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Manhattan Says No to Terror Trials
Today, Politico Arena asks:
Terror trials: Is it time for the administration to retreat and rethink? Is it generally mishandling the terrorism issue?
My response:
On no issue is President Obama getting acquainted with reality more clearly than terrorism, or so it seems. He blazed into office, guns holstered, as the anti-Bush, putting Eric Holder’s Justice Department in charge, not of the War on Terror, a phrase he banished from his administration’s lexicon, but of “bringing those who planned and plotted the [9/11] attacks to justice,” as Holder put it in November when he announced that Khalid Sheikh Mohammed and four others would be given civilian trials in downtown Manhattan. But as the manifold costs of such a trial became increasingly apparent, and as even New York Democrats have grown increasingly restive, the White House, it seems, has backed down. We await the line of congressmen saying “Bring the trial to my district.”
How could it be otherwise? The administration’s law-enforcement approach to terrorism has been unserious and folly from the start. In an understated yet devastating piece in yesterday’s Washington Post, former CIA director Michael V. Hayden cataloged that folly, nowhere more evident than in the FBI’s handling of the would-be Christmas Day bomber, who was Mirandized and lawyered up long before he could be seriously interrogated by agents with the background to elicit the intelligence we need — not to prosecute terrorists, but to prevent future terrorist attacks. The most telling revelation in Hayden’s piece came at the end, however. In August, the government unveiled its High Value Detainee Interrogation Group (HIG) designed to interrogate people like the Christmas Day bomber, and it announced also that the FBI would begin questioning CIA officers about alleged abuses in the 2004 inspector general’s report. Was the HIG called in to interrogate the Christmas Day bomber? No — it has yet to be formed. But the interrogations of CIA officers are proceeding apace. So much for the administration’s priorities. Is it any wonder that Scott Brown’s pollsters report that terrorism, and the administration’s mishandling of the issue, polled better even than Brown’s opposition to ObamaCare?
Filed under: Foreign Policy and National Security; Law and Civil Liberties
Peace? The Promise of Peace? Eh, Close Enough
Worse choices have been made than Barack Obama for the Nobel Peace Prize.
There was Woodrow Wilson in 1919, an award that rates as one of history’s more grotesque international jokes. Wilson promised to keep us out of war and promptly got us into it, meanwhile laying the ideological and geopolitical foundations for 90 years of war-nationalism, war-liberalism, and war-socialism. To say nothing of saddling us with the terrible idea of world government. Among those who weren’t Nazis or communists, Wilson may have done more than any other individual to promote human suffering in the last hundred years.
So yes, there have been worse choices. (Next to Wilson, I’d have to give Al Gore and Yasser Arafat both honorable mentions. We could go on, of course.) But still, Barack Obama? Seriously? I doubt the committee has any idea how badly their choice will be mocked in the United States.
Over here, the prize will be a disappointment to the anti-war left, the anti-war right, and, of course, the pro-war right. The only contingent I can see taking pride in it over here is the establishment left, which hasn’t had much time lately for substantive work on peace, but which is always happy to make speeches and receive awards. Sometimes, the American image abroad is just that important.
Rather than piling on in what is sure to be a bipartisan laugh-fest, let’s think about what Barack Obama actually could have done for world peace. And weep.
Filed under: Cato Publications; Foreign Policy and National Security; Government and Politics; Law and Civil Liberties
A Preliminary Assessment of PATRIOT Reform Bills
Hearings were held on both sides of the Hill last week to consider a trio of surveillance powers set to expire under PATRIOT Act sunset rules. But the stage is set for a much broader fight over the sweeping expansion of search and surveillance authority seen over the past eight years; the chairmen of both the House and Senate Judiciary Committees have announced their intention to use the occasion to revisit the entire edifice of post-9/11 surveillance law. Two major reform bills have already been introduced: Sen. Russ Feingold’s JUSTICE Act and Sen. Patrick Leahy’s USA PATRIOT Sunset Extension Act. Both would preserve the core of most of the new intelligence tools while strengthening oversight and introducing more robust checks against abuse or overreach. The JUSTICE Act, however, is both significantly broader in scope and frequently establishes more stringent and precisely crafted civil liberties safeguards. Most observers expect the Leahy bill to provide the basis for the legislation ultimately reported out of Judiciary, the central question being how much of JUSTICE will be incorporated into that legislation during markup later this week. While the surveillance authorities and oversight measures covered in each bill are varied and complex, it’s worth examining the differences in some detail.
Read the rest of this post »
Filed under: Foreign Policy and National Security; Law and Civil Liberties
Bagram, Habeas, and the Rule of Law
Andrew C. McCarthy has an article up at National Review criticizing a recent decision by Obama administration officials to improve the detention procedures in Bagram, Afghanistan.
