Archive for the ‘foreign policy’ Category

A few weeks ago I posted on the distribution of war surplus to state and local law enforcement agencies under the DOD’s Excess Property Program. This is all part of a larger trend detailed in the ACLU’s new report, War Comes Home: The Excessive Militarization of American Policing. From the executive summary:

This investigation gave us data to corroborate a trend we have been noticing nationwide: American policing has become unnecessarily and dangerously militarized, in large part through federal programs that have armed state and local law enforcement agencies with the weapons and tactics of war, with almost no public discussion or oversight.Using these federal funds, state and local law enforcement agencies have amassed military arsenals purportedly to wage the failed War on Drugs, the battlegrounds of which have disproportionately been in communities of color. But these arsenals are by no means free of cost for communities. Instead, the use of hyper- aggressive tools and tactics results in tragedy for civilians and police officers, escalates the risk of needless violence, destroys property, and undermines individual liberties.

The Guardian has a useful overview of the report, and notes:

The findings set up a striking and troubling paradox. The Obama administration is completing its withdrawal from Afghanistan, and the US is on the verge of being free from war for the first time in more than a decade; yet at the same time the hardware and tactics of the war zone are quietly proliferating at home.

This does not seem to be much of a paradox, given the focus on federal, state and local policy since 9/11, the heavy investment in “homeland security,” and the federal government’s practice of providing the surplus tools of war to “first responders,” often times for free. In some ways, this was all too predictable.

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At The American Conservative, Daniel Larison has written a long, comprehensive description and defense of a principled non-interventionist foreign policy that manages to avoid the extremes of isolationism while retaining its coherence. How well does it succeed?

First, a general principle:

When a conflict or dispute erupts somewhere, unless it directly threatens the security of America or our treaty allies, the assumption should be that it is not the business of the U.S. government to take a leading role in resolving it. If a government requests aid in the event of a natural disaster or humanitarian crisis (e.g., famine, disease), as Haiti did following its devastating earthquake in 2010, the U.S. can and should lend assistance—but as a general rule the U.S. should not seek to interfere in other nations’ domestic circumstances.

That sounds right. The rub is how broadly we construe “directly threatens the security of American or our treaty allies.” “Domestic circumstances” could threaten U.S. security interests if, for instance, a foreign government is sponsoring terrorist attacks on U.S. citizens. So let’s look at the details.

Larison argues that the U.S. should remain diplomatically engaged, for instance in arbitrating or mediating disputes at the request of the parties involved, but that this engagement requires taking an even-handed approach to international disputes. True enough, but this example is hardly one of the most important fields of U.S. diplomatic activity. Governments like Norway and Sweden have already established something of a specialty in conflict mediation around the world, and it is difficult to see the U.S. government often stepping into that role, given its strong orientation in favor of the international status quo.

Foreign economic policy plays no role in Larison’s essay, but trade and investment agreements provide one way for the U.S. government to engage constructively with the world. On the other hand, some noninterventionists lazily argue that the U.S. should use “diplomacy” to resolve human rights problems abroad. With what tools? Some of my undergrads who hate war hold forth “sanctions” as an all-purpose alternative to war. But sanctions can impose significant costs on the U.S. economy and inflame anti-U.S. opinion just like war. In some cases they are a prelude to war. Using “carrots” rather than sticks may not be in U.S. interests either. Incorporating human rights instruments into trade agreements is frequently just disguised protectionism. Noninterventionists must bite the bullet and concede that in some cases humanitarian crises require no response at all from the U.S. government. The closest Larison comes to acknowledging this point comes in this passage:

The U.S. would refrain from destabilizing foreign governments or aiding in their overthrow, and it would not make a habit of siding with whichever protest movement happened to be in the streets of a foreign capital. Likewise, it would refrain from propping up and subsidizing abusive and dictatorial regimes and would condition U.S. aid on how a government treats its people.

The last sentence, however, shows how Larison’s noninterventionism differs from realism. It may imply, for instance, that Nixon should not have gone to China. What if a brutal but externally nonthreatening dictator is fighting al-Qaeda? I do not see any reason the U.S. government should rule out sending military assistance to such a government. The condition for the assistance should be successful suppression of the transnational terrorist threat, not greater human rights.

Larison also implies that the U.S. would not abolish all foreign aid, which puts a little space between him and Rand Paul. Here I agree with Larison. If foreign aid can help serve a legitimate U.S. foreign policy interest, and is the cheapest of all the available options, then the U.S. should use it.

On these points, moreover, I am in full agreement with Larison: (more…)

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President Obama’s announcement about further troop drawdowns and a time-certain exit from Afghanistan has drawn some sharp responses. As the Washington Post editorial board writes:

“YOU CAN’T fault President Obama for inconsistency. After winning election in 2008, he reduced the U.S. military presence in Iraq to zero. After helping to topple Libyan dictator Moammar Gaddafi in 2011, he made sure no U.S. forces would remain. He has steadfastly stayed aloof, except rhetorically, from the conflict in Syria. And on Tuesday he promised to withdraw all U.S. forces from Afghanistan by the end of 2016.

The Afghan decision would be understandable had Mr. Obama’s previous choices proved out. But what’s remarkable is that the results also have been consistent — consistently bad.”

While the Washington Post is skeptical about the withdrawal, the New York Times editorial board seems disappointed that the timetable has been extended.

“Mr. Obama reaffirmed that he would meet his commitment to remove the last 32,000 combat troops from Afghanistan at the end of the year, a pace that was too slow from the start. But don’t think this is the end of the American military involvement in the Afghan quagmire…

It is reasonable to ask how two more years of a sizable American troop presence — which one official said could cost $20 billion in 2015 — will advance a stable Afghanistan in a way that 13 years of war and the 100,000 troops deployed there at the peak were unable to guarantee.”

In the end, the nation’s longest war will end (of this we can be confident). The real question as Nick Gillespie (Reason) notes, is a fundamental one: “The decision to attack Afghanistan after the 9/11 attacks was both understandable and defensible. But what is the mission in Afghanistan now? Or more precisely, what was it the minute the Taliban was deposed and the trail for bin Laden went cold? Was it nation-building? Was it creating one more spot on the planet where goodwill toward America could dissolve into the sand once again?”

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I delivered this brief talk to a Model UN conference at Dartmouth on March 28. Here is the text of my remarks.
My topic for tonight is “The Right to Self-Determination in International Law and Practice.” The right to self-determination is one of the most controversial concepts in international relations today. The government of Russia has cited it as a justification for its annexation of Crimea following a doubtfully free and certainly unfair referendum in that territory. The government of Catalonia has cited it in its effort to hold a truly democratic referendum on independence from Spain later this year. What does the right to self-determination mean in international law? And how well does international practice actually conform to international law?

The right to self-determination of peoples is found in the original United Nations Charter, which states among its purposes, “To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.” The two original UN human rights instruments, the ICCPR and ICESCR, also guarantee the right of self-determination to “all peoples.”

But what is a “people”? That was left undefined. The UN developed a list of “non-self-governing territories” whose status was to be monitored. Originally, the right to self-determination for these territories was not meant to include a right to immediate independence. Article 73 of the original UN Charter merely provides that member states administering non-self-governing territories ensure their “political, economic, social, and educational advancement,” and assist the “progressive development of their free political institutions.”

In the 1940s and 1950s, anticolonial movements emerged in Africa and Asia to fight for immediate independence, and frequently faced stiff military opposition from their imperial masters. The major colonial powers gradually realized that they could not prevent many of their territories from claiming independence. Only in 1960 did the UN adopt the “Declaration on the Granting of Independence to Colonial Countries and Peoples.” This resolution affirmed that the right of self-determination meant that every non-self-governing territory was to have a chance to decide its own political status, whether integration with the metropole, a status of “free association” with the metropole, or independence.

The criterion for determining whether a territory belonged on the list for decolonization was that it be “geographically separate” and “distinct ethnically and/or culturally from the country administering it.” This criterion has come to be known as the “salt water test”: only if a territory is separated from its metropole by salt water does it have the right to self-determination under international law.

Clearly then, the right to self-determination under international law was never meant to be applied to secessionists in the classic sense. It was a tool for decolonization. This fact does not mean that secession is illegal under international law, only that member states of the United Nations are not required to give secessionist regions the opportunity to determine their own political status. Russia’s justification for its forcible seizure of Crimea is therefore wrong.

International law itself is merely the creation of the governments that happen to exist on the globe. It would be surprising if existing governments were to set up a legal framework for their own dissolution. The “salt water test” is morally arbitrary, and it does not seem to have any rationale in conflict prevention or reduction.

There is another concept of the right to self-determination: a moral concept. Last year, (more…)

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What’s most interesting about this new international order is how the world’s rogue states and flouters of international legal norms are deploying the language of the human rights community with gusto to achieve their revisionist ends.

