied threats to insurers and financial institutions because of these entities’ links with the NRA” to allow the group to proceed with a&nbsp;First Amendment suit. While Cuomo was of course free to express his own views, the Constitution would have something to say about it if he or his appointees had made veiled threats against banks and insurers to encourage them to disassociate from the NRA. The court also asked for more evidence documenting a&nbsp;selective‐​enforcement claim, and this summer, against stiff legal resistance from the state, the NRA succeeded in getting discovery of some state files. In a&nbsp;<a href="https://www.courtlistener.com/docket/6631763/national-rifle-association-of-america-v-cuomo/#entry-154" target="_blank">filing on December 20</a>, the NRA said it had found new documentation of both the pressure and the selective enforcement.</p> <p>One reason the California disputes went so well for the NRA is that the officials just couldn’t help grandstanding at every turn in search of followers’ applause. That’s how O’Farrell, in Los Angeles, helped tweet his side of the case right out of court. But Cuomo, while he’s been more circumspect, has not covered himself as thoroughly as he might have. “If I&nbsp;could have put the NRA out of business, I&nbsp;would have done it 20&nbsp;years ago,” he declared in response to one legal development.</p> <p>Tell us more, Governor.</p> </div> Walter Olson is a&nbsp;senior fellow at the Cato Institute and writes the blog Overlawyered. Wed, 08 Jan 2020 10:12:01 -0500 Walter Olson https://www.cato.org/publications/commentary/progressive-governments-economic-war-nra-fails-court Trump’s Bogus “Off Ramp” Offer to Iran https://www.cato.org/publications/commentary/trumps-bogus-ramp-offer-iran <p><a href="https://www.cato.org/people/ted-galen-carpenter" hreflang="und">Ted Galen Carpenter</a></p> <div class="lead text-default"> <p>President Trump’s widely anticipated&nbsp;<a href="https://www.washingtonpost.com/politics/2020/01/08/transcript-trumps-iran-speech/" target="_blank">address to the nation</a>&nbsp;on the growing crisis with Iran contained few surprises and even fewer worthwhile observations or proposals. Instead, it was largely a&nbsp;regurgitation of long‐​standing hawkish allegations and demands. Indeed, Trump began his speech with the stale refrain that Iran will never be allowed to have a&nbsp;nuclear weapon. From there, he proceeded to recite a&nbsp;lengthy litany of familiar allegations about Tehran’s behavior: Iran as the world’s leading state sponsor of terrorism; Iran fomenting civil wars and undermining peaceful governments throughout the Middle East; Iran being responsible for the deaths of Americans in Iraq and elsewhere.</p> </div> , <div class="text-default"> <p>The president followed those accusations with an offer to commence negotiations on a&nbsp;new nuclear deal to replace the multilateral Joint Comprehensive Plan of Action (the existing agreement that Trump sabotaged).&nbsp;The broader proffered carrot was an end to U.S. and international economic sanctions if Tehran would only capitulate on Washington’s demands. However, the immediate, substantive U.S. action the president announced would move the needle in the opposite direction, with the imposition of&nbsp;<a href="https://www.aljazeera.com/news/2020/01/trump-continues-options-imposing-sanctions-200108145539264.html" target="_blank">new sanctions</a>, accompanied by a&nbsp;thinly veiled demand that America’s European allies (as well as Russia and China) support those measures. His call on NATO, the world’s strongest military alliance, to become more deeply involved in the Middle East was hardly calculated to ease Iranian worries either.</p> <p>There is little prospect that Trump’s policy will improve Washington’s already hostile relations with Tehran. Indeed, continuing to portray Iran as the Middle East’s arch‐​villain is both misleading and counterproductive.&nbsp;All of Trump’s allegations were either half‐​truths or outright falsehoods. Iran is not the world’s principal state sponsor of terrorism; that dubious distinction&nbsp;<a href="https://www.amazon.com/Perilous-Partners-Benefits-Alliances-Authoritarian/dp/1939709709/ref=sr_1_3?crid=2QAXWMCBL1XM0&amp;keywords=ted+galen+carpenter&amp;qid=1578507806&amp;s=books&amp;sprefix=Ted+Galen+%2Cstripbooks%2C176&amp;sr=1-3" target="_blank">belongs to Saudi Arabia</a>.