Gun Control via Liability Insurance

This post is cross-listed on From Corn Fields to the Capitol.

NPR has a really great post tied to a story they ran on Morning Edition this morning. In it some experts suggest one practical way to achieve a measure of gun control and price in the potential for negative externalities is by requiring gun owners to purchase liability insurance.  If you own a gun you must also purchase a liability policy to cover the cost of any damage your gun incurs, very similar to the requirement many states have requiring car owners have, at minimum, liability insurance. But there's another wrinkle that could be throw in there.  Here's Prof. Justin Wolfers from the University of Michigan:

Another even more powerful approach is to recognize that the problem isn't guns per se, but gun violence. Thus, instead of taxing guns, we should tax gun violence. Basically, this is the same as saying that we should make gun owners liable for any damage their guns do. Not only would this discourage some people from buying guns, it would lead those who do keep guns to be more careful with how they're stored. Indeed, greater care would surely have kept Adam Lanza out of his mother's cache. The problem though, is that Nancy Lanza is neither with us to pay the damages her gun caused, nor could she afford to pay for the enormous damage her gun wrought in Newtown. And so the only way this solution works is if guns required mandatory liability insurance, much as we force car owners to buy insurance for the damage their machines wreak.

This is an intriguing solution to me, and one I think may sportsmen and women would find very compelling. I know my dad would. He's a card carrying member of the NRA, hunter, gun enthusiast, and all the rest. In the wake of the tragedy at Newton our annual Christmas Eve dinner started out talking about gun control. You won't find a bigger proponent of the second amendment, but you won't find a bigger proponent of individual responsibility either. He thought it made perfect sense that if your gun is used in a crime, you are charged as if you had committed the crime. What if the gun is stolen? Did you report it? Was it locked in a gun safe or did you have a trigger lock on it?

Of course, the trouble with requiring the purchase of "gun insurance" or "gun violence insurance" is that some people just won't buy it. Here's Russ Roberts a research fellow at the Hoover Institution:

[T]he logic is not quite as neat as it might appear. Many people already buy and own guns illegally without license or registration. Adding the cost of insurance would further discourage honest gun ownership. That would make matters worse not better. And is it so obvious that all guns are harmful to others and that gun ownership should be made more expensive to every owner?

Point taken, but we know there are folks on the road who don't have liability insurance. It's part of the landscape, but it doesn't mean doing this is a bad idea. It was a bit like Mr. Wayne LaPierre at the Senate Hearing yesterday saying background checks wouldn't do anything, so we shouldn't do them. Wonder what he would think about requiring liability insurance to be purchased.

Also, if you didn't see this Daily Show segment about how hard it is for the ATF to do it's job, a job Mr. LaPierre said it should be doing, you're missing out.



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The Changing Nature of War?

This from Dexter Filkins writing in the New Yorker about the revocation of the U.S. military's ban on women in combat irked me:

Notions of equality aside, the real factor that rendered the “non-combat” distinction meaningless was the changing nature of the wars. In an old-style conflict like, say, the Second World War, big, uniformed armies squared off against other big, uniformed armies. In a war like that, driving a truck in a supply convoy, or briefing reporters on the days’ events, could be deemed relatively safe. As long as you were behind the lines, your chances of getting killed were small. But in Iraq and Afghanistan there are no front lines. Or, as the troops on the ground say, the front line is where you are.

Filkins is write that insurgencies are messy and are largely fought without front lines in the way we often imagine European-style warfare in the nineteenth and twentieth centuries.  But insurgencies are not new and that the United States has faced two in the last twelve years is hardly reflective of the changing nature of war.  

Don't misunderstand me: Filkins' point that the distinction between combat and non-combat jobs--and the supposed protection this distinction afforded female servicemembers--was fairly meaningless in Iraq and Afghanistan is not lost on me.  But Filkins wrongly locates the cause of the distinction's meaninglessness in a non-existent paradigm shift in the nature of warfare itself.  It is not warfare that has changed but the composition of the U.S. armed forces.  Even in Filkins' imagined World War II, women driving supply convoys  would be frequent targets of attack.  Airborne interdiction played a prominent role in World War II.  In North Africa and the Italian campaign, for example, the U.S. Army Air Corps attacked supply depots, ports, and even the ferries traveling over the Messina Straits.  Had women soldiers been used by Axis forces to pilot those ferries or load or unload materiel at ports, then female soldiers would have been killed there.   

