In Pa., a Misguided Attempt to Protect Police

Jonathan Blanks

Police officers are often justified in their use of force, deadly or otherwise. In some cases, officers may be commended for bravery for using force to keep communities safe in very dangerous situations. Except in extreme situations, it doesn’t make sense to hide the names of officers who are doing their jobs responsibly and admirably. And it is hard to imagine a situation that justifies shielding the minority of officers who cross the line from public scrutiny.

Internal and criminal investigations are by their nature kept from the public eye, and for good reason. But the community should know if its public servants are under investigation for inappropriate violence and who they are. If one officer out of a thousand does something bad, but no one can say who he is, all officers fall under suspicion because the so-called bad apple is indistinguishable from everyone else.

The Pennsylvania legislature might make it harder to track incidents of potential abuse by officers and, in doing so, may undermine the public’s trust in the police who serve it.

As I testified before the U.S. Commission on Civil Rights last year, the data we have about large metropolitan police departments suggests that officers prone to inappropriate violence make up a small percentage of a large police force. But many of those officers have faced multiple allegations of excessive force or other indicators of violent misconduct.

One officer in Denver had 40 complaints filed against him, nearly half of which accused him of using “excessive force, using profane language, and threatening to arrest people for no reason,” before he was removed from duty. Under the proposed Pennsylvania laws, an officer like the one in Colorado — who was also named in two excessive-force civil suits that cost the City of Denver more than $1 million in settlements — could be protected from public scrutiny unless he is charged with a crime.

Current Pennsylvania law is bad enough as it is. Authorities already have the discretion to release or withhold the names of officers involved in use-of-force incidents. Without a timetable for release of officers’ names, the process to get to the bottom of what happened can be a very lengthy one.

This is similar to the law in Virginia. In August 2013, John Geer was fatally shot by a Fairfax County, Va., police officer. Geer was unarmed at the time of the shooting, and it took authorities until January 2015 to name the officer responsible. That officer, Adam Torres, was fired in July 2015, was criminally charged for Geer’s death one month later, and pleaded guilty to involuntary manslaughter in April.

All the officers at the scene of the shooting reported that Geer had his hands up when he was killed. Nevertheless, the county took 16 months to release Torres’ name and even longer to fire him and finally secure a conviction. The legally sanctioned delay led at least one major media outlet to allege a police cover-up.

Law enforcement is a tough and demanding job. Officers should be held accountable for their actions not only to protect the community, but also so that most officers are not lumped in with the few who abuse their powers against the public.

H.B. 1538 and S.B. 1061 will not make police officers safer and will likely only put further stress on police-public relations. If the Pennsylvania legislature wants to make police safer, it should move in the opposite direction by making law enforcement more transparent and accountable to those it serves: the people of Pennsylvania.

Jonathan Blanks is the managing editor of PoliceMisconduct.net and a research associate at the Cato Institute’s Project on Criminal Justice in Washington.

There Are Better Reasons to Vote against Trump Than Judge Picks

Ilya Shapiro

Early in this election campaign, when Donald Trump was just a curiosity who would surely declare victory and leave the race by Labor Day—remember those heady days?—people began asking me who the reality-TV star could possibly appoint to the Supreme Court. Would it be Judge Judy or Simon Cowell? Nyuk, nyuk; it was literally a parlor game.

Then when The Donald stayed in the race—but he’d be out any time now, right, after the next outrageous thing he said?—these questions became semi-serious. At one point, Trump told a reporter that his sister, Senior Judge Maryanne Trump Barry of the U.S. Court of Appeals for the Third Circuit (which covers New Jersey, Pennsylvania, and Delaware), would make a “phenomenal” justice.

We can consider that an unrealistic off-the-cuff response; his sister was probably the only judge he knew, and it’s highly unlikely a president would appoint a 79-year-old (being a “senior” judge means working at a semi-retired workload). That’s not to mention conservative opposition to Barry’s abortion rulings, among other areas where she doesn’t check the right jurisprudential boxes.

Donald Trump may not know originalism from origami, but at least he listened to the right adviser on potential judicial appointments.

Then Trump Did Some Googling

I began joking that Trump would nominate his horse to the high court, in an allusion to the Roman emperor Caligula’s (possibly apocryphal) appointment of his favorite horse to the Senate. It was worth a few laughs. Then Justice Scalia died and the speculation got all too real. That same night, February 13, at the GOP debate in Greenville, South Carolina, Trump mentioned Diane Sykes and Bill Pryor as possible replacements.

Whoa. Sykes of the Seventh Circuit (Illinois, Indiana, Wisconsin) and Pryor of the Eleventh Circuit (Alabama, Florida, Georgia) are serious people, both appointed by George W. Bush, who would be on any Republican president’s short list.

That certainly got my attention, and not just because of these judges’ overall reputations. Sykes gave a speech at Cato’s 2014 Constitution Day symposium, the written version of which is in the current Cato Supreme Court Review, while Pryor will be addressing Cato’s religious-liberty conference in June. They’re not libertarians—few judges are, though D.C. Circuit Judge Janice Rogers Brown fits the bill, and her being a black woman would make progressives’ heads explode—but they’d be perfectly fine in my book.

In other words, the candidate himself—who thinks that conservatism means “conserving your wealth”—may not know originalism from origami, but at least he listened to the right adviser on that one. Then last month, Trump promised a list of five to ten people from which he would “guarantee” to nominate to the Supreme Court, and later said he was getting help from “the Federalist people” and the Heritage Foundation. No word on whether any of that is true—the Federalist Society membership is a #NeverTrump hotbed—but a month later, we’re still waiting for the list.

It’s Easy to Improve on Hillary

So where does that leave us? Judicial appointments are hardly among the top concerns of the median Trump voter, so it wouldn’t be surprising if Trump’s list, whenever it emerges, would be an attempt to placate the conservative legal elite. It wouldn’t be binding on a President Trump, to be sure, but Senate Republicans—“Mitch and the entire group,” as His Hairness has called them—aren’t likely to go along with someone unworthy of wearing Thomas More’s hat.