&nbsp;15 of the 19 terrorist hijackers on 9 – 11 were Saudi nationals, and several Saudi officials had dubious ties to Al Qaeda.&nbsp;Not a&nbsp;single hijacker was Iranian, and no credible evidence has emerged that Tehran had any connection to the attack.Since then, Riyadh has backed extremist Sunni factions in Iraq, Syria, and other countries.&nbsp;Indeed, Saudi Arabia and its allies funded and equipped some of the factions that ultimately coalesced to form ISIS.</p> </div> , <aside class="aside--right aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>There is little prospect that Trump’s policy will improve Washington’s already hostile relations with Tehran. Indeed, continuing to portray Iran as the Middle East’s arch‐​villain is both misleading and counterproductive.</p> </div> </div> </aside> , <div class="text-default"> <p>Similarly, Trump’s accusation that Tehran has fomented civil wars in such countries as Syria and Yemen turns reality on its head.&nbsp;Saudi Arabia, along with Turkey and Qatar, has orchestrated the effort by Sunni insurgents in Syria to overthrow the government of Bashar al‐​Assad, a&nbsp;close Iranian ally.&nbsp;Because of Washington’s intense antipathy toward Iran, both the Obama and Trump administrations&nbsp;<a href="https://www.amazon.com/Gullible-Superpower-Support-Democratic-Movements/dp/194442492X/ref=sr_1_1?crid=2QAXWMCBL1XM0&amp;keywords=ted+galen+carpenter&amp;qid=1578507738&amp;s=books&amp;sprefix=Ted+Galen+%2Cstripbooks%2C176&amp;sr=1-1" target="_blank">supported the anti‐​Assad campaign</a>, helping to plunge Syria into a&nbsp;bloody civil war and to perpetuate that tragedy.&nbsp;Blaming Iran for the horrors in Yemen is even a&nbsp;more outrageous falsehood.&nbsp;The&nbsp;<a href="https://www.independent.co.uk/news/world/middle-east/saudi-arabia-yemen-airstrikes-war-crimes-cover-up-a9061061.html" target="_blank">humanitarian crisis</a>&nbsp;in that country is due largely to the Saudi‐​led&nbsp;<a href="https://www.theguardian.com/commentisfree/2019/oct/03/yemen-airstrikes-saudi-arabia-mbs-us" target="_blank">atrocity‐​ridden war of aggression</a>, which the United States has&nbsp;<a href="https://www.theamericanconservative.com/larison/the-saudi-coalition-slaughters-more-yemenis-with-u-s-support/" target="_blank">actively assisted</a>&nbsp;despite overwhelming evidence of Saudi war crimes.</p> <p>Even the allegation that Iran has been responsible for the deaths of “hundreds” of Americans in the Middle East (primarily in Iraq) has&nbsp;<a href="https://progressive.org/dispatches/-no-evidence-iran-is-responsible-for-the-deaths-of-hundreds-of-americans-zunes-200107/" target="_blank">largely been debunked</a>.&nbsp;None of the attacks, including the devastating carnage resulting from improvised explosive devices (IEDs), would have occurred if the United States had not invaded and occupied that country to overthrow Saddam Hussein.&nbsp;There were at least as many Sunni fighters as there were Iranian‐​backed Shias in the subsequent insurgency, and contrary to the hawkish narrative, many of those groups were perfectly capable of manufacturing and deploying IEDs without Iranian assistance.</p> <p>Trump and his advisers have thoroughly mismanaged relations with Iran. The earlier assassination of General Qassem Soleimani was especially dangerous and provocative.&nbsp;Doing so on Iraqi territory when he was there at the invitation of the Iraqi government to discuss&nbsp;<a href="https://www.dailymail.co.uk/news/article-7854971/Soleimani-Iraq-discuss-escalating-tensions-Saudis-killed-PM-says.html" target="_blank">a&nbsp;new peace feeler from Saudi Arabia,</a>&nbsp;was clumsy beyond belief.&nbsp;Indeed, it created suspicions that the United States deliberately seeks to maintain turmoil in the Middle East to justify America’s intrusive military presence in the region.</p> <p>Killing Soleimani (as well as at least two Iraqi political leaders) understandably have provoked Baghdad.&nbsp;Massive anti‑U.S. demonstrations have erupted in Baghdad, and the Iraqi parliament proceeded to pass a&nbsp;resolution calling on Prime Minister Adel Abdul Mahdi&nbsp;<a href="https://www.axios.com/iraq-parliament-us-troops-iran-soleimani-39f46292-b6b5-4070-bacd-92cfae1f586c.html" target="_blank">to expel U.S. forces</a>.