Diplomacy Isn't Dead

This post is cross-listed on DC Exile and From Corn Fields to the Capitol, Jason's new wider ranging blog.

Writing in the New York Times, Roger Cohen has a column up claiming flatly "[d]iplomacy is dead." He feels the U.S. will never achieve a diplomatic accomplishment to rival Nixon's trip to China or the peaceful dissolution of the Soviet Union.  While, I'm inclined to agree on the latter example, I think Mr. Cohen doth protest too much declaring diplomacy dead.

He rightfully criticizes our current age of, "impatience, changeableness, palaver, small-mindedness and an unwillingness to talk to bad guys." He notes the role of professional diplomats has been squeezed in this country because of our post-9/11 focus on non-state actors, which have more visibly involved the armed forces and the CIA, then the State Department. Again, I agree.

But I think he goes too far when he laments the end of realpolitik, but cites Syria as an example of diplomacy failing. I'd tend to think many a realist would size up Syria, even back two years ago, and say there is an not imminent national interest there. Indeed realpolitik isn't for the squeamish, but it seems like that's the cold-hearted analysis driving the lack of U.S. engagement in the country today.

He goes a bit too far when he cites three long standing thorns in the paw of U.S. foreign policy: Cuba, Iran, and Israel-Palestine. These thorns have been lodged for 52, 34, and 65 years respectfully.  And while I'd agree sometimes these three issues are used to scare up domestic constituencies  I think to cite them as diplomatic failures is to ignore the facts.

In Cuba, we had a dictator that was uninterested in seeking a change in relations with us for nearly all the 52 years of the dispute. But now with a new leader there has been some thawing out of relations with revised travel permissions and a continentially slow creep of capitalism into the country. You must have a willing partner to make a diplomatic break through and I'd dare say slow and steady still wins this race.

In Iran, much like Cuba, we find a ruling authority quite disinterested in making peace with us. And yet, diplomacy has happened around the edges. Have we normalized relations? No. Have we convinced Iran to give up any supposed nuclear ambitions? No. But you can't call the ballgame in the third quarter.

With respect to Israel and Palestine, you're dealing with two parties whose own political machinations have made a lasting peace agreement fall in and out of vogue. This is an old conflict and America isn't quite seen as an honest broker. It's hard to fix something so entrenched, which is why so many past efforts have failed  To declare diplomacy dead because the U.S. hasn't facilitated a peace agreement in the Middle East is to raise the bar to dizzying heights and tell the competitor to jump flat footed from the floor.

Mr. Cohen also dismisses two big diplomatic successes, namely Burma and Libya. He mentions Burma but glosses over how the U.S. diplomatically engineered the opening up of the country with carrot extended only in reward for desirable behavior. It was peaceful, it was orderly, and it appears to be genuine. If that's not diplomacy in action, I don't know what is.

With regard to Libya, I'm talking Libya 2003 when Gaddafi voluntarily gave up nuclear weapons without a shot fired. Again, this is a success story for diplomacy, even more so given what would follow eight years later. Imagine a nuclear armed Libya disintegrating into revolution. Surely that we avoided such a scenario should prove diplomacy isn't dead.

Indeed, diplomacy isn't dead. It's alive and well and working all over the world.  As we look to continue to manage the Arab Spring, as we look to manage a rising China, and as we face all manner of international challenges, we know there are diplomats around the world engaging in diplomacy. It's not often flashy, it's unlikely to be trending on Twitter, but it's happening nonetheless and we'll see it from time to time when the moment is right.

Think Again, Again: GOP Foreign Policy Soul Searching

Over at Foreign Policy, Danielle Pletka, vice president for foreign and defense studies at the American Enterprise Institute has a "Think Again" piece trying to both reassure and direct today's GOP toward some sort of foreign policy coherence. Pletka encourages the GOP to return to being "the bedrock of U.S. defense."  There are a myriad of things in the post I could quibble with, not the least of which is the preceding quote, but let's I'm going to pick just a few to focus on.

