Archive for the Mil Category

Housekeeping & NDAA12 § 1031 Post

Posted in Law, Mil on 20111202 by Avenging Sword

Because WordPress.com has recently expressed hostility towards the practice of “mirroring” posts, until further notice I’ll be posting the full text of my posts at Alexandria, and a short synopsis and link here.

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Responding to Dreher’s concerns regarding the AUMF reauthorization in the § 1031 of the pending National Defense Authorization Act, I post a few thoughts at the following link:

http://aleksandreia.wordpress.com/2011/11/30/reflections-on-ndaa12-§-1031/

Al-Awlaki Killing Links

Posted in Law, Mil on 20111002 by Avenging Sword

As Steve recently noted, Anwar Al-Awlaki was killed via US drone strike in Yemen a few days ago.  Out of the commentary provoked by this action, here are a few pieces that caught my eye:

  • In the NYT, Jack Goldsmith defends the legality of the killing.
  • Kenneth Anderson at VC gives some cogent thoughts on the matter.
  • Robert Chesney comments re. Al-Awlaki’s role as an operational leader, and the inaccessibility of his location.
  • Michael Lewis comments re. the laws of war & neutrality law.
  • Benjamin Wittes addresses the issue of due process.
  • Michael Ramsey offers an originalist perspective regarding the killing.
  • Marty Lederman makes a very educated guess about the contents of the Obama administration’s legal justification for killing Osama bin Laden.  (Somewhat apropos, since both killings implicate many of the same legal issues.)
  • A more critical perspective comes from Ta-Nehishi Coates (who rounds up the views of other like-minded individuals); and from Mary Ellen O’Connell.  (Of note:  the latter scholar was only able to square OBL’s killing with her view of the law by – unpersuasively, IMHO – characterizing the Abbottabad raid as having “followed law enforcement standards.”)

Also worth noting is this article by Robert Chesney, which explains why the Al-Awlaki killing was consistent with international law.  I find his argument persuasive.

In my (tentative) view, the Al-Awlaki killing was permissible under U.S. statutory & constitutional law.  More on that at a later date (hopefully).

Compensated Emancipation, the Civil War, and Alien Space Bats

Posted in Law, Mil on 20110818 by Avenging Sword

A while back, co-blogger Red Emma pointed to a page on Smart Dope, which discussed the question of whether it would have been cheaper to emancipate slaves & compensate their owners in 1860 than to fight the Civil War.  Admittedly, the answer to this question isn’t quite straightforward:  on the one hand, we can’t be sure how much compensation slaveowners would’ve demanded in such a hypothetical situation;[1] and OTOH we can only guess at how the US economy would’ve fared absent the Civil War.  Aside from such uncertainties, however, such a cost comparison raises the question of whether or not the compensated emancipation was even feasible at the time of the Civil War.  For several reasons, I’m doubtful that it was.

First, it appears compensated emancipation may not have been politically feasible.  By 1860, abolitionists were apparently quite opposed to paying sinners (i.e., slaveowners) not to sin (i.e., own slaves).[2]  Even before the advent of this moral stance, however, abolitionist compensated emancipation proposals were repeatedly rejected by antebellum slaveowners, who consistently opposed any proposal that smacked of weakening their “peculiar institution.”[3]  Moreover, even if these two interest groups had accepted compensated emancipation, one wonders whether the American people at large would have followed suit.  Historically, it took the experience of the Civil War to bring the bulk of northerners around to supporting universal emancipation;[4] and it took enforcement at gunpoint to convince slaveowners to accept that outcome.  Absent the war, how likely is it that Americans would have willingly accepted a quadrupling of their tax burden[5] to satisfy slaveowners and a group of radicals?

Economic factors also militated against acceptance of compensated emancipation.  Plantation slavery was profitable,[6] and its rate of return was competitive with other antebellum investments.[7]  Moreover, slave labor was more efficient than its free counterpart,[8] owing to greater intensity of labor per hour.[9]  Finally, given slaves’ adeptness at industrial work,[10] it seems improbable that slaveowners would’ve endorsed compensated emancipation for fear that industrialization might doom slavery.  Absent a miraculous mass conversion to abolitionism, it seems unlikely slaveowners would have voted against their pocketbooks.