&nbsp;The legislature has a&nbsp;vote scheduled for January 12 on a&nbsp;law to mandate that step. Trump’s boorish reaction to the possibility that Baghdad might order U.S. troops to leave was akin to a&nbsp;foreign policy temper tantrum.&nbsp;He threatened America’s supposed ally&nbsp;<a href="https://www.bbc.com/news/world-middle-east-51003159" target="_blank">with harsh economic sanctions</a>&nbsp;if it took that step, virtually guaranteeing that Iraq would cooperate even more closely with Iran.</p> <p>Media accounts convey a&nbsp;sense of relief that the January 7&nbsp;Iranian missile strikes on two sprawling Iraqi bases housing American forces appeared to have been more of a&nbsp;propaganda display to placate domestic opinion than a&nbsp;serious effort to inflict damage. Indeed, it seemed calculated to avoid killing American personnel.&nbsp;Critics note that there were other official U.S. installations throughout the Middle East that were both more vulnerable and valuable if Iran had wanted to strike a&nbsp;truly damaging blow.</p> <p>By confining itself to a&nbsp;mostly symbolic gesture, perhaps Iran was signaling a&nbsp;desire to de‐​escalate the confrontation.&nbsp;But it is also possible that this was a&nbsp;final shot across the bow, warning the United States to back off or the next attack would be far more serious. Even if Tehran did signal a&nbsp;wish to de‐​escalate and commence a&nbsp;new bilateral dialogue, Trump’s response was not helpful.&nbsp;Repeating shrill, exaggerated accusations and demanding Tehran’s capitulation is not showing an off‐​ramp from the road to a&nbsp;disastrous collision.&nbsp;It was more akin to continuing a&nbsp;game of military chicken with the growing risk of a&nbsp;head‐​on collision. America should be looking for its own off‐​ramp.</p> </div> Ted Galen Carpenter, a&nbsp;senior fellow in security studies at the Cato Institute and a&nbsp;contributing editor at the National Interest, is the author of 12 books and more than 850 articles on international affairs. Wed, 08 Jan 2020 10:06:27 -0500 Ted Galen Carpenter https://www.cato.org/publications/commentary/trumps-bogus-ramp-offer-iran The Wrong Kicks on Route 36 https://www.cato.org/publications/commentary/wrong-kicks-route-36 <p><span class="text-semibold">Tom Miller Jr.</span> and <a href="https://www.cato.org/people/todd-zywicki" hreflang="und">Todd Zywicki</a></p> <div class="text-default"> <p>Members of Congress in the&nbsp;<a href="https://chuygarcia.house.gov/media/press-releases/reps-garc-grothman-introduce-bipartisan-veterans-and-consumers-fair-credit-act" target="_blank">House</a>&nbsp;and&nbsp;<a href="https://www.merkley.senate.gov/imo/media/doc/19.11.12%20Veterans%20and%20Consumer%20Fair%20Credit%20Act.pdf" target="_blank">Senate</a>&nbsp;recently introduced versions of the “Veterans and Consumers Fair Credit Act,” designed to extend to all consumers the interest rate caps currently in place for active‐​duty service members and dependents. This proposed legislation is modeled after the 2015 update to the 2007 Military Lending Act (MLA), and mandates a&nbsp;nationwide 36 percent interest rate cap on consumer credit.</p> </div> , <div class="text-default"> <p>Supporters of a&nbsp;36 percent interest rate cap compare it to a “<a href="https://www.npr.org/2019/11/07/776769597/a-ban-on-high-cost-loans-may-be-coming" target="_blank">speed limit on small‐​dollar loans</a>.” Not so. It is an abrupt “pavement ends” sign for millions of Americans. As with all price controls, interest rate caps have predictable outcomes. Interest rate caps create shortages and make credit less available for millions of families.</p> <p>Small‐​dollar credit products serve millions of people. According to the FDIC, nearly 33 million families have no or only&nbsp;<a href="https://www.fdic.gov/householdsurvey/2017/2017execsumm.pdf" target="_blank">limited access</a>&nbsp;to bank credit. A&nbsp;recent&nbsp;<a href="https://www.newyorkfed.org/medialibrary/media/outreach-and-education/community-development/constraints-on-access-to-credit.pdf" target="_blank">study</a>&nbsp;by the Federal Reserve Bank of New York suggests millions more may be “credit insecure.” That is, they tend to max out their credit limit, have a&nbsp;low credit score, and have a&nbsp;history of late payments. Also, 45 million primarily young, low‐​income, and minority Americans have&nbsp;<a href="https://files.consumerfinance.gov/f/201505_cfpb_data-point-credit-invisibles.pdf" target="_blank">poor or thin credit histories</a>.