A New Way That Obama’s Justice Department Breaks the Law

Ilya Shapiro and Thomas Berry

History doesn’t repeat, but it rhymes. Eighteen years ago, without the Senate’s consent, Bill Clinton illegally appointed Bill Lann Lee to head the Justice Department’s Civil Rights Division. The uproar that resulted led Congress to pass the Federal Vacancies Reform Act (FVRA), a major reform of our vacancies law, limiting the time someone can be an “acting” high official without Senate confirmation. Now under the Obama administration, that same law may be the undoing of another illegally appointed civil-rights head. Bill Lee, thy rhyme is Vanita Gupta.

The current saga in the Civil Rights Division began nearly three and a half years ago, when its leader, Tom Perez — the embodiment of the Peter Principle, whereby managers rise to their level of incompetence — was promoted to the position of secretary of labor. President Obama nominated Debo Adegbile, formerly an attorney with the NAACP (and this week appointed to the U.S. Civil Rights Commission), to replace Perez. But Adegbile’s nomination immediately ran into severe Senate headwinds. During his time at the NAACP, he contributed to a brief on behalf of the convicted cop-killer and cause célèbre Mumia Abu-Jamal. That connection prompted an outpouring of objections, stalling his nomination.

While Adegbile’s nomination was pending in the Senate, the civil-rights shop was led by a succession of “acting heads,” as permitted under the FVRA. Eventually, in September 2014, Adegbile withdrew his nomination in the face of certain defeat. At that moment, an important statutory timer began running: Acting officials may serve for a maximum of only seven months after a permanent nominee’s withdrawal.

The de facto head of its Civil Rights Division was never approved by the Senate.

This time limit was put into the FVRA to incentivize the president and Senate to reach consensus on permanent officials to fill a given vacancy. But here, President Obama decided that trying to find someone acceptable to the Senate wasn’t worth the hassle — and so he simply hasn’t sent up a new nominee. The seven-month clock, meanwhile, ran out in April 2015. Vanita Gupta, the division’s deputy head, has continued serving as acting chief, although, according to the law, her time was up.

The FVRA is clear: Once an acting officer’s seven months have expired, “the office shall remain vacant; and . . . only the head of such Executive agency may perform any function or duty of such office.” In plain English, this means that Attorney General Loretta Lynch herself, not Vanita Gupta, became and remains the only person authorized to lead the Civil Rights Division.

Yet Gupta has stayed on the job as if she were still the lawful boss, changing nothing except the title she uses to sign her orders. The head of the Civil Rights Division is charged with, among other powers, conducting handling, or supervising, “enforcement of all Federal statutes affecting civil rights . . . and authorization of litigation in such enforcement.”

How has Gupta justified her continued exercise of this power? The strongest clue is in a letter she sent to North Carolina governor Pat McCrory in May, informing him of an impending Title VII suit: The attorney general “may apply to the appropriate court for an order that will ensure compliance with Title VII,” she wrotea. “This responsibility has been delegated to the Principal Deputy Assistant Attorney General of the Civil Rights Division” — that is, to Gupta herself.

The problem with this argument is that the FVRA was written specifically to prevent such a work-around. When there’s no valid acting officer, the department head — here, the attorney general — may not delegate that officer’s duties to anyone else unless a statute “expressly authorizes” her “to designate an officer” to perform those duties.

Does such an express statutory authorization exist here? Gupta might point to 28 U.S.C. § 510, which declares that “the Attorney General may from time to time  . . . authoriz[e] the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General.”

This is where the strange rhyming history comes full circle. It was precisely this statute that the Clinton administration invoked to install Bill Lann Lee without Senate confirmation. In response to that ploy, the FVRA includes the following language: “Any statutory provision providing general authority to the head of an Executive agency . . . to delegate duties . . . [to] officers or employees of such Executive agency, is not a statutory provision” that qualifies as express authorization. And just in case this wasn’t clear enough, the FVRA’s sponsors referred specifically to 28 U.S.C. § 510 as one statute that “shall not be construed as providing an alternative means of filling vacancies.”

The FVRA declares that all actions taken by unauthorized officers are void, which means that every enforcement proceeding brought by Gupta in the last 20 months is now susceptible to legal challenge. As it happens, the Supreme Court is currently considering National Labor Relations Board v. SW General, Inc., a case challenging the legality of an acting officer. (There the issue is over who may serve in that temporary capacity, the other side of the official-vacancy coin.) Given the shenanigans in the Civil Rights Division, it may not be long before people aggrieved by Gupta’s activism also find their way to court.

Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute, where Thomas Berry is a legal associate. They filed a brief in the referenced FVRA case, NLRB v. SW General.

Why Kuwait’s Elections Matter

Doug Bandow

It doesn’t take a lot of votes to get elected to Kuwait’s National Assembly. In the smaller districts a couple thousand ballots will do. But the legislature really matters.

Only Bahrain has a similar elected body, but that Gulf state has destroyed any pretense of democracy with the ruthless repression, backed by neighboring Saudi Arabia, of the Shia majority by the Sunni monarchy. No one looks at Manama as an example of Arab liberality.

Even Kuwait’s reputation has suffered as the government sought to stifle opposition in the aftermath of the Arab Spring. However, the November 26 poll, which I observed, gave the opposition almost half of the National Assembly’s fifty members.

Moreover, many candidates denounced the government for having stripped critics of their citizenship, jailed opposition activists for criticizing the Emir and changed the election rules. Kuwait is not Saudi Arabia. This contest seemed to move the small emirate — the number of eligible voters wouldn’t fill one congressional district — back toward its more open past, though significant challenges remain.

For Americans, Kuwait’s elections are unusual in a number of ways. There are five districts which elect ten legislators each. Voters, however, can cast only one ballot — down from four as recently as 2012. The campaign can run at most sixty days; in this case the Emir dissolved the National Assembly on October 16 and set the election less than six weeks later.

Campaigning is intensely personal and tribal. In fact, the Emir reduced the number of votes cast to thwart vote-rolling by tribes, some of which had gained special influence. Women won the right to vote in 2005, though polling places are segregated by sex, and make up more than half of those registered. However, only one female candidate won this time.

