Policy Institutes

As I predicted 72 hours ago, the FY18 National Defense Authorization Act (NDAA) will not be a vehicle for reforming National Security Agency (NSA) surveillance authorities under Sec. 702 of the FISA Amendments Act (FAA). The twist is that while the House Rules Committee did disallow an amendment to prevent “back door” warrantless searches of the stored communications of Americans (the full NDAA amendment list is available here), the author of all three surveillance reform amendments to the bill, Rep. Ted Lieu (D-CA) withdrew the other two before a Rules Committee vote. Lieu’s office offered the author the following statement on the decision:

Mr. Lieu has always been a strong advocate for protecting our civil liberties and our privacy. He introduced these NDAA amendments (which have been offered previously by other Members) to prevent warrantless searches of Americans’ data under Section 702 of the Foreign Intelligence Surveillance Act. Warrantless searches are just one of many problems with the law, which is set to expire at the end of this year. The House Judiciary Committee is currently negotiating a package that reauthorizes the necessary foreign surveillance authorities while adding sweeping reforms to protect Americans’ civil liberties. We were asked to withdraw our amendments this week to allow those reform discussions to continue in good faith, and we obliged because we are optimistic about achieving our goals. The amendment decision in no way changes the fact that a broad, bipartisan coalition of Member’s will fight any attempt to reauthorize Section 702 without serious reform.

So where does that leave FAA reform prospects? That will depend in no small measure on how determined reformers are to push the House GOP leadership on the question. As I write these lines, House Judiciary Committee Chairman Bob Goodlatte (R-VA) and Ranking Member John Conyers (D-MI) are working on competing FAA bills; while I expect the Conyers bill to offer more sweeping reform proposals, Goodlatte will no doubt not allow the Conyers bill to get a vote in committee. All of this means that unless at least 5-6 GOP House Judiciary members make it clear to Goodlatte that any FAA Sec. 702 reform bill brought up in committee must be amendable, what passes out of that committee and goes to the House floor for a vote may be just as anemic a reform measure as the 2015 USA Freedom Act

What would real reform look like? In an ideal world, the FAA would simply sunset and become an historical footnote. If the American public was more politically engaged on this issue, that outcome would be within reach. Unfortunately, that’s not the case at the moment. It’s possible that further surveillance-related revelations in the “Russiagate” scandal might change that dynamic, but those pushing for real surveillance reform cannot rely on chance to achieve their aims. Pro-surveillance advocates are certainly leaving nothing to chance.

The Office of the Director of National Intelligence (ODNI) is pushing hard to maintain this surveillance authority, and if possible, see that it becomes permanent and remains unchanged otherwise. As I noted in The American Conservative earlier this year, there’s plenty of reason to question the veracity of the executive branch’s claims about the necessity and efficacy of Sec. 702 collection.

Accordingly, I’ll judge any Sec. 702 reform bill by the following criteria. First, does it ban the collection & retention of U.S. Person data unless said data is collected pursuant to an authorized investigation governed by a probable cause-based warrant? Does it require the verified destruction of non-investigation relevant U.S. Person data extant in Intelligence Community IT systems? Does it require mandatory compliance audits by (preferably) the Government Accountability Office or (2nd choice) the Intelligence Community Inspector General? Does it ban so-called “about” collection, as suggested by Rep. Tulsi Gabbard (D-HI)? Does it mandate efficacy and cost audits?

If the bill that comes out of the House Judiciary Committee does not do all of these things (and ideally several more), then it’s just another edition of the old Capitol Hill “Let’s-Not-But-Say-We-Did” legislative shell game.

Olivia Enos, David Inserra, and Joshua Meservey of the Heritage Foundation published an interesting Backgrounder last week about the U.S. refugee program. We agree with many, though not all, of its conclusions and think that it serves as a wonderful example of policy experts grappling with a difficult policy question in a nuanced and thoughtful way – two characteristics often lacking in Washington, D.C.

However, the Backgrounder’s claim that 61 refugees were convicted of Islamist “terrorism-related” offenses since 2002 has earned a lot of attention from the media. David Inserra was kind enough to send us a complete list of the refugee terrorists he and his colleagues counted. Here are the facts about these 61 people:

  • None of these refugees killed anyone in a terrorist attack on U.S.-soil.
  • Only five (8 percent) were refugees who attempted or planned an attack on U.S. soil. The other 56 (92 percent) of the list were either not refugees or not terrorists targeting U.S. soil.
  • At most 50 were actual refugees who may have committed terrorism offenses, out of the 2.1 million refugees admitted since 1989, which is the earliest year that anybody on the list entered as a refugee. At least eleven (18 percent) of the refugee terrorists reported by Heritage were either not actually refugees or not convicted of terrorism offenses.
  • Only five (8 percent) entered as refugees since 2008.
  • Only five (8 percent) were likely refugee security vetting failures who entered as adults or older teenagers and committed an offense soon after entering.
  • The 50 refugees represent just five of the 124 nationalities of refugees admitted since 2002 (4 percent). Three-quarters of the refugees who committed a terrorism offense came from a single nation.

The security threat from refugees is minuscule, concentrated among a few Somalis, and has little to do with vetting.

The Non-Refugees and Non-Terrorists

The Backgrounder’s use of terrorism-related offenses is problematic as it is not synonymous with actual direct or indirect support of terrorism. There is no definition of a terrorism-related offense in U.S. statutes but there is a broad working GAO definition: that it relates to “terrorism, homeland security, and law enforcement, as well as other information.” As far as we can tell, the term terrorism-related is used to describe a conviction for any offense that results from a terrorism investigation – even if it is for crimes that bear no relation to terrorism such as buying stolen cereal. David Inserra told us that “Our [Heritage’s] inclusion criteria wasn’t based on convictions for terrorism offenses because people could be involved in that sort of activity and not ever be convicted. We were trying to find the happy medium between overly-restrictive and too loose definitions.” Thus, we are working with different definitions and the reader should keep that in mind. 

Six individuals on the Heritage list were not convicted of terrorism offenses. The government dismissed its complaint against Al-Hazmah Mohammed Jawad. Aws Mohammed Younis Al-Jayab and Ali Mohammed Al Mosaleh were charged with making false statements. Abdi Mahdi Hussein was convicted of failure to follow financial reporting requirements and was “not charged with any terrorism offense and was not alleged to have knowingly been involved in terrorism activities,” according to the FBI. Yusra Ismail was charged with stealing a U.S. passport—not terrorism—and Saynab Hussein was convicted of perjury.

At least five individuals on the Heritage list did not enter under the U.S. refugee program. One of Heritage’s errors is due to an error that Alex Nowrasteh made in his 2016 Policy Analysis (corrections will be made in future editions) that listed Nuradin Abdi as a refugee instead of an asylum recipient. Nima Ali Yusuf was also an asylum recipient. Harlem Suarez was a Cuban national would have received asylum by virtue of the Cuban Adjustment Act, not through the refugee program. Mahmoud Elhassan was a Sudanese immigrant whose mother sponsored him for a green card. Jasminka Ramic was a Bosnian immigrant who “immigrated to the United States as a legal permanent resident.” There may be others who should not be included in Heritage’s list as well as unknown individuals who should be counted.