&nbsp;They are ineligible for prime credit cards and bank loans.</p> </div> , <aside class="aside--right aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>If the MLA has not helped service members, why extend it? The MLA is a&nbsp;cautionary tale — not a&nbsp;model — for consumer credit regulation. It seems ripe for repeal, not ready to extend to all consumers.</p> </div> </div> </aside> , <div class="text-default"> <p>A primary function of credit is to smooth consumption.&nbsp;<a href="https://www.usfinancialdiaries.org/book" target="_blank">More than a&nbsp;third</a>&nbsp;of households making under $50,000 experience month‐​to‐​month spikes and dips in their income. Small‐​dollar credit products help them deal with unforeseen expenses. The choice for these consumers is between using small‐​dollar credit products and simply going without.</p> <p>In theory, how would a&nbsp;36 percent interest rate cap eliminate consumer choices? It costs money to produce small‐​dollar loans. Reducing revenue too much makes loans unprofitable, and lenders will obviously not supply unprofitable loans. This includes installment loans, payday loans, and even pawn shops. Borrowers’ option to use small‐​dollar credit products is not outlawed, but there is no supply for payday and pawn loans, and no amounts available lower than $4,000 for traditional installment loans at those rates.</p> <p>A 36 percent cap on payday loans for active military, their spouses, and dependents has been in place since the MLA passed in 2007. Its proponents&nbsp;<a href="https://archive.defense.gov/pubs/pdfs/Report_to_Congress_final.pdf" target="_blank">argued</a>&nbsp;at the time that payday lenders near military bases were taking advantage of inexperienced borrowers in uniform, causing them financial distress which compromised their performance. The MLA banned payday loans for military members on those grounds. In 2015, the MLA cap was extended to all forms of credit, including pawn loans — which had been exempt in the 2007 Act.</p> <p>More than ten years later, though, evidence has accumulated that the MLA has had no benefit and might even hurt those it was intended to help. For example, in 2017,&nbsp;<a href="https://pdfs.semanticscholar.org/6601/2bae87cfed61966e938d54b9f4daaf479271.pdf?_ga=2.189541931.1083233226.1550242757-1598403270.1550075182" target="_blank">researchers</a>&nbsp;found that access to payday loans did not increase bad outcomes, such as involuntary separations and the denial of security clearances as a&nbsp;result of financial distress. Their analysis “suggests no significant benefits to servicemembers from the MLA.” A&nbsp;2016&nbsp;<a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2741001" target="_blank">study</a>&nbsp;showed access to payday loans made it easier for military personnel to buy food and other goods before their biweekly paycheck.</p> <p>If the MLA has not helped service members, why extend it? The MLA is a&nbsp;cautionary tale — not a&nbsp;model — for consumer credit regulation. It seems ripe for repeal, not ready to extend to all consumers.</p> </div> Tom Miller is Professor of Finance and Jack R. Lee Chair in Financial Institutions and Consumer Finance at Mississippi State University. Todd Zywicki is a&nbsp;University Foundation Professor of Law at George Mason University Antonin Scalia School of Law. Both are adjunct Scholars at the Cato Institute’s Center of Monetary and Financial Inclusion. Wed, 08 Jan 2020 07:57:14 -0500 Tom Miller Jr., Todd Zywicki https://www.cato.org/publications/commentary/wrong-kicks-route-36 Trump Stokes Endless War: His Attack on an Iranian Military Leader Will Come Back to Haunt Him and Us https://www.cato.org/publications/commentary/trump-stokes-endless-war-attack-iranian-military-leader-will-come-back <p><a href="https://www.cato.org/people/christopher-preble" hreflang="und">Christopher A. Preble</a> and <a href="https://www.cato.org/people/john-glaser" hreflang="und">John Glaser</a></p> <div class="lead text-default"> <p>In his last State of the Union address, President Trump boldly stated that “great nations do not fight endless wars.” It was a&nbsp;statement in keeping with at least some of the rhetoric from the 2016 campaign. Taking aim at both Democratic and Republican administrations, he complained about Americans expending precious blood and treasure in Middle East conflicts, to the detriment of both U.S. interests and regional stability.