1) Foreign Policy Doctrine is dramatically overrated

Sure we've had a lot of doctrines. Some were rested in the divine, some helped safeguard our nascent revolution, some were about containment, and some were about putting a fist on the scale. Pletka clearly pines for the Reagan Doctrine and speaks glowingly of how "Reagan stirred the pot and worked with like-minded allies to oust communist dictators." Nevermind some of those "dictators" were duly elected. They were on the wrong team.

The example of Iran-Contra and Reagan's Latin American misadventures highlight the problem of doctrine. A doctrine can be a box, limiting options, the scale of a response, and neglecting the contours of a specific conflict. Perhaps I'm wishy washy but all the studying of the world I've done suggests the actors are too complex to be reduced to a simple doctrine and when we've tried, we've ended up doing things that seem, well, un-American.

2) Moral Imperatives are in the eye of the beholder

Pletka takes a lot of time talking about the distinction between Republicans and Democrats and how that difference centers around values and a feeling of a moral imperative. She says:

In the simplest terms, values are what divide us from them and them from us. There are those who believe that American values form a moral imperative for U.S. power in the world -- that because U.S. democracy is among the world's most durable and just, the United States has an obligation (not merely the occasional inclination) to help others attain the benefits of a free society. That is what Republicans have stood for abroad and the distinction they must now again draw with their Democratic counterparts.

I've a lot to take issue with. First off, is it a settled questioned that our democracy is the "most durable and just?" Haven't there been countless pieces on how broken our political system is? Aren't there a bevy of laws on offer in no small number of the states designed to disenfranchise as they chase after a voter fraud problem that doesn't exist? Isn't the durability of a democracy threatened with the distinction between the two parties foreign policies is rooted in the argument that one has "values" and the other does not? Doesn't a "moral imperative" sound a lot like a crusade? And where does waterboarding fall under American values?

I think it's fair to say all Americans would like the peoples of the world to enjoy our many freedoms and live in similar prosperity to what we have achieved, but let's not forget our own pyramid is unfinished. Let's not wrap those hopes in "American Exceptionalism" to the disregard of British Exceptionalism or Japanese Exceptionalism. I'm not prepared equate exceptional with superior. Pletka is and wants the GOP to do the same.

3) The Soviet Union =/= Al Qaeda (and AQIP =/= AQIM)

As is the want of many listless Republicans, Pletka waxes nostalgic for the Reagan years and a foreign policy rooted in opposition to a known enemy, the evil empire. Pletka suggests 

[A] new Republican foreign policy recommitted to the idea that where the United States is able to identify a strategic and moral imperative -- as in the fight against the Soviet Union or the battle against Islamic extremism -- it is in America's interests to use its power to help shape a safer world.

This is a dangerous comparison. The fight against the Soviet Union and the fight against terrorists who wrap themselves in Islamic rhetoric are incredibly different and require incredibly different solutions. Also, this leads back to the challenges created by something like a doctrine and being motivated by a moral imperative. Imagine a Truman Doctrine for Islamic extremism. What would it look like? Would we undermine any Islamist government? Be prepared to invade? If our motivation is a moral imperative that sounds a lot like a crusade to save heathen masses, are we really improving our safety or just fomenting more hate? It is simpler to stand in opposition to an ideology embodied by a country. There is symmetry there, but we lack similar symmetry in our fight against terrorists who are as Islamic as the KKK is Christian (West Wing shout out).

And that lack of symmetry leads to a sidebar rant. Al Qaeda is not a uniform entity. It is a series of disparate franchises with a myriad of motivations and leaders. Every article like this that speaks simply of an Al Qaeda threat does us a disservice by perpetuating the misconception that the organization is monolithic and dramatically overstates the ability of any specific franchise to pose an existential threat to the United States.

4) Money Doesn't Equal Effectiveness

One final note on this, since I had an argument with my mother about this over the holidays. Pletka makes the comment repeatedly that the GOP should advocate for a well funded defense and get rid of the notion of cutting the defense budget. It's certainly been a winning strategy in the past, but it's not grounded in reality or the requirements to fight the threats we face today.