Finally, the antebellum Constitution erected significant barriers to federal involvement in any emancipation scheme.[11]  Enumeration of powers restricted federal interference with slavery in the states.[12]  The Fifth Amendment imposed further limits upon any federal emancipation scheme, by requiring Due Process and “just compensation” for any federal taking of private property.[13]  A constitutional amendment could have bypassed these restrictions, but for the reasons mentioned above, I don’t think such a provision would have commanded enough political support to win ratification.  Nor does it seem likely that the Taney Court – which handed down the Dred Scott decision – would have accepted the sort of creative abolitionist constitutional interpretations proposed by Lysander Spooner and the like.[14]  The final alternative would have been enactment of compensated emancipation at the state level; but there appears to have been little antebellum support for such measures in the slave states.[15]

For all the foregoing reasons, I don’t think compensated emancipation was a viable alternative in 1860.  One other aspect of the comparison between war and compensated emancipation bears mentioning, however:  both sides’ underestimation of the war’s true costs.  When “the war came,” both Union & Confederacy thought it would be short & cheap;[16] only gradually did they come to realize that this wasn’t the case.  Claudia Goldin – the economist who made the aforementioned cost comparison – suggested as much:

In all probability, the major reason that the war was fought instead of there being a political settlement was that its costs were incorrectly anticipated. The North was obviously surprised by the tenacity of the South, and the South had counted on more support from Great Britain. It appears that neither side thought the war would last more than one or two years.[17]

Or, as the folks at Straight Dope more colorfully observed:

Perhaps had [Southern leaders] foreseen that their society was about to be dismantled with cannonballs they’d have taken the money, said ta-ta to their former chattels, and split for Nicaragua without further fuss.

Perhaps if Alien Space Bats had “Flashforwarded” America’s 1860 population a decade thence, antebellum Americans would have possessed the 20/20 hindsight we now enjoy, and both opposition to war and support for compensated emancipation might have been greater.  In reality, however, neither side had sufficient a priori knowledge of the Civil War’s true costs (in both blood & treasure).  Hence, we should not be surprised that neither made an accurate comparison of the relative costs & benefits of war vs. compensated emancipation.

Update 20110818:  Though I didn’t know it when I posted the above, yesterday Matt Yglesias argued that compensated emancipation would’ve been cheaper than fighting the Civil War.  In response, Ta-Nehisi Coates explained why compensated emancipation wasn’t a viable option.


[1] Claudia Goldin, the economist whose analysis (ahem) figures in the Smart Dope post, considers a compensated emancipation scheme wherein “the government buys slaves from their owners with bonds that pay six percent and are refunded, an equal amount each year, over a period of thirty years.”  Claudia Dale Goldin, The Economics of Emancipation, 33 J. Econ. Hist. 66, 74 (1973).  Goldin also notes, however, that the “internal rate of return on slave owning” was apparently “ten percent”.  Id. at 69 n.5.  If slaveowners had demanded this rate, rather than the 6% rate assumed by Goldin, then the price of compensation would’ve increased correspondingly.

[2] Betty L. Fladeland, Compensated Emancipation: A Rejected Alternative, 42 J. S. Hist. 169, 169 (1976) (acknowledging such opposition).

[3] Id. at 171-178, 180-182, 185.

[4] Michael Vorenberg, Final Freedom: The Civil War, The Abolition of Slavery, and the Thirteenth Amendment 38 (paperback ed. 2004) (2001) (noting that “[t]he animosity of northerners towards southern whites, the success of African American soldiers, and the increasing hostility of the [Union] slave states themselves towards slavery – all fueled the drive toward universal emancipation.”).

[5] In 1860, federal spending was $63,130,598, and revenues were $56,064,608.  Bureau of the Census, Historical Statistics of the United States 1789-1945, at 297, 300 (1949).  Goldin estimates “the capital value of all slaves in 1860 to have been 2.7 billion 1860 dollars,” and assumes that slaveowners would have been fully compensated for this amount via 6% bonds amortized over 30 years.  Goldin, supra note 1, at 74, 75 n.21.  The per-year cost of such bonds over 30 years would’ve been $196,152,061.02, or ~3.5 times higher than total federal revenue in 1860.