Kuwait illustrates the oft-ignored tension between liberty and democracy.

The voting process itself is festive, with streets leading to the polls lined with supporters and tables filled with food, drinks and campaign propaganda and paraphernalia. Women voters offer the most variety because their dress varies from stylish Western to full Islamic covering. The visual contrast mirrors divisions in the society itself.

Kuwaitis remain overwhelmingly pro-American and remember being rescued during the Gulf War. Even younger Kuwaitis talk about their family’s experiences during the Iraqi invasion. However, while Western-style liberals are prominent and visible — and often work with foreign visitors — Kuwait remains a conservative society. Women hold professional positions and drive, but for a time universities were segregated. Religious liberty is protected, but Western-style evangelism is absent. For the most part, government allows people to choose how to live, but not all are happy with that degree of freedom.

Indeed, the country illustrates the oft-ignored tension between liberty and democracy. There are no parties in Kuwait, but in the new legislature those supporting the government are about sixteen, while 24 are thought to compose the opposition and the rest independent. However, the opposition is badly split, ranging from liberal to Islamist. They often cooperate on political reform but differ dramatically on social issues. That division helps explain the overwhelming reelection of the previous National Assembly speaker and narrow selection of the new deputy speaker, both of whom were backed by the government.

The Islamist block, made up of Salafists and members of the Muslim Brotherhood, accounts for about a fifth of the body’s members. That’s probably not enough to enact their distinctly anti-liberal agenda. However, the National Assembly election in February 2012, conducted amid charges of widespread corruption and undue government influence, yielded a very conservative, traditionalist opposition, which promptly began discussing measures to impose the death penalty on blasphemers, close Christian churches and impose a dress code. Thankfully, the unelected monarch said no. For instance, the Emir noted that the constitution protected religious liberty, hence no church burnings.

That poll and the following election were voided for technical reasons. The July 2013 contest, boycotted by the opposition, yielded a far friendlier majority for the government. But even it was unsympathetic to cutbacks, however modest, in Kuwait’s generous welfare state.

It’s an issue which officials have talked about whenever I visited over the last nearly two decades. And the issue has gained urgency with the dramatic drop in oil prices. In late November, before the vote, Information Minister Sheikh Salman Sabah Al-Salem Al-Homoud Al-Sabah told me that, “Kuwait is trying to move away from a welfare state to a state of responsibility with the participation of its citizens.” He acknowledged the political barriers to doing so, but argued that “we have to work towards creating awareness in the population to take more responsibility.”

Indeed, when convening the new National Assembly, the Emir spoke of “inevitable” cutbacks and sacrifices. However, a majority of the new members campaigned against reductions in the panoply of government subsidies and salaries available to Kuwaitis. Everyone wants reform, but few believe that giving up their benefits counts.

Yet this might not be the most divisive issue for the new session. The election disputes of 2012 and 2013 triggered criticism, boycotts and demonstrations against the government. Old leaders organized young followers. Islamists and liberals cooperated. Perhaps the most celebrated dissident was long-serving MP Musallam al-Barrak, a social conservative who became quite popular with the young. I’ve spoken with him several times over the years. He always was careful to separate his criticism of the government from that of the Emir, who is considered to be above politics. But last year al-Barrak was jailed for his criticisms of the monarch. He is not forgotten, however, and will be released next year.

One of the ideas broached by democracy advocates across the spectrum was creating a government accountable to the National Assembly rather than the monarchy. The degree of popular support for the idea was never easy to gauge, and as ever more of the Middle East has dissolved into conflict an increasing number of Kuwaitis appear to be more interested in stability. Indeed, liberal support for democracy is a serious risk: if such policy had been in place in February 2012, Kuwait might have proceeded to follow countries like Pakistan, Saudi Arabia and Iran, which execute blasphemers, ban churches and regulate dress. It is the monarchy which saved the nation from such policies. Still, younger Kuwaitis frustrated with the lack of economic opportunities may lose patience with a system that tends toward gridlock.

Kuwait receives little press in America, but is a genuine friend of the United States and has served as a logistical base for Washington’s military activities around the region. Yet what may be most impressive about Kuwait is that it has had an elected legislature for more than a half century. That, combined with a generally free press, makes Kuwait the freest country in the Gulf and, indeed, in the Middle East other than Israel (which is decidedly repressive toward Palestinians) and Lebanon (which has a malfunctioning confessional system).

Kuwait’s reputation has been tarnished of late, and the new National Assembly could help restore some gleam to Kuwait’s political system. The challenge is to make democracy and liberty allies, not antagonists. Kuwaitis have found that isn’t always easy. But doing so has become more important than ever.

Doug Bandow is a Senior Fellow at the Cato Institute.

When Democrats Wanted Moscow’s Political Help

Doug Bandow

Te Clinton Machine is unable to maintain online security and it supposedly is Russia’s fault. Well, Hillary Clinton obviously needed some excuse for twice failing to grab the political prize that her ostentatiously unfaithful husband snatched on the first try. Moscow is as good as any.

If there was evidence of Russian tampering with voting machines, thereby literally stealing the election, then bring it on. But the claim that Moscow originally got the emails that eventually were released by Wikileaks, exposing the sleaze that we always knew surrounded the Clinton operation? That was a public service and media scoop.

Anyway, Democrats were not always so sensitive about relying on Moscow’s political assistance. In 1983 the party was down on its luck. So what to do? Call on the Soviet Union for assistance!

To be fair, we really don’t what happened 33 long years ago when Sen. John Tunney, a California Senator and a Sen. Ted Kennedy intimate, passed a message to KGB head Viktor Chebrikov. All we have is the memo from the latter to Communist Party General Secretary Yuri Andropov, the former KGB head. Still, there really is no innocent explanation.

Russia’s alleged role in the email leaks is a distraction. The most important issue is the development of Trump’s policy agenda for the next four or eight years.