This means that only 50 of the 61 people on the Heritage list were refugees who may have committed actual terrorism offenses. At the time of the publication of the Heritage Background, charges against 12 of the 50 remaining refugees were still pending. As Al-Hazmah Mohammed Jawad’s case shows, we cannot assume guilt based on the charges alone. But for the purpose of this post, we will assume these 12 cases will all end in convictions for terrorism offenses.

Few Refugees Plan Attacks on U.S. Soil—and Even Fewer Succeed

The text of President Trump’s original executive order cutting the refugee program justified itself as an attempt to “protect the American people from terrorist attacks by foreign nationals admitted to the United States.” It is remarkable, then, how few of these refugees actually planned or committed an attack on U.S. soil.  As Heritage writes, “Five refugees successfully committed a terrorist attack inside the U.S., two of which occurred after the U.S. reformed the program post-9/11.”  Three of the five refugees planned to commit an attack but were unable to follow through. Mohamed Osman Mohamud was caught in an FBI sting where he attempted to detonate a fake bomb. Similarly, Fazliddin Kurbanov’s bomb-making activities were “closely monitored by federal agents during the investigation and no terrorist attack occurred,” the Justice Department stated. Hysen Sherifi plotted to attack a military base but the FBI broke up his ring before they could do any damage. Abdul Artan and Dahir Adan were two refugee terrorists who actually committed their attacks but fortunately, they failed to get anybody killed other than themselves.

No refugee terrorist has killed a single person in a terrorist attack on U.S. soil since 1976—four years before the creation of the modern U.S. refugee program in 1980. From 1975 through the end of 2015, the annual chance of being murdered on U.S. soil in a terrorist attack committed by a refugee was an astronomical 1 in 3.64 billion per year.

Vetting Failures are Very Uncommon in the Refugee Program

The Heritage Backgrounder’s findings show just how uncommon vetting failures actually are. Heritage notes that the cases are mostly concentrated among “refugees who were resettled at a young age—often known as the ‘1.5 generation’—or the children of resettled refugees, who radicalize and then commit terrorist offenses.” That indicates that there is an assimilation problem for some refugees and not a vetting problem from the refugee program as a whole. We have entry dates for 47 of the 50 refugees, and 29 of them (62 percent) were juveniles at the time of their entry to the United States.

Additionally, many of the adult refugee terrorists were most likely not vetting failures who came intending to commit terrorism in the United States. We can’t read anyone’s mind, but the fact that the vast majority appeared to have shown no interest in an offense long after their arrival is probably about the best evidence we could get. Of the refugees for whom we have entry dates, 78 percent of them lived in the country for more than seven years before they committed an offense. Sixty-one percent lived here for more than a decade.

The seven-year point seemed particularly significant because the longest period between the entry of a refugee and his offense in a confirmed refugee vetting failure case—in which the government had evidence of radicalization prior to entry—was six years (Abdinassir Mohamud Ibrahim). If we assume that all offenders who entered as adults or older teenagers and committed their offense before their 7th year in the United States are vetting failures—regardless of whether there is evidence of that—we can get a rough estimate of the number of vetting failures.

By this measure, it appears likely that just five on the Heritage list were vetting failures: Abdinassir Mohamud Ibrahim lied about his clan membership on his refugee application; Waad Ramadan Alwan and Mohanad Shareef Hammadi fought with insurgents in Iraq; Fazliddin Kurbanov plotted an attack just four years after entering as an adult; and Abdul Razak Ali Artan committed an attack just two years after entry. Only Kurbanov and Artan intended to carry out an attack on U.S. soil, out of the approximately 2.1 million refugees who have entered the United States since 1989.

Nationalities of Refugee Terrorists

Since 2002, the United States has resettled refugees from 124 nations. Yet only five nationalities are represented on the Heritage list: Somalia (37), Bosnia (7), Iraq (2), Uzbekistan (2), and Kosovo (1). However, President Donald Trump’s executive order shuts down refugee resettlement for all countries. Notably, Syrian refugees are absent from this list entirely, despite Donald Trump’s overwrought rhetoric on the subject—as are five of the six nationalities targeted by the order: Libya, Yemen, Sudan, Syria, and Iran. Somalia is the only country that has sent refugee terrorism offenders to the United States and that is specifically listed on President Trump’s executive order.  

Somalis constitute only about 10 percent of the refugee program. Even Somali refugees have not proved dangerous to Americans. Almost all of the Somali terrorism offenders raised money for or went to join terrorist organizations abroad. Two did commit terrorist attacks in the United States but fortunately failed to kill anyone. Nobody from Somalia has killed anybody on U.S. soil in an act of terrorism for as far back as we have data.

Conclusion

The Heritage Backgrounder makes a valuable and interesting contribution to the debate over the future of the American refugee program. As a side effect, it shows just how small and manageable the refugee terrorist threat is.

Signaling its intent to proceed with business as usual, despite ongoing controversy over its leadership and structure, the Consumer Financial Protection Bureau (CFPB) recently finalized a rule restricting the ability of financial services companies to use arbitration clauses in their contracts. 

An arbitration clause requires the parties to the contract to take any dispute to arbitration, a privately operated hearing procedure that typically has a legally binding effect. Arbitration is often attractive because it can be quicker and less expensive than a case brought in court. It also typically means that the plaintiff cannot join together with other plaintiffs to bring a class action suit. This is the crux of the issue. 

Supporters of the new rule claim that these clauses, buried in fine print and ubiquitous in almost all parts of American legal life, allow banks and credit card companies to get away with abuses that would otherwise be checked by class action litigation. An unlawful practice that costs every customer $5 is almost assuredly not worth the cost or hassle of going to court over. However, bring together a class of one million customers (most of whom will never realize they’re part of the class at all), and there’s real money at stake. Enough money to entice a lawyer to litigate and, let’s be honest, control the entire process for a chance at the typical fee of 33 percent of whatever is recovered. 

Is this true? Were companies able to get away with practices that netted them cash while harming consumers because the harms were so diffuse? Maybe.  Probably. Without speculating about what kinds of practices companies may have engaged in or how wide-spread any were (I have no intention of impugning an entire industry, but every industry has its bad eggs), to the extent litigation was required to check any particular misconduct, if the harm per customer was marginal, it is unlikely anyone would bother with litigation. 

But that does not necessarily argue in favor of this rule. The rule will likely increase litigation costs for some companies. That’s kind of the point, right? To force the companies into court instead of using the often cheaper option of arbitration? Those costs will likely be passed along to customers in the form of higher fees. Before the CFPB’s rule, nothing prevented companies from drafting contracts without arbitration clauses. (Also, to be clear, before the rule nothing prevented a company and a customer from deciding together that they preferred to go to court. It’s just that if the contract had an arbitration clause, no one party could decide unilaterally to take the issue to court.) 