That’s from this piece at politicalviolenceataglance.org by Lionel Beehner. I recommend the whole thing, even though I would answer the question it poses in the title with a clear “no.”

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On Monday, Russia made a non-serious offer to settle the ongoing Crimean crisis. The key points involved international recognition of Crimea’s annexation by Russia, military neutrality and federalization of Ukraine, and establishment of Russian as a second state language of Ukraine. The offer is not serious because it would give Russia far more than it has already won on the battlefield. If the status quo holds, all Russia gets is a hostile Ukraine, an occupied Crimea (and quite likely a Tatar revolt), and a terrible international reputation.

However, a negotiated settlement is desirable, and any negotiated settlement must be consistent with the bargaining power of the different parties. Russia has Crimea now. To get them to give it up will require real concessions. Fortunately, some of those concessions would be desirable in any case to the US, EU, and ordinary Ukrainians. The neutralization of Ukraine would benefit the US and EU by removing Russian anxieties about NATO troops on their borders and avoiding any military commitments to Ukraine, while Ukraine’s potential military contributions to European collective security would have been minimal, given their pathetic military. Federalization and establishment of Russian as a second official language would benefit ordinary Ukrainians by taking the deepest political controversies in the country off the legislative agenda, thereby making Russian speakers and Russian-Soviet identifiers more comfortable with a united and democratic Ukraine.

But what to do about Crimea? It is unthinkable that the US and EU would ever recognize that illegal, unfree, and fraudulent referendum. However, there are other alternatives that may be acceptable to all sides. One possibility is the “Danzigification” of Crimea. The key points of such a settlement might be as follows:

  • Both Russia and Ukraine may continue to occupy the ports and military bases they occupied before the Russian invasion.
  • Crimea would not have any of its own military forces and would be prohibited from military alliances.
  • Crimea may enter a customs union with Russia or Ukraine, as its parliament may decide.
  • Crimea will be internally autonomous and will pay taxes to neither Ukraine nor Russia.
  • Crimea’s constitution will guarantee the individual rights and collective self-government of all its ethnic groups.
  • After 10 years, Crimea will have the right to join Ukraine or Russia, or to become independent. The process would require a majority vote in parliament and a two-thirds vote of the voting population in an internationally supervised referendum.

In broad outlines, this settlement would give Russia much of what they wanted, but would require them to give up immediate annexation of Crimea, in return for which they would receive the changes in Ukraine’s constitution that they desire.

Whatever happens, the US government should give way to the European Union negotiators, who have a much more direct stake in the matter than does the US. The US does not really have a reason to care who governs Crimea, but it does have an interest in peaceful, open-trading relations with the EU, Ukraine, and Russia.

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Today Vladimir Putin signed a treaty with the self-styled independent government of Crimea, annexing Crimea to Russia. I did not see this coming. It is an unprecedented deviation from the post-World War 2 international norm that force and the threat of force shall not be used for conquest. Article 2 of the United Nations Charter states: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” When Saddam Hussein invaded and annexed Kuwait to Iraq, the UN Security Council swiftly and unanimously approved sanctions, and when Hussein did not withdraw, authorized the use of force to expel his forces. Other de facto annexations have happened — Russia has occupied Abkhazia, South Ossetia, and Transnistria, and Armenia has occupied Nagorno-Karabakh — but in none of these cases has annexation been formalized. There have been other conflicts over disputed territory — China-India, Somalia-Ethiopia, and Britain-Argentina, for instance — but in all these cases there was a legitimate dispute over proper ownership of the territories involved. By contrast, Russia had previously guaranteed to respect the territorial integrity of Ukraine, in exchange for obtaining the latter’s nuclear weapons. Finally, all secessions between 1945 and 2007 were widely recognized only with the consent (however begrudging) of the rump state. Kosovo’s independence was an important — some would say “dangerous” — deviation from this pattern in 2008.

Russia’s annexation of Crimea therefore sets a dangerous new precedent. It threatens to return the world to an environment in which the “strong do what they can, and the weak suffer what they must,” with adverse repercussions not just for Russia and Ukraine, but for the whole world. Russia under Putin bids fair to become a pariah state.

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My favorite quote from this weekend came from Secretary of State John Kerry (Meet the Press, March 2). The subject: Russia and the Ukraine.

This is an act of aggression that is completely trumped up in terms of its pretext. It’s really 19th-century behavior in the 21st century… you just don’t invade another country on phony pretext in order to assert your interests.

It appears that David Gregory failed to see the irony in this statement.

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Whether one looks to the domestic or the international arena, it appears that little is working these days. Three issues I have been following:

1. The Affordable Care Act (formerly known as Obamacare): The difficulties in the ACA roll out persist and the circular firing squad continues to take aim at the guilty parties. Megan McArdle  adds a new dimension with her piece on “the illusion of omnicompetence” and Healthcare.gov. A fine quote:

The technocratic idea is that you put a bunch of smart, competent people in government — folks who really want the thing to work — and they’ll make it happen. But “smart, competent people” are not a generic quantity; they’re incredibly domain-specific. Most academics couldn’t run a lemonade stand. Most successful entrepreneurs wouldn’t be able to muster the monomaniacal devotion needed to get a Ph.D. Neither group produces many folks who can consistently generate readable, engaging writing on a deadline. And none of us would be able to win a campaign for Congress. Yet in my experience, the majority of people in these domains think that they could do everyone else’s job better, if they weren’t so busy with whatever it is they’re doing so well. It’s the illusion of omnicompetence, and in the case of HealthCare.gov, it seems to have been nearly fatal.

There are some useful lessons here on the limits of technocracy and planning more generally.

2. Our exit from Afghanistan: As the proud father of a Marine, I have particular interest in this story. I find it interesting that President Karzai is making more demands before accepting a long-term security arrangement. Absent an agreement, the US exits Afghanistan in 2014 with predictable results (you will likely get the same result regardless of when you exit). I am at a loss to understand (1) what makes Karzi believe he has a strong bargaining position, and (2) why we are not exiting Afghanistan immediately (other than the obvious: no president wants another “evacuation of Saigon” as part of his legacy).

3. Climate Change: If the negotiations over Afghanistan sound complicated, they pale in comparison to the attempts to find a path forward on climate change post-Kyoto. The 19th Conference of the Parties meeting of the UN Framework Convention on Climate Change in Warsaw generated little. As Alex Brown notes:

United Nations climate talks ended Saturday with a last-ditch agreement to set a timetable in the future to make goals that will hopefully one day comprise part of a future pact on climate change.

I can’t imagine that the 20th Conference of the Parties (next December in Peru) will resolve things.  Given the diversity of interests, the distribution of costs and benefits, the lack of powerful institutions, and the complexity of the underlying science, perhaps the best we can hope for is cooperation in adapting to a changing environment.

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After weeks of media obsession with Senator Cruz, the GOP-forced government shutdown, and the impact on public opinion, the Obama administration’s use of drones and the NSA’s vast surveillance efforts are once again gaining some space above the fold. The Washington Post has an interesting piece on the civilian casualties from drone attacks, reviewing the recent findings of Human Rights Watch and Amnesty International.

In Yemen, Human Rights Watch investigated six selected airstrikes since 2009 and concluded that at least 57 of the 82 people killed were civilians, including a pregnant woman and three children who perished in a September 2012 attack.

In Pakistan, Amnesty International investigated nine suspected U.S. drone strikes that occurred between May 2012 and July 2013 in the territory of North Waziristan. The group said it found strong evidence that more than 30 civilians were killed in four of the attacks.

Although the White House declined to comment on the reports, it directed attention to President Obama’s May 2013 speech where he said that “drones would be used only against people who pose a ‘continuing, imminent threat’ to the United States and only in cases in which the avoidance of civilian casualties would be ‘a near-certainty.’” Excellent.

Meanwhile, past allegations of NSA interception of phone conversations abroad (in Argentina, Brazil, Columbia, Germany, Mexico, etc.) were updated with new information about  its interception of French phone calls on a “massive scale.”    Not to worry. A National Security Council spokeswoman explained: “We’ve begun to review the way that we gather intelligence, so that we properly balance the legitimate security concerns of our citizens and allies with the privacy concerns that all people share.” Once again, excellent.

None of this has received the kind of attention one might have imagined.  Stop Watching Us is planning a rally in Washington DC on October 26—the twelfth anniversary of the signing of the PATRIOT Act—to “demand the U.S. Congress reveal the full extent of the NSA’s spying programs.” The rally has the backing of a broad and diverse set of advocacy groups, ranging from the ACLU and the Electronic Frontier Foundation to the Libertarian Party and (believe it or not) the US Pirate Party.