Indeed, if Trump is ever in an actual position to make nominations, it would almost certainly mean the GOP has retained its Senate majority and successfully pulled off its #NoHearingsNoVotes strategy regarding President Obama’s Supreme Court nominee Merrick Garland. There may be populist unpredictability in other policy areas, but it’s hard to see the Senate confirming some wildcard, at least to the Supreme Court.

But who knows about the lower courts?

See, here’s the thing: if the average Trump judicial nominee is still going to be “better” than the average Hillary Clinton or Bernie Sanders nominee, there’s still a lot of variance. On a 10-point scale, if the Democratic nominee is an average 3 and a range of 1 to 5, a Trump nominee would be an average 7 with a range of 0 to 10. Then you have to consider the “deals” a President Trump would make: “I’ll appoint your judge if you build my wall.” There are many unknown unknowns here, as Don Rumsfeld would say.

In short, while there are plenty of reasons to vote against Trump, judicial selections—especially to the Supreme Court—are among the least of them. But that may not be saying much, particularly when judges are the bread-and-butter issue of Trump’s main primary opponent.

Ilya Shapiro is a senior contributor to the Federalist. He is a fellow in Constitutional Studies at the Cato Institute and Editor-in-Chief of the Cato Supreme Court Review.

Why Fight the ‘Long War?’

A. Trevor Thrall and Erik Goepner

The United States appears on the cusp of doubling down on military tactics to fight terrorism. That’s a bad idea.

On March 19, the latest American military member was killed in Iraq. A week later, the U.S.’s top general said he expects an increase in U.S. troop levels there shortly. Presidential hopefuls have offered their insights on the Islamic State, al Qaeda, and the Taliban, with one keeping open the possibility of using tactical nuclear weapons against the Islamic State. Pentagon planners are readying for another round of U.S. intervention in Libya. Most recently, arguably the most-respected general of the modern era, David Petraeus, called for a “sustained“ U.S.-led effort in the fight against Islamic extremism.

But why? Islamic terrorism poses a modest threat in the scheme of things, and military campaigns are not effective in diminishing it further. Where is the compelling argument that the United States should continue fighting what is already its longest war?

The United States appears on the cusp of doubling down on military tactics to fight terrorism. That’s a bad idea.

The attacks of September 11 were as anomalous as they were severe. Nothing like that has ever happened before or since. Almost all of the massive increase in terrorism since 9/11 has occurred in war zones in the Middle East and in weak or failing states. And believe it or not, Americans have been safer from terror attacks since 9/11 than they were the thirty years prior. Data from the Global Terrorism Database indicates we have lost, on average, four Americans per year to terror attacks on U.S. soil since 9/11 compared to 11 per year from 1970 to 2000. This reduction is even more noteworthy, as it occurred while the number of terror attacks and fatalities worldwide rose 64 and 72 percent, respectively.

Still, many assert that only a U.S.-led effort can succeed against ISIS. Though we agree that the world must confront ISIS, the “U.S. must lead” mantra has become dogma among much of the foreign policy establishment, repeated endlessly with great confidence but without evidence. Upon closer reflection, it makes little sense.

First, the argument that U.S. leadership is necessary to motivate a response to ISIS is a non-starter. It is local actors, not the United States, who face an existential threat from the insurgency and terrorism. Iraq and Syria are worried about survival, but their neighbors in the region all have pressing concerns ranging from national security to regional influence and economic stability that are already motivating them to action.

Second, the argument that U.S. leadership is necessary because only the U.S. has the military capabilities to defeat ISIS and terrorism is nonsensical. Terrorists and insurgents are, by definition, weak. Otherwise, they would control the powers of the state and use them. ISIS may not be a pushover, but it is no match for the combined capabilities in the region even without the United States. Moreover, research from the RAND Corporation indicates that local policing and intelligence efforts are five times more likely to lead to the dissolution of a terrorist organization than the use of military force.

Beyond this, the insistence on U.S. leadership in the war on terrorism has muzzled discussion about the unintended consequences of U.S. policies. How might the U.S. invasions of two Muslim-majority states and military operations in another five have fueled recruiting efforts which rely on the narrative that Islam is under attack from the U.S.? Recall that the emergence of ISIS was predicated on the U.S. invasion of Iraq and the ungoverned spaces that have resulted. Similarly, U.S. efforts to install democracies within states where few or none of the needed liberal institutions or cultural norms existed have fallen short and likely exacerbated grievances among Iraqis and Afghans.

Finally, calls to go all in on the “long war” ignore an essential calculation: are the benefits worth the costs? In the past 15 years, nearly 7,000 Americans have given their lives in the fight and the government has borrowed somewhere between $1.7 and $5 trillion to fund the wars and their associated costs. The benefits remain elusive, to put it charitably. Worldwide terror attacks and fatalities have soared to unprecedented levels. Islamist-inspired groups and the fighters that comprise them have more than doubled since 2000. Meanwhile, the relative security of America suggests that focusing on homeland security efforts is a more effective approach to dealing with terrorism than endless war.

At the end of the day, the current arguments for fighting the long war are not persuasive. The discussion we should be having now is about how to reduce our footprint in the Middle East and how to end U.S. involvement in the endless conflicts being fought in the name of the war on terrorism.

A. Trevor Thrall is a senior fellow at the Cato Institute and an associate professor at George Mason University’s School of Policy, Government, and International Affairs. Erik Goepner is a retired U.S. Air Force Colonel who commanded units in Afghanistan and Iraq.

You and Donald Trump Might Not Like Free Trade, but It’s Been Good to You Both

Daniel J. Ikenson

Americans have a love-hate relationship with international trade. Every day we enjoy its fruits, which include better and more affordable products; access to a larger pool of customers, suppliers and capital; and greater employment and business opportunities with foreign companies operating in the United States.

Yet many of us cheer when politicians take to the stump and promise to erect trade barriers, restrict foreign investment and tear up trade agreements. Despite the bluster of campaigning politicians, free trade is essential to our prosperity and free trade agreements have helped deliver its bounty.