If customers were really upset about arbitration, it seems they would have presented a terrific market for a company that would offer them contracts free of arbitration clauses. The trade-off would likely have been slightly higher fees for their products to off-set the costs. That is, effectively the trade-off the new rule presents: no arbitration clause, but higher costs. To my knowledge, no one offered this trade-off. Given the competitiveness of the market, it seems that if there were customers willing to pay for a product, banks and credit card companies would have offered it. The fact that no one did suggests to me that arbitration clauses are not that important to consumers. Not important enough, at least, to justify higher costs. This makes the rule a bit strange. It forces on consumers an option they never chose, all in the name of protecting their best interests.   

Last week, when discussing the Trump administration’s secret memo requiring “enforcement action” against “all removable aliens” who immigration agents encounter, I pointed out that every year since 2008, the House Appropriations Committee has included a provision in its version of the Department of Homeland Security (DHS) funding bill that requires the department to “prioritize the identification and removal of aliens convicted of a crime by the severity of that crime.”

I also noted that this provision was strangely left out of the “omnibus” funding bill enacted into law this May, which packaged funding for all departments in a single bill. But I chalked that up to an oversight due to the irregular process of putting together the large bill and predicted that the provision would reappear in the individual appropriations bill for 2018. I was wrong. The new House appropriations bill for DHS contains no requirement for prioritization. Now the Trump administration’s illogical non-prioritization policies will receive the tacit consent of the committee.

Remember that this provision has been included no matter which party controlled the House for almost a decade—really for as long as DHS has carried out major deportation operations. The first bill to contain this language was 2008 to fund the department for 2009 written by House Democrats and signed by President Bush. Here’s 2010 written by House Democrats and signed by President Obama. In 2011, House Republicans funded the government with a serious continuing resolutions—which essentially maintain the earlier funding bills’ status quo.

In 2012, 2013, 2014, however, Republicans wrote the bills and President Obama signed them with the requirement to prioritize criminal aliens based on the severity of their crime. Then in March 2015, the House of Representatives entered a bitter fight to stop President Obama’s proposed program to give work permits to certain non-criminal unauthorized immigrants who were parents of U.S. children (DAPA). In so doing, it nearly shut down the department. Yet the Republican funding bill for 2015 still included explicit language requiring prioritization. It did again in 2016.

Republicans wrote and passed all of these bills. Then in May 2017, after relying on continuing resolutions through part of the year, they enacted the 2017 omnibus appropriations bill—the big package I referenced at the beginning—which dropped this language. They did this despite the fact that the 2017 House standalone committee bill for DHS still had the restriction, which is why I figured it must have been an oversight. Sadly, it was not. The new House committee DHS funding bill drops the language, freeing the Trump administration from even the appearance of a conflict with Congress over its new policies.

President Trump’s executive order laying out his priorities for immigration enforcement explicitly prioritizes those who were never convicted of a crime. This would have directly contradicted the congressional mandate, so the committee staff appears to have just quietly removed it.

To be clear, this is not just a bad move because it will result in peaceful people being deported from the country that is their home, but because it will result in serious criminals not being deported. Every moment that DHS wastes on workers and families is a moment that it is not focused on criminals. That will not make us safer. The only reason that anyone would think that it would is if they think that unauthorized immigrants are more prone to commit serious crimes against Americans than the U.S.-born—a belief that is demonstrably false.

Hopefully, members of the House who still believe in prioritization offer amendments to correct this mistake.

Federal government spending is rising, deficits are chronic, and debt is reaching dangerous levels. Growing spending and debt are undermining the economy and may push the nation into a crisis. The solution is cutting and eliminating programs in every federal department.

I have posted a new plan at DownsizingGovernment.org that would reduce spending by almost one-quarter and balance the budget within a decade. The cuts compliment the ones proposed by President Trump in his 2018 budget.

Federal spending cuts would spur economic growth by shifting resources from lower-valued government activities to higher-valued private ones. Indeed, much federal spending is not just low value, it actively distorts markets and thus reduces overall income levels.

Cuts would expand personal freedom by giving people more control over their lives and by reducing the top-down controls that come with federal spending activities.

Liberals see government spending cuts as evil, while conservatives may see them as a necessary evil. Actually, spending cuts would positively benefit society.

From the full list of proposed cuts, these are my favorites: 

  • End farm subsidies and rural subsidies.
  • End K-12 school subsidies.
  • End HUD, including rental and public housing subsidies.
  • End urban transit subsidies.
  • End the ACA.
  • Reduce Social Security growth by indexing initial benefits to prices.
  • Raise Medicare cost sharing to increase skin in the game.
  • Block grant Medicaid to encourage states to find savings.
  • Privatize TVA, the PMAs, USPS, Amtrak, and air traffic control.

 See the full plan here.

  

Last month, the Department of Homeland Security (DHS) released a privacy impact assessment for its Traveler Verification Service (TVS), a program designed to develop and expand DHS’s biometric entry-exit system for international flights. The document sends a clear message to passengers: if you don’t want your biometric information to be collected, don’t travel.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 required an automated screening system for foreign nationals leaving and entering the United States. Since 1996 a range of legislation has called for the implementation of a biometric entry-exit system, although such a system has yet to be fully implemented. In March, President Trump signed Executive Order 13780, which called upon DHS to “expedite the completion and implementation of a biometric entry-exit tracking system for in-scope travelers to the United States.”

According to the DHS privacy assessment, TVS is growing:

[Customs and Border Protection] is publishing this updated [privacy impact assessment] because the recently initiated TVS is expanding to allow commercial air carriers and select airport authorities (“partners”) to provide their own facial recognition cameras and capture the images of travelers consistent with their own business processes and requirements (for example, to use facial images instead of paper boarding passes).

More from the assessment:

These partners will capture the traveler images consistent with their business purposes, and then transmit the photos they capture to CBP through a connection with CBP’s cloud-based TVS. CBP does not capture the photos directly from the traveler under this TVS expansion.

There are already pilot face scanning schemes in place at airports in six American cities; Boston, Chicago, Houston, Atlanta, New York City, and Washington, D.C. These pilot programs allow passengers and pilots to opt out. The DHS assessment explains that while you may be able to opt out of TVS scanning, government collection of your biometrics is unavoidable if you want to travel (highlighting is mine):

The assessment goes on to explain that passengers will be able to opt out of biometric identification under TVS. However, unless this opt-out option is clearly advertised to travelers it’s likely that most travelers will use a ubiquitous facial scanning system at airports.

Anyone who travels from American airports is familiar with the body scanners the Transportation Security Administration (TSA) uses for security. You can opt out of these scanners, but it’s very rare to see travelers telling TSA officials that they’re not going through the machines. When I opt out of these scanners I’m almost always the only one doing so. That is, unless I’m traveling with some Cato colleagues.

Sadly, millions of Americans consider passing through a body scanner to be an ordinary part of air travel. It would be a shame if facial scans became as widely accepted.

ObamaCare’s community-rating regulations generally bar insurance companies from using any factor other than age to determine premiums, and prevent insurers from charging 64-year-olds more than three times what they charge 18-year-olds. I have long maintained community rating is nothing more than a system of government price controls, and should meet with the usual scorn economists universally heap on such boneheaded policies.

An esteemed colleague challenges my claim that ObamaCare’s community-rating is a system of price controls, because “the government doesn’t set a price.” Here is how I responded:

Price controls don’t always take the form of a fixed integer. Sometimes government sets prices using ratios.