McCarthy calls the decision an example of pandering to a “despotic” judiciary that is imposing its will on a war that should be run by the political branches. McCarthy’s essay is factually misleading, ignores the history of wartime detention in counterterrorism and counterinsurgency, and encourages the President to ignore national security decisions coming out of the federal courts.
More details after the jump.
Filed under: Foreign Policy and National Security; Law and Civil Liberties
Fresh OLC Memos
The Justice Department just released some more Office of Legal Counsel memoranda. As you may already know, these legal interpretations facilitated the worst of the Bush administration’s approach toward terrorism — forget the lawful tools that we have on hand; let’s craft a whole new legal regime that tosses out barriers to executive authority and upends the rule of law. Posse Comitatus and the First Amendment got you down? No problem. Non-Detention Act preventing you from detaining American citizens as enemy combatants? Whatever. Geneva Conventions, War Crimes Act, and Convention Against Torture barring coercive interrogation? Crank it to eleven.
Jack Balkin has a good summary with some highlights. On Iraq:
On October 21st, 2002, five days after Congress authorization of the use of military force against Iraq, John Yoo explains why it was legally irrelevant that Congress authorized the Iraq War, noting that the President could have attacked Iraq without anyone’s permission. Delightfully, Yoo cites President Clinton’s use of force in Bosnia, which Yoo himself had questioned when the Republicans were out of power. But perhaps being in power gave him a different perspective.
Yoo sums up his argument this way: “There is no expression in the Constitution of any requirement that the President seek authorization from Congress prior to using military force. There is certainly nothing in the text of the Constitution that explicitly requires Congress to consent before the President may exercise his authority as Chief Executive and Commander in Chief to command U.S. military forces.” I’m glad we straightened that out.
This should not be surprising. The same claim of unitary executive authority was bandied about in the run-up to the Gulf War. Guess who said this:
It was my view at the time [that] we were absolutely committed to getting Saddam Hussein out of Kuwait one way or the other, no matter what we had to do. We had to have the Saudis as allies in that venture, but if no-one else had been with us if it had just been the United States and Saudi Arabia, without the United Nations, without the authorisation of the Congress, we were prepared to go ahead. I argued in public session before the Congress that we did not need Congressional authorisation. That in fact we had the Truman precedent from the Korean crisis of 1950 that the Senate and all ratified the United Nations charter. By this time the UN Security Council had authorised the use of force back in November saying that we could do it by January 15th if he wasn’t out by then and that legally and from a constitutional stand point we had all the authority we needed.
I was not enthusiastic about going to Congress to ask for an additional grant of authority.
The Founders made an inherently inefficient form of government as a check against arbitrary use of the power of the state. The President doesn’t declare war, Congress does. When we allow the government to write itself a waiver to constitutional limitations that are part and parcel of its contract with the people, it’s time for the people to let the government know who the boss is in this employer-employee relationship.
Timothy Lee’s idea is looking better all the time.
Tom Ridge on the Bush Administration’s War on Terror
Former congressman, governor, and secretary of the Department of Homeland Security Tom Ridge is a long-time GOP loyalist. But he apparently doesn’t have good things to say about the Bush administration on its vaunted war on terrorism.
A new report on his upcoming book warns:
Tom Ridge, the first head of the 9/11-inspired Department of Homeland Security, wasn’t keen on writing a tell-all. But in The Test of Our Times: America Under Siege…and How We Can Be Safe Again, out September 1, Ridge says he wants to shake “public complacency” over security.
And to do that, well, he needs to tell all. Especially about the infighting he saw that frustrated his attempts to build a smooth-running department. Among the headlines promoted by publisher Thomas Dunne Books: Ridge was never invited to sit in on National Security Council meetings; was “blindsided” by the FBI in morning Oval Office meetings because the agency withheld critical information from him; found his urgings to block Michael Brown from being named head of the emergency agency blamed for the Hurricane Katrina disaster ignored; and was pushed to raise the security alert on the eve of President Bush’s re-election, something he saw as politically motivated and worth resigning over.
This confirms widespread suspicion that the Bush administration’s terrorism initiatives were highly political. It also undercuts the claim that we should trust government to protect us by sacrificing our liberties and giving trustworthy public servants greater discretion.
Filed under: Foreign Policy and National Security; Government and Politics
Assessing the Claim that CDT Opposes a National ID
It was good of Ari Schwartz to respond last week to my recent post querying whether the Center for Democracy and Technology outright opposes a national ID or simply “does not support” one.
Ari says CDT does oppose a national ID, and I believe that he honestly believes that. But it’s worth taking a look at whether the group’s actions are consistent with opposition to a national ID. I believe CDT’s actions — most recently its support of the PASS ID Act — support the creation of a national ID.