Of course, Tom Watson (Salon) objects to the NSA’s policies, but not as much as he objects to the participation of libertarians in the protest (h/t Reason).   Why object to the libertarians? Because “their own argument for privacy is weakened by the pollution of an ideology that uses its few positive civil liberties positions as a predator uses candy with a child.” Strong stuff, but it gets better:

libertarianism is a form of authoritarianism disguised in a narrow slice of civil liberties. In trumpeting the all-knowing, ever wise wonders of the totally free and unencumbered market, it bestows all the power on those with access to capital. You may say we’re there already, but under a pure libertarian system, things would get much worse.

Watson concludes that for libertarians, “it’s always about the man on the balcony,” making reference to Hayek’s support for Pinochet (for a more nuanced presentation, see an ungated version of a paper by Farrant, McPhail and Berger here). In the end, one might conclude that the odd fear of some future libertarian authoritarianism is greater than concerns about the revelations of the past several years involving the targeted executions of U.S. citizens abroad, the extensive use of drones, and the NSA’s global surveillance efforts. Imagination trumps reality.

One can only hope against hope that the rally is a success and that the media’s obsession with the post mortems on the government shutdown and the daily fluctuations in the opinion polls will leave some space for a more significant debate about civil liberties, one that draws on the broadest coalition possible.

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Chemical Weapons

They were at the heart of President Obama’s speech last night.

Sheldon Richman (Reason) has written a piece that places the US position on chemical weapons in broader context. Unfortunately, US policy and practice has not been nearly as consistent as the President suggests.

Moreover, although the US made a commitment under the Chemical Weapons Convention to dispose of its chemical stockpiles by 2007, it was forced to ask for a five year extension. When the April 29, 2012 deadline rolled around, the Global Security Newswire reports that the US missed it once again. The disposal of chemical weapons is currently projected to be completed in 2019 for the Pueblo Chemical Depot in Colorado and 2023 for the Blue Grass Army Depot in Kentucky. Of course, the US was not alone in missing the deadline.  It was in the fine company of Libya and Russia.

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Rand Paul on Syria

Senator Paul has written a brief explanation at Time on why he will vote no on Syria. The argument is quite straightforward (and worth reading in its entirety):

  1. “War should occur only when America is attacked, when it is threatened or when American interests are attacked or threatened.”
  2. “If American interests are at stake, then it is incumbent upon those advocating for military action to convince Congress and the American people of that threat. Too often, the debate begins and ends with an assertion that our national interest is at stake without any evidence of that assertion. The burden of proof lies with those who wish to engage in war.”
  3. “The U.S. should not fight a war to save face….If American interests are at stake, then our goal should not be stalemate.”


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Even the MSM?

The Washington Post Editorial Board has offered some stern advice to President Obama. They note that even if the president could get away with  unilateral action, “the Constitution grants Congress the exclusive right to declare war.” While the President may claim authority to act, “the legal authorities his administration has informally cited are slender indeed — slimmer, even, than the U.N. Security Council resolution upon which the Libya mission rested.”

The editorial (well worth reading) ends with an interesting paragraph:

Mr. Obama must know that Congress will engage more deeply on Syria sooner or later. Even a short, sharp strike such as the one he reportedly contemplates is unlikely to be the last act in this drama. Nor, in our view, should it be. Unless linked to a broader strategy for weakening the Assad regime — and forcing it either out of power or into real negotiations — the use of force might prove worse than useless. Mr. Obama can and should formulate a sustainable strategy and then make a convincing case for it to the American people and their elected representatives.

All of this sounds like the Editorial Board supports regime change but fears that the president’s current course will lead him to both exceed the bounds of his authority while doing something that will prove little more than symbolic.  I have yet to hear a convincing argument connecting intervention in Syria and US national interest. I wish that the Washington Post would have (could have?) made explicit its argument on this critical point.

Can any Pileus readers make the argument that an attack on Syria would be in our national interest?

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There seems to be little question that we are heading, once again, toward military intervention in the Middle East. Even if we assume that (1) chemical weapons were used on civilians in Syria, and (2) Assad is fully responsible for their deployment, is there a strong case for US intervention?

Love or hate Patrick Buchanan (or love and hate Pat Buchanan), he asks some important questions in his most recent essay. Some of them deal with the president’s authority to draw “red lines” and act as “the Wyatt Earp of the Global Village.” The same question was asked repeatedly when George W. Bush was president. Others address the factual case. The most relevant question for me is a simple one: where is Congress? Buchanan provides a series of questions that Congress might ask before approving or rejecting intervention:

Do we have incontrovertible proof that Bashar Assad ordered chemical weapons be used on his own people? And if he did not, who did?

What kind of reprisals might we expect if we launch cruise missiles at Syria, which is allied with Hezbollah and Iran?

If we attack, and Syria or its allies attack U.S. military or diplomatic missions in the Middle East or here in the United States, are we prepared for the wider war we will have started?

Assuming Syria responds with a counterstrike, how far are we prepared to go up the escalator to regional war? If we intervene, are we prepared for the possible defeat of the side we have chosen, which would then be seen as a strategic defeat for the United States?

If stung and bleeding from retaliation, are we prepared to go all the way, boots on the ground, to bring down Assad? Are we prepared to occupy Syria to prevent its falling to the Al-Nusra Front, which it may if Assad falls and we do not intervene?

Perhaps it is time for Congress to return from vacation, postpone the anemic debates over government shutdowns, the debt ceiling and the defunding of Obamacare, and  execute its constitutional duties … while there is still time.

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Yes, the administration’s drone policy finally attracted some significant attention as of late. But many critics were willing to accept the assurances that the administration’s use of drones was limited to “specific senior operational leaders of al Qaida and associated forces” that constitute an “imminent threat.”

In the first lecture of my public policy courses, I always caution my students that policy is a “pattern of public action,” not rhetoric or statements of intent.  The latter can be instructive, but we should be fare more concerned with the data on implementation. McClatchy has released its review of U.S. intelligence sources and it offers some insights into the administrations actual drone policy. As Jonathan S. Landay reports:

At least 265 of up to 482 people who the U.S. intelligence reports estimated the CIA killed during a 12-month period ending in September 2011 were not senior al Qaida leaders but instead were “assessed” as Afghan, Pakistani and unknown extremists. Drones killed only six top al Qaida leaders in those months, according to news media accounts.

Forty-three of 95 drone strikes reviewed for that period hit groups other than al Qaida, including the Haqqani network, several Pakistani Taliban factions and the unidentified individuals described only as “foreign fighters” and “other militants.”

There are more details in this article that should be required reading for anyone concerned about drone policy, along with some harsh evaluations of the veracity of the administration’s stated policy and its legal foundations. In the words of Mary Ellen O’Connell, Notre Dame Law School: “The United States has gone far beyond what the U.S. public – and perhaps even Congress – understands the government has been doing and claiming they have a legal right to do.”

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On the tenth anniversary of the war in Iraq, what are the lessons?  The Economist  (“Anniversary of a Mass Delusion”) provides a lesson that is broadly applicable to politics in general:

What I took away from it all was the depressing conviction that all of us, including those of us considered the most responsible, well-trained and serious, are entirely capable of talking ourselves into lurid fantasies; that the actions we believe constitute difficult but necessary choices may in fact be the gestures of sleepwalkers battling phantoms.

Are there any other lessons worth discussing?

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From a BBC Panorama story:

But not all the intelligence was wrong. Information from two highly-placed sources close to Saddam Hussein was correct.

Both said Iraq did not have any active WMD.


Ex-CIA man Bill Murray was not happy with the way the intelligence from these two highly-placed sources had been used.

“I thought we’d produced probably the best intelligence that anybody produced in the pre-war period, all of which came out – in the long run – to be accurate. The information was discarded and not used.”

It wasn’t used because it wasn’t politically convenient to an administration hellbent on war.

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Some Republicans (including former VP Dick Cheney) applaud the Obama administration’s use of drones for targeted killing of US citizens abroad. Senator Rand Paul (R-KY), in contrast, is threatening to filibuster John’s Brennan’s confirmation to head the CIA, based on his failure to answer a simple question during last week’s hearings (transcript here, see pages 56-57).

Senator Ron Wyden (D-OR):

I’ve asked you how much evidence the President needs to decide that a particular American can be lawfully killed, and whether the administration believes that the President can use this authority inside the United States. In my judgment, both the Congress and the public needs to understand the answers to these kinds of fundamental questions. What do you think needs to be done to ensure that Members of the public understand more about when the government thinks it’s allowed to kill them, particularly with respect to those two issues — the question of evidence, and the authority to use this power within the United States?

The Response:

I have been a strong proponent of trying to be as open as possible with these programs as far as our explaining what we’re doing. What we need to do is optimize transparency on these issues, but at the same time, optimize secrecy and the protection of our national security. I don’t think that it’s one or the other; it’s trying to optimize both of them. And so, what we need to do is make sure we explain to the American people: what are the thresholds for action; what are the procedures, the practices, the processes, the approvals, the reviews.