Premium caps control prices by limiting this year’s premium to a ratio of last year’s premium. Medicaid’s prescription-drug price controls set prices as a ratio of the average wholesale price. Medicare’s price controls involve all sorts of complex ratios.

ObamaCare’s community-rating regulations control prices by (a) setting the ratio of premiums for healthy vs. sick people within each age category to 1:1, and (b) setting the ratio of premiums for young vs. old to 1:3. Insurers would not voluntarily follow those ratios, with good reason. But community rating forces insurers to set prices according to those ratios. Thus it is a price-control scheme.

Yesterday the Missile Defense Agency (MDA) announced a successful test of the Terminal High Altitude Area Defense (THAAD) missile defense system against an intermediate-range ballistic missile (IRBM) target. This is a significant milestone for the THAAD system, which was recently deployed to South Korea to defend southern cities and the port of Busan against missile attack by North Korea. Even though this particular test was planned months ago, its timing is especially important given North Korea’s successful test of the Hwasong-12 IRBM in May 2017.

Despite the successful test, it would be dangerous and premature for U.S. policymakers to read too much into THAAD’s capabilities. Initial information about the test suggests that it did not reflect a wartime use of an IRBM by North Korea. Moreover, the test could have negative implications for U.S.-China strategic stability.

Based on the statement released by the MDA and video of the test, the test seems to have been relatively easy for THAAD. For example, at the moment the warhead is intercepted it does not seem close to any other objects. This makes it relatively easy for THAAD’s infrared sensor to locate the warhead and slam into it. However, it would be much harder for the sensor to locate the warhead if the target missile broke up in flight and cluttered the sensor. It is not clear whether the target missile used in the most recent test broke up in flight, but based on past tests it seems unlikely. This makes for successful testing, but it does not reflect real-world scenarios.

An additional departure from real-world conditions is the apparent lack of countermeasures on the target missile. Countermeasures such as decoy warheads or chaff make it harder for THAAD to find the warhead. These devices do not have to be incredibly advanced or expensive to be effective. It is safe to assume that North Korea has some rudimentary countermeasures on its missiles, and it will likely develop more sophisticated countermeasures in the near future. A recent test of the Ground-based Midcourse Defense system did feature countermeasures, but the MDA has not said if countermeasures were part of the recent THAAD test. So long as missile defense tests are relatively controlled and sanitized they cannot reveal much information about how the systems would perform in a combat scenario.

At the strategic level, this successful intercept test of an IRBM target will exacerbate Chinese concerns about THAAD. China’s opposition to THAAD deployment in South Korea and the effect of missile defense systems on U.S.-China strategic stability are well documented. Missile defense advocates insist that THAAD does not threaten China’s strategic nuclear deterrent because the system is meant to respond to shorter-range missiles that don’t threaten the American homeland. U.S. officials also insist that there is a difference between regional missile defense systems like THAAD and homeland missile defense systems.

THAAD’s ability to successfully engage IRBMs could blur the distinction between regional and homeland missile defense and bolster arguments by Chinese observers that such a distinction does not really exist. Is a missile defense system truly “regional” if it can defend U.S. territory like Guam, Alaska, or Hawaii from nuclear attack? This may be a bridge too far in terms of what THAAD is capable of doing from a technical perspective, but Chinese perceptions of missile defense effectiveness, correct or incorrect, will shape the development of their nuclear forces.

Discussions of military intervention often focus on the U.S. invasion of Iraq. This is entirely understandable: the war in Iraq was a catastrophic foreign policy choice that is still reshaping the political landscape of the Middle East today.

Yet the Iraq war is unusual in many ways. There was no existing civil war or humanitarian crisis, a factor which has driven many of America’s other post-Cold War interventions in Bosnia, Somalia, Kosovo and Libya. The United States also undertook the invasion of Iraq largely alone and against the wishes of other countries; unable to gain support from the majority of its NATO allies, the Iraq invasion relied on the so-called “coalition of the willing,” a small ad-hoc group of countries persuaded by the Bush administration.

In my newly published article in the Canadian Foreign Policy Journal, I attempt to move past the Iraq War case to examine the broader range of U.S. military interventions. I look at the two recent civil war cases where intervention was possible – Syria and Libya during the Arab spring – to explore the role played by allies and security partners in decision-making about whether to intervene.  

Logic suggests that smaller states do have a strong incentive to seek the help of a major power ally like the United States for their interventions. As I note in the article:

“Put more simply, small states can benefit substantially from the intervention of a major power ally, particularly if they lack the capacity or manpower to carry out an effective campaign alone. African Union peacekeeping forces, for example, typically lack military assets required for their missions; training, logistical support and equipment are often provided by the United States to overcome this deficiency (Williams 2011)…. pressure from allies to join an intervention is likely to be highest when A is larger (i.e., relatively more capable in military terms) than B, and has the potential to tip the balance toward B’s intervention objectives.”

This logic bears a strong resemblence to the concept of entrapment, which has been studied before, but primarily in the context of alliances and interstate wars. In contrast, this article explores how smaller states can seek to entangle bigger ones in their civil war interventions, using techniques like lobbying, media manipulation and even altering the conflict’s strategic balance. In Libya, for example, British and French policymakers successfully swayed the skeptical Obama administration towards intervention through the use of an aggressive media and diplomatic campaign. In contrast, in Syria, Saudi and Turkish officials used many of the same tactics, but were largely unsuccessful in obtaining a U.S. intervention in that conflict.

“In the aftermath of the 2003 Iraq war, British ambassador to the United States Christopher Meyer bemoaned the use of alliance ties to justify the British choice to join the coalition, noting that “there comes a point where if you hug too close, it becomes an end in itself” (quoted in Davidson 2011, p. 135). As Meyer – and many scholars – have noted, alliances can help to entrap states in unwanted conflicts.”

As this article illustrates, it’s important to understand where the pressures for U.S. intervention come from. Sometimes – as in the case of Iraq – that pressure is largely home-grown. Yet in other cases, pressure can come from allies and security partners, as those states which have a stronger interest in the conflict try to convince the United States to join them in intervening. Before joining an intervention, therefore, U.S. policymakers would be well-served to consider whether an intervention is in American interests, or merely in the interests of other states.

You can check out the whole paper, with more examples and detail, here.

That’s the thesis of a Washington Post opinion piece titled, “Why replacing Obamacare is so hard: It’s fundamentally conservative” by Northwestern University professor Craig Garthwaite. A lot of ObamaCare supporters find this claim appealing. If true, then it makes them look moderate and open to compromise, and makes ObamaCare’s conservative opponents look duplicitous and partisan. But is it true?

No. Not by a long shot.

I’m not a conservative. (I was, once, in my youth, but I’m feeling much better now.) So I will let the editors of National Review explain what a conservative approach to health reform is, as they did in this unsigned 2007 editorial. Spoiler alert: it’s a far cry from ObamaCare.

Against Universal Coverage

By The Editors — June 21, 2007

The Democrats running for president are competing over whose health-care plan gets closest to “universal coverage.” The Republican presidential candidates, meanwhile, have been mostly silent. Their inattention to the issue is a mistake. A great many voters are anxious about health care, and better government policies could alleviate that anxiety. The Republican candidates have an opportunity to present a distinctively conservative set of reforms.