The 2016 presidential candidates have taken aim at U.S. trade policy, scapegoating foreigners, their products and the practices of their governments for domestic woes both real and imagined. Donald Trump promises to impose duties on imports from China and Mexico, and punish U.S.-headquartered companies that have foreign operations in their supply chains.

Warts and all, free trade agreements have delivered freer trade.

Hillary Clinton, an architect of the Trans-Pacific Partnership agreement as secretary of state, now opposes its ratification and pledges to disavow U.S. trade treaty obligations with China. And Bernie Sanders would nullify NAFTA and other U.S. trade agreements, calling them “a disaster for American workers.”

The candidates have done nothing to help Americans understand international trade and its importance to the United States. Instead, they’ve played to stereotypes, perpetuated myths, conflated terms and made the issues murkier.

Most economists agree that free trade works better than restricted trade to increase the size of the economic pie. Study after study has shown that countries more open to the global economy grow faster and achieve higher incomes than those that are relatively closed. By enlarging markets to span national borders, free trade permits greater specialization and economies of scale, both essential ingredients of economic growth.

But free trade agreements are not free trade. They are managed trade. They are premised on mercantilist assumptions that exports are good and imports are bad.

While opening foreign markets should be one objective of trade policy, real free trade requires liberalization at home. The real benefits of trade are measured by the value of imports that can be obtained for a given unit of exports — the so-called terms of trade. Trade barriers at home make imports more expensive, and reduce the amount that can be purchased with a given unit of exports. Trade restrictions penalize consumers, import-using industries and taxpayers.

Yet, holding firm to those domestic barriers, while insisting that foreign markets open wider, is the standard strategy for negotiating free trade agreements.

Intermediate goods and capital equipment account for about half the value of all U.S. imports. Our tariffs and other barriers to those imports raise the costs of production for U.S. businesses, and impede investment, production and job creation.

We would be better off by implementing our own reforms — on tariffs, regulations and other policies that impeded competition in the United States — regardless of what other governments want to do to their citizens. We don’t need consent from Brussels, Tokyo or Beijing to implement the reforms that would make our economy more efficient.

But with political aversion to unilateral liberalization, trade agreements based on reciprocity have long been the vehicle of choice for reform. From the founding of the General Agreement on Tariffs and Trade in 1947 through the creation of the World Trade Organization in 1995, most U.S. trade liberalization was achieved through eight multilateral “rounds” of negotiations under the auspices of the GATT.

But multilateral trade liberalization has failed to produce meaningful results since the mid-1990s. Since then, bilateral and regional free trade agreements have emerged as preferred alternatives — with fewer countries involved, the issues are more manageable and it’s easier to reach agreement.

In 1995, the United States had free trade agreements only with Israel, Canada and Mexico. Today, there are 14 U.S. free trade agreements with 20 countries, and two very substantial “megaregional” agreements — the Trans-Pacific Partnership and the Trans-Atlantic Trade and Investment Partnership — waiting in the wings. The TPP, signed earlier this year, but not yet ratified, would add five new partner countries and the TTIP, not yet concluded, would add the European Union (and its 28 member states). Together, the agreements include countries representing 70 percent of global GDP and 75 percent of global trade.

Trade agreements nowadays are about more than just border barriers. They penetrate much more deeply into traditionally domestic policy areas. The demand for trade rules in these areas has followed the proliferation of cross-border investment, global production and supply chains, and intermediate goods trade. As governance issues bump up against matters of domestic sovereignty, trade agreements have created new frictions.

Consider the TPP. Some of its 30 chapters deal with traditional market access issues and include schedules for barrier reductions on industrial goods, services and agricultural products. But other chapters include rules limiting what governments can do with respect to domestic competition policy, procurement spending, regulatory issues, intellectual property, investment policy, labor policy, environmental law and more. Those provisions require closer scrutiny.

Despite their flaws, free trade agreements have helped reduce domestic impediments to trade, expand our economic freedoms and lock in positive reforms, even if only as the residual byproduct of an ill-premised mercantilist process.

Warts and all, free trade agreements have delivered freer trade.

Daniel J. Ikenson is director of the Cato Institute’s Herbert A. Stiefel Center for Trade Policy Studies.

Does Europe Need a New Warsaw Pact?

Christopher A. Preble and Marian L. Tupy

Late last month, GOP presidential frontrunner Donald Trump caused considerable controversy by arguing that the North Atlantic Treaty Organization was “obsolete” in dealing with the threat of terrorism and a drain on U.S. finances. Speaking to Jonathan Karl of ABC News, Trump also noted that the fate of Ukraine, which has strained relations between the United States and Russia, is not of vital national interest to the United States. “Ukraine is very far away from us,” Trump said and asked, “How come the countries near the Ukraine, surrounding the Ukraine, how come they’re not … at least protesting?”

Contrary to Trump’s assertions, Ukraine’s neighbors have been vocal in their opposition to Russian expansionism. Late last year, leaders of nine European countries met in Bucharest to express their concerns at Russia’s “continuing aggressive posturing.” Jointly, the leaders of Bulgaria, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania and Slovakia called for the creation of “a robust, credible and sustainable allied military presence in the region.”

But Trump’s comments, along with increasing financial strains in the United States and growing public weariness with regard to foreign entanglements, suggest that Eastern European countries, in particular, should not rely on NATO alone. Putting all of their eggs in the NATO basket could be dangerous and they should be thinking of an alternative.

A separate defensive alliance might provide greater reassurance to these most vulnerable states, and present a more credible deterrent to Russian aggression.

Thoughtful leaders in Eastern Europe ought to ask themselves, how will NATO respond should Russia decide to invade, say, Estonia? A clear commitment from all 28 member states will be difficult to obtain. Some Western European states would presumably be much less willing to go to war against Russia on behalf of a distant Baltic state today than they might have been a generation ago, when the adversary was the Soviet Union and the threatened alliance partner was West Germany or the United Kingdom.