Pletka is actually dismissive of the amount and percentage of GDP the US spends on defense. She notes:

The truth is the United States spends remarkably little on defense. The Pentagon's budget now represents about 4 percent of GDP, close to the lowest proportion in modern history. It is eminently affordable. Yet the country is on track to cut more than $1 trillion in military spending over the next decade. The lion's share of spending is not on operations or weapons systems, as some believe; nearly 50 percent of spending goes to veterans' benefits and uniformed and civilian personnel. So what can be cut? A better question is: What would America like to stop doing?

Now the 4% number is closer to 5% according to Wikipedia and the World Bank, but let's move past the conversation of the percentage of GDP, even if that 4.7% equals 41% of the world's spending on defense. My issue is thinking money equals effectiveness. Our national security threats have changed. We are technologically ahead of any and all our closest competitors and the Chinese boogeyman sitting just in the background of the entire post is only spending 2% of its GDP on defense. That's not the spending habits of a global power looking to have military parity to the U.S. It is ham handed to suggest and try to sell to the American people that our safety is entirely related to the amount of money we spend on defense. It's also bad policy.

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The bottom line: Pletka offers some ideas that would sound appealing on the stump, but they aren't good policy. They aren't ideas that move our country forward, rather they're designed to get the GOP some foreign policy points while doing nothing to help our national security. Perhaps that was the point of the exercise for Pletka, but I'd hoped for more distinction and less window dressing.

Due Process and Drone Strikes

Micah Zenko, who normally does outstanding work at the Council on Foreign Relations, got a bit sloppy with his “Year in Quotes” at Foreign Policy.  Among the twenty quotes that Zenko describes as “puzzling, hypocritical, and revealing”  is the following:

4. Attorney General Eric Holder: "An individual's interest in making sure that the government does not target him erroneously could not be more significant." ("Remarks at Northwestern University School of Law," March 5, 2012.)

Holder offered this remarkable observation during a landmark speech that provided the Obama administration's justification for why U.S. citizens can be killed, and why secret Executive Branch discussions are sufficient to deprive a citizen of his Sixth Amendment right to due process.

 (emphasis mine).  While Attorney General Holder did give a speech at Northwestern’s Law School defending U.S. counterterrorism policies, his defense of the targeted killing of (presumably) Anwar al-Aulaqi did not center around the Sixth Amendment but the Fifth Amendment.  The Sixth Amendment deals with criminal procedures like trial by jury whereas the Fifth Amendment deals with Due Process. 

More importantly, Holder did not argue that “Executive Branch discussions are sufficient to deprive a citizen of his [Fifth Amendment] right to due process.”  Rather, Holder rightly argued that Fifth Amendment protections exist on a continuum that balances individual rights against the interests of the state.  That is, the amount of process owed to an individual depends on the significance of liberty the individual will be deprived of and the significance of the state’s interest in depriving the individual of that liberty.  Obviously, life is a fundamental individual interest but likewise the state’s interest in survival is paramount:

Now, it is an unfortunate but undeniable fact that some of the threats we face come from a small number of United States citizens who have decided to commit violent attacks against their own country from abroad.   Based on generations-old legal principles and Supreme Court decisions handed down during World War II, as well as during this current conflict, it’s clear that United States citizenship alone does not make such individuals immune from being targeted.   But it does mean that the government must take into account all relevant constitutional considerations with respect to United States citizens – even those who are leading efforts to kill innocent Americans.   Of these, the most relevant is the Fifth Amendment’s Due Process Clause, which says that the government may not deprive a citizen of his or her life without due process of law.
 The Supreme Court has made clear that the Due Process Clause does not impose one-size-fits-all requirements, but instead mandates procedural safeguards that depend on specific circumstances.   In cases arising under the Due Process Clause – including in a case involving a U.S. citizen captured in the conflict against al Qaeda – the Court has applied a balancing approach, weighing the private interest that will be affected against the interest the government is trying to protect, and the burdens the government would face in providing additional process.   Where national security operations are at stake, due process takes into account the realities of combat. Here, the interests on both sides of the scale are extraordinarily weighty.   An individual’s interest in making sure that the government does not target him erroneously could not be more significant.   Yet it is imperative for the government to counter threats posed by senior operational leaders of al Qaeda, and to protect the innocent people whose lives could be lost in their attacks.