Back when the Evil Empire finally collapsed, the Soviet archives were opened for a time. Tim Sebastian, a reporter with the British Times, found the Chebrikov memo and wrote about it. Grove City College’s Paul Kengor included the document in his book The Crusader: Ronald Reagan and the Fall of Communism. Since then a few conservatives have written about the event.

It’s a story worth repeating. According to Chebrikov, “(Ted) Kennedy’s close friend and trusted confidant J. Tunney” was visiting Moscow and had a message for Andropov. “Senator Kennedy, like other rational people, is very troubled by the current state of Soviet-American relations.” The situation could become more dangerous, mainly due to “Reagan’s belligerence, and his firm commitment to deploy” midrange nuclear weapons to Europe.

Unfortunately, from Kennedy’s point of view, the economy was improving. There was still hope for “a new economic crisis,” but, noted Chebrikov, “there are no secure assurances this will indeed develop.” Thus, a better strategy to defeat Reagan in 1984 might be the peace issue. Yet, “according to Kennedy, the opposition to Reagan is still very weak.”

So Kennedy offered several “steps to counter the militaristic politics of Reagan and his campaign to psychologically burden the American people.”

First, Andropov should invite the esteemed senator to Moscow so the latter could “arm Soviet officials with explanations regarding problems of nuclear disarmament so they may be better prepared and more convincing during appearance in the USA.”

Moreover, reported Chebrikov, “to influence Americans” Andropov should appear in televised interviews in America. If Moscow approved, “Kennedy and his friends will bring about suitable steps to have representatives of the largest television companies in the USA contact Y.V. Andropov for an invitation to Moscow for the interview.”

Of course, it would be tragic if this was seen as propaganda. Explained Chebrikov, “The senator underlined the importance that this initiative should be seen as coming from the American side.”

Similarly, Kennedy urged TV interviews with other Soviet officials, “particularly from the military.” The Soviet guests would “have an opportunity to appeal directly to the American people about the peaceful intentions of the USSR.”

Lest we think this approach had something to do with Kennedy’s political ambitions — he was hoping to run in 1988 and thought the desperate Democratic Party might turn to him in 1984 — Kennedy explained that he wanted to “root out the threat of nuclear war.” Toward that end, noted Chebrikov, “Kennedy is very impressed with the activities of Y.V. Andropov and other Soviet leaders, who expressed their commitment to heal international affairs, and improve mutual understandings between peoples.”

Criticism of Reagan’s foreign policy and approach to the Soviet Union was perfectly legitimate. Indeed, after reform Communist Mikhail Gorbachev came to power, conservatives more often were upset with the administration.

But treating Andropov & Co. as tragically misunderstood peaceniks was bad enough. To plan the entire exercise in an attempt to undermine Reagan’s re-election chances and promote Kennedy’s long-shot presidential ambitions was frankly outrageous.

Yet today the left is upset because Russian hackers allegedly released information about the malfeasance of America’s would-be leaders.

Love or hate The Donald, he won because so many Americans were angry, frustrated, and fed up. Moreover, his chief opponent embodied just about every flaw of the country’s ruling class.

Russia’s alleged role in the email leaks is a distraction. The most important issue is the development of Trump’s policy agenda for the next four or eight years.

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

Why It Could Be Good for Trump to Skip Some Intelligence Briefings

John Mueller

As he does with considerable regularity, Donald Trump has elevated the eyebrows of the foreign policy establishment with his practice of undergoing intelligence briefings only once a week on average, instead of daily. Now his team says that he is getting the President’s Daily Brief three times a week, along with daily briefings from his appointee for national security adviser.

Although Trump’s reduced schedule of briefings is commonly interpreted as an effort to diss the intelligence community, it seems that Trump’s chief goal is to keep himself from becoming bored. As he put it on Fox News Sunday a few days ago, “I’m, like, a smart person. I don’t have to be told the same thing and the same words every single day for the next eight years….I don’t need that.”

But the problem with intelligence briefings is not so much that they cause boredom in the recipient as that they routinely induce terror.

Central to the briefing is the “threat matrix,” a compendium assembled by the CIA and the FBI that includes all the “threats” — or more accurately “leads” — needing to be followed up. Garrett Graff reports that it is “filled to the brim with whispers, rumors, and vacuous, unconfirmed information” and that it can come off as “a catalogue of horrors” and as the “daily looming prognoses of Armageddon.” Philip Mudd notes the “voluminous and dominating” threat information, much of which he points out is raw and “below threshold” for top leaders, and notes that it contributes “to a pervasive sense that every day might bring a new attack.”

The problem with intelligence briefings is not so much that they cause boredom in the recipient as that they routinely induce terror.

As Henry Kissinger stresses, “Historians rarely do justice to the psychological stress on a policy-maker.” One can only imagine what happens when this rather natural hazard of office is exacerbated every day by fusillades of seemingly dire threat information generated by people who are paid to identify and inflate threats, not to downplay them. “My job,” recalls one Pentagon official, “was to look for all the bad stuff. Scanning for threats is what we get paid to do.”

Jack Goldsmith, an avid consumer of the process when he was in the Bush administration, stresses that, “It is hard to overstate the impact that the incessant waves of threat reports have on the judgment of people inside the executive branch.” Former CIA Director George Tenet says that, “Virtually every day you would hear something about a possible impending threat that would scare you to death.” This, writes Goldsmith, captures “the attitude of every person I knew who regularly read the threat matrix.” Every person.

In his 2010 memoir, George W. Bush notes that, thanks to intelligence reports, “for months after 9/11, I would wake up in the middle of the night worried.” But even a decade later he cannot bring himself to reflect on the fact that those worries went substantially unfulfilled in subsequent experience. Similarly, although Tenet may have been scared to death every day by the intelligence information fed to him, scarcely any, perhaps none, of the thousands of “threats” that terrified him on a daily basis actually came to pass.