(The title of his post and some of his commentary suggest I have engaged in rhetorical excess and mischaracterized his views. Please do judge for yourself whether I’m being shrill or unfair, which is not my intention.)
First I want to address an unusual claim of Ari’s — that we already have a national ID system. If that is true, his support for PASS ID is more sensible because it is an opportunity to inject federal privacy protections into the existing system (putting aside whether it is a federal responsibility to manage a state system or systems).
Filed under: Law and Civil Liberties; Telecom, Internet & Information Policy
Civil Liberties and President Barack W. Bush?
It’s fair to say that civil liberties and limited government were not high on President George W. Bush’s priorities list. Indeed, they probably weren’t even on the list. Candidate Barack Obama promised “change” when he took office, and change we have gotten. The name of the president is different.
Alas, the policies are much the same. While it is true that President Obama has not made the same claims of unreviewable monarchical power for the chief executive–an important distinction–he has continued to sacrifice civil liberties for dubious security gains.
Civil libertarians recently accused President Obama of acting like former President George W. Bush, citing reports about Mr. Obama’s plans to detain terrorism suspects without trials on domestic soil after he closes the Guantánamo prison.
It was only the latest instance in which critics have argued that Mr. Obama has failed to live up to his campaign pledge “to restore our Constitution and the rule of law” and raised a pointed question: Has he, on issues related to fighting terrorism, turned out to be little different from his predecessor?
The answer depends on what it means to act like Mr. Bush.
As they move toward completing a review of their options for dealing with the detainees, Obama administration officials insist that there is a fundamental difference between Mr. Bush’s approach and theirs. While Mr. Bush claimed to wield sweeping powers as commander in chief that allowed him to bypass legal constraints when fighting terrorism, they say, Mr. Obama respects checks and balances by relying on — and obeying — Congressional statutes.
“While the administration is considering a series of options, a range of options, none relies on legal theories that we have the inherent authority to detain people,” Robert Gibbs, the White House press secretary, said this week in response to questions about the preventive detention report. “And this will not be pursued in that manner.”
But Mr. Obama’s critics say that whether statutory authorization exists for his counterterrorism policies is just a legalistic point. The core problem with Mr. Bush’s approach, they argue, was that it trammeled individual rights. And they say Mr. Obama’s policies have not changed that.
“President Obama may mouth very different rhetoric,” said Anthony D. Romero, executive director of the American Civil Liberties Union. “He may have a more complicated process with members of Congress. But in the end, there is no substantive break from the policies of the Bush administration.”
The primary beneficiaries of constitutional liberties are not terrorist suspects, but the rest of us. The necessary trade-offs are not always easy, but the president and legislators must never forget that it is a free society they are supposed to be defending.
Filed under: Foreign Policy and National Security; Government and Politics; Law and Civil Liberties
Obama’s Military Commissions
President Obama is expected to announce how his administration is going to prosecute prisoners for war crimes and perhaps other terrorist offenses. Instead of civilian court, courts-martial, or new “national security courts,” Obama has apparently decided to embrace George W. Bush’s system of special military tribunals, but with some “modifications.”
Glenn Greenwald slams Obama for seeking to create a “gentler” tribunal system and urges liberals to hold Obama to the same standards that were applied to Bush:
What makes military commissions so pernicious is that they signal that anytime the government wants to imprison people but can’t obtain convictions under our normal system of justice, we’ll just create a brand new system that diminishes due process just enough to ensure that the government wins. It tells the world that we don’t trust our own justice system, that we’re willing to use sham trials to imprison people for life or even execute them, and that what Bush did in perverting American justice was not fundamentally or radically wrong, but just was in need of a little tweaking. Along with warrantless eavesdropping, indefinite detention, extreme secrecy doctrines, concealment of torture evidence, rendition, and blocking judicial review of executive lawbreaking, one can now add Bush’s military commission system, albeit in modified form, to the growing list of despised Bush Terrorism policies that are now policies of Barack Obama.
Greenwald is right. The primary issue is not due process. The tribunals might ultimately be “fair” and “unbiased” in some broad sense, but where in the Constitution does it say that the president (or Congress) can create a newfangled court system to prosecute, incarcerate, and execute prisoners?
For more about how Bush’s prisoner policies ought to be ravamped, see my chapter “Civil Liberties and Terrorism” (pdf) in the Cato Handbook for Policymakers.
Filed under: Foreign Policy and National Security; Law and Civil Liberties
Obama’s First Signing Statement
President Obama issued his first signing statement last week. While approving the $410 billion omnibus appropriations bill, he reserved the right to reinterpret, evade, or ignore a number of the bill’s provisions. To some conservatives, that smelled like vindication; and some liberals found it fishy. Who’s right? Both, to some extent.