</p> </div> , <div class="text-default"> <p>Trump’s decision to order the assassination of Iranian Maj. Gen. Qassim Soleimani near the Baghdad Airport on Thursday, however, is likely to further draw the United States into the Middle Eastern morass. Tensions between the United States and Iran have now risen to new heights and the world is bracing for a&nbsp;violent Iranian response that could put U.S. forces in the region, and the many civilians likely to be caught in the cross‐​fire, in grave danger.</p> </div> , <aside class="aside--right aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>Trump and his team seem trapped in a&nbsp;dangerous escalatory cycle, with no end in sight.</p> </div> </div> </aside> , <div class="text-default"> <p>How did we get here? It all started with Trump’s reckless decision to withdraw from the Iran nuclear deal. That agreement (officially the Joint Comprehensive Plan of Action, or JCPOA) obligated Iran to give up 98% of its stockpile of enriched uranium, two‐​thirds of its operating centrifuges, and to open itself up to the most intrusive UN inspections regime in the world,&nbsp;<a href="https://www.latimes.com/world/middleeast/la-fg-iran-inspections-2017-story.html" target="_blank">according to</a>&nbsp;the former head of the International Atomic Energy Agency (IAEA).</p> <p>Trump, however, always&nbsp;<em>hated</em>&nbsp;the JCPOA — even though it was never clear that he understood what it actually did. Following months of secret meetings and negotiations, Secretary of State John Kerry presented the framework agreement on the evening of April 2, 2015, with the understanding that additional details would be worked out in the ensuing months.</p> <p>But by the following day, on April 3, 2015, Trump had concluded that the deal was “terrible…for the United States and the world” and that it did “nothing but make Iran rich.”&nbsp;<a href="https://twitter.com/realdonaldtrump/status/584129948916514818?lang=en" target="_blank">He predicted via Twitter</a>&nbsp;that it would “lead to catastrophe.”</p> <p>It was unsurprising, therefore, when he withdrew from the JCPOA in May 2018. He did so despite assessments from the IAEA, the U.S. military and intelligence community, and allies and partners around the world, that Iran was fully complying with its stringent terms. The president then re‐​imposed crippling economic sanctions on the country as punishment for their compliance, thus denying Iran its side of the bargain. The Trump administration, with Secretary of State Mike Pompeo in the lead, called it “maximum pressure.”</p> <p>All the while, Trump and his allies insisted that pulling out of the deal would absolutely not put us on the path to war. That, they said, was ridiculous left‐​wing fearmongering.</p> <p>For a&nbsp;full year following this, Iran continued to comply with the nuclear deal. Starting in fall of 2019, Iran began to make calculated violations in an attempt to pressure Europe, Russia, and China to revive the faltering accord, to no avail. Through it all, the Trump administration never gave Iran a&nbsp;viable diplomatic off‐​ramp — a&nbsp;set of compromises that would persuade Washington to lift sanctions and refrain from threatening military action.</p> <p>Desperate under the weight of America’s economic warfare, Iran then ratcheted up its provocations in the region, attacking oil tankers in the Persian Gulf, bombing a&nbsp;Saudi oil field, and even shooting down an unmanned U.S. drone flying within (or at least near) Iranian airspace.</p> <p>In recent weeks, following a&nbsp;number of tit‐​for‐​tat bombings and the storming of the American Embassy in Baghdad, Iranian‐​backed Shia groups in Iraq began protesting the ongoing U.S. military presence in the country. Now, with the killing of Soleimani, we have a&nbsp;dramatic escalation and, possibly, an act of war.</p> <p>In other words, Trump’s “maximum pressure” strategy produced the exact opposite set of results than the administration’s stated intentions. It has been an undeniable policy failure. Presuming, that is, that the ostensible object was to obtain a&nbsp;better nuclear deal with Iran. An alternative goal may be the collapse of the Iranian regime, a&nbsp;fantasy that Iran hawks have been entertaining ever since a&nbsp;popular revolution overthrew the U.S.