What about the United States? American conventional military power alone is arguably equal to that of the other 27 NATO members combined, and the United States also has a vast nuclear arsenal. But while the destructive power of America’s military cannot be seriously doubted, Washington’s willingness to wield it can be and should be. The United States, for example, might opt for stronger economic sanctions and eschew military confrontation with a nuclear-armed state — especially if war-weary Americans are dead set against initiating any new conflicts. In short, Putin cannot be certain of the U.S. response. But, neither can Estonia and other former Soviet bloc countries that Putin now threatens.

Given the questions surrounding NATO’s capacity for deterring Russian aggression, a more sensible course would strengthen military ties between the nine former Warsaw Pacts states currently in NATO, plus Ukraine, which isn’t. These countries could meet — say, in Warsaw, Poland — and hammer out a mutual defense treaty of their own. They might call it the New Warsaw Pact.

Ukraine is a vital component of this arrangement. Eastern European states, which do not want to border Russia, want to see Ukraine’s independence and territorial integrity preserved. They understand that if Russia is allowed to swallow additional parts or all of Ukraine (excepting Crimea, which is already gone), the former will become significantly more powerful, assertive and, consequently, dangerous. Putin too understands that bringing Ukraine into Russia’s orbit would enhance the latter’s power and be a key stepping stone toward reconstituting the Soviet Empire in some form. For its part, Ukrainian leaders understand that without economic and military reforms, the country might collapse. Thus, while currently weak, Ukraine is likely to become economically and militarily stronger in the future. As such, Ukraine is destined to be a large contributor of manpower and military spending to the New Warsaw Pact.

If such a pact became a reality, would it present a more effective deterrent than NATO?

First, the good news. On paper, the member states of the proposed pact are, collectively, comparable to Russia in isolation. Based on CIA World Fact Book estimates from July 2015, the New Warsaw Pact states’ combined population (143.9 million) is slightly greater than that of Russia (142.4 million). According to figures compiled by the World Bank, the combined GDP of the proposed pact is $1.5 trillion. Russia’s GDP is $1.9 trillion. That, however, is likely to shrink due to Russian over-reliance on the export of natural resources and the collapsing price of its major commodities.

Now, the bad news. Trump has a point when he criticizes the meager military spending of America’s NATO allies. The Stockholm International Peace Research Institute reports that Russia spent 5.4 percent of its GDP on its military in 2015. The new pact states spent 1.62 percent, on average, well below the NATO mandate of 2 percent. That amounts to annual military spending of $66 billion by Russia, versus a mere $22 billion by prospective pact members.

Moreover, the problems afflicting the NATO alliance would not go away altogether in a new, smaller pact. But it would be easier to sort out the member states’ true intentions, gauge the strength of their commitments to mutual defense, and resolve questions pertaining to military inter-operability and response time, in a ten-member alliance than NATO in its present form. Plus, the New Warsaw Pact would have a single clear goal: checking Russia. NATO does not have as clear a raison d’être.

While it is true that Article V could be invoked if Russia went to war with a NATO member, Eastern European countries, in particular, cannot be certain that it will be. A separate defensive alliance might provide greater reassurance to these most vulnerable states, and present a more credible deterrent to Russian aggression.

We are both children of the Cold War. One of us, Tupy, was born in Czechoslovakia, just eight years after Soviet tanks crushed the Prague Spring. No one who lived through that period could doubt that the Warsaw Pact was a symbol of occupation and humiliation. In short, we appreciate that the mere suggestion of resurrecting the Warsaw Pact may open old wounds.

But the countries of the former Warsaw Pact who are now members of NATO are subject to a different form of humiliation: that of being dependent upon others for their defense, including people many thousands of miles away who have not recently suffered under foreign occupation.

The mere fact that a leading contender for the Republican nomination has dared suggest that NATO has become irrelevant surely must give some in Europe pause. And, for the countries in closest proximity to Russia, even the possibility that some future American politician might share Trump’s nativist impulses, and casually discard the promises of past presidents, must be deeply unsettling. We shouldn’t be surprised if they hedge their bets, and create alternative means for defense that don’t hinge on the vagaries of American politics.

Christopher A. Preble is vice president for defense and foreign policy studies, and Marian L. Tupy is a senior policy analyst, at the Cato Institute.

Stuck in the Ukrainian Conundrum: U.S. And Europe Need to Drop Sanctions and Negotiate a Way Out

Doug Bandow

Many Ukrainians expect America and Europe to save them. Suggest that they are living a fantasy gets you tarred as a blatant fool and Russian stooge. Yet Ukraine shouldn’t waste time posing as a fairy tale maiden in distress waiting for rescue by the Western knight in shining armor. Kiev risks ending up as a failed state.

Ukraine has suffered through a difficult existence. It long was part of the Russian Empire or Soviet Union. Since gaining independence Kiev has endured horrendous political leadership. In recent years the presidency flipped from pro-Western incompetent Viktor Yushchenko to pro-Russian kleptocrat Viktor Yanukovich. After the latter’s ouster oligarchical economic interests remain in control, only through a different set of fractious politicians. Moreover, the country itself is badly divided, melding together vastly different western and eastern sections.

Obviously life isn’t fair. But no one gains from pretending otherwise. The West and Ukraine both need to make policies based on reality, not fantasy. This argument does not make one a fan of Vladimir Putin or Russia. Rather, it recognizes that we live in the world as it is, not as we wish it would be.

The West and Ukraine both need to make policies based on reality, not fantasy.

Ukraine is stuck in a bad neighborhood. Rather like Mexicans say of America, Kiev’s tragic lot is being so close to Russia and so far from God. The colossus next door has special historical, cultural, economic, and security ties to Ukraine. Many people share at least some of those connections. This explains Moscow’s willingness to accept international criticism, economic sanctions, political isolation, and military threats to prevent Ukraine from joining the Western bloc. Making this observation is not an endorsement. But good policy requires honest analysis. Acting as if Putin had been mysteriously transformed into Adolf Hitler and planned a blitzkrieg across Finland, the Baltic States, and Poland, on into Germany and to the Atlantic helps no one.

