If you’re struggling to understand why Congress would contemplate reauthorizing a program that 1) has never stopped a terrorist attack on the United States, 2) violates the fundamental Constitutional rights of Americans, and 3) squanders taxpayer money by the truck load, you’re not alone. I submitted a statement for the record to Senate Judiciary on all this madness which you can find here.
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Defense and Foreign Policy
New Bill Renews Debate on Nuclear Modernization
On Tuesday, Senator Ed Markey (D‑MA) and Representative Earl Blumenauer (D‑OR) reintroduced bicameral legislation that would save U.S. taxpayers $75 billion on nuclear modernization costs over the next decade. The “Smarter Approach to Nuclear Expenditures Act,” or SANE Act, proposes sensible but significant cuts to “nuclear weapons and delivery systems.”
According to a press release from Sen. Markey’s office, the SANE Act will include the following:
- Reduce the purchase of Columbia‐class submarines from 12 to 8, cut the existing ICBM fleet from over 400 to 150, and reduce deployed strategic warheads from approximately 1,500 to 1,000 – saving $13.1 billion
- Cancel the development of a new air‐launched cruise missile and an associated warhead life extension program – saving $13.3 billion
- Reduce to 80 the purchase of new B‑21 long‐range bombers – saving $11.6 billion
- Cancel the development of new ICBMs and a new nuclear warhead – saving $13.6 billion
- Cancel the development of a new submarine‐launched cruise missile – saving $9 billion
- Limit the plutonium pit production target to 30 per year – saving $9 billion
Sen. Markey stated that “The United States should fund education, not annihilation; that is our future…We need sanity when crafting America’s budget priorities, and more and improved nuclear weapons defies common sense.”
Rep. Blumenauer added that “these disastrous weapons will never be the answer to solving our complex and ever‐changing national security threats…We should not be investing trillions of dollars of our budget on an outdated and irresponsible nuclear arsenal.”
At the time of the press release, the SANE Act was co‐sponsored by Sen. Bernie Sanders (I‑VT) and by eight members in the House. It has also been endorsed by several prominent organizations, including the Ploughshares Fund, Women’s Action for New Directions (WAND), Peace Action, Friends Committee on National Legislation (FCNL), Global Security Institute, and World Future Council.
Caroline Dorminey, policy director of WAND and my former colleague here at Cato, stated, “With defense budgets skyrocketing and a bow wave of costs bearing down on the Pentagon in upcoming years, now is the time for hard choices. Senator Markey, Representative Blumenauer, and cosponsors offer a clear alternative that will keep Americans safe without wasting their tax dollars on weapon systems that serve our past, not our future.”
Dorminey, who also co‐edited Cato’s recently released America’s Nuclear Crossroads: A Forward‐Looking Anthology with me and whose recommendations from her chapter on how best to manage nuclear modernization echo many of the proposals within the bill, also noted that “the SANE Act demonstrates [that] there are ample opportunities to craft a revised nuclear modernization plan that better reflects the shifting strategic priorities and evolution of threats facing the United States.”
Sen. Markey and Rep. Blumenauer have introduced various versions of the SANE Act in past years without success. Given current fiscal and political realities, perhaps this time will be different. Yet, whether the SANE Act passes or not, the legislation highlights the need for policymakers to have a robust debate on the merits of the modernization plan, if not America’s nuclear posture more broadly.
You can read the full bill here. To learn more about this and other pressing issues in nuclear deterrence and arms control, download a copy of America’s Nuclear Crossroads.
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Supreme Court Should Review Ninth Circuit Error Regarding Alien Tort Statute
The Alien Tort Statute, passed as part of the Judiciary Act of 1789, gives federal courts the power to hear cases brought by foreigners who allege “a violation of the law of nations or a treaty of the United States.” The Supreme Court in Kiobel v. Royal Dutch Petroleum (2013) held that this law presumptively doesn’t apply to violations committed abroad—though that presumption can be overcome when claims “touch and concern the territory of the United States … with sufficient force.”
Then in Jesner v. Arab Bank, PLC (2018), the Court ruled that foreign corporations cannot be sued under the ATS because international norms about corporate liability are not settled. A lawsuit against a U.S. corporation based on actions taken abroad would thus seem to be a long shot, but the U.S. Court of Appeals for the Ninth Circuit has obliged with just that eventuality, in a case over atrocities committed in Côte d’Ivoire.