-backed Shah in 1979.</p> <p>Now the Trump administration appears to be tangled up in its own complex web of contradictory rhetoric, disparate and often reactive military operations, and grossly exaggerated perceptions of the Iranian threat. Lacking a&nbsp;clear path forward, or a&nbsp;coherent strategy, in which some combination of pressure and concessions convinces both sides to back away from the brink, Trump and his team seem trapped in a&nbsp;dangerous escalatory cycle, with no end in sight.</p> <p>In other words, an endless war.</p> </div> Christopher A. Preble is the vice president for defense and foreign policy studies at the Cato Institute, where John Glaser is the director of foreign policy studies. They are the co‐​authors of the new book, “Fuel to the Fire: How Trump Made America’s Broken Foreign Policy Even Worse.” Mon, 06 Jan 2020 09:09:43 -0500 Christopher A. Preble, John Glaser https://www.cato.org/publications/commentary/trump-stokes-endless-war-attack-iranian-military-leader-will-come-back Kim Jong‐​un’s Big Speech Is Missing Something: South Korea https://www.cato.org/publications/commentary/kim-jong-uns-big-speech-missing-something-south-korea <p><a href="https://www.cato.org/people/eric-gomez" hreflang="und">Eric Gomez</a></p> <div class="lead text-default"> <p>The <a href="https://kcnawatch.org/newstream/1577869229-462791867/report-on-5th-plenary-meeting-of-7th-c-c-wpk%e2%80%8b/" rel=" noopener noreferrer" target="_blank">report on North Korea’s 5<sup>th</sup> Plenary Meeting of the 7<sup>th</sup> Central Committee</a> talks at length about nuclear diplomacy and outlines what the future may hold for U.S.-North Korea talks. This emphasis is unsurprising after a&nbsp;year of frustrating <a href="https://www.reuters.com/article/us-northkorea-usa-sweden/north-korea-breaks-off-nuclear-talks-with-u-s-in-sweden-idUSKCN1WK074" rel=" noopener noreferrer" target="_blank">diplomatic setbacks</a> and <a href="https://nationalinterest.org/blog/korea-watch/case-optimism-after-trump-kim-handshake-summit-65016">false starts</a> in U.S.-North Korea relations, and many talented analysts are trying to decipher the plenum’s implications for Washington. Yet equally notable is the country <em>not </em>mentioned in the report — South Korea.</p> </div> , <div class="text-default"> <p>The report of the 5<sup>th</sup> Plenary Meeting is a&nbsp;stark reminder of the depleted role that South Korea plays in negotiations with North Korea. This wasn’t always the case.</p> <p>Not long ago, South Korea was an important player in nuclear diplomacy. <a href="https://www.nytimes.com/2018/02/25/world/asia/north-korea-olympics-peace.html" rel=" noopener noreferrer" target="_blank">President Moon Jae-in’s outreach around the 2018 Pyeongchang Winter Olympics</a> kicked off a&nbsp;promising year that included two inter‐​Korean summits. The second of which, in Pyongyang, produced an <a href="https://thediplomat.com/2018/10/north-and-south-koreas-new-military-agreement/" rel=" noopener noreferrer" target="_blank">important military agreement</a> that significantly reduced the likelihood of military escalation along the demilitarized zone. The military agreement was very detailed and laid out <a href="https://www.ncnk.org/sites/default/files/Agreement%20on%20the%20Implementation%20of%20the%20Historic%20Panmunjom%20Declaration%20in%20the%20Military%20Domain.pdf" rel=" noopener noreferrer" target="_blank">mutual, reciprocal steps</a> that <a href="https://english.kyodonews.net/news/2018/11/0531d87bca8e-n-korea-demolishes-10-guard-posts-in-dmz-as-agreed-s-korea.html" rel=" noopener noreferrer" target="_blank">North and South Korea quickly implemented</a>. The fine‐​grained inter‐​Korean military agreement stood in stark contrast to the <a href="https://www.whitehouse.gov/briefings-statements/joint-statement-president-donald-j-trump-united-states-america-chairman-kim-jong-un-democratic-peoples-republic-korea-singapore-summit/" rel=" noopener noreferrer" target="_blank">vaguely worded joint statement</a> from the U.S.-North Korea summit in Singapore.</p> <p>After racking up early diplomatic victories in 2018, Seoul had its knees cut out from under it by the failure of the February 2019 U.S.