The Office of Legal Counsel advice establishes the legal boundaries within which we can operate. It doesn’t mean that we operate at those outer boundaries. And, in fact, I think the American people would be quite pleased to know that we’ve been very disciplined and very judicious, and we only use these authorities and these capabilities as a last resort.

Senator Wyden, unfortunately, failed to force John Brennan to respond to the core question about the domestic use of drones.  Much turns on whether one interprets Brennan’s “response” as a conscious effort to sidestep the issue or simply a failure for no particular reason to answer both parts of the question.

Senator Paul’s interpretation, as reported in the Hill, is clear:

What I want to hear from John Brennan before I let his nomination go forward is that no, a CIA or the Department of Defense cannot kill someone in America without any kind of judicial proceeding. By Brennan not saying no, that he won’t strike Americans in America, he is essentially saying yes, and that is very scary and worrisome to me.

One could argue that Senator Paul’s fears are overblown.  At the same time, if we could turn the clock back to September 10, 2001, my guess is that most would not believe that there would be a time in the near future when we would condone “enhanced interrogation techniques,” indefinite detainment at GITMO, extraordinary rendition, the expansive powers granted in the PATRIOT Act, the use of drones for domestic surveillance or the use of drones for the targeted killing of US citizens abroad.

I don’t believe that anything Mr. Brennan would have said in his hearings would be binding on the federal government going foreword. But this seems like a reasonable question that deserves a response (regardless of whether it would somehow compromise the preferred balance between transparency and national security).

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Tonight is the State of the Union. There is little evidence that more than a few of any president’s aspirations find an expression in policy. However, on one point I hope this year’s SOTU proves different. According to the NYT:

President Obama plans to announce in his State of Union address on Tuesday night that half of the 66,000 American troops in Afghanistan will be home by this time next year, according to an administration official familiar with the speech.

Of course, this does not speak to what will occur in the long run:

The president, an official said, will make no announcement about how many forces the United States should keep in Afghanistan after 2014 when the security mission is entirely the responsibility of the Afghans. Mr. Obama, he said, has not yet made a decision on that.

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The White Paper

The Justice Department White Paper on the targeted killing of US citizens is out, and worth a read. There are no surprises here, for anyone who has followed this sordid affair. Much of the same policy was articulated by AG Holder last year in his speech at Northwestern Law. Holder basically assured his audience that these were not assassinations because assassinations are illegal and we should trust that the deliberations internal to the executive provided more than enough due process (you can read excerpts in this post).

For those who go to the White Paper, the discussion of what constitutes an “imminent” threat (p. 7) seems like something issued by the Ministry of Peace:

“the condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.”

Note, the OED provides the following definition:

“Of an event, etc. (almost always of evil or danger): Impending threateningly, hanging over one’s head; ready to befall or overtake one; close at hand in its incidence; coming on shortly.”

Apparently, the definition can now be presented in a more concise fashion:

“Of an event, etc. (almost always of evil or danger): Impending threateningly, hanging over one’s head; ready to befall or overtake one; close at hand in its incidence; coming on shortly.”

In the present case, if someone has been involved in the past “in activities posing an imminent threat …and there is no evidence suggesting that he has renounced or abandoned such activities,” this fact would “support the conclusion that the member poses an imminent threat.” One wonders what happens if we insert the administration’s definition of imminent threat into this statement of policy.

I could go on, but you can read the paper for yourself. Jacob Sullum has written a decent review of the White Paper at Reason that is also worth a quick read. The final paragraph is a gem:

“The problem is that to accept this position [the argument in the White Paper], you have to put complete trust in the competence, wisdom, and ethics of the president, his underlings, and their successors. You have to believe they are properly defining and inerrantly identifying people who pose an imminent (or quasi-imminent) threat to national security and eliminating that threat through the only feasible means, which involves blowing people up from a distance. If mere mortals deserved that kind of faith, we would not need a Fifth Amendment, or the rest of the Constitution.”

One might also quote James Madison (Federalist 51) who made what would now appear to be an inconvenient point:

” If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

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Let’s start with the good: the Obama administration is considering removing all US troops from Afghanistan at the end of 2014 (rather than leaving a force of 6,000-15,000 behind).  As coverage in WaPo notes, this option “defies the Pentagon’s view that thousands of troops may be needed to contain al-Qaida and to strengthen Afghan forces.” If the Senate confirms Chuck Hagel as Defense Secretary, I would assume there would be an additional voice for complete withdrawal.

And now the bad: As of Tuesday, there have been six drone strikes so far this year. Total death toll: 35 and counting. As Spencer Ackerman (Wired) notes:

Obama has provided the CIA with authority to kill not only suspected militants, but unknown individuals it believes follow a pattern of militant activity, in what it terms “signature strikes.” The drone program has killed an undisclosed number of civilians. A recent study conducted by Center for Civilians in Conflict and Columbia Law School’s human-rights branch explored how they’ve torn the broader social fabric in tribal Pakistan, creating paranoia that neighbors are informing on each other and traumatizing those who live under the buzz of Predator and Reaper engines. Those traumas are raising alarm bells from some of the U.S.’ most experienced counterterrorists.

And the ugly: a crony capitalist may rise up against its political patron. AIG is contemplating joining a lawsuit against the US government. Now that it has repaid the $182 billion it owed, it may want to make a claim on some $22 billion in profits that were generated in the interim. As the NYT reports:

At issue is the possibility that [the] insurer may join a lawsuit filed by its former chief executive, Maurice R. Greenberg, claiming that the 2008 bailout shortchanged investors and violated their Fifth Amendment rights.

The alternative to the bailout would have been liquidation. A.I.G. embraced the bailout on the terms offered in 2008. It seems a bit odd to cry foul at this point in the game, particularly given that the collapse that A.I.G. helped create reduced the median net worth of American families by nearly 40 percent (from $126,400 in 2007 to $77,300 in 2010), according to the Fed.

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As policymakers look over the fiscal cliff, one can hope that their eyes fix on Afghanistan, the seemingly endless experiment in nation building. I understand that no president wants to seem the inevitable occur on his shift (consider the “optics”), but I sometimes wonder how many people would notice.  I gave a lecture on the war the other day in an introductory course and asked the students (who presumably read the assigned readings) to write down how many members of the US military had been killed in Afghanistan and report their estimates. The responses ranged from 268 to 6000, with only a  fifth of the class landing within a thousand of the correct number.

My students—at a university that is renowned for its culture of left activism—seemed relatively untroubled by their ignorance. Having a son in the Marines–a machine gunner who has not deployed–I was interested in how they would explain their lack of knowledge. Some representative comments:

  • “Its so far away.”
  • “It started when we were in grade school so we never really pay attention any more.”
  • “There is no draft so it really doesn’t impact us.”

There is an interesting piece (NYT)  for the handful of people who still pay attention to the war in Afghanistan.  It reviews some of the findings from the DOD’s “Report on Progress Toward Security and Stability in Afghanistan,” something is issues twice a year (the full report can be found here). Some takeaways:

  • Only one of the Afghan National Army’s 23 brigades is able to operate independently without support from the US or NATO
  • Violence in Afghanistan is “higher than it was before the surge of American forces into the country two years ago”
  • Insider attacks by Afghan security forces is a growing problem
  • Corruption remains rampant in the Afghan government
  • Pakistan continues to provide support for insurgents [Note: Pakistan received almost $3 billion in US aid in 2012, about $1.6 billion for security]

This is not to say that we have not accomplished anything of value  (one of my friends, a former Marine who spent a year in Afghanistan, can make a rather passionate case that we are doing much good, although he remains confident that things will return to the original position as soon as we exit).

Of course, although we appear to be facing some serious problems in getting a constitutional democracy to grow in Afghanistan, there is one thing that is growing quite well: opium. As Alissa Rubin reports (NYT): Under the watchful eye of NATO, Afghanistan has once again assumed its role as the “world’s largest producer of opium… harvesting about 80 percent of the world supply.” The Taliban used to ban opium. Now it has learned that it is far better to tax the opium crop. (“The Afghan counternarcotics minister, Zarar Ahmad Muqbil, estimated that the Taliban made at least $155 million from the poppy crop in 2012, and perhaps considerably more”). It is hard to imagine that the Taliban is going anywhere soon, with a steady stream of resources and an ineffective Afghan Army.

We are scheduled to “leave” Afghanistan in 2014. By leave, of course, we don’t really mean “leave” since some number of troops north of 10,000—and perhaps as high of 25,000 will remain in country for another decade.  At a cost of $1 million per year per troop, that remains a fairly significant commitment.

One can only hope that the fiscal cliff and the need for significant long-term spending cuts will create a moment when we can evaluate our Afghanistan policy with a clear head.

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Robert Farley of the University of Kentucky and Lawyers, Guns, and Money had a “diavlog” with me on bloggingheads.tv. We covered Pileus, the Conor Friedersdorf essay on why he can’t vote for Obama, libertarianism and foreign policy, and secessionism. This was my bloggingheads debut, and we hope to do more of these in the future.