Those reforms should begin with the rejection of the goal of universal coverage. Deregulating health insurance would make it more affordable, and thus increase the number of Americans with coverage. But to achieve universal coverage would require either having the government provide it to everyone or forcing everyone to buy it. The first option, national health insurance in some form or other, would either bust the budget or cripple medical innovation, and possibly have both effects. Mandatory health insurance, meanwhile, would entail a governmental definition of a minimum package of benefits that insurance has to cover. Over time, that minimum package would grow more and more expensive as provider groups lobbied the government to include their services in the mandate.

The health-care debate has centered on the uninsured. That so many people do not have health insurance is a consequence of foolish government policies: regulations that raise the price of insurance, and a tax code that ensures that most people get their insurance through their employer. If you don’t work for a company that provides health insurance, you’re out of luck. People locked out of the insurance system still have access to health care. But they often end up in emergency rooms because they did not receive preventive care.

For most people, however, it is another aspect of our employer-based health-care system that causes the most trouble: the insecurity it creates. People worry that if they switch jobs, they will lose their health insurance. They worry that their company will cut back on health benefits. Universal coverage is not necessary to address these worries. Making it possible for individuals to own their health-insurance policies themselves, rather than getting them through their companies, would solve the problem. It would also reduce the political momentum behind socialized medicine.

Most universal-coverage plans accept the least rational features of our health-care system — its reliance on employer-based coverage and on “insurance” that covers routine expenses — and merely try to expand that system to cover more people. Republicans should go in a different direction, proposing market reforms that make insurance more affordable and portable. If such reforms are implemented, more people will have insurance.

Some people, especially young and healthy people, may choose not to buy health insurance even when it is cheaper. Contrary to popular belief, such people do not cause everyone else to pay much higher premiums. Forcing them to get insurance would, on the other hand, lead to a worse health-care system for everyone because it would necessitate so much more government intervention. So what should the government do about the holdouts? Leave them alone. It’s a free country.

As part of the 100 Day Action Plan on economic issues that the U.S. and China negotiated back in May, there was agreement by both sides to liberalize trade in a few areas.  It was a relatively minor set of issues, but nonetheless there was some real progress.  The Trump administration likes to tout exports, not imports, so in their remarks about the agreement, they tended to focus on areas of interest to U.S. exporters.  To provide some balance, I’m going to take it upon myself to tell everyone about some import liberalization the U.S. carried out as part of this agreement.  

In the agreement, the U.S. said it would start to allow imports of certain Chinese chicken products:

The United States and China are to resolve outstanding issues for the import of China origin cooked poultry to the United States as soon as possible, and after reaching consensus, the United States is to publish a proposed rule by July 16, 2017, at the latest, with the United States realizing China poultry exports as soon as possible.

This past week-end, a Washington Post story indicated that these imports are now underway:

The first known shipment of cooked chicken from China reached the United States last week, following a much-touted trade deal between the Trump administration and the Chinese government.

The Post article has a lot of fearmongering in it.  The online title is “The dark side of Trump’s much-hyped China trade deal: It could literally make you sick.”  And the article says, “consumer groups and former food-safety officials are warning that the chicken could pose a public health risk, arguing that China has made only minor progress in overhauling a food safety regime that produced melamine-laced infant formula and deadly dog biscuits.”

But before anyone panics, there is also this from the article:

Because cooking kills bacteria and viruses, including the one that causes bird flu, processed poultry is considered “tremendously safer” than raw chicken, said Richard Raymond, who served as undersecretary of agriculture for food safety from 2005 to 2008.

Anyway, the Chinese exporters will have a pretty big incentive to ensure the safety of the products:  If there are health and safety problems, consumers won’t buy them (and the U.S. government might restore the ban). 

It remains to be seen what is coming from the Trump administration on trade policy more generally.  But it’s nice to see a bit of import liberalization, especially given the protectionist rhetoric we keep hearing.

Back in April, I shared a new video from the Center for Freedom and Prosperity that explained how poor nations can become rich nations by following the recipe of small government and free markets.

Now CF&P has released another video. Narrated by Yamila Feccia from Argentina, it succinctly explains - using both theory and evidence - why spending caps are the most prudent and effective way of achieving good fiscal results.

Ms. Feccia covers all the important issues, but here are five points that are worth emphasizing.

  1. Demographics - Almost all developed nations have major long-run fiscal problems because welfare states will implode because of aging populations and falling birthrates (Ponzi schemes need an ever-growing number of new people to stay afloat).
  2. Golden Rule - If government spending grows slower than the private sector, that reduces the relative burden of government spending (the underlying disease) and also reduces red ink (the symptom of the underlying disease).
  3. Success Stories - Simply stated, spending caps work. She lists the nations that have achieved very good results with multi-year periods of spending restraint. She points out that the U.S. made a lot of fiscal progress when GOPers aggressively fought Obama. And she shares the details about the very successful constitutional spending caps in Hong Kong and Switzerland.
  4. Better than Balanced Budget Amendments or Anti-Deficit Rules - The video explains why policies that try to target red ink are not very effective, mostly because tax revenues are very volatile.
  5. Even International Bureaucracies Agree - Remarkably, the International Monetary Fund (twice!), the European Central Bank, and the Organization for Economic Cooperation and Development (twice!) have acknowledged that spending caps are the most, if not only, effective fiscal rule.

I touch on some of these issues in one of my chapters in the Cato Handbook for Policymakers. The entire chapter is worth reading, in my humble opinion, but I want to share an excerpt echoing Point #4 that I just shared from Ms. Feccia’s video.

There’s a very practical reason to focus on capping long-run spending rather than trying to balance the budget every year. Simply stated, the “business cycle” makes the latter very difficult. …when a recession occurs and revenues drop, a balanced-budget mandate requires politicians to make dramatic changes at a time when they are especially reluctant to either raise taxes or impose spending restraint. Then, when the economy is enjoying strong growth and producing lots of tax revenue, a balanced-budget requirement doesn’t impose much restraint on spending. All of which creates an unfortunate cycle. Politicians spend a lot of money during the good years, creating expectations of more and more money for various interest groups. When a recession occurs, the politicians suddenly have to slam on the brakes. But even if they actually cut spending, it is rarely reduced to the level it was when the economy began its upswing. Moreover, politicians often raise taxes as part of these efforts to comply with anti-deficit rules. When the recession ends and revenues begin to rise again, the process starts over—this time from a higher base of spending and with a bigger tax burden. Over the long run, these cycles create a ratchet effect, with the burden of government spending always reaching new plateaus.

It’s not that I want to belabor this point, but the bottom line is that it is very difficult to amend a country’s constitution (at least in the United States, but presumably in other nations as well).

So if there’s going to be a major campaign to put a fiscal rule in a constitution, then I think it should be one that actually achieves the goal. And whether people want to address the economically important goal of spending restraint or the symbolically important goal of fiscal balance, what should matter is that a spending cap is the effective way of getting there.