During the Bush years, “signing statements” came to stand for a much broader set of issues than the practice itself. After President Bush used one to basically announce that, veto-proof majority or no, he didn’t have to follow the McCain Detainee Treatment Act, “signing statements” in the public mind became shorthand for the Bush theory that the president is sole constitutional “decider” on all matters related to national security—in much the same way that the PATRIOT Act became shorthand for overzealousness in homeland security. The obnoxiousness of each—open defiance in the signing statement case, the dopey Orwellianism of the acronym with PATRIOT—made them symbols, even though neither represented the worst abuses in the fight against terrorism.
But what really matters is the underlying constitutional theory, not the particular quasi-legislative device it’s reflected in. Which is worse: openly announcing that you’re not going to obey new congressional restrictions on torture—as Bush did with the 2006 McCain Amendment—or secretly violating the old ones for years? The latter, clearly. At least a signing statement puts you on notice.
On the campaign trail in 2008, Obama, unlike McCain, never promised to end the practice of signing statements entirely. Obama’s position was more nuanced. When it comes to signing statements, some nuance is appropriate. I don’t agree with the ABA’s blanket condemnation of the practice. As the Congressional Research Service has pointed out, despite the Supreme Court’s 1983 repudiation of the legislative veto, Congress continues to smuggle legislative vetoes into omnibus spending bills. One could argue that the president’s only recourse is to veto the bill–and more vetoes of spending bills would surely be welcome. But it seems to me that in such cases, issuing a signing statement is a venial sin at worst. There’s a vast difference between that sort of signing statement and one that asserts that the president cannot be bound by a law barring torture.
Most of the objections Obama lodged in his signing statement fall well short of the Bush-Cheney end of the spectrum. But there’s at least one that looks particularly dodgy:
Filed under: Foreign Policy and National Security; Government and Politics; Law and Civil Liberties
Bush’s Gift to Obama: A More Powerful State
Friends of freedom, the Constitution, and limited government have plenty of reasons to deplore the past eight years. But in case you thought we might get some relief now, this Washington Post article from inauguration morning will change your mind. One of the points it makes — as some of us warned during the past few years — is that powers claimed by one president are left in the hands of the next, even though the first president’s supporters might have less confidence in his successor’s integrity and wisdom. So here’s the government that President Bush and the Republicans have turned over to President Obama and the Democrats:
Barack Obama takes office today with a realistic prospect of joining the ranks of history’s most powerful presidents….
Historians, recent White House officials and senior members of the incoming team expressed broad agreement that Obama begins his term in command of an office that is at or near its historic zenith….
The federal government itself is a far more potent instrument, in its breadth and depth of command over national life, than it has ever been before. Largely in response to the threat of terrorism, the Bush years and President Bill Clinton’s two terms saw “an incredible period of state-building that’s unrivaled in American history except by the creation of the national security state in the 1940s and ’50s,” said Jack Balkin, a professor of constitutional law at Yale whose blog, Balkinization, is often cited by members of the Obama team.
By necessity or design, and most often by passive acquiescence, Congress and the courts have let presidents do most of the steering of the new and expanded institutions that govern finance, commerce, communications, travel, energy production and especially intelligence gathering. When there were struggles for dominance among the three branches, most of them ended with lopsided victories for the executive.
The legislative power to declare war and ratify treaties, for example, has been deeply eroded by the practice of presidents to launch military operations on their own and to make major international commitments — such as December’s “status of forces” pact with Iraq — by “executive agreement” rather than by treaty requiring a two-thirds Senate vote. After lengthy controversy over warrantless domestic surveillance in the Bush administration, Congress authorized the program without obtaining any details about what, exactly, is collected and how it is used.
“Really, in the last 80 years we’ve seen a gradual, and at times not gradual, concentration of power in the executive office,” said William P. Marshall, who served as deputy White House counsel under Clinton….
Even in its first iteration, the government’s $700 billion expenditure to shore up U.S. financial systems will rival the roughly $1 trillion a year in “discretionary” federal spending — the portion of the budget, not including interest on loans and mandatory benefits such as Social Security, that is negotiated each year between the White House and Congress. Obama, who told The Post last week that he must “go big” in response to “the biggest emergency since World War II,” has spoken elliptically of the prospect that the cost could double.
Congress, the principal power of which is thought to be control of the national purse, has made little pretense of managing these vast expenditures. It will fall to Obama and his subordinates to decide winners and losers in the banking, financial services, automobile and other major industries, a span of control that dwarfs President Harry S. Truman’s attempt to seize control of steel production.
We don’t know yet whether President Obama will prove to be FDR or Jimmy Carter. But it’s clear that the freedom movement faces challenges that aren’t going away.
Filed under: General; Government and Politics; Political Philosophy
The Measure of Our Own Liberties
As you may have heard, the Supreme Court recently granted certiorari to Ali Saleh Mohamed Kahlah al-Marri. The unclassified version of the evidence against him is available in the Rapp Declaration. It reads like a movie plot; I recommend it to you.