(Embedding doesn’t seem to work, so here’s the link.)

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If you recall, in March, AG Holder justified the use of drones in “targeted killings” (see related post here). The comments were of interest, in part, because a drone had been used recently to kill Anwar al-Awlaki, a US citizen, in Yemen and in part because Congress was authorizing the expanded use of drones domestically (see related post here). As Holder explained at the time, the decision to target a US citizen would not be subject to judicial review. There would, however, be some guarantee of “due process,” although little was said as to what that process would entail. Who needs details when we have Mr. Holder’s word:

Any decision to use lethal force against a United States citizen – even one intent on murdering Americans and who has become an operational leader of al-Qaeda in a foreign land – is among the gravest that government leaders can face. The American people can be – and deserve to be – assured that actions taken in their defense are consistent with their values and their laws. So, although I cannot discuss or confirm any particular program or operation, I believe it is important to explain these legal principles publicly.

Now it has been revealed that the administration has authorized the expanded use of drones in Yemen. The CIA and the Joint Special Operations Command will be allowed to use drones for so-called “signature strikes.” That is, targets are identified based on a variety of intelligence without actually knowing the identify of the targets themselves.  As the Washington Post reports:

The expanded authority will allow the CIA and JSOC to fire on targets based solely on their intelligence “signatures” — patterns of behavior that are detected through signals intercepts, human sources and aerial surveillance, and that indicate the presence of an important operative or a plot against U.S. interests.

Until now, the administration had allowed strikes only against known terrorist leaders who appear on secret CIA and JSOC target lists and whose location can be confirmed.

If we don’t know the identify of the targets—they may or may not be US citizens–I am assuming that this will not create any problems for AG Holder’s guarantees of due process.

Even if we could accept the guarantee of due process, there is another problem—the lack of congressional authorization. As Bruce Ackerman noted last week before the policy change, the authorization is questionable:

Just days after the Sept. 11, 2001, attacks, Congress authorized the use of force against groups and countries that had supported the terrorist strikes on the United States. But lawmakers did not give President George W. Bush everything he wanted. When the White House first requested congressional support, the president demanded an open-ended military authority “to deter and preempt any future acts of terrorism or aggression against the United States.” … The effect was to require the president to return to Congress, and the American people, for another round of express support for military campaigns against other terrorist threats.

In Ackerman’s judgment, the policy change (then being contemplated) was well outside of congressional authorization. Ackerman offered the President some advice:

The president should not try to sleep-walk the United States into a permanent state of war by pretending that Congress has given him authority that Bush clearly failed to obtain at the height of the panic after Sept. 11.

Apparently, the advice was rejected and President Obama has assumed powers that even his predecessor could not exercise.

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Attorney General Eric Holder gave a speech yesterday at Northwestern Law School on the administration’s policy regarding the targeted killing (not assassination) of US citizens abroad.  Full remarks can be found here. Here are a few interesting excerpts.

The difference between targeted killings and assassination:

 Some have called such operations “assassinations.” They are not, and the use of that loaded term is misplaced. Assassinations are unlawful killings. Here, for the reasons I have given, the U.S. government’s use of lethal force in self defense against a leader of al Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful — and therefore would not violate the Executive Order banning assassination or criminal statutes.

The power of the executive:

 Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces. This is simply not accurate. “Due process” and “judicial process” are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.

The boundless reach of the powers described:

 Our legal authority is not limited to the battlefields in Afghanistan. Indeed, neither Congress nor our federal courts has limited the geographic scope of our ability to use force to the current conflict in Afghanistan. We are at war with a stateless enemy, prone to shifting operations from country to country. Over the last three years alone, al Qaeda and its associates have directed several attacks – fortunately, unsuccessful – against us from countries other than Afghanistan. Our government has both a responsibility and a right to protect this nation and its people from such threats.

This does not mean that we can use military force whenever or wherever we want. International legal principles, including respect for another nation’s sovereignty, constrain our ability to act unilaterally. But the use of force in foreign territory would be consistent with these international legal principles if conducted, for example, with the consent of the nation involved – or after a determination that the nation is unable or unwilling to deal effectively with a threat to the United States.

I guess the bottom line is that the US can act with the consent of the nation in question, unless it does not consent, in which case it can act nonetheless.

Anyone who found the killing of Anwar al-Awlaki a source of concern should find Holder’s remarks interesting. It is largely devoted to a discussion of guiding principles. As Holder notes:

Any decision to use lethal force against a United States citizen – even one intent on murdering Americans and who has become an operational leader of al-Qaeda in a foreign land – is among the gravest that government leaders can face. The American people can be – and deserve to be – assured that actions taken in their defense are consistent with their values and their laws. So, although I cannot discuss or confirm any particular program or operation, I believe it is important to explain these legal principles publicly.

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[M]ilitias are out of control and holding thousands of people in secret detention centres… More than 8,000…are being held by militia groups, amid reports of torture, UN officials said… Four died in clashes…on Monday.

Where is this happening? Libya. Responsibility to protect whom?

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The latest from Egypt:

“I was in Tahrir Square during the 25 January revolution and I saw a lot of injured people, but this time I think there are more serious injuries,” says Dr Omar Qassar who is working on makeshift premises.

“I’ve seen two people hit by shotgun pellets in their chest and abdomen. One died before he got to hospital.”

“The tear gas is weird,” he adds. “In January it was much lighter. This stuff is very strong, just smelling it I get dizzy. We’ve seen a few cases of convulsions.”

Doctors have collected samples of the canisters, which bear the name of a US manufacturer, and sent them to laboratories for analysis.

And of course it’s the presidential candidate who wants to end the U.S. subsidies for foreign governments who’s crazy.

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Now that the US is going to exit Iraq—finally—perhaps we can take the time to reconsider the war in Afghanistan. With rockets being fired at US troops from Pakistan, I am sure that this weekend’s moment of clarity from President Karzai has raised a few concerns:

“God forbid, if any war took place between Pakistan and the United States, we will stand by Pakistan,” Karzai said an interview broadcast Saturday on Pakistan’s Geo television network. “If Pakistan is attacked and if the people of Pakistan needed Afghanistan’s help, Afghanistan will be there with you.”

Thankfully, Karzai claims that the media has misinterpreted this statement. As the LA Times  reports:

A spokesman for Karzai, Siamak Herawi, said the president had not intended any slight to the Western governments that have spent billions of dollars shoring up the Afghan administration during the 10-year war that has claimed the lives of at least 1,817 American troops.

Thanks for clearing that up. No slight intended, no slight received….One can only wonder how much more treasure and blood we will need to spill in Afghanistan before we declare “mission accomplished” and return home.


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Glenn Greenwald highlights the fact that the Obama Administration is doing something about the Bahrain regime’s crackdown on pro-democracy protestors… by selling the government more weapons.

Does anyone really think US intervention in Libya is about human rights?

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The debate over the Palestinian Liberation Organization’s imminent application for full recognition at the United Nations continues to rage domestically and internationally. The dominant perspective here in the U.S., at least among Republicans, is that Palestinian statehood should be denied except on Israel’s terms. The most common reason given seems to be that the Israelis are more trustworthy and just better people than the Palestinians. For instance, this Richmond Times-Dispatch editorial argues that the Palestinians are full of hatred for Israel, disqualifying them from their own state. (It also wrongly asserts that the PLO has not recognized Israel’s right to exist. The PLO has not recognized Israel’s right to exist as a Jewish state.)

Should Palestine’s recognition depend on the virtue or justice of its people? Certainly, other governments should not reward terrorism or human rights violations by offering statehood to groups of people who use such means to control territory and establish a government. Recognizing the PLO in the 1970’s would have been gravely mistaken. But the internal mental state of Palestinians – the extent of their hostility toward Israel or the United States – should not matter at all. When considering how to use the recognition power, governments ought to place first and foremost the promotion of peace and stability. A secessionist movement does not have to be virtuous and high-minded to be recognized as a state. There have been many dubious aspects about secession movements in Croatia, Bosnia, Kosovo, Eritrea, Bangladesh, and South Sudan, but that hasn’t prevented the United States and other powers from recognizing these countries in order to establish stability and prevent further killing.

When considering whether to recognize Palestine as a fully independent state, governments should tough-mindedly consider the consequences of doing so for long-term peace and stability. As I argue in my forthcoming book, Secessionism, providing a legal path for secession does not require celebrating the motivations or consequences of secession, but “legalizing secession” does reduce the risk of major violence. Basing the recognition decision on the relative moral desert of the Israelis and Palestinians as peoples – if such a comparison between groups of peoples can even be made – is a distraction.