America and Europe don’t have much at stake in Ukraine. It’s an unpleasant truth which sets off much screeching in Kiev, but that makes it no less true. Despite the outrage over Russian behavior expressed in Brussels, “Old Europe” feels little threat from the east. The economic benefits of integrating even an undivided Ukraine at peace into the European Union would be modest and take much time. Today Kiev is an economic black hole and the fiscally strapped Europeans have shown no inclination to contribute anything close to the aid levels required by Ukraine.

The U.S. has even less interest in the region. Other than Ukrainian expatriates who believe the sun rises and sets in Kiev and ideological Neoconservatives who believe Washington should war against any power that resists America’s dictates, no American even thinks about Ukraine. Much silly rhetoric has been spewed in the presidential contest so far on all manner of subjects. Yet Russia is rarely mentioned and even then mostly to complain about Moscow’s intervention in Syria, not Ukraine.

For most of their respective histories America and Europe got along just fine with Ukraine under St. Petersburg’s and later Moscow’s control. That has not changed. Bleeding Ukraine elicits sympathy, not concern. Neither America nor Europe is prepared to impose serious sanctions designed to break the Russian economy. Neither America nor Europe is prepared to risk war with Russia. The West will not retrieve Crimea, suppress Donbas separatists, guarantee Ukraine’s territorial integrity, or even bail out the latter’s economy. Which means Kiev is effectively on its own.

Ukraine’s leaders only fooled themselves if they thought otherwise. Despite the antics of Washington’s war lobby, led by the likes of Senators John McCain and Lindsey Graham, none of America’s post-Cold War presidents was prepared to toss away the success of the end of the Cold War by triggering a war with Russia over lesser stakes. The most obvious case is the 1994 Budapest Memorandum on Security Assurances after Ukraine relinquished the nuclear weapons left by the dissolution of the Soviet Union.

Some Ukrainians convinced themselves that the U.S. must “enforce” the agreement—presumably by nuclear war, if necessary. Washington’s refusal to act militarily is seen as a great betrayal. Actually, no. The U.S. joined Britain and Russia in making a series of commitments, but none involved a security guarantee, let alone a promise to go to war. First, the three signatories lauded Ukraine for signing the nuclear nonproliferation treaty. They also committed themselves to respect Ukraine’s sovereignty and borders and refrain from threatening Ukraine with military force or economic coercion.

How was this to be enforced? The signatories committed themselves to … go to the UN on Kiev’s behalf if the latter faced aggression “in which nuclear weapons are used” and consult “in the event a situation arises that raises a question concerning these commitments.” Which means no one promised Ukraine anything meaningful if anyone violated the accord. Nevertheless, Kiev signed. Meaningless verbiage was all that Ukraine was going to get. The Clinton administration was not prepared to offer Kiev a bilateral security treaty or NATO membership. The West has no more interest in going to war for Ukraine today than in 1994.

Russia won’t be surrendering Crimea short of war or collapse. Sanctions may be painful economically, but are not crippling, either economically or politically. So far Putin remains more popular than almost any of his Western counterparts. His poll numbers are down and could fall further, of course, but he would be unlikely to respond by retreating from his most dramatic, celebrated, and costly initiative.

Nor does making things worse in Moscow necessarily benefit Ukraine or the West. Weimar Russia would be a fearsome phenomenon to behold. Unfortunately, the alternative to Putin is not likely some Western-style liberal, but a harder-line nationalist, of whom there are many. Imagine chaotic Ukraine-style politics in Moscow followed by greater repression. In none of these scenarios is Russia likely to improve its relationship with the West, let alone disgorge its conquest.

Moreover, in an age of self-determination the objective should be to assess what the people Crimea want, not to shift control back to Ukraine. The referendum held under Russian control can’t be trusted but that doesn’t mean it wasn’t accurate. Throughout most of its history Crimea was part of Russia and the majority of residents are ethnic Russian. If they want to stay in Russia, their wishes should be respected. Thus, the West’s objective should be a fair vote.

The West has no credibility complaining about Russian aggression. Moscow has behaved badly and shares much blame for the conflict engulfing the Donbas. However, there are real Russian separatists who genuinely object to rule from Kiev. And there are some nasty Ukrainian forces, extreme nationalists every bit as brutal as Russian fighters.

Moreover, the allies cheerfully, even joyously trampled Russian security interests for years. Expanding NATO obviously was directed against Moscow, something well understood by Russians. The allies launched an unprovoked war against Moscow’s traditional friend, Serbia, dismembered that nation, and created a new country. Having done so, they then denied a similar right of self-determination to Serbs caught within a new hostile state in which they had suffered from brutal ethnic cleansing by triumphant ethnic Albanians after the war.

The allies promised to bring Ukraine into NATO, an understandable anathema to Moscow. Europe then pressed Kiev to shift West economically. Through all this Putin did nothing, even though Ukraine’s previous president, Yushchenko, was actively hostile to Moscow and sitting president, Yanukovich, maintained Ukraine’s ties both east and west. Only after the West pushed a street revolution against Ukraine’s corrupt but nevertheless elected president did Putin act to safeguard what he saw as Russia’s interests.

Bad behavior by Putin to be sure, and unjustified. But no one has clean hands, least of all the U.S., which bombs, invades, occupies, and divides other nations as it sees fit without concern for other nations’ interests, international law dictates, or likely consequences. Sanctimonious complaints from Washington about the conduct of other countries merely undercut American credibility. Certainly Moscow has no reason to take America’s moralistic pretensions seriously.

The status quo benefits no one. Two years ago Russia seized Crimea. A Moscow-backed insurgency in eastern Ukraine has waxed and waned since then. Russia and Western parties signed the Minsk agreement to end the Donbas conflict, which has reduced fighting though implementation remains sketchy on both sides.

No one believes that sanctions are going to force Moscow to return Crimea. Nor do they offer any reason for Putin not to initiate another territorial grab if he is so inclined (in fact, there is no evidence that he wants to rule over non-Russians). At best the economic penalties encourage fuller implementation of Minsk by Russia, though not Ukraine. They also make a moral statement of sorts, but there are much better ways to do that.

The continuing conflict is guaranteed to leave Ukraine a financial, economic, and political wreck. The way forward to normalcy is difficult enough. Suffering through a “frozen conflict” could disrupt life for a generation or more.