The underlying crimes around which this controversy revolves make up part of an ongoing series of human rights abuses in West Africa. The use of child slavery has garnered international attention and focused scrutiny on the cocoa trade from which abusive plantations draw their revenue. Nestlé, known for its chocolate among other foods and beverages, has condemned the modern slave trade and joined accords aimed at eliminating human trafficking in the region. But Nestlé U.S.A. and its Swiss parent find themselves in a long‐running suit over the enslavement of a number of Malians on Ivorian plantations, on the basis of the corporations’ alleged purchase of cocoa on farms that used slaves.
This case has now dragged on for nearly a decade and a half. Plaintiffs have twice successfully appealed to the Ninth Circuit after having their case dismissed by the district court. On this second appeal, the first of its kind post‐Jesner, the Ninth Circuit found that U.S. corporations could be sued under the ATS, even though the Supreme Court held that foreign corporations can’t be liable and that corporate liability is not a universal international law standard, as seemingly required by the law.
The Supreme Court has insisted on a narrow and rigorous interpretation of the ATS to further the goals of comity and separation of powers. U.S. law cannot realistically be expected to apply in every corner of the globe and the sovereignty of foreign governments must be respected in cases governed by foreign law, even where U.S. actors are involved. Nor is it the job of the judiciary to make foreign policy; it falls to Congress to create causes of action and to the president to conduct diplomacy. In this instance, the political branches have decided, within their prerogatives, that the best way to promote human rights in Côte d’Ivoire is to encourage foreign investment and generate the kind of economic growth that so often serves as the foundation for legal and political reform.
Cato has thus filed an amicus brief in support of Nestlé U.S.A.’s petition for Supreme Court review. We argue that American corporations may not be sued under the ATS any more than foreign ones can and that such liability would overstep the proper role of the federal judiciary. If the lower‐court decision is allowed to stand, similar claims will be drawn to the Ninth Circuit, making its holding the de facto national rule and inviting future long and dubious litigation against American companies. This outcome would undercut American foreign policy and sabotage international trade. The Supreme Court should take this case and make clear that only Congress and the president can do those things.
The Court will decide later this fall whether to take up Nestlé U.S.A. v. Doe.
Concerning the Killing of Abu Bakr al‐Baghdadi and U.S. Counterterrorism Policy
Upon hearing the news that ISIS leader Abu Bakr al‐Baghdadi had been killed, I issued the following statement:
Even President Donald Trump’s harshest critics should welcome the news that ISIS leader Abu Bakr al‐Baghdadi was killed in a raid in northwestern Syria Saturday evening. The operation, President Trump noted in his statement, reflects the bravery and professionalism of the men and women in the U.S. military, as well as U.S. intelligence agencies. President Trump also credited Russia, Turkey, Syria, Iraq, and the Syrian Kurds for varying levels of support.
With the passage of time, Baghdadi’s demise may be seen as a belated footnote to ISIS’s spectacular rise and fall. He had been reported wounded before, and appears to have spent most of the last few years of his life in hiding or on the run. That no doubt complicated his ability to plan and execute other terrorist attacks, or recruit new members. Although further details are sure to emerge, the operation that ended Baghdadi’s life (he reportedly committed suicide as the U.S. forces closed in on him) resembles the raid that killed Osama bin Laden, and that captured the 9/11 plotters Khalid Sheikh Mohammed and Ramzi Binalshibh. Importantly, none of these operations depended upon tens of thousands of troops stationed indefinitely in distant lands. There’s a lesson here for those who claim that such open‐ended nation‐building missions are necessary to prevent or disrupt so‐called terrorist safe havens.
It is now clear that unrelenting pressure — not merely by U.S. forces, but also by the many other groups and nation‐states that ISIS had terrorized – has severely weakened the organization. Indeed, there is reason to believe that some of the tens of billions of dollars Americans spend every year to combat terrorism might be better directed elsewhere. I hold out some hope that today’s welcome news contributes to a reevaluation of all U.S. counterterrorism policies, and that, someday, we will achieve a better balance that preserves American security in a manner consistent with our essential rights and liberties.###
For that to occur, Americans must keep the terrorist threat in perspective.
Admittedly, this is not easy to do. Cato foreign and defense policy scholars have been writing about terrorism and counterterrorism policy ever since 9/11. And yet, despite our best efforts, too many Americans continue to terrorize themselves.