Goldsmith suggests that the sheer number of “threats,” combined with the fact that these scarcely ever lead to anything, never managed to inspire analysts and policymakers to consider the rather plausible, if arguable, conclusion that there was little or nothing out there to fear. Rather, it caused them — exclusively it seems — to embrace the dead opposite. “The want of actionable intelligence combined with a knowledge of what might happen,” he says, “produced an aggressive, panicked attitude that assumed the worst about threats.”

Barack Obama does not seem to have been immune to the process, noting that as “a President who looks at intelligence every morning, I also can’t help but be reminded that America must be vigilant in the face of threats.”

Part of the problem emerges from what Marc Sageman, after years of experience in the intelligence community, calls ”a bias for alarming interpretations.” Often, he says, “the worst interpretation” is given full attention while potentially disconfirming evidence “is neglected.” Robert Jervis agrees: probing for “alternative explanations of what was happening” is, he finds, “very rare.”

It remains to be seen whether the nation is better served if its commander in chief is terrified a few times a week rather than once a day by his intelligence briefings.

John Mueller is a political scientist at Ohio State University and a senior fellow at the Cato Institute.

Should the United States Wage War for Friends?

Christopher A. Preble

I was honored to participate in the Soho Forum’s successful debate earlier this week in New York City concerning the question of whether, “The United States should be prepared to use force in defense of friendly nations even when not subject to the direct threat of force.”

Arguing in the affirmative was the esteemed constitutional scholar Richard Epstein. I argued that the nation’s interest, not friendship, should guide the conduct of U.S. foreign policy, especially when it comes to the use of force. Adopting the affirmative case, I explained, would lead to more war, not less. It also defies the wishes of America’s founding generation, and of Americans living today.

On the surface, the affirmative position seems like common sense. It also comports with basic human beliefs about how we interact with our fellow humans. After all, we do favors for friends all the time. We might, for example, loan a friend some money if they run into trouble. We might help friends around their house, or help them to move out of it. We might even drive them to the airport. As individuals, we should be free to make such choices with our money and time.

In a largely bygone era, princes and kings did favors for friends. In 1367, for example, Edward of Woodstock, aka the Black Prince, went to war in Castile for his friend Pedro, also known as Pedro the Cruel. Pedro had been engaged in a long-running feud with his brother Henry of Trastamara for control of the region. Henry was befriended by Bertrand du Guesclin, nicknamed “The Black Dog of Brocéliande.”

Where does prudence come into play? What are the limiting factors? Should Americans be willing to risk everything for the effort?

These black dogs and black knights and cruel princes waged war on behalf of one another, and the result was pretty nasty for the troops unfortunate enough to be under their commands. They met near Navarrette in April 1367. Up to seven thousand were killed in the ensuing battle, with perhaps an equal number wounded. The Black Dog was captured but survived, ransomed by his friend Charles V, who considered him an invaluable military commander. He later became Constable of France, and received a hero’s burial when he died of illness at the age of sixty.

Just about three hundred years after the Battle of Navarrette, Louis XIV began his personal reign as the King of France. He too waged wars on behalf of his friends. And he, like the Black Prince and Black Dog, didn’t much care about the people who suffered on account of his foreign adventures. He could do whatever he pleased. Famously, “L’état, c’est moi.” Or, in the immortal words of Mel Brooks in the role of Louis XVI, “It’s good to be the king!”

But somewhere along the way, between the time of the Black Dog and the Sun King and today, we adopted a different approach to governing. Our rulers aren’t expected to wage wars on behalf of their friends or distant relatives with their subjects serving them. Rather, our leaders are expected to serve the interests of the citizens who elevate them to high office.

Indeed, lest they be tempted by ties of friendship or kinship, we have created institutions that constrain their powers, most crucially written constitutions. The U.S. Constitution, in particular, is predicated on the principle of a few enumerated powers granted to the federal government from the states and the people. Within the document, we can find many of these powers spelled out. But one will search in vain for any reference to the U.S. government coming to the assistance of friendly nations. Indeed, America’s founders worried greatly about the danger that the citizens of the new nation would adopt unnatural foreign attachments.

And yet today, the United States is waging war on behalf of a number of foreign nations, or is preparing to do so. The list includes formal treaty allies such as South Korea, Japan and Turkey, as well as informal ones. Saudi Arabia provided money for the operation that helped drive the Soviet Union out of Afghanistan in the 1980s. We are now helping the Saudis in Yemen. The ambiguous commitment to defend Taiwan from China is suddenly in the news again, thanks to President-elect Donald Trump’s phone conversation with Taiwanese President Tsai Ing-wen.

But where does prudence come into play? What are the limiting factors? Should Americans be willing to risk everything for the effort? Should they generally be willing to contribute tens or hundreds of thousands of troops to helping friends fend off their enemies, both foreign and domestic? Many Republicans argue that Barack Obama erred in removing troops from Iraq in 2011, implying that there should have been no artificial timeline placed on how long they would stay, irrespective of the wishes of the Iraqi people.

Calls for permanently stationing American troops in foreign countries also ignore the wishes of the American people. A Pew Research poll taken in April 2016 found that 57 percent of Americans agreed with the statement that the United States should “not think so much in international terms but concentrate more on our own national problems.” Other polls find that, among the foreign policy goals that Americans count as “very important,” “defending our allies’ security” consistently ranks near the bottom.

For years, even decades, U.S. foreign policy elites have ignored public sentiment. Trump ruthlessly exploited that gap, speaking of “America first” and promising to compel America’s allies to pay for the protection that U.S. troops provide. Friendship has nothing to do with it, apparently. For Trump, it is all about getting a better deal for the United States. Whether he will actually be able to do that remains an open question, but, for now, those voters who elected him to office believe that he’s going to try.

As he prepares for the presidency, Trump might revisit—or read for the first time—the first president’s parting advice for his country. “The great rule of conduct for us in regard to foreign nations is in extending our commercial relations, to have with them as little political connection as possible,” George Washington explained in his farewell address. Other countries “must be engaged in frequent controversies, the causes of which are essentially foreign to our concerns” and Americans should therefore avoid “the ordinary combinations and collisions of [their] friendships or enmities.”