Background
After the 9/11 attacks, the FBI arrested al-Marri, an exchange student at Bradley University in Peoria, Illinois. The government indicted him for using false identification, bank fraud, giving false statements to the FBI, and possession of counterfeit credit card numbers. The government alleges that al-Marri met with Osama Bin Laden, was working with senior Al Qaeda organizers, has a more-than-casual interest in poisons, and was told by his handlers to be in America before September 11th or to forget about executing his mission here.
Before al-Marri began trial, the government removed him to military custody and asked that the charges against him be dismissed with prejudice (meaning that they cannot be re-filed upon his release). He has since remained in a naval brig in South Carolina. He holds the distinction of being the only domestically detained enemy combatant in U.S. custody.
The Fourth Circuit heard his habeas claim, releasing a fractured opinion. The panel found, 5-4 on each issue, that (1) the government can detain al-Marri as an enemy combatant; and that (2) al-Marri is owed more process to contest his status as an enemy combatant.
The Journal vs. the Fourth Amendment
There’s an astonishing editorial in the Wall Street Journal today about the FISA amendments that were passed in July. As you might recall, that legislation granted retroactive, blanket immunity for companies that illegally participated in the government’s wiretapping programs and substantially weakened judicial oversight of government surveillance of domestic-to-foreign communications. Under the new law, the government is no longer required to obtain an individualized warrant if it wishes to spy on your communications with people overseas. Rather, it can submit a “certification” that describes the general parameters of a broad eavesdropping program. Judges are required to approve the requests without ever seeing specific information about who would be targeted. The legislation also lengthened the grace period during which the government can conduct surveillance without any judicial oversight at all. Whereas emergency warrants were previously required within three days of the start of eavesdropping, the new legislation allows the government to spy for as long as four months while the judicial branch deliberates about its legality.
With all that in mind, I’m surprised to learn that the Journal seems to believe that the new, watered-down version of FISA is still too restrictive:
The Attorney General is only allowed to pursue threats up to certain legalistic edges, which contracted under this year’s political compromise that greatly expanded the role of the courts in intelligence gathering. Commissioner Kelly is practically begging people to think about what this means in the real world.
FISA was passed before the advent of disposable cell phones, encrypted emails and high-speed fiber optic networks. Now we live in a world where terrorist communications that originate in, say, Peshawar happen to move through U.S. switching networks. The executive branch already possesses the Constitutional authority to monitor such communications, but Democrats and the political left claimed it was “illegal” under FISA.
Then the anti-antiterror bar filed multibillion-dollar lawsuits against the telecom companies whose good-faith assistance after 9/11 made such surveillance possible. The goal was to shut down the program, and the telcos made it clear they couldn’t cooperate without Congress’s blessing. Forced to choose between a Democratic deal that gave the companies legal immunity or giving up a key U.S. antiterror tool, President Bush chose the former. The price — the one Commissioner Kelly is paying — was narrowing the government’s antiterror wiretapping powers.
What Democrats have done, in essence, is to insert an unelected judiciary into the wartime chain of command. As Mr. Kelly notes, this is producing a “lack of accountability” and “the lack of transparency into the inner workings of the FISA process.” If some faceless FISA judge denies a surveillance request from Mr. Kelly and New Yorkers die as a result, that judge will answer to no one. Under current FISA rules, we won’t even know who that judge is.
If the Journal believes it’s problematic for a “faceless FISA judge” who “answers to no one” to deny surveillance requests, then its quarrel isn’t with liberals, Democrats, or trial lawyers, it’s with the Constitution itself. The whole point of the Fourth Amendment is that “unelected judges” oversee the activities of law enforcement.
Moreover, the FISA bill the Journal derides makes it crystal clear that the government can intercept purely foreign-to-foreign communications without any judicial oversight whatsoever. And if our hypothetical Peshawar terrorist is communicating with an American, the government can take advantage of the new “certification” process that involves only cursory judicial review and doesn’t require any showing that the target is involved in terrorism. Only in cases where both ends of the communication are in the United States does the government require an individual warrant.
The Journal appears to take the extreme viewpoint that there should be no judicial oversight of the government’s domestic antiterrorism activities at all. But we know what happens when the government engages in surveillance without judicial oversight. History tells us that when judicial oversight is absent, abuses are inevitable. And if we create a terrorism exception to the warrant requirement, it would steadily grow to swallow the rule. Fighting terrorism is important, but we can do it without sacrificing judicial oversight.
Filed under: Law and Civil Liberties; Telecom, Internet & Information Policy
A Defense Cut?
Republicans are up in arms over signs that the Democratic leadership in the House may be considering cutting the defense budget.