[6] Robert William Fogel, Without Consent or Contract: The Rise and Fall of American Slavery 63-64 (reissued paperback ed. 1994) (1989).

[7] James McPherson, Battle Cry of Freedom: The Civil War Era 97-98 (paperback ed. 2003) (1988).

[8] Fogel, supra note 6, at 74-75.

[9] Id. at 78-79.

[10] Id. at 107.

[11] See generally Paul Finkelman, Lincoln, Emancipation, and the Limits of Constitutional Change, 2009 Sup. Ct. Rev. 349, 352-355.  Note that these limitations did not necessarily apply in times of war or rebellion.  Id. at 365-366, 385-386.

[12] Id. at 352-354.

[13] Id. at 354-355.

[14] See generally Randy E. Barnett, Was Slavery Unconstitutional Before the Thirteenth Amendment?: Lysander Spooner’s Theory of Interpretation, 28 Pac. L.J. 977 (1997).

[15] Fladeland, supra note 2, at 178 (noting opposition to compensated emancipation in Virginia, South Carolina, and “the other states of the Deep South . . . .”).

[16] McPherson, supra note 7, at 333

[17] Goldin, supra note 1, at 83.

Iraq, Libya, & “Gaffes”

Posted in Law, Mil on 20110625 by Avenging Sword

A recent post by one of my co-bloggers contains this rather intriguing line:

I must mention once again Obama’s refusal to pursue Congressional resolution supporting the war in Iraq.

I say “intriguing,” because I’m not entirely sure what this means.  On its face, this statement seems to imply a “Congressional resolution supporting the war in Iraq” is necessary or desirable, and that “Obama’s refusal to pursue” such a resolution is ill-advised.  Yet I don’t see why this is the case.

As I understand it, America’s ongoing military activities in Iraq are authorized by § 3(a) of 2002 Iraq AUMF.[1]  Admittedly, Bruce Ackerman & Oona Hathaway argue otherwise;[2] but, for the reasons given by Robert Chesney, I don’t find such an argument persuasive.  So ISTM there’s no need to criticize “Obama’s refusal to pursue Congressional resolution supporting the war in Iraq”, because no such resolution is necessary.  I am left to wonder why my co-blogger seems to be implying otherwise.

Then again, maybe my co-blogger isn’t implying any such thing, and instead I’m guilty of overanalyzing the above statement.  (Wouldn’t be the first time; just ask my fiancée.)  Maybe my co-blogger wasn’t implicitly endorsing the Ackerman-Hathaway argument at all, and “Congressional resolution supporting the war in Iraq” was simply a “gaffe” which accidentally substituted “Iraq” for “Libya.”  This reading finds support in the bulk of my co-blogger’s post, which focuses on the Libyan War.  More specifically, there’s the immediate context whence the above statement is excerpted:

Last but not least I must mention once again Obama’s refusal to pursue Congressional resolution supporting the war in Iraq. Indeed, he had 3 months to do that – and yet, he demonstrated no desire in convincing the Congress to provide a legal justification for the war against Libya. Indeed, his claims that the war in Libya is not a war (they call it now “kinetic military action”) are not taken seriously by anyone. [Emphasis added]

The irony of this latter reading, of course, is that my co-blogger’s post also implies that someone who makes “gaffes” is “intellectually sloppy” and “cannot be smart and educated . . . .”  Now, I don’t think such phrases accurately describe my co-blogger.  First, the above Iraq/Libya mix-up was only a single “gaffe.”  Second and more importantly, as I’ve previously suggested, ISTM “gaffes” don’t necessarily correlate with low IQ, lack of education, or being “intellectually sloppy”.  Still, certain lines about glass houses & stones, and pots & kettles, do come to mind….

Y’all may now highlight/laugh uproariously at/broadcast to the world any gaffes, slip-ups, whoppers, etc., which may be present in the foregoing.