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The Nation has an excellent article on “Blowback in Somalia,” about the United States’ disastrous decision in 2006 to back an Ethiopian invasion and overthrow of the Islamic Courts Union in Mogadishu. The Union was a largely moderate confederation of allied civilian groups that had finally kicked the warlords out of the Somali capital. However, the radical Shabaab militia was part of the confederation, and the U.S. government believed that they needed to destroy them. Result? Today, 40% of Somalia’s territory is controlled by the Shabaab. Even more disturbingly, the Shabaab may be implementing a strategy of terrorism against civilians in areas of Somalia that have up until now been largely peaceful: Somaliland and Puntland.

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Few in power find it convenient to notice inconsistencies in their own conduct. Alas, but President Madison was no exception. Federalism and decentralization exist precisely because free constitutions should not depend on the good graces of those in office, but on the checks necessary to harry them back under the law.

Seeking the financial means to carry on his war, Madison did not appreciate New England’s opposition to his measures or her refusal to lend. As the enemy bore down from the north at various points along the Canadian border, Madison attempted to impose conditions on the New England militias, not trusting them, as he did the other states, to staff and command their own forces.

In these efforts, the fourth president was roundly rebuffed by the governors and legislatures of Massachusetts, Rhode Island and Connecticut. They correctly pointed out that the Constitution reserved to each state the right of officering her state militias: The president could certainly call those units into service according to the constitutional powers that authorized Congress to declare war, but he could not reorganize those units without a state’s permission. Unable to get his way, Madison refused to mobilize New England’s forces and subsequently refused to pay any expenses for her defense.

Governor Caleb Strong of Massachusetts organized and raised his own force of some 10,000 men at a cost of 1 million dollars, which was a considerable sum in that day. Facing such staggering costs and outraged by what they considered to be the unconstitutional and dangerous manner in which their region had been treated, the New England states elected to protest in the same spirit as they had done against the embargo, but this time they went a step further: Coordinated state action.

Under the inspiration of Harrison Gray Otis and Theodore Dwight (the brother of Timothy Dwight of Yale), Connecticut, Rhode Island, Massachusetts, and several counties of New Hampshire and Vermont sent representatives to meet in Hartford Connecticut between December 15, 1814 and January 4, 1815. There they formed a list of grievances and a call for constitutional amendments, concluding with a threat to organize another convention should these proposals not be taken up by the other states in the Union.

The men who attended this gathering tried to moderate the more extreme elements calling for secession and outright resistance to the national government (see Justin Winsor, Narrative and Critical History of America, vol. VII, Houghton Mifflin, 1888, p. 321 and notes) but the prospect of a convention sent shivers through the administration. It is not difficult to see why.

In “A Short Account of the Hartford Convention to which is Added an Attested Copy of the Secret Journal of that Body” (1823), Theodore Lyman, noted that Massachusetts was quite open about her aims, and “the sense of her citizens was at that time well known, and in relation to the Hartford Convention, she adopted without delay that course of conduct, of which an eminent example had been given less than half a century before, and which, in this juncture of affairs, was especially judicious, from the vast magnitude of the subject and occasion.” (p.8) That example was Madison’s own call at the end of the Annapolis Convention for the convention that followed in Philadelphia, which of course ultimately put an end to the Articles of Confederation.

When the Hartford Convention got down to business on its second day, it considered, according to the Attested Copy of the Secret Journal, the two constitutional grounds of New England’s grievances just mentioned: “The [unconstitutional] powers claimed by the executive of the United States, to determine, conclusively, in respect to calling out the militia of the States into the service of the United States; and the dividing the United States into military districts with an officer of the army in each thereof, with discretionary authority from the executive of the United States, to call for the militia to be under the command of such officer.”

The second grievance followed immediately after: “The refusal of the executive of the United States to supply, or pay the militia of certain States…on the grounds of their not having been called out under the authority of the United States, or not having been…put under the command of the commander over the military district.” These two grievances then formed the basis of the final and more damning constitutional conclusion that the national government had failed to meet its obligation as stated in the preamble “to provide for the common defense.”

In their protest the members stood on solid textual grounds. It was true that Section Eight of the First Article gave Congress the power “To provide for organizing, arming, and disciplining, the Militia, and for governing such part of them as may be employed in the Service of the United States,” but it specifically reserved “to the states respectively the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.”

Did this “prescribed” discipline give Madison the right to reorganize the New England militias? It might have, but only if Congress had specifically formed such a policy, and had done so equally for all parts of the Union. The fact that President Madison asserted this as a matter of executive authority, and the fact that he applied that policy unequally to some of the states and not to all of them, violated both the spirit and the letter of the fundamental law. With these arguments before them, the delegates proposed their Constitutional remedies.

They called for consideration on the part of the states for amendments that would permit the state legislatures “some arrangement whereby the States may be enable[d] to retain a portion of the taxes levied by Congress, for purposes of self defence (sic), and for reimbursement of expenses already incurred, on account of the United States.” They then proceeded to request further consideration be given to certain other constitutional issues: To restrict Congress’ power to declare war; to restrain its power “to make new States, and admit them into this Union; to limit Congress’ power to impose embargoes and restrict commerce; to prohibit a president from the same state serving two consecutive terms; and finally, and perhaps most ominously of all, to eliminate the 3/5ths provisions of the Constitution “respecting slave representation, and slave taxation.”

This last provision underscored a growing cultural and political divide already evident between the northern and southern states. New Englanders had always felt aggrieved to some degree by the so-called 3/5ths compromises in the Philadelphia Convention. Already by this time, they saw it as a principal driver of western expansion, and the Southern states made little bones about their desire to move the peculiar institution westward, and to form an alliance with that region in opposition to New England.

Thus the Hartford delegates sought restrictions on admitting new states as well as the elimination of the South’s use of slaves in calculating her population numbers. It is interesting to note that at this point in time, the South’s rising star, J. C. Calhoun of South Carolina, was a strong nationalist defender of the War of 1812 and a proponent of a new national bank so that the general government could more easily finance such military ventures in the future. The irony of ironies is that this situation was about to change yet again.

As reported by Theodore Dwight, the Secretary of the Hartford Convention, in his later history of that meeting, the timing of the delegates’ report to Washington could not have been worse. It arrived just as news from England of the War’s end came along with the report of Andrew Jackson’s victory in New Orleans. While the war had not gone so well for America in general, the popular sense created by this juncture produced a patriotic fervor that was ill disposed to consider of the resolves of the Hartford delegates.

The commission attempted to quietly retire back to New England, but the popular reaction, especially among Madison’s Republican Party was to revile its proceedings as radical secessionism, and the reputation of that convention has labored under such a misapprehension ever since.

Far from secessionism, however, the Hartford Convention presented yet another means of interposition through coordinated state action, and to the degree that such coordination gathered more sustained attention (even if in the negative) from the other states, to that degree it succeeded. With the war’s end, Hartford’s issues became moot, but one could easily imagine what might have developed had the exigencies of war persisted.

The next stage of development in the ideas of interposition, however, would raise the stake higher, actually attempting what Jefferson had contemplated in the Kentucky Resolves: Nullification. Interestingly, the author of this approach was our leading nationalist of the 1810s. Calhoun had been a student of Theodore Dwight’s brother about a decade earlier at Yale. Timothy Dwight shared his brothers’ attachment to the reserved rights and powers of the states. Calhoun had resisted such thinking as his student, but when the issue of tariffs touched his own state’s interests in the next decade, he began to avail himself of Dwight’s understanding, coming to a deeper appreciation of the need to constitutionally restrain centralized power, but he did so with an interesting and novel twist that would have a profound impact on the popular perception of state’s rights.

And Calhoun’s solution would prove perhaps the most difficult and cumbersome of all…

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When tensions with England finally began to degenerate into violent altercations, first on the western frontier in such places as Tippecanoe and later along the Great Lakes, the Madison administration decided the time had come to vindicate America’s claims of offended sovereignty. Unsurprisingly, these claims also happened to coincide with popular desires to expand into the Old Northwest and Canada. Those particular voices were especially powerful in the mid Atlantic and southern states. Two of the leading voices of those regions, Henry Clay and J.C. Calhoun were united at this point in their careers, generally supporting more vigorous forms of nationalism at home and abroad.

But Mr. Madison had let the charter of the first Bank of the United States expire in 1811, and when he turned to finance his war he had of necessity to turn to state banking institutions. These entities were comprised of various private and state banks who were generally quite willing to buy American treasury securities. There was one region, however, that was not quite so willing: the New England states and the banks that operated under their approval.

Already rocked by years of embargo, New Englanders were poised to suffer even more outrages in open war. Popular sentiment ran high against the conflict, and when the treasury presented its notes for sale to New England banks they received a cool reception. The vast majority of such paper was consequently sold to the south and west. Indeed, needing to purchase supplies in the north, the national government found this a particularly galling impediment. To remedy the situation, Madison’s administration not only borrowed from existing banks in the mid-Atlantic states, it actively promoted new ones, even over the existing laws of those states that had tended to restrict private unchartered banks.