Last week, Barney Frank told the editorial board of the SouthCoast Standard-Times — a local paper in Massachusetts — that the Pentagon’s budget should be cut by 25%. I didn’t believe this at first. The Democratic position on these matters has long been to support the Pentagon’s budget requests for fear of opening a line of attack for Republicans. But Congressman Frank’s office confirms that he did indeed say this.
You might say, so what? Frank is not on any defense committee and is probably just running his mouth for his liberal base in a reelection campaign. Maybe so. But Frank does not have a serious opponent and is close with the Democratic leadership in the House. It’s would be surprising if he got crosswise of Speaker Pelosi. Plus, you already have John Murtha, chairman of the Defense Appropriations Subcommittee, telling reporters that, because of the bailouts, defense spending will need some trimming (Murtha, who has taken to calling his constituents names, might actually lose his seat). So it’s fair to guess that we’re seeing an emerging position or trial balloon. Frankly, it’s shocking that any Democrat would take this stance a week before elections where they stand to gain a couple dozen seats by standing still. The Republican reaction (danger! war! surrender!) is utterly predictable.
It is also wrong. The truth is that we should cut the defense budget by more than 25%. The non-war defense budget has grown by around 45% since Bush took office, once you adjust for inflation. The Pentagon accounts for half the world’s military spending, most of which is irrelevant to counter-terrorism, and more than half of U.S. discretionary spending. The threats we face from rival militaries are historically small. We can save plenty of money and still be safe — probably safer, in fact, since our profligate defense spending serves our instinct to intervene willy-nilly around the world, creating enemies.
What’s important to keep in mind is that cutting defense spending requires cutting defense commitments and force structure. Frank is quoted saying: “We don’t need all these fancy new weapons.” That’s true, but you don’t save 25% of the budget by going after weapons procurement alone. You need to cut force structure. If you do that while keeping troops in Afghanistan, Iraq, Korea, the Philippines, and Japan, sending a peacekeeping force to Sudan, defending Taiwan, threatening Iran, rebuilding a failed state or two, and defending Georgia and Ukraine from Russia, the military will scream in justified agony. Saving on defense starts with doing less.
Filed under: Foreign Policy and National Security; Tax and Budget Policy
Biden and “Dumb Wars”
In his now-famous 2002 speech, then state-senator Barack Obama said, “I’m not opposed to all wars. I’m opposed to dumb wars.” And that would certainly represent an improvement over what we’ve got now. Curious, then, that Obama’s picked a running mate who seems to have no such objection.
Today’s Washington Post details Biden’s role in enabling our Iraq adventure. It’s hardly a “Profiles in Courage” moment, and it also points up the gutless and constitutionally suspect manner in which Congress authorized the war: by delegating the final decision over war and peace to the president:
In the days that led up to the vote on the war resolution, Biden and McCain stood together on the Senate floor, sometimes fighting against each other, sometimes fighting in tandem. They teamed up to shoot down an amendment by Sen. Carl M. Levin (D-Mich.) that would have forced Bush to seek further authorization before an actual invasion. They were on opposite sides of the effort to narrow the war mission from regime change in Iraq to combating Hussein’s alleged weapons of mass destruction. And Biden expressed plenty of misgivings about Bush’s intentions.
“The president always has the right to act preemptively if we are in imminent danger. If they are coming up over the hill, he can respond. If troops are coming out of Tijuana, heading north, we can respond. If they are coming down from Toronto, we can respond. If missiles are on their way, we can respond. But that is not the way I hear it being used here. We are talking about preemption, as if we are adopting a policy,” Biden said.
….
But in Biden’s closing remarks before the war vote in 2002, he also voiced a remarkable degree of trust in Bush. “The president has argued that confronting Iraq would not detract from the unfinished war against terrorism. I believe he is right. We should be able to walk and chew gum at the same time,” he said. “
Walk, chew gum, and play the harmonica, perhaps–having learned little from the Iraq experience, Biden in April 2007 called for American boots on the ground in Darfur:
Joseph Biden, chairman of the Senate Foreign Relations Committee and a Democratic presidential candidate, called Wednesday for the use of military force to end the suffering in Darfur.
“I would use American force now,” Biden said at a hearing before his committee. “I think it’s not only time not to take force off the table. I think it’s time to put force on the table and use it.”
In advocating use of military force, Biden said senior U.S. military officials in Europe told him that 2,500 U.S. troops could “radically change the situation on the ground now.”
The Global Warming Hysteria that Isn’t, Part II
Last week, a Gallup poll was released revealing that about one-third of Americans worry “a great deal” about global warming, a number that hasn’t changed much since 1989. Less than half of the respondents believed that climate change would pose a serious threat to them in their lifetimes. The trade publication ClimateWire (subscription required) quotes a Gallup official as noting that “there has been no consistent upward trend on worry about global warming going back for decades.”