[1] This provision reads, in relevant part,

The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to—

(1) defend the national security of the United States against the continuing threat posed by Iraq; and

(2) enforce all relevant United Nations Security Council resolutions regarding Iraq.

Authorization for Use of Military Force Against Iraq Resolution of 2002, Pub. L. No. 107-243, § 3(a), 116 Stat. 1498, 1501 (2002).

[2] Bruce Ackerman & Oona Hathaway, Limited War and the Constitution: Iraq and the Crisis of Presidential Legality, 109 Mich. L. Rev. 447, 457-472 (2011).

Random Links

Posted in Law, Mil on 20101216 by Avenging Sword

Stuff that caught my eye in the past few days:

  • A Colt presentation regarding plastic shell casings (HT David Hardy).  Not sure if they’re really the equal of brass in every way but weight, but if so, they sure would’ve been nice to have when I was lugging 7-10 M-16 mags around the Iraqi desert.
  • Volokh explains religious accommodation law WRT Muslims.  I wonder if any religious groups are regretting their initial support for such laws.
  • Anonymous goes up against Amazon.com, and loses (HT Megan McArdle).  I found this snickerworthy.
  • Roger Alford reminds us that the Pentagon Papers case was about prior restraints, not post-publication prosecution.  Having skimmed the opinions in that case, I’m not sure I share Alford’s conclusion that a “majority” of the Court would’ve sustained such prosecutions, but at least four of the justices (White, Stewart, Marshall, and Blackmun) do appear to have been sympathetic towards them.
  • America’s Finest News Source regarding Elena Kagan, Jan Brewer, Terry Jones, & Glenn Beck.

Randomness

Posted in Econ, Law, Mil on 20101213 by Avenging Sword

Random thoughts on recent events hereabouts (& elsewhere):

1.  Sharia:  I’m fine with courts enforcing Sharia-based arbitration agreements, or consulting the laws & courts of Muslim states under normal choice-of-law principles.  Granting Muslims special exemptions from criminal laws on account of their religious beliefs does make me cranky; but I feel the same way about exemptions for Christians.  I’m just glad that New Jersey court decision was amenable to reversal on appeal; unlike, say, United States v. Lynch, 952 F. Supp. 167 (D.S.D.N.Y. 1997), where a judge acquitted two devout Catholic abortion-clinic protesters on the basis of their religious beliefs, and the Second Circuit found its hands tied by that pesky Double-Jeopardy prohibition.  That said, methinks occasional screwups along these lines are inevitable in a country such as ours, which has a long history of exempting people from generally-applicable laws on the basis of sincere religious convictions.  Personally, I don’t think such exemptions are mandated by the Free-Exercise Clause; and weirdly enough, the Supreme Court seems to agree with me.  But then, I’m not a constitutional lawyer, so it’s possible I’m totally off-base here.

2.  Pearl Harbor:  Historically, I’ve made a point of commemorating Dec. 7 in some way.  This year, not so much – I blame sleep deprivation.  FDR’s Dec. 8 war address is one of my all-time favorites (along with Lincoln’s Second Inaugural).  I do sometimes wonder how the Pacific War might’ve turned out if Japan hadn’t doomed itself attacking Pearl Harbor.  E.g., if they’d just ignored the Philippines, and gone for the rest of the Co-Prosperity Sphere, could FDR have talked the America-Firsters into defending Europe’s Asian colonies?

3.  I’m not overly concerned by the dismissal of ACLU/CCR’s Al-Aulaqi lawsuit, since I view these sorts of targeted killings as constitutional.

4.  Rush Limbaugh:  I was once an avid fan, in high school.  Not so much nowadays.  I occasionally wonder if I should tune in just to monitor what he’s feeding his audience.  But I don’t think I have that much time to spare.

5.  Wikileaks & Warfighting:  In a country such as the United States, public support is a sine qua non for any successful war effort.  The collapse of public support can make it much more difficult for the US to continue fighting, and may ultimately contribute to either an outright defeat, or the acceptance of otherwise-unacceptable terms of peace – in the same way as a long string of battlefield defeats might. (See, e.g., Vietnam)  Insofar as disclosures like those made by Wikileaks erode public support for the wars in Iraq & Afghanistan, they may thus be likened to war of a sort.