The Department of Housing and Urban Development (HUD) will spend $10 billion this year on “community development,” including Community Development Block Grants (CDBGs). The grants to state and local governments are for such things as repairing streets and subsidizing neighborhood businesses. There is no constitutional or practical reason why the federal government should be involved in such local activities.

Furthermore, a new city-by-city analysis by Politico shows that CDBG spending is disbursed with little regard to actual “need” or “fairness.” 

San Francisco will get $19-a-person in community development block grants this year, while Allentown, with twice the poverty and less than half of the median income, will draw a per-capita allotment of $17.53….Community development block grants rely on outdated, 1970s formulas that have increasingly shuttled dollars to wealthy places like Newton, Mass., while other locales in need, such as Compton, Calif., go wanting.

Tad DeHaven found similar problems with the program. He noted, “CDBG spending has gradually shifted from poorer to wealthier communities over time…It should not be the role of the federal government to redistribute income between regions, but even if it was, the CDBG program is not very good at it.”

President Donald Trump’s 2018 budget proposes to eliminate the CDBG program, saying “the program is not well-targeted to the poorest populations and has not demonstrated results.” Good for the president.

There is no sound reason for the federal government to fund the CDBG program or hundreds of other local subsidy programs. As I discuss here, these programs generate bureaucratic waste, undermine political accountability, and stifle policy innovation in the states. 

The federal aid system generates no net value—it is simply a roundabout way of funding local activities. Taxpayers in San Francisco mail checks to the IRS to fund the CDBG program. Their money flows through the HUD bureaucracy, and then is dished out to bureaucracies in Harrisburg and Allentown, with some trickling down to local residents and businesses. Meanwhile, taxpayers in Allentown are also mailing checks to the IRS to fund the CDBG program. Their money flows through the HUD bureaucracy, and then is dished out to bureaucracies in Sacramento and San Francisco, with some trickling down to local residents and businesses.

What is the point of that?

There is none—other than to empower the well-paid political and bureaucratic elites in all three levels of government, and in the derivative lobby groups. The federal aid system thrives not because it benefits the American people, but because it benefits governments and lobbyists.

For more information, see herehere, and here.

Illinois law mandates that non-union public-sector workers like Mark Janus pay money for union collective-bargaining activities that they do not support. Collective bargaining in the public-sector often involves advocacy of quintessentially political questions, such as the amount of public worker wages, pensions, and other benefits that will be paid for with the public’s tax money. Thus, these government-compelled exactions—“agency fees”—give these workers a Hobson’s choice: Either sacrifice your First Amendment rights and fund political advocacy you may not like, or find other employment.

The Supreme Court upheld the constitutionality of these fees in Abood v. Detroit Board of Education (1977), but has since questioned Abood’s reasoning in Knox v. SEIU (2012) and Harris v. Quinn (2014). Two terms ago, the Court in Friedrichs v. California Teachers Association (2016) seemed primed to overrule Abood, but the untimely passing of Justice Antonin Scalia left the Court to split 4-4 on the question. This case deals with the same question that was presented in Friedrichs: Should Abood be overruled and public-sector agency-fee arrangements be declared unconstitutional? Following the Abood precedent, a federal district court understandably dismissed Janus’s case, which ruling the U.S. Court of Appeals for the Seventh Circuit quickly upheld. Cato and the National Federation of Independent Business Small Business Legal Center are now supporting Janus in petitioning the Supreme Court to reconsider Abood once again. We focus on the embedded issue of whether stare decisis—a doctrine that argues for generally letting precedent lie even if wrong—should prevent the Court from overruling Abood.

Stare decisis is a prudential policy designed to promote predictable and consistent legal principles, not a mandatory edict to blindly follow past decisions. This is especially true in cases involving constitutional rights. Indeed, the Supreme Court has repeatedly held that stare decisis is at its lowest ebb when constitutional rights are at stake, because it is exceptionally difficult—if not impossible—to correct constitutional cases. Moreover, judges can get the law wrong. And when past judges or courts get the law wrong, current judges and courts have a duty to correct misapplications of the law. This is what happened in Abood. The Supreme Court has made clear in subsequent cases that when government majorities compel people to subsidize speech with which they disagree, those laws are subject to the highest form of judicial scrutiny—which the rationales put forth in Abood cannot overcome. Furthermore, Abood doesn’t even meet the traditional justifications for applying stare decisis. These factors—including whether reliance interest have built up around the decision, and whether the decision has become unworkable—favor overruling Abood. No one relies on having their First Amendment rights abridged and it is nearly impossible to draw a line between what’s political and what’s not in public-sector collective bargaining. Abood has caused serious infringement of people’s core constitutional rights for over 40 years. In that time, millions of public workers have had millions of dollars taken from them to further causes that they don’t support.

The Supreme Court should take this case and reaffirm that the First Amendment protects against compelled speech and association of this kind.

I receive lots of daily health-policy newsletters. This morning, one of them exhibited an all-too-common misunderstanding and bias about how health-insurance markets work.

The setting is the “Consumer Freedom Amendment” Sen. Ted Cruz (R-TX) has offered to the Senate GOP’s bill to rewrite ObamaCare. Contrary to what the Republican Party has pledged for seven yearsa pledge that presidential candidate Donald Trump even put in writingthe Senate bill would not repeal the health-insurance regulations that are behind ObamaCare’s rising premiums, race-to-the-bottom coverage, and collapsing insurance markets. The Cruz amendment would keep those regulations on the books, but allow consumers to purchase insurance that does not include all of ObamaCare’s hidden taxes and coverage mandates. In effect, it would separate the market. Currently healthy enrollees would opt for the lower-cost “Freedom Option” coverage, which would stay with them once the developed expensive illnesses. Currently sick enrollees would opt for ObamaCare-compliant plans. Premiums for ObamaCare-compliant plans would rise even more than they already have, essentially turning ObamaCare’s Exchanges into high-risk pools that would require lots of government subsidies to keep afloat.

Enter one of my daily newsletters, which matter-of-factly reported:

Of course, everyone paying into the system for those who most need care is the way insurance is fundamentally supposed to work.

Of course! I hear this sort of thing all the time. Now, there is a charitable interpretation that would render this particular phrasing just barely true, but I am fairly sure that interpretation is not what the author intended to convey. Instead, the sentence glosses over a distinction so crucial that entire insurance markets hang in the balance. And it does so in a way that presents the (legitimately disputed and controversial) pro-ObamaCare ideology as an of-course-this-is-fundamentally-true fact.

Fundamentally, insurance markets are a system of subsidies. People with the same ex ante (i.e., before-the-fact) risk of needing medical care pay into the system to subsidize the few in that group who will develop expensive medical needs. We know insurance is supposed to work this way, because of what happens when you try to pool together people with different ex ante health risks at the same premium: the system of subsidies collapses. (See: state-level experiments with community rating, ObamaCare’s CLASS Act, the child-only market under ObamaCare, U.S. territories under ObamaCare, and Exchanges in dozens of counties). Risk-based premiums, exclusions for preexisting conditions, and other measures that ObamaCare supporters hate are actually consumer protections. They exist to keep that system of subsidies stable, so it can keep doing the most good possible by subsidizing people who become sick.