Today, ClimateWire reports that a new study from the Pew Research Center for the People & the Press has even worse news for environmentalists: climate change is at the absolute bottom of the public’s list of priorities for the federal government (oddly enough, there’s no trace of the report on Pew’s website). When given a list of issues and asked to state whether the issue should be a “top priority” for President Bush and the Congress, those surveyed responded as follows:
Strengthening the nation’s economy: 75%
Defending the country against terrorism: 74%
Reducing health care costs: 69%
Improving the educational system: 66%
Securing social security: 64%
Improving the job situation: 61%
Securing Medicare: 60%
Dealing with energy problems: 59%
Reducing the budget deficit: 58%
Protecting the environment: 56%
Reducing crime: 54%
Providing insurance to the uninsured: 54%
Dealing with the problems of the poor: 51%
Dealing with illegal immigration: 51%
Reducing middle class taxes: 49%
Dealing with moral breakdown: 43%
Strengthening the military: 42%
Reducing the influence of lobbyists: 39%
Dealing with global trade: 37%
Making tax cuts permanent: 35%
Dealing with global warming: 35%
Surprised? You shouldn’t be. The political strength of the environmental lobby is almost entirely based on the proposition that they represent a large number of well organized swing voters who will reward and/or punish politicians for their position on environmental issues in general and climate change in particular. Hence, a great deal of hard work and effort goes into the Green campaign to scare hell out of politicians regarding the political risks associated with saying no to things like a cap & trade program to reduce greenhouse gas emissions. To be fair, all special interest groups have the same incentive to talk-up their alleged public support. Regardless, this particular political Green emporer has no clothes.
Sneaky Supplemental Spending
Many people are spilling a lot of ink debating whether America is taking the right approach in the war against terrorism, but very few are analyzing how that war is being financed. That is why an article by Veronique de Rugy of the Mercatus Center is a welcome contribution to the debate. She explains that politicians in Washington are deliberately abusing the supplemental spending process (which ostensibly is reserved for unforeseen emergencies):
… the total price tag for America’s present wars [is] at least $822 billion, approximately 80 percent of which will be spent on Iraq. That surpasses the cost of the Vietnam War ($670 billion in inflation-adjusted dollars). And the Iraq portion dwarfs the $50 billion to $60 billion cost predicted at the outset of the war by Mitch Daniels, then director of the Office of Management and Budget. …To distract people from the real price tag of a two-front war, the president and Congress have used an unprecedented and fiscally irresponsible budgetary trick: a series of “emergency” supplemental spending bills totaling hundreds of billions of dollars. This scheme has allowed them not only to hide the costs of the conflicts but also to avoid painful budget choices while funneling billions of dollars in unvetted goodies to favored interest groups. Once a small blip among federal outlays, emergency supplementals have exploded since 2002, when the Republican Congress let a key legislative restriction on their use expire. In May 2007, President Bush signed into law the biggest supplemental bill in history, $120 billion, to fund military operations in Iraq and Afghanistan ($100 billion) and pay for hurricane recovery and agricultural disaster relief at home. This came just five months after Congress approved another $70 billion emergency request for the wars. By contrast, the average annual amount of emergency supplemental spending in the 1990s—a decade that saw interventions in Iraq, Somalia, Haiti, Bosnia, and Kosovo—was just $13.8 billion. … The costs of the war may be necessary and temporary, but they are by no means sudden or unforeseen. The war in Afghanistan started in October 2001, and the war in Iraq commenced in March 2003. Furthermore, the easy-to-predict salaries and benefits of Army National Guard personnel and reservists called to active duty amount to some of the largest expenditures in the supplemental bills.
One final note: Democrats such as Franklin Roosevelt and Harry Truman reduced domestic spending to help finance, at least in part, war spending. Bush unfortunately has chosen to increase domestic spending at the same time that the defense budget has grown.
Reviving Interservice Competition
I recently complained that the US defense budget fails to adhere to a strategy; that it avoids choice between means. This lack of choice is manifest in the preservation of service shares. Each military service has gotten about the same relative share of the defense budget each year under Bush, despite the war on terror. In fact, the shares have basically held since the Kennedy administration.
In recent decades, the Navy got about 26 percent of the defense budget; 31 percent including the Marines. The Air Force also got around 31 percent, and the Army 25 percent. The rest went to defense-wide programs like missile defense. Annual deviations are rarely ever above two percent. This year brings a slight uptick in the Army share; the numbers are 29 percent Navy and Marines, 28 percent Air Force, and 27 percent Army. Current budget shares deviate more from the historical norm if you include the supplemental war appropriations, which favor the ground forces. But the point of a supplemental is that it does not affect the future baseline.