From 1811 to 1815 the number of banks more than doubled, from 117 to 247, 35 of which were unincorporated. The result was a massive increase in circulating paper money–nearly three times the amount in circulation at the start of the war. Treasury certificates were used as, and encouraged to be considered backing for notes in the same fashion as gold or silver. But one difficulty was not anticipated. When the District of Columbia was burned by British marines on August 24, 1814, it quickly became apparent that certificates on the U.S. government might not be such a sound investment.

Runs the banks that very month demonstrated the insolvency of most of the new institutions, and in opposition to various state laws, the national government encouraged the mid-Atlantic and southern states to ignore or restrict bankruptcy proceedings against their offending banks, but allowed those very institutions to pursue such proceedings against their own debtors. All this was done, no less, while they continued to make new loans, adding yet even more to the already general inflation.

Only one region did not experience suspension of payments or bank runs: New England. For once in over six years, the New England states could boast a small economic indicator in their favor. In Federalist 10, Madison had argued that federalism might serve to insulate local evils from becoming universal, national ones. In this case, the evils of expansionism had been halted at the gates of Massachusetts, and New England’s representatives left little doubt about their sentiments in this regard.

In words that would later come back to him, a young Daniel Webster, then a representative of New Hampshire, declared in Congress on December 9, 1814, that the “operation of measures unconstitutional and illegal ought to be prevented by a resort to other measures which are both constitutional and legal. It will be the solemn duty of the State Governments to protect their own authority over their own militia, and to interpose between their citizens and arbitrary power. These are among the objects for which the State Governments exist, and their highest obligations bind them to the preservation of their own rights and the liberties of their people.”

Would it be too much to suspect that Webster both knew and approved of the New York statement of ratification? But even if he hadn’t, and that seems dubious, the words demonstrate just how deeply the sense of the states as checks to central power was engrained in the American mind. At this point in time, Webster was no Jeffersonian. He was a New England Federalist, and the home states were listening. On to Hartford.

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Wednesday night, President Obama is scheduled to announce his plans for reducing the number of troops in Afghanistan. According to the LA Times:

Pentagon and White House officials say about 10,000 troops will probably come home this year, a bigger number than Gen. David Petraeus wanted. …In 2009 the president coupled his decision to send an additional 30,000 troops to Afghanistan with a pledge to begin removing some of those forces this summer. U.S. officials and outside experts familiar with recent deliberations said Obama was leaning toward withdrawing all the additional troops by the end of 2012 or early 2013. That would leave close to 70,000 U.S. forces in Afghanistan.

The case for remaining in Afghanistan seems extraordinarily weak to me.

  1. Even if there is a credible case that the war against the Taliban was justified in the wake of 911, it seems particularly odd to remain there a decade later. Al Qaeda has largely evacuated the nation (as CIA chief Panetta noted: “”I think at most, we’re looking at maybe 50 to 100, maybe less…there’s no question that the main location of Al Qaeda is in tribal areas of Pakistan.”). Given this fact, remaining in Afghanistan reminds me of the old joke about the drunk who was looking for his keys under the street light. He admitted that he lost his keys elsewhere but decided to keep looking where there was light.
  2. The ruling kleptocracy seems, at best, unsupportive. As President Karzai warned in response to a recent bombing of civilian houses: “If they continue their attacks on our houses, then their presence will change from a force that is fighting against terrorism to a force that is fighting against the people of Afghanistan. And in that case, history shows what Afghans do with trespassers and with occupiers.”
  3. Domestic support is weak. A recent poll by the Hill revealed: “Seventy-two percent of those polled said the United States is fighting in too many places, with only 16 percent saying the current level of engagement represented an appropriate level.” Given our long-term structural deficit, a decision to remain engaged in these wars will necessarily require either (1) deeper cuts in our largest domestic entitlements or (2) a decision to delay reform for another day. We cannot devote $1 million per year per deployed soldier given our current fiscal conditions. Any every dollar spent to prop up Karzai et al is a dollar that could arguably be put to better use at home.
  4. Even if there is a case to be made that building a stable Afghanistan will limit the ability of the Taliban and Al Qaeda to reassert themselves, is there any evidence that our efforts at nation-building have been successful? David Brooks cites World Bank figures that 97 percent of Afghanistan’s GDP stems from spending related to the military and donor community presence (one wonders if these figures take into account the contribution of opium). Brooks notes: “It overwhelms provincial governments. It fuels corruption. As aid workers grow frustrated by nonfunctioning Afghan bureaucracies, they build their own parallel ones that, in turn, take responsibility from and infantilize the Afghan agencies that are going to have to administer the country in the long run….Many gains that have been made may be unsustainable. A flood of money washed into Afghanistan, and the reports warn about what will happen when the flood dries up in a few years.”
  5. Contrary to the above figures regarding GDP, the World Bank also reports: “The opium economy is equivalent to more than one-third of Afghanistan’s licit economy. It is the country’s largest source of export earnings, and it comprises a major source of income and employment in rural areas.” After almost one decade of “occupation,” to use Karzai’s term, Afghanistan remains the world’s largest producer of opium. According to the UNODC World Drug Report (2010, p. 38): “By itself, Afghanistan provides 85% of the estimated global heroin and morphine supply, a near monopoly.”

Given the heavy dependence of foreign spending and the continued power of the opium trade, is there any doubt that the minute we dismount from Afghanistan—whether it is in a year or in a decade—things will revert to the pre-2002 status quo?

Given the facts that (1) Al Qaeda is no longer in Afghanistan, (2) the US and NATO are viewed as occupiers by the Afghan kleptocracy, (3) there is limited domestic support for continued involvement, and (4) nation-building has largely failed, I would like to better understand the justification for continued involvement in this war?

My recommendation for the President: Announce an immediate withdrawal from Afghanistan to be completed by year’s end (if not sooner).

As a domestic policy guy, I admit that my thinking on these issues may not be nearly as sophisticated as those who are steeped in foreign policy (e.g., Grover Cleveland). What is your view?

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With the war in Europe between France and England intensifying, Americans found their rights as neutral traders regularly violated by both French and British navies, and French and British port restrictions further limited American opportunities for commerce. To make matters worse, on numerous occasions, English vessels had boarded American ships and “impressed” many of their crews into service as if they were British subjects. Such disregard for American sovereignty and rights was taken hard by the public, but America’s naval capacities were far from adequate to enforce a due respect on the high seas. Yet doing nothing was not a popular option.

President Jefferson attempted to draw a lesson from our colonial past and impose an embargo of American trade. The hope was that such an embargo would inconvenience European commerce to such a degree as to bring the powers, especially Britain, to that level of respect which American arms were insufficient to obtain. In 1807, the Embargo Act was imposed, interdicting all vessels from entering or exiting American ports. Trade was the life blood of New England, however, and the Embargo hit them especially hard. As weeks moved to months and months to a year, the suffering in the port cities became nearly unbearable. Numerous calls for lifting the interdiction were heard, but none of the offending powers seemed even remotely ready to bargain. Unwilling to surrender the point of honor or to risk outright war, Jefferson’s administration remained steadfast in its policy.

At a certain point, the states began to question not only the efficacy of the measure, but its justice. Should not the risks of trade be borne by the traders themselves? Why a general restriction? If families and communities are ruined, is this not an indication of a policy gone too far? Indeed, so far that it might conflict with a vital principle of constitutional government? The national authority was to engage in defensive action in support of the states and their communities, not in their strangulation. If it could not live up to its military obligations, this was no excuse for an imposition of a total ban on trade, a power not contemplated in the original design.

In the earliest resolutions of Massachusetts, Connecticut, and Rhode Island the hue and cry was again heard. Massachusetts’ legislature, as Thomas Woods noted in his collection of sources, sought only formal political means, and counseled patience on the part of its citizenry as it pursued these avenues of redress. Rhode Island observed that it was “the duty of this general Assembly, while cautious not to infringe upon the constitution and delegated powers and rights of the General Government, to be vigilant in guarding from usurpation and violation, those powers and rights which the good people of this state have expressly reserved to themselves…” Here were the states as Sentinels calling out their warning.

But Connecticut, first through its governor and then its legislature went further still, openly and officially “declining to designate persons to carry into effect, by the aid of military power, the act of the United States, enforcing the Embargo.” And “that the persons holding executive offices under this state, are restrained by the duties which they owe this State, from affording any official aid or cooperation in the execution of the act aforesaid.”

This action went the further step of embracing the idea of non-cooperation, and its precedent went back to colonial legislatures that had refused to cooperate with the enforcement of the Imperial Stamp Act. No force would be applied directly to interdicting federal officials, but no cooperation would be accorded them either. They could do their work on their own, but in the absence of active assistance or support from state institutions, they would find that task far more difficult. No power of the federal government could compel action on the part of the states in this regard.