-North Korea summit in Hanoi. South Korea and the United States faced some difficulties getting on the same page in 2018 with the former pushing for more broader relationship improvement with North Korea and the latter prioritizing denuclearization. <a href="https://www.vox.com/2019/2/26/18240805/trump-north-korea-kim-vietnam-deal" rel=" noopener noreferrer" target="_blank">The tentative draft of the Hanoi joint statement</a> released shortly before the start of the summit indicated that the United States was willing to broaden the scope of diplomacy beyond denuclearization and lift sanctions that were blocking inter‐​Korean economic projects. This would have brought Washington and Seoul’s diplomatic strategies <a href="https://www.cato.org/blog/us-south-korea-alignment-hanoi-summit" rel=" noopener noreferrer" target="_blank">into closer alignment</a>.</p> <p>Instead, the collapse of the Hanoi summit resulted in Kim relegating South Korea to the sidelines and prioritized pressuring the United States to lift sanctions. High‐​level contact at the inter‐​Korean liaison office in Kaesong <a href="https://www.reuters.com/article/us-northkorea-southkorea-office/north-korean-officials-return-to-liaison-office-after-pullout-idUSKCN1R607Q" rel=" noopener noreferrer" target="_blank">ground to a&nbsp;halt</a>, <a href="https://www.nytimes.com/2019/09/09/world/asia/north-korea-missile-tests.html" rel=" noopener noreferrer" target="_blank">North Korea tested several new types of ballistic missiles and large‐​caliber rocket artillery</a>, and North Korea <a href="https://www.rfa.org/english/news/korea/nk-artillery-drill-nov-2019-11262019160627.html" rel=" noopener noreferrer" target="_blank">conducted artillery drills near the Northern Limit Line</a>—a violation of the inter‐​Korean military agreement. Kim committed to an all‐​or‐​nothing formula for sanctions relief that only the United States could provide by reversing course on UN sanctions that affected entire sectors of the North Korean economy (seafood, coal, petroleum, etc.).</p> </div> , <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>The report of the 5th Plenary Meeting is a&nbsp;stark reminder of the depleted role that South Korea plays in negotiations with North Korea. This wasn’t always the case.</p> </div> </div> , <div class="text-default"> <p>Kim’s calculation is simple: South Korea can’t give me what I&nbsp;want, but the United States can. Therefore, focus all effort on getting the United States to change their policies and don’t waste time with South Korea.</p> <p>The language of the report on the 5<sup>th</sup> Plenary Meeting indicates that North Korea is content to keep South Korea in its diminished position going forward. There is room for the United States to make progress, the report clearly links the size and composition of the North Korean nuclear arsenal to U.S. policies, implying that different policies could lead to a&nbsp;smaller arsenal, but the burden of action lies with Washington and there is little Seoul can do to help the situation.</p> <p>Moon could try to buck the United States entirely and push ahead with a&nbsp;peace regime and violate sanctions to spur inter‐​Korean economic cooperation. However, such a&nbsp;move would be tantamount to political suicide given high levels of support for the U.S.-South Korea relationship among the Korean people — even given the <a href="https://www.cato.org/blog/making-offer-south-korea-cant-accept" rel=" noopener noreferrer" target="_blank">deeply unpopular U.S. demand for a&nbsp;massive increase in South Korean financial support</a> for U.S. troops deployments. South Korea should continue to abide by the inter‐​Korean military agreement, but this may become untenable if North Korea continues to take actions that violate the agreement.</p> <p>Right now, 2020 looks like a&nbsp;grim year for South Korea’s diplomatic outreach to North Korea. Moon Jae‐​in, who played an important role in moving the peninsula away from the brink of armed conflict and made real progress on reducing the risks of cross‐​border military escalation, has practically no ability to change the current situation on his own without taking actions that would be risky and politically unpopular. Hope is not a&nbsp;strategy, but it may be Seoul’s only choice for the foreseeable future.</p> </div> Eric Gomez is a&nbsp;policy analyst for defense and foreign policy studies at the Cato Institute. Sat, 04 Jan 2020 14:50:50 -0500 Eric Gomez https://www.cato.org/publications/commentary/kim-jong-uns-big-speech-missing-something-south-korea