Our detached and distant situation invites and enables us to pursue a different course. If we remain one people under an efficient government, the period is not far off…when we may choose peace or war, as our interest, guided by justice, shall counsel.

That time has arrived.

We have made some poor choices in the last quarter century, and the most egregious errors have occurred when we convinced ourselves that we were helping our friends. We should stick to a narrower set of rules guiding our conduct in foreign affairs, particularly when war is concerned.

Christopher Preble is the vice president for defense and foreign policy studies at the Cato Institute

The Problem with United States’ Unshakeable Backing of the Philippines

Christine Guluzian

Despite the Philippines president, Rodrigo Duterte, throwing a series of lambasts and insults Washington’s way, the United States has continuously reassured the Philippines of its solid commitment to the U.S.-Philippines alliance. Perhaps emboldened by the unshakeable backing of a major powerful ally, Duterte seems increasingly unconcerned with the moral or legal ramifications of condoning extrajudicial slaughter in his country’s ongoing drug war.

The president of the Philippines has now come out to publicly acknowledge his own role in the notorious drug war by personally partaking in the “Davao death squads” when he was mayor of Davao. 

Referring to a vigilante group comprised of serving or former police officers paid per hit, Duterte framed his involvement in the death squads as serving a positive example for police officers to follow: “In Davao I used to do it personally. Just to show to the guys [police officers] that if I can do it, why can’t you.” Speaking on, his true intentions were not far behind: “I was really looking for a confrontation so I could kill.”

Duterte seems increasingly unconcerned with the moral or legal ramifications of condoning extrajudicial slaughter in his country’s ongoing drug war.

His “example” has clearly taken root. The Guardian reports that since his election, police have reported killing 2,086 people in anti-drug operations and more than 3,000 others have been killed in unexplained circumstances, according to official figures.

Even more concerning, Duterte has been callously encouraging civilians to kill addicts as well. His address to a crowd the day he took office even included the rallying cry “if you know of any addicts, go ahead and kill them yourself as getting their parents to do it would be too painful.” Previously, Duterte’s government had stated that the government did not sanction vigilante killings.

Not long ago, Duterte brought a case to the U.N. Tribunal regarding a dispute in the South China Sea. When China—the party against whom the case was lodged—refused to acknowledge the court’s ruling, it was Duterte who immediately appealed for the rule of law to stand. Yet, here we have a sitting president encouraging police and hired assassins to commit murder with impunity: Duterte has repeatedly pledged that police officers will not be prosecuted for extrajudicial executions.

The hypocrisy is astounding. Duterte’s appeal to the applicability of the rule of law in the Philippines’ international dispute, yet casual dismissal of its role domestically, makes a mockery out of the international legal system.

Duterte’s easy willingness to bend the rule of law is also disturbing. His reference to the rule of law—a fundamental pillar of democratic society—as “just principles” which are subject to “innovation” and are sometimes a “stupid proposition” are troubling messages.

What’s more troubling is that the Philippines’ major and long-standing ally, the United States, is overall perplexingly quiet on the issue aside from issuing statements of concern. Instead, when the United States Ambassador to the Philippines met with President Duterte on Dec. 6, he vowed to strengthen the “friendship and alliance” between the U.S. and the Philippines.

Duterte’s actions very likely constitute a crime under international law: in an October letter, the International Criminal Court chief prosecutor said she was “deeply concerned” over reports of thousands of extrajudicial killings in the Philippines, adding that “a widespread or systematic attack against a civilian population” may fall under the jurisdiction of the court.

On whether great powers abide by the rule of law, it is the scholar Graham Allison who famously posited that legal institutions are only for “small powers” and that “great powers” do not necessarily recognize them. However, Duterte’s words and deeds reflect those of a “small power” acting with similar disregard towards the role of international law. Perhaps, then, Allison’s model should be expanded to include not only “great powers”, but also “not-so-great powers, with great powers behind them”.

Christine Guluzian is visiting Research Fellow in Defense and Foreign Policy Studies at the Cato Institute.

The Bill of Rights Doesn’t Need ‘Rethinking’

Roger Pilon

To mark the 225th anniversary of the ratification of the Bill of Rights, Arthur Milikh, associate director of the Heritage Foundation’s B. Kenneth Simon Center for Principles and Politics, has offered NRO’s readers a consequentialist rationale for speech and press freedoms under the heading “Rethinking the Bill of Rights.” The Founders, he believes, intended those freedoms “to promote understanding and civic virtues, not undermine them,” which he goes on to argue our modern law has done. “Lawyers and courts” he writes, “have come to dominate all discussion of [the Bill of Rights] — offering up complicated and narrow case law as the standard mode of thinking,” and thus countenancing everything from flag-burning to pornography. As a result, citizens rarely observe the “deeper designs and intentions” of the Bill of Rights.

I knew Ken Simon. For nearly two decades, I’ve held the Cato Institute’s B. Kenneth Simon Chair in Constitutional Studies. Ken was a lay scholar of the Constitution and a great friend of liberty. I can say with confidence that although he believed, as do I, that the Founders intended our liberties to be conducive to the development of human character and sound citizenship, their basic rationale was in no way instrumental. Rather, those rights were believed to be inherent and essential to human dignity, even though they might sometimes be exercised irresponsibly. Yet to remedy such abuses, Milikh would restrict our speech and press freedoms through our courts.

To begin, let’s look at his rationale. He speaks first of the Bill of Rights as “intended to preserve the spirit of republicanism.” Thus, the Second Amendment “aims to safeguard the vigilant and manly spirit proper to self-government,” and free speech is meant, among other things, “to cultivate the virtues of deliberation among citizens.” Citing Benjamin Franklin to the effect that “the freedoms of speech and press are directed specifically toward ‘discussing the Propriety of Public Measures and political opinions,’” Milikh adds that, “in other words, rational, political speech is meant to be protected and honored.” (Emphasis added.)

Our freedoms of press and speech are just as important now as they were 225 years ago.