And here New England’s civil society operated in yet a further way to exert force against the centralized exercise of power, again, much like what had happened in earlier colonial protests. While not directly engaged in administering smuggling, the governments of New England gave tacit affirmation of private actions through their resolutions. New England’s merchants were long practiced in the arts of running goods around imperial restrictions. Now they would do the same with respect to national ones. And the general government found its resources stretched to the breaking point.

Remarkably, Jefferson himself later reflected on this opposition of local authorities. He recalled this episode as a powerful illustration of why local governance is so critically important to the maintenance of a free society! No longer president, he could reflect with some approval on the nature of the opposition he had then faced. (more…)

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In an ongoing attempt to improve the quality of Grover’s lectures, I offer him the following quotes from today’s Maureen Dowd piece in the NY Times:

There is something positively mythological about a group of strong women swooping down to shake the president out of his delicate sensibilities and show him the way to war. And there is something positively predictable about guys in the White House pushing back against that story line for fear it makes the president look henpecked.

It is not yet clear if the Valkyries will get the credit or the blame on Libya. But everyone is fascinated with the gender flip: the reluctant men — the generals, the secretary of defense, top male White House national security advisers — outmuscled by the fierce women around President Obama urging him to man up against the crazy Qaddafi.

The entire piece is entertaining. Enjoy, Grover, enjoy! Meanwhile, let the serious debates on “Operation Hope and Change” continue.

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I caught a little bit of flak around the Internet for my piece, “Why Isn’t Violence the Answer?,” during the early days of the Egypt protests. I was galled by official demands from the U.S. government and other places that Egyptian protestors remain nonviolent, no matter what. Thankfully, significant violence wasn’t required to get rid of Mubarak, although if protestors had not fought back against the thugs that invaded Tahrir Square, who knows what would have happened?

Libya is an even clearer case of just rebellion. Gaddafi has been one of the region’s most repressive dictators, and his reaction to what started as peaceful protests shows us all we need to know about his regime. But if Libyans hadn’t undertaken an armed rebellion, there would be no chance of getting him out of power.

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A couple of weeks ago, one of the NZ student delegates to the US NZ Future Partners Forum popped in asking about the Trans Pacific Partnership. Since he offered me a decent beer, I was happy to have a chat.

In 2005, New Zealand joined with Brunei, Singapore and Chile in a free trade zone called the P-4; this supplements New Zealand’s tight market integration with Australia and its more recent free trade deal with China. Now Australia, Malaysia, Peru, the US, and Vietnam are negotiating to join in with the P-4 as the Trans Pacific Partnership. There’s some chance Japan joins up down the track; they’d need to open up their agricultural markets.

I suggested New Zealand might do best by sidelining the US for now. The biggest potential gains to New Zealand from a free trade deal with the States would be an opening of American dairy markets to New Zealand dairy products. But that won’t happen – a trade deal that would actually open up American dairy markets to New Zealand product would never make it through the Senate. I’d expect Vietnamese catfish farmers would sympathise. I don’t much agree with New Zealand leftist political commentator Gordon Campbell on the overall merits of free trade, but I don’t think he’s wrong on the US political situation.

Even if he wanted to – and he shows no sign of such a desire – Barack Obama is simply not able to steer through Congress a trade deal that would be meaningful to New Zealand exporters, and certainly not a bilateral trade deal worth anything like “the billions and billions” of dollars that [New Zealand Prime Minister] Key was burbling about in Singapore. There is a new and strong mood of protectionism in Washington – and any deal that would further jeopardize American jobs or markets would be dead on arrival in Congress.

Last year, Tim Watkin on Pundit offered a thorough analysis of US press reaction to the free trade stance with the Pacific region that Obama briefly enunciated at APEC, and it should have been sobering news for exporters. We’re simply not on the US radar for a bilateral deal. Even within any multilateral arrangement, the chance of meaningful concessions to our exporters on agriculture is a pipe dream.

Is it better to have a serious free trade deal among a smaller set of countries, or a weaker deal that brings in the States?

I’d put decent money that, if America signs onto the deal, there’d be years of costly arbitration before New Zealand had any kind of increased access to American dairy markets. For starters, American dairy farmers would argue that failure of the New Zealand competition authorities to prosecute New Zealand dairy cooperative Fonterra as a monopoly constituted a subsidy under US law and justified counterveiling duties. Never mind that Fonterra has to rely on farmers voluntarily choosing to supply it with milk rather than supply one of its competitors, and that it’s legally required to supply some of its milk to some of its competitors, while the US dairy compacts and market orders are state-enforced cartels that do everything but shoot potential competitors. If the United States was happy to continue trade action against imports of Canadian softwood in the midst of Hurricane Katrina rebuilding, despite NAFTA, why ought we expect any better for New Zealand dairy?

In exchange for the illusion of access to American dairy markets, we’d likely get some pretty restrictive copyright and intellectual property rules. The hubub over investor protection provisions don’t much worry me – odds are that such provisions would only give a slap to the parts of our Overseas Investment Act regulations that need the slap.

I don’t think the United States has any credibility on free trade when it comes to agricultural products. They can’t make time-consistent pledges. At point of signing it’s all friendly, then you’re straight into arbitration over whether you’re hurting US domestic competitors – never mind the benefits to American consumers who are paying double what Kiwis are paying for baby formula.

And so it’s better that New Zealand sidelines America in the Trans Pacific Partnership negotiations so the rest of us can have a serious free trade zone. Get a serious free trade zone, then look to widen it by inviting China. The threat of a Pan-Asian free trade zone that includes China is about the only thing I can imagine that would bring the States around on agriculture. Since New Zealand already has a free trade deal with China, it’s not implausible that China could someday join the TPP.

That’s what I suggested to the student delegate. Any Americans more optimistic about the potential for getting a substantive trade deal including agriculture through the Senate? If the ultimate goal is the greatest reduction in trade restrictions over the long term, I think it’s better to have a small group with a deeper commitment to free trade, which then adds on others as they’re able to make the same commitment, than to have a weak agreement that includes more countries. But I’d be happy to be wrong.

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U.S. government officials continue to lecture the Egyptian demonstrators on how to go about their business. President Obama:

He said he had told Mr Mubarak to respect the rights of the Egyptian people and refrain from using violence against peaceful protesters – but he said the protesters also had a responsibility to express themselves peacefully.

But why? Mubarak’s regime is a wicked one, propped up by the U.S. taxpayer. Now, it is understandable that government officials on the same side of international rivalries tend to stick up for each other, even if it means standing against their own people. (There is a reason why governments send their own people to die in wars for political goals but officially refuse to countenance assassination under any circumstances.) What is more curious is that Obama, Biden, Gibbs, and the rest are so glib in throwing out the tired line. Aren’t they afraid that Americans paying attention will be outraged that U.S. officials continue to insist that the Egyptian people exercise restraint even as their own casualties mount? Surely many of us of feeling around the world recognize that if the protestors find it prudential or useful at some point to storm the presidential palace and dispense street justice to Mubarak and his minions, there is no conceivable ethical reason for them to shrink from the task. Isn’t it on one of our state flags? Sic semper tyrannis.

EDIT: clarified some of the language.

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A few months ago on Pileus, I offered an explanation for the Scottish Government’s decision to release Abdelbaset al-Megrahi that now seems to have been partially incorrect. Here’s the offending portion of what I wrote:

4) There was no reason for the SNP or the Scottish government to want to please BP or the British government, who did engage in diplomacy with Libya over the Megrahi issue. If anything, the British Labour government’s desire to release Megrahi would have given the Scottish government some opportunity to twist their tail over the issue and do the reverse.

In fact, the Wikileaks cables reported on in the Guardian story leaked above indicate that the UK government feared “harsh and immediate” retaliation from Libya if Megrahi died in prison, yielding strong circumstantial evidence that in fact Gordon Brown’s government did lobby Alex Salmond’s government to release Megrahi on compassionate grounds:

A cable said: “Megrahi could have as long as five years to live but the average life expectancy of someone of his age with his condition is 18 months to two years. Doctors are not sure where he is on the time scale.”The Libyans have not yet made a formal application for compassionate release … but HMG believes that the Scottish may be inclined to grant the request, when it comes, based on conversations between … Alex Salmond and UK justice secretary Jack Straw. Although the general practice is to grant compassionate release within three months of end of life, this is not codified in the law, so the release, if granted, could occur sooner.”

This is really unbelievable. All this time the Scottish National Party has taken all manner of criticism from around the world, even from the British government, for its decision. Now it turns out that the SNP was actually not playing the separatist, but really trying to do what the British government wanted. British parties often criticize the SNP for being unconstructive and generating false confrontations with Westminster, and the truth is nearly the exact opposite – they have been too docile and subservient for their own political good.

Whether the release was the right decision or not is still an open question, in my view, but what is clear is that the SNP made a terrible, needless political error.

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