The idea that everyone should pay the same premium regardless of risk arises because left-of-center folks want to cram additional, hidden subsidies into the insurance system. They want to do this rather than create explicit taxes and transfers because, as Jonathan Gruber taught us, there is not sufficient political support for explicit taxes and transfers. But again, when you force insurers to cover unlike risks at the same premium, insurance markets collapse. So ObamaCare throws tons of money at insurers—with everything from the individual mandate to risk-adjustment—in the hope of preventing a collapse. Sometimes it prevents a collapse. Sometimes, not so much.

The above sentence therefore amounts to saying, “Insurance is fundamentally supposed to work exactly like ObamaCare supporters want, with mandates and lots of government subsidies, not like its opponents say.”

That’s what the news tells me, anyway.

Broadway Journal reports that theater professionals are very concerned about the Trump administration’s no-doubt-idle threats to defund the National Endowment for the Arts:

“It’s important money for us,” said Jeffory Lawson, the managing director of the Chelsea-based Atlantic Theater Co. As with any lost funding, replacing those grants would be challenging, he said. And beyond dollars, the NEA confers a stamp of approval for a project, which is appealing to other donors. It’s “a highly competitive grant application,” he said, that’s reviewed and rated largely by theater professionals. “It’s not just a bureaucrat making a decision.” (The NEA claims that $9 in private donations follow every $1 it grants.)

I don’t know why people who prize their independence, and are very proud these days to be defying the government in their plays and public comments, are so eager for a “stamp of approval” from that very government. In fact, I’ve written about that problem before, such as in this 1995 speech to the Delaware Center for Contemporary Arts:

Government funding of anything involves government control. That insight, of course, is part of our folk wisdom: “He who pays the piper calls the tune.” “Who takes the king’s shilling sings the king’s song.”

Defenders of arts funding seem blithely unaware of this danger when they praise the role of the national endowments as an imprimatur or seal of approval on artists and arts groups. Jane Alexander says, “The Federal role is small but very vital. We are a stimulus for leveraging state, local and private money. We are a linchpin for the puzzle of arts funding, a remarkably efficient way of stimulating private money.” Drama critic Robert Brustein asks, “How could the NEA be ‘privatized’ and still retain its purpose as a funding agency functioning as a stamp of approval for deserving art?”

In 1981, as conservative factions battled for control of the National Endowment for the Humanities, Richard Goldstein of the Village Voice explained the consequences this way:

The NEH has a ripple effect on university hiring and tenure, and on the kinds of research undertaken by scholars seeking support. Its chairman shapes the bounds of that support. In a broad sense, he sets standards that affect the tenor of textbooks and the content of curricula….Though no chairman of the NEH can single-handedly direct the course of American education, he can nurture the nascent trends and take advantage of informal opportunities to signal department heads and deans. He can “persuade” with the cudgel of federal funding out of sight but hardly out of mind.

I suggest that that is just the kind of power no government in a free society should have….

On NPR this morning, an activist complained …  saying, “My ancestors didn’t fight for the concept of official history in official museums.” But when you have official museums, or a National Endowment for the Arts serving as a “seal of approval” for artists, you get official history and official art—and citizens will fight over just which history and which art should have that imprimatur.

“Stamp of approval,” “ripple effect,” “ ‘persuade’ with the cudgel of federal funding”—all of this is asking the federal government to pick winners, not just in automobile or energy companies, but in art and literature. Is that really a model for independent artists?

 

I was wrong. When the Every Student Succeeds Act passed in late 2015, I identified two ambiguities I thought were most ripe for exploitation to keep the federal boot hovering over public schools: the requirement that states have “challenging” curricular standards and that standardized tests be given “much greater” weight in accountability systems than non-academic measures.

Certainly, DC may still seize upon these words to extend control. But according to a Friday New York Times report, it is the law’s call for “ambitious” student performance goals—a term not defined in statute—that the Trump administration, which I thought would be highly deferential to states (wrong again!), is citing to reject state plans:

In the department’s letter to Delaware—which incited the most outrage from conservative observers—[Acting Assistant Secretary for Elementary and Secondary Education Jason] Botel took aim at the state’s plan to halve the number of students not meeting proficiency rates in the next decade. Such a goal would have resulted in only one-half to two thirds of some groups of students achieving proficiency, he noted.

The department deemed those long-term goals, as well as those for English-language learners, not ambitious, and directed the state to revise its plans to make them more so.

And so we remain pretty much where we were under the Obama administration in education, and where we are with every law that leaves it to regulatory agencies to fill in the meaning of crucial terms: with states, localities, and the people at the mercy of bureaucrats and secretaries. Government increasingly of men and not laws.

Alas, this bureaucratically dictatorial state of affairs is okay with some people in DC. In an exchange this weekend, a former Obama administration spokesman lauded the regulatory process as a “transparent” and “consistent” way to “fill in the blanks left by the law”:

If only there were some process by which the federal government could fill in the blanks left by the law in a transparent, consistent way

— Matt Lehrich (@mattlehrich) July 7, 2017

Really? I sure can’t see how the regulatory process is “transparent” in any meaningful sense. Here is the web page to follow the ESSA regulatory process, and here is the “Notice of Final Regulation” for just one part of the ESSA. Read it all over. Now imagine every parent—with a full-time job, soccer practices to get the kids to, maybe even a desire for some leisure time—trying to read and influence every regulation for ESSA.

Done imagining? The painful reality, of course, is that making law by regulation is even more beyond the ability of an average American to follow and influence than the writing of actual laws. The ESSA itself is almost 400 single-spaced pages long.

Loads of atrocious problems are at work here—no apparent concern for whether the governed can know and understand the laws governing them; legislators sloughing off their responsibilities to bureaucrats—but underlying it all has been widespread disregard for the Constitution and its clear delegation of only specific, enumerated powers to the federal government, none of which mention education.

I was wrong about the specific opening by which the ESSA might be used to maintain federal control over the nation’s public schools. But in stating that federal control is itself unconstitutional, and rule by bureaucrats especially egregious, I remain clearly in the right.

Great moments in public employee unionism, as recorded in the Battle Creek (Mich.) Enquirer

A battle is brewing at Western Michigan University this summer between a group of hungry goats and a labor union.

The 400-member American Federation of State, County and Municipal Employees has filed a grievance contending that the work the goats are doing in a wooded lot is taking away jobs from laid-off union workers.

A spokeswoman said the university had brought in a crew of the nimble-footed ruminants “to clear undergrowth in a woodlot, much of it poison ivy and other vegetation that is a problem for humans to remove….Not wanting to use chemicals, either, we chose the goat solution to stay environmentally friendly.”

The goats are already ahead of schedule in their task of clearing 15 acres before the fall semester – unless the National Labor Relations Board gets mad and decides to charge in.

A year ago in this space I discussed one of the more disturbing things then-candidate Donald Trump was saying on the campaign trail, his threats against the business interests of Washington Post owner Jeff Bezos, whose paper has been consistently critical of Trump. Trump mentioned tax and antitrust as issues on which Amazon, the company founded by Bezos, might find its status under review. I quoted Wall Street Journal columnist Holman Jenkins: “Mr. Trump knows U.S. political culture well enough to know that gleefully, uninhibitedly threatening to use government’s law-enforcement powers to attack news reporters and political opponents just isn’t done. Maybe he thinks he can get away with it.” 