Sanctions punish average Russians, allow Putin to blame the West for his nation’s economic problems, and give the Russian government even greater power over the economy and financially-strapped businesses. Beyond that is the negative impact on Western companies and consumers.

Moreover, waging a low-grade economic war against Russia inevitably discourages Moscow from helping on other issues, which are many. The U.S., in particular, seeks Russian assistance in Afghanistan, Iran, North Korea, and Syria. Washington and Moscow share concerns over terrorism. The U.S. should stop pushing Russia toward China. It is one thing to sacrifice other concerns to achieve something significant. But in this case the U.S. is gaining nothing on an issue of at most modest importance. Confrontation with Russia is a penny-wise, pound-foolish policy.

Instead, the allies should seek to negotiate a compromise everyone can live with. They should offer to end sanctions, pledge not to include Ukraine (and Georgia) into NATO, and support Ukrainian ties both east and west. Moscow should insist Ukrainian separatists accept autonomy, hold an internationally monitored referendum in Crimea, restructure Kiev’s unsustainable debt, and accept nonexclusive political and economic ties between Ukraine and the EU.

Ukraine is free to make its own decisions on its own responsibility. Life isn’t fair, President Jimmy Carter said, and Kiev’s position reflects that reality. Of course, Ukraine is a sovereign state and might prefer full western integration, including NATO membership. But the allies need to act in their interest: adding a conflict-waiting-to-happen to the alliance would be extremely foolish. Kiev is free to decide its future, but it must do so knowing that no Western nation, including the U.S., is prepared for war with nuclear-armed Russia over Ukraine. Negotiating the best deal possible would be better than pining for a rescue that will never come.

Forget the pious rhetoric out of Washington, Brussels, and various European capitals. Ukraine doesn’t matter. Certainly not enough for the West to do anything serious to reverse Russian actions in Crimea and the Donbas. It is in everyone’s interest, including that of Kiev, to adjust policy to reflect reality. The Americans and Europeans aren’t coming. It’s time for them to make a deal with Russia over Ukraine.

Doug Bandow is a Senior Fellow at the Cato Institute and a former Special Assistant to President Ronald Reagan.

On ObamaCare, Is There One Set of Rules for Congress and Another for Citizens?

John Malcolm and Michael F. Cannon

Members of Congress, congressional staff, and their dependents are now in their third year of receiving health coverage through the Exchange the District of Columbia established for small businesses under the Affordable Care Act. Newly discovered documents illustrate how government officials broke numerous laws to make that happen—laws that apply to you and me, but apparently not to Congress.

Documents obtained under the Freedom of Information Act show that unnamed officials who administer benefits for Congress made clearly false statements when they originally applied to have the House and Senate participate in D.C.’s “SHOP” Exchange for 2014. Notably, they claimed the 435-member House had only 45 members and 45 staffers, while the 100-member Senate had only 45 employees total.

This long-overdue admission that Congress is not a small business shines a klieg light on the fact that members of Congress and their staffs are receiving health insurance and a subsidy of up to $12,000 each through a program from which federal law categorically bars them.

Rather than a good-faith clerical error, this was an intentional falsehood, which makes it a crime under both federal and D.C. law. Knowingly making even a single false statement in a matter concerning congressional compensation is punishable by up to five years in prison.

Peel away additional layers of this onion, and we find these and other officials likely violated other laws too. Yet they have been protected from prosecution in a way ordinary citizens are not. Why? Because these officials were acting to exempt members of Congress from the costs of the ACA. Here’s why and how.

The Federal Employees Health Benefits Program gives federal employees a choice of health plans and pays up to $12,000 of the premium. But the ACA kicked members of Congress and congressional staff out of the FEHBP, and said the only way they can get health benefits is through an Exchange.

That presented problems beyond just kicking members of Congress out of their health plans. Those $12,000 premium contributions would be illegal in the Exchanges the ACA created for individuals. Since federal law allows employers to contribute to premiums through SHOP Exchanges, though, certain officials decided Congress would enroll in D.C.’s small-business Exchange.

Yet there was a problem with that “solution,” too. The ACA bars businesses with more than 100 employees from participating in SHOP Exchanges. Until this year, D.C. barred businesses with more than 50 employees. When those officials falsely claimed the House and Senate fit under those limits, they did so because they wanted to draw money from the federal Treasury—i.e., a subsidy of up to $12,000 for each member and staffer.

Making a materially false or fraudulent statement as part of a claim against the U.S. Treasury is a separate federal crime, as is wire fraud. Ordinary citizens who violate these laws face fines of up to three times the amount drawn from the Treasury and/or up to 20 years in prison. They might also face prosecution for health care fraud (10 years), violating the Sarbanes-Oxley ban on falsifying documents (20 years), conspiracy to commit such offenses (5 years), and other crimes under federal and D.C. law.

Newly unearthed documents suggest these officials knew they were violating the law. After the original false statements became public, D.C. dropped the employer-size question from its SHOP Exchange application, even though federal law requires D.C. to verify that participating employers are indeed small businesses. In their applications for 2015, congressional officials nevertheless continued making other false statements, such as claiming that members and staffers have no dependents.

It appears that for 2016, congressional officials wanted to avoid any additional opportunities for prosecution. Documents recently obtained from D.C.’s SHOP Exchange show congressional officials reported that the House has 435 members and 6,995 other employees, and the Senate has 4,588 employees total.

This long-overdue admission that Congress is not a small business shines a klieg light on the fact that members of Congress and their staffs are receiving health insurance and a subsidy of up to $12,000 each through a program from which federal law categorically bars them. It lays bare that government officials have systematically violated both the ACA and criminal laws to facilitate illegal, taxpayer-funded gifts to members of Congress.

Ordinary citizens don’t get to go around lying to the government, drawing money from the federal Treasury, and then using that money to buy gifts for members of Congress. Are government officials exempt from those rules?