In today’s Christian Science Monitor, Gordon Lubold writes that a Congressional “Roles and Missions” panel, formed under the auspices of the House Armed Services Committee, is set to release a report that questions this arrangement. That’s good news.
Congressman Jim Cooper (D-Tennessee), who chaired the panel, calls the continuity of service shares “a statistical indictment” of the Pentagon planning process. The current US national security strategy – as seen in official documents, rhetoric, and our two wars – is counter-terrorism via counter-insurgency. That is, counter-terrorism is our primary security task, and to accomplish it we aim to deny terrorists haven with wars of occupation meant to resurrect government in anarchic states like Iraq and Afghanistan. We have other objectives – contain rising powers, stem weapons proliferation, etc, but these are secondary.
This strategy favors the Army. Ground forces take center-stage in counter-insurgency and state-building, with contributing performances from aircraft and other government agencies. It follows that our defense budget would flood money into the Army and Marines and cut the Air Force and Navy’s budget to pay for it. Instead, we have given each service the same bump in funds – roughly 35% percent under Bush.
Filed under: Foreign Policy and National Security; Tax and Budget Policy
Even the Washington Times Says Bush Is Wrong about FISA
This is pretty cool. Not because it quotes me (although that’s pretty cool too), but because it’s the Washington Times, which is occasionally criticized for the right-ward slant of its news coverage, running an article that basically says that that President Bush and his allies in Congress are wrong about FISA:
Many intelligence scholars and analysts outside the government say that today’s expiration of certain temporary domestic wiretapping laws will have little effect on national security, despite warnings to the contrary by the White House and Capitol Hill Republican leaders.
Of course, this has been true all along. There wasn’t an emergency last August when Congress was stampeded into passing the Protect America Act. There wasn’t an emergency last month when the two-week extension got passed. And nothing catastrophic is happening now that the PAA is lapsing. But as long as the president said there was an emergency and the Democrats acted like there was an emergency, journalists weren’t going to say otherwise. When both “sides” of a dispute agree on some point, most journalists will simply accept that point as valid and don’t dig any deeper.
Now that House Democrats are willing to forthrightly state that the expiration of the PAA isn’t a big deal — and act like it’s not a big deal — journalists suddenly have to do their homework and find out who’s telling the truth. And once they do their research, it’s not hard to figure out who’s got the better argument.
Sometimes, good policy is good politics. I think this is one of those cases. If the House leadership capitulates to the president in the next few weeks, it will reinforce the impression that the president was right all along, and we really do need to sacrifice Americans’ privacy in order to fight terrorism. If, on the other hand, House Democrats refuse to enact legislation that undermines judicial oversight or the rule of law, it will cause journalists to write stories like this one, that dig deeper into the arguments of each side. Since in reality, the argument for eviscerating FISA is built on little more than distortions and alarmist rhetoric, that heightened scrutiny will only help those who believe in the rule of law.
Congress Ignores Fear-Mongering. World Doesn’t End
The Democratic leadership in the House has called the president’s bluff and stood up for the rule of law. Ryan Singel has the details:
The Protect America Act, a temporary but expansive warrantless spying bill passed by Congress last summer, will likely expire Saturday at midnight, a casualty of a battle between President Bush and House Democrats over amnesty for phone companies that aided his secret, warrantless spying program and how much of that program should be legalized. The House leadership announced there will be no more votes before the long President’s Day legislative break.
The bill’s expiration is largely symbolic, but demonstrates that House Democrats are willing to fight Bush on anti-terrorism policies, where fear-mongering rhetoric had previously cowed their opposition.
One of the most interesting things about the last 24 hours is the subtle shift in rhetoric. The New York Times wrote today that “The lapsing of the deadline would have little practical effect on intelligence gathering” — an accurate statement, but one that most people were missing a few days ago. Even conservative pundits such as David Freddoso started hedging their previously sweeping claims about the dire consequences of letting the PAA expire:
If the president does not sign the bill before Saturday, then we revert to the previous FISA law. The feds will be able to continue certain ongoing terrorist monitoring activities, but they cannot initiate new ones. (It becomes easier to start up a terror cell on Saturday.)
Freddoso is not insinuating, as his colleague did, that all surveillance everywhere in the world will grind to a halt after the PAA expires. But Freddoso’s version is still misleading. The Bush administration can initiate new terrorist monitoring activities after the PAA expires. It just has to get a FISA warrant, the same way it did in 2002, 2003, 2004, 2005, and 2006. Indeed, Bush himself praised the changes Congress made to FISA in the wake of the September 11 attacks, noting that they “will allow surveillance of all communications used by terrorists, including e-mails, the Internet, and cell phones” and makes the intelligences community “able to better meet the technological challenges posed by this proliferation of communications technology.” If we were able to get by with those provisions for nearly six years, surely we’ll be OK living under them again for a couple of weeks.
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