The problem with instrumental justifications, of course, is that when the justificatory end is not served by an action (or, indeed, is undermined by it), the rationale for the action fails, even if the act might otherwise be justified on non-instrumental grounds — specifically, as a natural right. But Milikh never addresses that problem. Instead, he develops the point only implicit in his use of “rational” above: That free speech and press were meant to encourage a specific kind of virtue, he writes, “means that only certain kinds of speech are respectable.” Thus, he continues, “freedom of speech and press have limits in part because man’s speech may sometimes be directed by the ‘wantonness of his passions, or the corruption of his heart’,” in the words of Joseph Story.

We have here, then, the makings of statecraft as soulcraft, for if there are to be limits on speech and press freedoms — if only “respectable” speech is to be permitted — those limits will need to be enforced by more than social sanctions, as the examples noted at the outset make clear. And the state’s soulcraft must of course be practiced by the right people. We wouldn’t want those limits influenced or enforced by the people at the National Endowments for the Arts or the Humanities, for sure, much less the folks at National Public Radio. And heaven help us if environmental speech deemed scientifically “respectable” were determined by the National Science Foundation, or if blasphemy were determined by Dutch courts, to take an example now in the news. No, only virtuous souls are qualified for soulcraft in pursuit of virtue.

Seemingly oblivious to the problem of selecting and guarding the guardians of public virtue, Milikh presses on with what he sees as the main problem: “speech in America has come to mean the expression of unreasoned inner feeling — no matter how raw or thoughtless — which has resulted in the closing off of rational speech.” As evidence he cites not the closing off of his own missive — how could he? — but the state of speech on our university campuses. Ironically, however, it is our modern First Amendment jurisprudence that, at least at public universities, is checking campus efforts to protect infantilized behavior and limit open and rational speech.

It’s at this point in his argument that Mikikh launches into an uncertain discussion of “our deficient understanding of the law’s effects on the human character.” This, he claims, stems from our “error” in believing “that law protects any kind of non-rational volition,” from flag-burning to pornography to vulgarity and on and on. In the end, it’s unclear whether he believes that law compels decency or that decency is a precondition for law. But it is clear that he believes that our modern speech and press jurisprudence “puts the law into disrepute. Can citizens,” he asks, “revere or believe to be sacred a law if it leads to unjustified insolence and foolishness?”

Setting aside whether we’re to believe secular law is sacred, citizens can certainly revere law that allows people to be both virtuous and foolish. Indeed, the virtue of such law is that it does not judge as between the two but rather leaves it to experience to draw the distinctions. And nowhere is that more clear than in our law protecting free speech, which rests not on the content of the speech but on the right to speak. Virtuous or popular speech needs no protection. It is foolish or unpopular speech that is ever in peril. That our law today protects such speech is its cardinal virtue.

In one final irony, in support of his argument for limiting speech in the name of promoting virtue, an argument many conservatives make, Milikh concludes by urging judges to “use more than merely legal reasoning and demonstrate a capacity for psychological analysis and foresight” — that is, to become “statesmen” by “thinking through the effects of particular laws on the human character.” But it was conservative icon Justice Antonin Scalia who twice ruled against flag-burning bans, and who never tired of reminding us that the duty of the judge is to apply the law. Psychological analysis was the last thing he would have wanted judges to indulge.

Since Milikh invoked Benjamin Franklin in defense of this instrumental rationale for limiting speech, however, it is only right that Franklin’s broader view should conclude the matter: “Freedom of speech is a principal pillar of a free government,” he wrote in the Pennsylvania Gazette. “When this support is taken away, the constitution of a free society is dissolved, and tyranny is erected on its ruins.” Amen.

Roger Pilon is vice president for legal affairs at the Cato Institute and director of Cato’s Center for Constitutional Studies.

2016: The Year That Wasn’t for Bitcoin

Jim Harper

It’s been another banner year for bitcoin investors.

The cryptocurrency’s price, even in strengthening US dollars, rose more than 75%. Network effects continue to benefit bitcoin — it’s arguably a currency’s most important dimension — so there is good reason to think that it will be an engine of wealth for ‘hodlers’ into the foreseeable future.

But if the bitcoin price is driving ever upward against fiat currencies, what’s with all the smoke coming out the tailpipe and steam billowing from under the hood?

2016 has been the year that wasn’t for bitcoin — its continued growth in importance, usage and price belie retrenchment. Deficits in social capital that were front and center this year suggest that it could be decades, not years, before bitcoin and cryptocurrency reach their true potential.

It’s true, as Ariel Deschapell wrote for CoinDesk this year, that bitcoin is increasingly recognized as a safe-haven asset. Unlinked to any fiat currency or other macroeconomic factor, bitcoin is a good way to diversify a portfolio.

The story of bitcoin in 2016 has been one of retrenchment back from the highs and successes that it could be achieving by now, which go beyond capital gains for tech-savvy investors

If 5% of the $7tn invested in gold were to migrate to bitcoin, a possibility Barry Silbert of the Digital Currency Group likes to ponder, that implies a bitcoin market cap of $350 billion, or a little under $22,000 per bitcoin.

The gold comparison

What is keeping the world’s bitcoins from reaching 1/20th the value of gold?

Well, take a look at the /r/Gold subreddit. Compared to bitcoin’s, it’s a languid, unpopulated island. The bitcoin subreddits, of course, are warring hives of intense activity and acrimonious debate. There aren’t a lot of directly valid data points in the observation, but the suggestion is that wealth accumulates where there is peace.

Disharmony in Bitcoinland reflects the dearth of social capital around the project.

‘Social capital’, of course, refers to the human institutions that enable physical or technical capital to function effectively, fulfilling its purposes. A widget manufacturing plant has value not only because of what went into its design and construction, but because people know how to run it, they know how to secure it against theft, how to fix it, how to sell the products of it and so on.

Social capital includes knowledge in broader society of how to use widgets, where to buy them, how to preserve them and a sense of their value.

Gold has literally thousands of years of social capital built up around it: Everyone knows what it is. A lot of people own or covet gold themselves. Most people have a sense of how to secure it. There are locations across the globe where gold can be purchased, sold and stored. Everyone has a sense of its lasting value.