Mr. Trump is now fighting a very public grudge match against cable network CNN, which as it happens is one of the enterprises affected by the pending AT&T-Time Warner merger. (Time Warner is CNN’s parent company.)  During the campaign, Trump criticized the merger, but in March he nominated to head the Department of Justice’s antitrust division Makan Delrahim, a veteran antitrust lawyer who seemed to take a more benign view. “The sheer size of it, and the fact that it’s media, I think will get a lot of attention,” Delrahim had said in an interview on Canadian TV in October, before the election. “However, I don’t see this as a major antitrust problem.”

On Wednesday the New York Times reported that some close to the President, at least, were looking at options: 

White House advisers have discussed a potential point of leverage over their adversary, a senior administration official said: a pending merger between CNN’s parent company, Time Warner, and AT&T. Mr. Trump’s Justice Department will decide whether to approve the merger, and while analysts say there is little to stop the deal from moving forward, the president’s animus toward CNN remains a wild card.

And then yesterday Alex Pfeiffer of the Daily Caller reported

The White House does not support the pending merger between CNN’s parent company Time Warner and AT&T if Jeff Zucker remains president of CNN, a source familiar with President Trump’s thinking told The Daily Caller.

Maybe reports based on unnamed sources are better ignored. Or maybe they’ll prove accurate, and we’re facing a White House that – like the late Sen. Edward Kennedy of Massachusetts, or disgraced Illinois Gov. Rod Blagojevich – is not above using the resources of government in an effort to oust owners or editors from unfriendly press outlets.

Either way, I’ll repeat what I wrote in this space five years ago: 

One moral is that we cannot expect our First Amendment to do the whole job of protecting freedom of the press. Yes, it repels some kinds of incursions against press liberty, but it does not by its nature ward off the danger of entanglement between publishers and closely regulated industries, stadium operators, and others dependent on state sufferance. That’s one reason there’s such a difference in practice between a relatively free economy, where most lines of business do not require cultivating the good will of the state, and an economy deeply penetrated by government direction, in which nearly everyone is subject to (often implicit) pressure from the authorities. 

The Trump administration’s approach to North Korea’s nuclear weapons and ballistic missile development has been almost exclusively an emphasis on military confrontation. The latest eruption of escalatory actions and rhetoric is in keeping with the norm.

Following Pyongyang’s successful testing of an inter-continental ballistic missile (ICBM) this week, Trump referenced “some pretty severe things that we are thinking about” in response. Gen. Vincent K. Brooks, commander of U.S. forces in South Korean, warned ominously that “it would be a grave mistake for anyone” to doubt our willingness to use military force in response to North Korean “provocation.” UN Ambassador Nikki Haley said in a statement that we will use “our considerable military forces…if we must, but we prefer not to have to go in that direction.” Finally, U.S. and South Korean forces “fired a barrage of guided-missiles into the ocean” off the east coast of the Korean Peninsula, as a show of force.

Many Americans believe the hardline approach to North Korea is wise because peaceful negotiations, in Eli Lake’s words, have been used by Pyongyang “to buy time and extract concessions from the West.” Diplomacy doesn’t work on the intransigent North Korea, we’re told.

But that conflicts with the historical record. According to Stanford University’s Siegfried S. Hecker, the record from the Bill Clinton and George W. Bush administrations shows that “Pyongyang was willing to slow its drive for nuclear weapons” but “only when it believed the fundamental relationship with the United States was improving, but not when the regime was threatened.”

This is a crucial point. For decades, Washington’s general approach has involved economic sanctions, military encirclement, and regular threats of preventive war. In this environment, and without good faith overtures from Washington, North Korea is going to continue to insist on having the ability to deter invasion or attack by the United States or its allies.

We came close  to real progress in the 1990s. The imperfect “Agreed Framework,” struck by Pyongyang and the Clinton administration, froze Pyongyang’s nascent nuclear program and opened it up to inspections in exchange for economic and diplomatic concessions from Washington. It held promise of sustainable de-escalation.

But problems arose. In Hecker’s retelling, the agreement:

was opposed immediately by many in Congress who believed that it rewarded bad behavior. Congress failed to appropriate funds for key provisions of the pact, causing the United States to fall behind in its commitments almost from the beginning. The LWR [light-water reactor] project also fell behind schedule because the legal arrangements were much more complex than anticipated. The Agreed Framework, which began as a process of interaction and cooperation, quickly turned into accusations of non-compliance by both parties.

Nevertheless, the Agreed Framework continued to be the basis for constructive diplomacy. According to Mike Chinoy, a senior fellow at the University of South California’s U.S.-China Institute, “Despite North Korean frustration at U.S. delays in providing much of the promised assistance, the political thaw reached a high point in 2000” when the two countries issued a joint communique “pledging that neither would have ‘hostile intent’ towards the other.” Chinoy continues:

Then Bush took office. After a review of Korea policy, Bush declined to reaffirm the communique pledging “no hostile intent.” Meanwhile, leading conservatives in his administration — Vice President Dick Cheney, Defense Secretary Donald Rumsfeld, Undersecretary of State John Bolton and others — actively sought to torpedo the Agreed Framework. The president labeled North Korea a member of the “axis of evil,” along with Iran and Iraq. In mid-2002, a U.S. intelligence determination that North Korea had taken initial steps to acquire the capability to make a uranium bomb was used by the conservatives as an excuse for Washington to pull out of the 1994 framework deal.

In the following months, Kim watched as U.S. troops toppled Saddam Hussein while the Bush administration, in the name of the “war on terror,” expounded a doctrine of regime change for rogue states. Rumsfeld formally proposed making regime change in Pyongyang official U.S. policy, while Bolton warned Kim to “draw the appropriate lesson” from Iraq.

With the Bush administration’s abrogation of the Agreed Framework, North Korea announced its withdrawal from the Nuclear Non-Proliferation Treaty, kicked out inspectors, and became determined to obtain deliverable nuclear weapons in order to avoid the fate of Iraq’s Saddam Hussein, and later Libya’s Muammar Gadhafi.

Would Pyongyang have permitted improved relations with the U.S. and South Korea and forfeited its nuclear ambitions under sustained diplomacy? It’s hard to say. The Bush administration suspected early on that North Korea was exploring uranium enrichment, which would have violated the spirit but not the letter of the Agreed Framework. But the fundamental issue is that North Korea’s perception of its threat environment is existential. They believe – not without reason – that the survival of the regime is at risk unless they possess a credible nuclear deterrent.  

Given the progress they have now made, de-nuclearization is no longer really in the cards. Nor is there a viable military option (even a minor surgical strike is expected to unleash a massive war involving potentially a million deaths, and that’s if it doesn’t go nuclear). The United States must simply learn to live with a nuclear North Korea. Diplomatic efforts should focus on de-escalation measures, as recently suggested by Russia and China, and freezing Pyongyang’s weapons development where it is, in exchange for economic and diplomatic concessions from the U.S.

But before any of that, we need to get beyond this myth that diplomacy isn’t an option. 

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