John Malcolm is director of the Edwin Meese III Center for Legal and Judicial Studies at the Heritage Foundation and a former deputy assistant attorney general in the Department of Justice’s Criminal Division. Michael F. Cannon is director of health policy studies at the libertarian Cato Institute.

The Candidates Have to Get Real about Our Debt

Michael D. Tanner

You might not know it from listening to the presidential candidates—either Democratic or Republican—but our national debt has not gone away. They have promised all sorts of tax cuts and spending increases, but the words “deficit” or “debt” hardly ever cross their lips.

True, a combination of increased revenue and spending restraint reduced last year’s budget deficit to just $439 billion. That may still sound like a lot of money—it is—but, when you consider that the deficit was more than $1.4 trillion just seven years ago, it does represent real progress.

Big government has become unaffordable. It’s long past time that the candidates faced up to that.

But this year the deficit will top $534 billion, an increase of almost $100 billion. And from here the tide of red ink keeps rising. Within just six years, by 2022, we could be back to trillion-dollar annual deficits as far as the eye can see.

The deficit is the measure of just one year’s profligacy—add all those deficits together and you get the national debt, which currently tops $19.2 trillion. That’s more than 102% of our gross domestic product. That’s right: We owe more than the value of all the goods and services produced in this country each year. Within a decade, the Congressional Budget Office warns that the gross federal debt will top $29.1 trillion.

And that’s the good news.

If you include the unfunded liabilities of Social Security and Medicare, the total debt could run to $88 trillion or more.

And what do the presidential candidates offer? Goodies for everyone and nary a tough choice in sight.

Donald Trump has said tackling the national debt will be easy. Yet he has put any reforms to entitlement programs like Social Security and Medicare off the table, despite the fact that those two programs account for almost two-fifths of federal spending. Instead he offers vague nostrums about reducing “waste, fraud, and abuse,” a promise made by every presidential candidate since Jimmy Carter. And, while Trump would do little or nothing to cut spending, he offered the biggest tax cut in U.S. history. The Tax Foundation, which takes a favorable view of the economic growth spurred by lower taxes, estimates that Trump’s plan would add more than $10 trillion to the debt over the next decade, before accounting for additional interest costs.

In contrast, Ted Cruz, does acknowledge the need for entitlement reform and has called for a number of cuts in domestic spending. But he would offset those reductions with increases in defense spending and tax cuts. Using the same methodology, the Tax Foundation estimates that Cruz’s tax plan would reduce federal revenue by $768 billion over 10 years.

While the Republicans want to keep spending while cutting taxes, the Democrats want to raise taxes while spending even more.

Bernie Sanders has called for as much as $18 trillion in new spending. Depending on the costs of his health plan, even with trillions in new taxes his plans would add between $2 trillion and $15 trillion to the debt.

All of this makes Hillary Clinton look positively abstemious. She has proposed some $1.1 trillion in new spending (including targeted tax credits) over 10 years, but would pay for most of it with new taxes. Yet, while Clinton wouldn’t necessarily make the debt worse, she wouldn’t reduce it either.

Both Sanders and Clinton rule out any serious effort to reform entitlements. They are both open to increasing Social Security benefits, which would all but guarantee an explosion of new debt down the road.

While some might say that paying for spending is better than running more debt, both debt and taxes extract resources from the private sector and turn them over to the government. As Milton Friedman pointed out, the true cost of government is spending, regardless of how that spending is paid for. Who pays the bill might vary, but the burden is the same.

The CBO projects that federal spending could consume 34% of GDP by mid-century in its alternative scenario. Add in state and local spending, and government will consume roughly half of everything that we produce. That’s an unsustainable burden no matter whether it’s “paid for” or not.

It’s time for the candidates to stop playing Santa Claus. A massive tax cut unaccompanied by spending restraint and entitlement reform is irresponsible. So, too, are promises to spend more, even if accompanied by tax hikes. Big government has become unaffordable. It’s long past time that the candidates faced up to that.

Michael Tanner is a senior fellow at the Cato Institute and the author of Going for Broke..

Once, the Clintons Favored Mass Incarceration

Tim Lynch

Democrats are not yet ready to unify behind Hillary Clinton. Last week, Bill Clinton got into a row with activists from Black Lives Matter over his 1994 Crime Bill.

With criminal justice reform regarded as an urgent priority, that 1994 measure is being held up in Democratic circles as a reason to view the Clintons with suspicion.

Back in 1994, it was popular to be “tough on crime,” so that’s where the Clintons positioned themselves. They were not alone. Democratic leaders in the Congress, such as Joe Biden and Charles Schumer, spearheaded the effort to get an anti-crime bill enacted.

The Clintons have known for some time that they’ve been out of sync with their political base on matters pertaining to criminal justice.

As the months passed, the original bill started to snowball into a gigantic omnibus measure. Members of Congress angled to attach their pet projects to the bill because they knew that when the whole package came up for a vote, most everyone would go along even if they did not support everything in it.

By the end of the process, the bill was a monstrosity of pork barrel politics. Time’s political columnist Joe Klein dubbed the 1994 Crime Bill a “garbage barge.”

The Crime Bill maddens today’s BLM activists because it earmarked $7.9 billion in grants to the states for the building of prisons. To be eligible for the funds, states had to meet certain conditions. The idea was to encourage the states to embrace the stricter policies found in the federal system, which had abolished parole and limited good time credits for prisoners, which allow well behaved inmates to earn an earlier release date.

Many states were eager to do just that. During the 1990s, America was building a new prison every week, on average. And as soon as those facilities opened up, they were soon operating beyond their original design capacity.

Many of the prisoners were young minority men, nonviolent drug offenders who were serving mandatory minimum sentences.

By 2000, there was growing concern about the enormity of America’s prison system. Today there is angst all across the political spectrum over “mass incarceration.”

Thousands and thousands of minority men have been locked up. And when they get released, as most prisoners will be, their criminal record makes it very difficult to secure a job and join the mainstream economy.

More and more people are coming to realize that the so-called “war on drugs” has not stopped people from using drugs. What it has done is wreak havoc on Black America.

To their credit, many progressives admit that the lock’ em up policies that are responsible for today’s mass incarceration were supported by both Republicans and Democrats.