(Of course, if ending a given war is in our best interest, then actions which hasten the arrival of such a termination become far more praiseworthy, and far less lamentable, than might otherwise be the case.)

I do wonder why Wikileaks has provoked such an uproar this time around, given that their latest disclosure (of Foggy Bottom cables) seems to have been the most innocuous of their recent leaks.

6.  I recently came across an intellectually-honest liquidationist, who frankly admitted that his preference for avoiding the Fed/Treasury/TARP bailouts of late ’08, and putting the various recipient institutions through bankruptcy (ala Lehman), would’ve led to a “depression”.  (His term, not mine.  Not sure how this would’ve compared to the original.)  He didn’t seem to mind limited bailouts for investors in money-market funds, however – which struck me as interesting, given the role MMFs played in funding the institutions he wanted to put in bankruptcy.  It’s not clear to me whether this strategy would’ve led to a better outcome than what actually happened.

7.  I also recently came across this website, and found it quite entertaining.  Though I’m not sure I know enough about either the law or comic books to truly appreciate it.

Comparing the Costs of Iraq & ARRA

Posted in Econ, Mil on 20100829 by Avenging Sword

Recently, H.M. Stuart highlighted an op-ed by one Mark Tapscott, which draws a comparison between the costs associated with the Iraq War (on the one hand), and Obama’s stimulus program (on the other), and alleges that the latter cost more than the former.  The Tapscott piece in question cites a Randall Hoven piece on the American Thinker website, which in turn cites for authority a report from the Congressional Budget Office.  The report in question appears to be CBO’s August 2010 update to its Budget & Economic Outlook.  If my math is right – a proposition admittedly open to question – then it appears Hoven drew his numbers from pp. 13 & 15 of the aforementioned report.  I’ve reproduced the relevant tables below:

My thoughts:

1.  On a strict apples-to-apples comparison, the headline of the Tapscott piece – which implies (to me) that ARRA (the Obama stimulus) has already cost more than Iraq – is incorrect.  Per CBO, direct costs of the Iraq war did indeed total $709 bn from 2001-2010.  However, ARRA to date cost $180 bn in 2009, and $392 bn in 2010, for a total of $572 bn.

2.  Of course, ARRA is slated to continue expending cash for some time, to the tune of $242 bn from 2011-2019, for a total of $814 bn.  It is this number that Hoven & Tapscott are concerned with.  However, if one is counting future expenditures, ISTM one should also consider similar expenditures for Iraq.  Alas, the aforementioned table only goes to 2010; for 2011-2020, p. 25 of the CBO report only estimates the combined costs of Iraq & Afghanistan, w/o providing a breakdown of said projections for the two theaters.  Note that it would require annual Iraq expenditures of only $12 bn/yr to make Iraq’s overall budgetary cost (through 2019) higher than that of ARRA.

3.  The reason why CBO’s Iraq War expenditures are so much lower than Stiglitz et al is that the latter, in arriving at their $3 trillion figure, also appear to have tacked on indirect costs of the war – e.g., loss of productive capacity on the part of dead or injured military personnel, or macroeconomic problems resulting from effects (e.g., higher oil prices) potentially attributable to the war.  See here for a paper presenting an early version of their analysis, estimating a $2 trillion total cost.  (FWIW, Tyler Cowen deems the Stigliz & Blimes’ macroeconomic cost estimates “speculative”; I’m inclined to agree.)

4.  From where I stand, it’s a bit early to declare the stimulus a success or failure.  One problem with such pronouncements is our unfortunate lack of an alternate universe in which we can run controlled experiments.  We can guestimate the probable effects of stimulus using economic models.  I leave the question of said models’ reliability as an exercise for the reader.

5.  To some extent, this isn’t a question of numbers, so much as one’s opinions re. Iraq & the stimulus. If one thinks Iraq justified and the stimulus ineffective, then of course the former was worth the expenditure & the latter a big waste of $. And vice-versa.