They have this sense because gold has been thoroughly tested over centuries to establish the physical properties that make it shiny and rare. A substantial worldwide storehouse of customs and expectations also makes it specially prized.

There are few unknown or controversial dimensions of gold.

Issues with bitcoin

By comparison, bitcoin has almost no social capital.

It’s relatively unknown. Of those who know about it, many doubt its viability. They’re not wrong to doubt because information suggesting bitcoin’s lasting value is very hard to find. This includes understandings of value itself, open-source software, cryptography, monetary economics and more.

In contrast to gold’s shiny, self-advertising color, bitcoin has the scaling debate. It’s one of the first things any careful investigator of bitcoin will discover upon pulling back the curtains onto the strange crypto world. The most consequential technical development since the Internet itself has a pronounced way of putting people off.

For all the smarts and dedication seen in the bitcoin community, it is a collective computer nerd with all of a computer nerd’s faults — as Urban Dictionary says, “somebody who knows more than the speaker about computers, who by implication has no social skills”.

Many bitcoiners also have the Millennial’s trait of not knowing how much they don’t know.

A tale of gridlock

At scale, social skills are political skills, and this dimension of social capital is also in short supply.

Consider the capacity of anyone in the bitcoin world to convince just about anyone of anything. The year began with the stalling out of the effort to shift to Bitcoin XT, an alternative to the dominant implementation of bitcoin’s code.

Bitcoin Classic came next. It, too, was introduced without sufficient groundwork to attract broad support in a community that is part utterly indifferent and part rigidly partisan. The year ends with Bitcoin Unlimited making its own run at toppling Core and even its preferred improvements appear unlikely to achieve critical mass.

Bitcoin implementations really shouldn’t be “toppled”, of course, for the sake of public confidence. Whatever happens in the debate over the block size limit, the present-day bitcoin community is its own worst enemy.

The social capital that the bitcoin space still needs crosses many domains. If it is going to help deliver on global financial inclusion, financial privacy, liberty and monetary stability for the world’s people, bitcoin still needs to be popularized and demystified.

When it comes to the block size limit and similar matters, the ground beneath those debates should be like a Roman road, deeply underlain by scholarly study of the issues in all their dimensions, including the code, of course, but also security and risk management, economics, cryptography, networks, data storage and more.

Ray of light

The forthcoming publication of Ledger, a peer-reviewed scholarly journal focusing in on cryptocurrency and blockchain technology should be widely anticipated. Ledger must establish itself as a universally credible publication.

Leading figures and groups should be voluble communicators, not just on bitcoin forums and social media, but in mainstream and trade media, as well as each on their own, easily found channels. Bitcoin business leaders should act consistently with professional standards at all times. This year made clear that bitcoin needs better communications.

There are social capital efforts underway, of course.

Coin Center continues to calm and educate regulators in the US, whose lead many other countries will follow. The Open Bitcoin Privacy Project is another such effort meant to aid users in protecting their financial privacy. The Bitcoin Foundation was supposed to help develop Bitcoin’s social capital, but the enormity of the task, the diffuse (or lacking) vision of its varying leadership, and some significant early missteps relegated that organization.

Despite the appointment of another well-meaning executive director mid-way through the year, the foundation has been achievement-free in 2016.

Why does this matter? Technology is about people. It only exists with reference to humans and human ends.

The bitcoin ecosystem is not self-actuating or self-correcting. It requires attention and maintenance like any system of human organization. The story of bitcoin in 2016 has been one of retrenchment back from the highs and successes that it could be achieving by now, which go beyond capital gains for tech-savvy investors.

It masks the long way the cryptocurrency ecosystem has to go before it truly delivers on its revolutionary potential.

Jim Harper is a senior fellow at the Cato Institute, working to adapt law and policy to the information age.

If You Fear the Religious Right (or Anyone Else), School Choice Is Not Your Enemy

Neal McCluskey

If you are against school choice, you support inequality under the law — at least when it comes to education. You also hugely amplify the threat that some group you don’t like will control the public schools for which everyone must pay. You probably don’t realize these things, but as a New York Times op-ed by Christian-Right watchdog Katherine Stewart illustrates, they are inescapable.

Stewart is worried about conservative Christians gaining dangerous influence in the coming Trump administration. “At the rightmost edge of the Christian conservative movement, there are those who dream of turning the United States into a Christian republic subject to ‘biblical laws,’” Stewart writes. “In the unlikely figure of Donald J. Trump, they hope to have found their greatest champion yet.”

Stewart identifies many members of the still-forming administration as harbingers of trouble, but the focus of her worry is education secretary nominee Betsy DeVos. DeVos comes from religiously conservative families that are financial supporters of groups such as the Family Research Council and Focus on the Family.

Prohibiting school choice ensures that people are treated unequally under the law.

Setting aside that good people can be religious conservatives, what is Stewart’s fear about DeVos? It appears, at first, that right-wing Christians will take over public schools. She writes that Christian Rightists such as Coral Ridge Presbyterian Church pastor D. James Kennedy, and televangelist Jerry Falwell, Sr., have spoken out against the public schools. Stewart cites Falwell writing in 1979 that “he hoped to see the day when there wouldn’t be ‘any public schools — the churches will have taken them over and Christians will be running them.’”

If Stewart’s worry is that people whose values and ideas she finds disagreeable, maybe even repugnant, might take over the public schools, she stands on solid and expansive ground. For most of their existence, the public schools were de facto Protestant institutions to the detriment of Roman Catholics, Jews, atheists and others who were consigned to second-class citizenship.

At least, though, religion did not legally bar people from using the public schools. For centuries many African-Americans were prohibited from receiving any education, and when they were allowed to use the public schools they were shamefully segregated. And segregation wasn’t just for African-Americans: In some parts of the country, Mexican Americans and Asians were also segregated.

Stewart’s immediate worry, however, is not what we have seen throughout their history: Public schools by their inherent winner-take-all nature rendering huge swaths of people unequal. No, her worry is that DeVos supports school choice, which would let conservative Christians (and everyone else, by the way) get the education they want for their children without having first to pay for public schools, then again for schools that share their values.