Writing in the February edition of The Nation, Michelle Alexander, author of The New Jim Crow, says, “Bill Clinton presided over the largest increase in federal and state prison inmates of any president in American history…. When Clinton left office in 2001, the United States had the highest rate of incarceration in the world.”

It should be noted that libertarians have been sounding the alarm about such trends for many, many years. A 1994 Cato Institute study titled Prison Blues said that over the preceding 15 years, “American elected officials have required prisons to engage in a bold social experiment. The historical prison policy—incarceration of violent criminals—has been replaced with a policy of using prisons mainly to punish drug offenders with increasingly severe, mandatory terms in increasingly overcrowded prisons.”

Cato’s Handbook for Congress in 1995 urged lawmakers to call off the drug war and to repeal the Clinton Crime Bill.

Tragically, members of Congress were bent on escalating its drug war policies. Only now, 20 years later, are policymakers coming around to the idea of sentencing reform and how to disentangle themselves from failed drug war policies.

The Clintons have known for some time that they’ve been out of sync with their political base on matters pertaining to criminal justice. Last year, Bill admitted that his prison-building policies “overshot the mark” and that there are “too many people in prison for too long.”

Hillary has tried to sound like a reformer, saying, “We need a true national debate about how to reduce our prison population while keeping our communities safe.”

Such throwaway lines are not nearly enough for BLM activists. For them (and others too), support for the 1994 Crime Bill is the political equivalent of Hillary’s vote to support the Iraq war: It was a key indicator of policy judgment—and the Clintons failed the test.

Tim Lynch is director of the Cato Institute’s Project on Criminal Justice.

Merle Haggard Could So Easily Have Died in San Quentin

Trevor Burrus

Country music legend Merle Haggard died last week. With his 38 No. 1 hits on the U.S. country charts, a hand in creating the signature “Bakersfield sound” and a significant influence on the 1970s’ “outlaw country” movement, Haggard’s influence on country music is immense.

But it almost didn’t happen. As a teenager and a young man, Haggard was in and out of juvenile detention centers and prisons, eventually finding himself at San Quentin, where he saw Johnny Cash perform in 1958.

Haggard saw fellow inmates go to the gas chamber and played in the prison band, thanks to inspiration from Cash. He decided to turn his life around. He got his GED, maintained a steady job in prison and was released from San Quentin in 1960.

Young Merle Haggard had a long rap sheet, and he could easily have been a victim of the bizarre and unpredictable three-strikes law.

But if he were in the California prison system now, that probably would not happen. Haggard’s death wouldn’t be mourned in obituaries around the country. It would be registered in a prison ledger.

Despite being a bastion of left-wing policies, California has a shockingly draconian prison system. It has the highest number of life-sentenced prisoners—approximately 40,000, or one-quarter of the nation’s total. That number has quadrupled since 1992, and one in three prisoners in California (three times the national average) is serving a life sentence.

That might make sense if California had a disproportionately high number of dangerous violent criminals. But the main reason for California’s shockingly high number of life sentences is the 1994 “three-strikes law.” The law mandates a sentence of 25 years to life upon the conviction of a felony, any felony, for defendants with two or more prior “serious” crimes.

This may sound like a good idea on its face, and it sounded like a good idea to 72 percent of California voters in 1994. But in reality the consequences have been to explode California’s prison population, with people serving unnecessary and immoral life sentences.

In 1997, Norman Williams was sentenced to life in prison for his third strike, stealing a floor jack from a tow truck. His previous two strikes? Burglarizing an apartment that was being fumigated (the stolen goods were then robbed from him at gunpoint) and stealing two hand drills and other tools from an art studio (he was confronted by the owner and dropped everything and ran).

Williams was a hapless criminal, but he hardly deserved life in prison. Thanks to an enterprising district attorney, he was released from prison early. Yet half of those still serving life sentences under the California law were convicted of a third felony that was not violent or serious.

Young Merle Haggard had a long rap sheet, and he could easily have been a victim of the bizarre and unpredictable three-strikes law. As a teenager, he committed a number of minor offenses, including thefts that could have been construed as “violent” by a district attorney who decided to pursue the most severe sentence.

In 1957, he tried to rob a roadhouse and was sent to prison. After trying to escape, he was sent to San Quentin.

In the ’60s, Haggard released a series of trailblazing country albums, so Ronald Reagan, then the governor of California, pardoned him and expunged his record. Thus, the precise details of Haggard’s crimes are hard to come by.

Whether the crimes would be considered “violent” under the terms of the law is as much a question of which district attorney prosecuted his case as it is a question of law. That’s just another problem with removing sentencing discretion from judges; it basically gives it to district attorneys by allowing them to choose which charges to pursue.

The rates of three-strikes convictions vary wildly around the state and even between seemingly similar cases. In “Mama Tried,” Haggard sung that he “turned 21 in prison, doin’ life without parole.” That wasn’t quite true, but had California’s three-strikes law existed then, and had he upset the wrong district attorney, it is not a stretch to imagine Merle Haggard dying in prison for his crimes.

Many of Haggard’s best songs were about the redemption he sought and found in prison. In “I Could Have Gone Right,” he sings that he “fell in with the wrong crowd and the wrong crowd led me on. But I could have gone right just as easy as I went wrong.”

Those words are true of many currently serving life in prison for crimes no more serious than Haggard’s. Not only do three-strikes laws lock people up for minor offenses, essentially turning a possibly productive citizen into a lifelong ward of the state, but they haven’t been shown to lower crime either.

Moreover, a 2009 report by the California auditor estimated that the 43,500 inmates incarcerated under the three-strikes law will cost the state $19 billion in additional expenses.

America currently has the largest prison population in the world: 25 percent of all prisoners on the planet. We lock up people more readily, and for longer sentences, than any society in history.

Three-strikes laws are only part of the reason, but reforming California’s sentencing law could help return people to society who don’t deserve to spend their lives in jail.

Plus, we might get a future Merle Haggard out of it.

Trevor Burrus is a research fellow in constitutional studies at the Cato Institute.