But, as I explain with my co‐authors John Glaser and Trevor Thrall in our new book, Fuel to the Fire: How Trump Made America’s Broken Foreign Policy Even Worse (and How We Can Recover):
the terrorist threat cannot serve as a guiding principle for foreign policy. Not only is the eradication of terrorism impossible in a practical sense, but over time terrorist threats have proven less significant than many believed immediately after the attacks of 9/11.…[T]he United States should address the threat of terrorism by continuing to improve its homeland security measures, maintaining vigilance on the intelligence front, and using diplomacy and other tools to discourage conflict and the use of violence as an instrument of politics wherever possible.
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Regarding the Tragedy in Northern Syria and the Need to Revisit U.S. Security Commitments
President Trump’s decision to give a de facto green light to a Turkish invasion of northern Syria continues to engender understandable criticism. Lost amidst this furor are several relevant facts: the modest U.S. military presence was inadequate to achieve any of the very ambitious objectives that the missions’ supporters imagined it could. As we wrote elsewhere, these troops were not going to “force Assad to yield, ensure free elections, limit Russian influence, oust Iranian forces, prevent an Islamic State revival, or protect the Kurds.”
A separate point concerns the conflicts and contradictions underlying U.S. policy in Syria, and indeed throughout the greater Middle East, which have been laid bare in recent weeks. These problems have been compounded by a tendency among the foreign policy elite to conflate U.S. obligations to formal treaty allies with those implied or inferred toward temporary partners of convenience. As we explain in this article at War on the Rocks:
The Syrian Kurds used Americans much as the Americans used them, to battle a common foe. Washington provided military assistance to a group which faced extinction should the Islamic State triumph. Importantly, the U.S. commitment was against ISIS, not Syria, Iran, Russia, or Turkey. And there was no formal alliance, no treaty ratified by the Senate, and no public debate. There wasn’t even legal authority for the deployment, let alone a commitment to go to war on behalf of the Kurds. The U.S. mission in Syria cannot reasonably be counted as legitimate under either the 2001 or 2002 versions of the Authorization for Use of Military Force — though the Obama and now Trump administrations have tried.
On the other hand, the United States and Turkey have been formal treaty allies for almost seven decades. Ankara has not been a very good ally of late, but it remains a member in good standing in the NATO alliance. Long ago, the U.S. Senate ratified Turkey’s inclusion in that treaty, which includes a promise to act collectively in defense of individual members…
And U.S. officials knew that Ankara viewed Washington’s relationship with the Syrian Kurds as a serious, even existential, threat. The issue is not whether U.S. officials believed Turkey’s claims. In fact, the connections between the Kurdish‐dominated People’s Protection Units, or YPG, in Syria, with the Kurdistan Worker’s Party, or PKK, in Turkey are real, but seem unlikely to threaten the integrity of the Turkish state. Nevertheless, Ankara, not America, makes decisions on Turkey’s security. Turkish officials repeatedly and loudly informed Washington of their concerns.
But U.S. policymakers routinely ignored these protests, and Turkey interpreted this reaction as tantamount to abandonment. In other words, though nothing can justify attacks on innocent civilians, “Turkey’s behavior was motivated, in part, by a desire to resolve a security problem that it sees the United States as having made worse.”
The article goes on to explain how these sorts of problems are endemic when the United States allies or partners with nations or non‐state actors that have a history of enmity toward one another. And when the strategic circumstances that occasioned the security commitment change — as, for example, at the end of the Cold War, or when the proximate threat posed by the Islamic State (though long exaggerated) abated — then U.S. policymakers should revisit those relationships, and strive to prevent the sorts of tragedies that are now playing out in northern Syria.
Read the whole thing here.
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A Slumbering European Crisis Awakens: Catalonia
A troubling development that has largely fallen through the cracks while media and public attention is focused on Syria’s turmoil, is the revival of serious political tensions in Spain’s Catalonia region. Pro‐independence Catalans pressed their agenda in 2017, attempting to hold a referendum on secession from Spain. In doing so, they badly overreached. The national government in Madrid barred the referendum, and Spanish security forces sent to prevent the balloting brutally attacked mostly peaceful demonstrators in Catalonia’s largest city, Barcelona. Spanish authorities then arrested the referendum’s organizers, taking some into custody while others fled the country. The pro‐independence movement has remained largely quiescent since then.