In the case of Anwar al-Aulaqi and other U.S. citizens who are actively waging an armed conflict against the United States, Holder is asserting that state owes those individuals a fairly small amount of process compared to, say, an individual who is accused of murder. This is not terribly controversial—consider, as Holder analogizes, the case of U.S. citizens who fought for Nazi Germany during World War II or U.S. citizens who were in rebellion during the Civil War. In each of these cases, it would be preposterous to assert that it was incumbent upon the United States to single out U.S. citizens fighting in opposition to the United States, serve them with warrants, and try them for domestic law violations.  No, these citizens exhaust heavily weight the due process balancing test in favor of summary state action by taking up arms with the enemy and actively opposing the United States.

The discomfort that arises in the case of al-Aulaqi and others is that these citizens were singled out for targeted strikes. But this discomfort is misplaced—at least in Zenko’s formulation. We are not discomfited by a supposed violation of the due process clause but, rather, by the notion of targeted killings in general—a notion that we too easily conflate with assassination. 

Presidential Debate #1 Drinking Game

Tonight is the first of three presidential debates, and while everyone agrees the main event is really Uncle Joe versus Paul Ryan Hayek, your editors felt a drinking game was necessary. So without further ado, here are the drinking game rules for Presidential Debate #1.

- When Romney starts his opening statement take a shot of milk.

- When Obama starts his opening statement take two shots of Evan Williams whiskey, to compensate for Romney's sobriety and Obama is a "man of the people".

- Every time a candidate says the word "Jobs" put a nickel in your pocket. You're going to need the savings after your laid off.

- Every time stimulus is mentioned take a swig of beer and tweak your nipple

- Every time Romney has a zinger take a shot of Jaegermiester and roll your eyes

- Every time Obama or Romney says "Obamacare" lick the bar. Don't worry, you're most likely covered by insurance now.

- If you're a woman, take your free birth control pill with a cosmo chase

- Every time Salt Lake City Olympics are mentioned, enjoy a cup of hot cocoa with extra government subsidized sugar to really sweeten its success. 

- Every time Obama says Osama finish your beer.
- Every time Romney says Osama, but means Obama smash your glass over the head of the person to your right

- Every time Obama or Romney talks about their "plan" for anything, spin in place three times. When you stop and are dizzy the explanation of the plan will make perfect sense.

- Every time Romney speaks to his kinship with the one of seven states he claims to be from chug a beer from that state.

- Every time you hear the words "business" or "equity" order a glass of scotch and light a dollar bill on fire.

- Every time Romney mentions "apologizing for America," drink a Budweiser and thank God you can still have all American beer. Wait, maybe not.

- If Obama mentions Romney's taxes, returns, or rate, finish your drink and flee the bar without paying your tab.

- When the Republicans in the audience violate the rules by cheering or booing, have an old fashion and lament what could have been had this President recognized the futility of working with the GOP at the outset. 

- Anytime Obama mentions the 47% tell the barkeep to put your drinks on the government tab

- Anytime "you didn't build that" comes up yell, "Take your government hands off my Medicare!" at the top of your lungs. Take a shot of schnapps for medicinal purposes.

Finally, when the debate is over and the candidates shake hands, order a bottle of Tsing Tao because we're all going to belong to the Chinese regardless of the election.

Sovereignty and Inapt Analogies

On Wednesday, the Wall Street Journal published a stunning article detailing the interaction between the United States and Pakistan—the CIA and the ISI, really—that the United States interprets as Pakistani consent for drone strikes.  The CIA faxes a geographic description of where strikes will take place.  Pakistan does nothing—previously, the ISI would fax a response acknowledging receipt of the description.  The United States effectively equates its notice with Pakistani consent and goes forth with drone strikes.  It bear emphasis here that Pakistan does take positive steps that indicate consent, such as clearing airspace in the region described in the faxes.  That said, the question of what constitutes actual consent by one state for another state to violate the first state’s sovereignty is extraordinarily deep.  Lawfare and Brooking’s Benjamin Wittes offers this:

In many ways, the CIA here is only behaving towards Pakistan the way it behaves every day in briefing Congress on covert actions. Members of Congress listen to briefers and often stay silent so as to be able to criticize the operation if it goes bad and not be too implicated in it. The CIA, in turn, has learned to consider such silence to be the intelligence committees’ consent: The agency, after all, has given the committees the information they need to stop a program and they have not acted to do so. Here it is really treating the ISI the same way. (Never mind that the if the Pakistanis acted to stop the strikes, the U.S. would probably consider that evidence that the country was unwilling or unable to stop terrorist activity emanating from Pakistan’s soil—and consider that to be legal grounds for U.S. unilateral action on Pakistani territory.) . . .
 On the other had, there’s a long history in property rights disputes of flagrant assertions of right leading to legally recognizable claims–squatters who acquire residency rights, residents who over time acquire title, and the like. So whether implied consent has any legs is highly dependent on context.

For the moment, let us put aside the question of whether implied consent is sufficient consent for one state to authorize a violation of its sovereignty.  As noted, this is a deep question and requires, at the least, a discussion of the international community’s evolving understanding of sovereignty, and the debate between strong- and weak-sovereignty proponents—the debate that underlies the debate over R2P.

Instead, let us consider Wittes’ comparisons of supposed Pakistani permission for U.S. drone strikes to the interaction between the CIA and Congressional intelligence committees, and adverse possession.  Both comparisons are inapt and, with respect to adverse possession, Wittes clearly misunderstands its operation.

Wittes’ analogy between Congressional intelligence committees and Pakistan suggests that the CIA derives its authority to conduct operations in general from notifying Congress of an action and Congress failing to object.  But this is not correct.  The CIA’s authority to conduct operations—actually, the President’s authority to conduct covert actions—does not derive from prior notification to Congress met by Congressional silence.  Instead, the President’s authority comes from prior Congressional grant in a variety of acts including the National Security Act of 1947, as amended, and the Intelligence Authorization Act of 1991. 

Congressional notification of covert actions is an accountability mechanism but Congress’ reaction to the notification—silence or vociferous endorsements—does not change the legality of the covert action.  So long as the action satisfies the other legal requirements including a presidential finding, the notice is just that: notice.  Notice is necessary for the action to be executed but Congressional reaction—positive, negative, or neutral—is immaterial.  Congress could, of course, legislate to prevent or specifically authorize a given covert action.

In contrast, there is no supervening license to violate sovereignty in international law—with the notable exception of self-defense.  Instead, sovereignty is presumptively inviolable and international law’s overarching norm is non-interference.  So far as we know, Pakistan has not provided the United States with a broad license to violate Pakistani sovereignty.  In the absence of such a grant—and under extant international law—mere notice (acknowledged or otherwise) is insufficient.  Thus, Wittes’ Congress-Pakistan comparison is inapposite.

If Congressional silence upon notification has taught the CIA to treat silence as authorization in all situations regardless of the applicable legal regime then the CIA’s very capable lawyers have failed singularly in this instance.  That strikes me as unlikely.

Wittes’ analogy between adverse possession and authorization for drone strikes is similarly unpersuasive.  But unlike Congressional authorization contingent upon notice, which is a regime founded on actual authorization with notice acting as an accountability mechanism, adverse possession by its nature unauthorized.  Indeed, the term itself—adverse possession—suggests that it is possession without consent.  It is the process by which one person gains title to another person’s property through squatting.  But adverse possession requires hostile possession of another person’s property—once consent is given, the process of title acquisition via adverse possession is interrupted.  You see, not only does adverse possession not result in consent, consent is actually fatal to adverse possession.

While Wittes is most certainly correct that what constitutes consent is context dependent, analogies are only useful in so far as they share similar premises.  In employing these two inapt analogies, Wittes not only fails to elucidate the real issues of sovereignty implicated by U.S. drone strikes in Pakistan, he downplays—wrongly in my estimation—the serious concerns raised by the CIA’s novel practice.  

UPDATE: Greg Miller in the Washington Post reports Saturday afternoon that Yemen's President approves every drone strike launched in Yemen.  Such approval would be an example of actual consent.