When it comes to the Christian Right taking over the United States, Stewart declares, “Vouchers are part of the program.”

Sorry, Ms. Stewart: You can either have public schools that inescapably impose one group’s beliefs on everyone, killing equality and risking Christian-Right control, or you can have school choice.

Perhaps Stewart is okay with the current state of affairs because today’s public schools exclude Christian thought. But that’s still inequality: If you are an atheist or agnostic, you get a curriculum you’re fine with. If you believe that God is a part of everything you do, that you can’t compartmentalize your moral and religious convictions so they apply to some things and not others: tough cookies.

Of course, inequality is hardly just a problem of religion.

Do you think Mexican-American history is taught in a biased way that favors the victors? Too bad. Don’t want creationism insinuated into your child’s science instruction? Don’t move to Louisiana! Fond of free expression? Oh boy.

The only way to deliver education that treats all people equally, with the added bonus of avoiding deeply divisive social conflict, is school choice. Exactly what DeVos has championed.

Now, there is a way to deliver choice that more fully respects everyone’s conscience rights than vouchers: Tax credits for those who pay for their own private schooling, or for individuals and corporations who donate to groups that supply private school scholarships. These ensure that no one has their tax dollars sent against their will to schools they find disagreeable, while giving far more people the ability to get the education they want without having to impose it on everyone else.

It is surely not Stewart’s intent, but prohibiting school choice ensures that people are treated unequally under the law. It is also a perfect way to get what Stewart likely fears most: conservative Christians trying to take over the public schools.

Neal McCluskey is a contributor to the Washington Examiner’s Beltway Confidential blog.

How Trump Can Reform Immigration without Tanking Republicans or the Economy

Alex Nowrasteh and David Bier

President-elect Donald Trump ran on an immigration enforcement platform, and when crafting policies his administration can take some lessons from California and Texas’s experience. Their experience suggests smart ways to enforce immigration laws without causing a political backlash or economic problems. As a Republican, President Trump should be inspired by how Texas conservatives have handled immigration instead of looking to California’s Republican Party.

California and Texas are similar in many ways. Hispanics are about 39 percent of the population of both states, both share a border with Mexico, and both have a long history of Mexicans living there (although Texas’ history is longer and richer). Crucially, large numbers of voters in both states have worried about illegal immigration and border control for decades. However, the political outcomes in both states are radically different because their state Republican parties dealt with illegal immigration and border security in very different ways.

California Turned Everyone Into ICE Agents

As a Republican, President Trump should be inspired by how Texas conservatives have handled immigration instead of looking to California’s Republican Party.

The California Republican Party in 1994 alienated Hispanics and businesses that supported immigration. Gov. Pete Wilson’s 1994 reelection campaign featured support for Proposition 187, which had two portions.

The first was a perfectly sensible bar on illegal immigrants consuming government services. The second, however, would’ve turned state employees into immigration agents. Every time they came in contact with a suspected illegal immigrant, the state employee was supposed to report that individual to federal immigration authorities.

Illegal immigrants were already barred from most welfare benefits, but turning all state employees into a deportation force ignited a firestorm of opposition.And it hurt Republicans at the ballot box.

Republican gubernatorial candidate George Deukmejian won 46 percent of the Hispanic vote in 1986 and Wilson earned 47 percent in 1990. In 1994, however, Wilson’s support for Proposition 187 dropped his Hispanic support to 25 percent. Although he won reelection that year, Hispanic support of the GOP has hovered around that same 1994 percentage in every year since then except for Arnold Schwarzenegger’s election.

Texas did the opposite of California. Texas Republicans directed their immigration enforcement on the border, not inside of the state. Texas Republicans, by and large, opposed interior enforcement bills. They funneled money to border enforcement, but did not unleash law enforcement to target illegal immigrants inside of the state. They didn’t spread fear among Texas Hispanics in the way the California did among Hispanics there.

Republican Sen. Craig Estes ideologically opposed “show me your paper laws” but also said “[N]othing could alienate Hispanic Americans more than being stopped at random arbitrarily and asked their status because of the color of their skin.” It also pleased Texas businesses and consumers who demanded immigrant labor.

Enforce the Border, and Only the Border

Texas Republicans didn’t ignore illegal immigration, though: they allocated $800 million to extra border security in 2015. They focused on the border, and nothing but the border, meaning that they wouldn’t alienate Hispanic Texans, many of whom have illegal immigrant friends and family members. Texas Republicans learned that concern about border security doesn’t translate into support for checkpoints in Houston.

Republican Lt. Gov Dan Patrick is an outlier. His goal to end sanctuary city policies in Texas, even though there are none, is pure California-style rhetoric but lacks the terrifying substance of Proposition 187. Even if an anti-sanctuary city bill passed it would have no effect on the lives of Texans because there are no sanctuary cities in the state.

Patrick’s rhetoric is a major departure from other leading Texas Republicans such as former governor Rick Perry, who defended the state’s Dream Act to his political detriment in the 2012 Republican presidential primary. The Republican legislature will likely block any anti-sanctuary city bill again, as it would be all sizzle and no steak.

The Texas GOP also supports legal immigration in a uniquely conservative and Texan way, which helps deflect from charges of nativism. In 2015, one Democratic state senator and two Republicans all introduced bills to create a state-based guest worker program for Texas. This type of visa, inspired by recent Cato Institute research, can allow Republicans to support legal immigration from a federalist and conservative perspective.

Trump’s immigration position has seemingly backed him into a political corner. However, he has good options. He can avoid the mistakes of the suicidal California GOP and keep his base happy by following the Texas model. His campaign chant of “build the wall” sets him up perfectly for this type of pivot. Focusing on border security, ignoring calls for interior enforcement that will cause chaos and panic, and supporting a conservative guest worker visa program will allow him to declare victory without alienating the almost 57 million American Hispanics.

Alex Nowrasteh and David Bier are immigration policy analysts at the Cato Institute’s Center for Global Liberty and Prosperity.