Unfortunately, that relative calm has come to an end in dramatic fashion. Just as Catalan independence advocates miscalculated and overreached in 2017, the Madrid government appears to have done so now, imposing draconian prison sentences on the political rebels in its custody. Spain’s Supreme Court sentenced nine Catalan separatist leaders to prison terms ranging between nine and 13 years for their role in the failed independence bid. Oriol Junqueras, former vice president of Catalonia’s regional government, received the harshest sentence.
The court’s decision has triggered mass protests throughout the region. Protesters in the separatist stronghold of Girona burned tires on the train tracks, shutting down the high‐speed rail connection between Barcelona and France. Other railways and roads were blocked at several places in the northeastern region. Angry protesters clogged Barcelona’s streets, impeding traffic and creating widespread gridlock.
Barcelona’s international airport became the focal point of protests, which disrupted operations and caused more than 100 flights to be cancelled in a single day. As thousands of protesters rallied at the airport entrance, riot police using batons charged the crowd on several occasions. Local media outlets reported that 50 people required medical attention.
The former president of Catalonia’s regional government, Carles Puigdemont, blasted the court’s decision from his exile in Belgium. He stated that the prison sentences for the separatist leaders were an “atrocity.” Puigdemont called on followers to take immediate action “for the future of our sons and daughters. For democracy. For Europe. For Catalonia.” Madrid shows no inclination to compromise, however, issuing a new arrest warrant for Puigdemont on sedition charges.
There have been troubling domestic developments in several NATO members in recent years. Greece’s economic collapse, worrisome authoritarian trends in both Hungary and Poland, and Turkey’s slide into a thinly disguised dictatorship pursuing an aggressive, maverick foreign policy are at the top of the list. Spain is now being moving up on the roster of concerns.
Madrid waged a multi‐decade armed struggle to suppress a secessionist insurgency in the Basque region of the north. That conflict subsided in recent years and now appears to be over, with the principal armed force, ETA, disbanding in 2018. Despite the ETA’s demise, though, substantial public sentiment for independence (or at least more robust autonomy) remains strong. Tens of thousands of people participated in a pro‐independence human chain in the Basque region in June 2018, just weeks after the ETA dissolved.
Catalans are now poised to supplant the Basques as the principal secessionist headache for Madrid. Moreover, as Puigdemont’s latest statement indicates, pro‐independence Catalans intend to make their struggle a test of the values that NATO and European Union profess to represent, especially democracy and human rights. Writing in the pages of the Guardian, Puigdemont asserted: “The actions of the Spanish state, its government and its judiciary strike at the heart of our democratic values at the very time that Europe needs them most. This can no longer be regarded as an internal matter for Spain .…”
As I discuss at length elsewhere, NATO (as well as the EU) is showing multiple fissures regarding a growing array of political and security issues. Add Catalonia’s mounting challenge to Spain’s unity and territorial integrity to the list of potential troubles for the Alliance.
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Trump’s Needlessly Dangerous Saudi Arabia Deployment
The Trump administration has approved the deployment to Saudi Arabia of Air Force F‑15s, new air defense systems, and other military hardware, along with U.S. troops to operate and maintain those weapons systems. These new measures the Pentagon announced on October 11 will bring the total U.S. troop deployment to the kingdom to 3,000 since a mid‐September attack on Saudi oil facilities. Speaking to reporters after the announcement, Secretary of Defense Mark Esper said that it is now “clear that Iranians are responsible” for the attacks and warned that Washington has additional units “on alert” that can provide increased security to both the U.S. forces and Saudi Arabia “if necessary.”
U.S. leaders have taken an unsavory step deepening Washington’s support of an odious, duplicitous Saudi regime that brutalizes its own people and has committed an appalling array of war crimes in Yemen. It also puts the United States in the middle of an escalating political and military confrontation between Saudi Arabia and Iran. The direct confrontation between Riyadh and Tehran is merely one component of a larger struggle for regional dominance pitting major Sunni powers against a loose alliance of Shia factions led by Iran. Yemen, Syria, Iraq, and Bahrain are other arenas in which that power struggle continues to be waged.
The administration’s decision to elevate the U.S. military role in Saudi Arabia is all the more bizarre and indefensible in light of President Trump’s repeated condemnations of the Iraq War and other U.S. Middle East entanglements. In defending his recent decision to withdraw U.S. forces from northern Syria, the president stated bluntly that “it is time for us to get out of these ridiculous Endless Wars, many of them tribal, and bring our soldiers home.” Trump is correct, but he needs to follow his own advice throughout the region, not just in Syria.
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