Month: August 2021

After nearly two decades, the U.S. war in Afghanistan is over. An American withdrawal more than a year in the making has been completed. “Every single U.S. servicemember is now out of Afghanistan,” General Kenneth F. McKenzie Jr. of U.S. Central Command announced yesterday. “I can say that with 100 percent certainty.”

The last member of the U.S. military to leave was Major General Chris Donahue, who had been helping to lead evacuation missions. “Since August the 14th, over an 18-day period, U.S. military aircraft have evacuated more than 79,000 civilians from Hamid Karzai International Airport,” including 6,000 Americans “and more than 73,500 third-country nationals and Afghan civilians,” said McKenzie. “In total, U.S. and coalition aircraft combine to evacuate more than 123,000 civilians, which were all enabled by U.S. military service members who were securing and operating the airfield.”

Launched in October 2001, the war in Afghanistan has now spanned four presidential administrations.

In this time period, 2,461 American troops died in the conflict, in addition to 3,846 U.S. contractors, 66,000 members of the Afghan military and police forces, and more than 47,245 Afghan civilians. Seventy-two journalists, 444 aid workers, and 1,144 allied service members were also killed, as were 51,191 fighters for the Taliban and other opposition forces, reports the Associated Press.

Members of Congress never voted to declare war in Afghanistan.

The war has cost America $2 trillion, and the estimated interest costs may be up to $6.5 trillion.

Key committees rarely talked about the costs, notes A.P.:

Number of times lawmakers in same subcommittee have mentioned costs of Afghanistan and Iraq wars, through mid-summer 2021: 5.

Number of times lawmakers on Senate Finance Committee have mentioned costs of Afghanistan and Iraq wars since Sept. 11, 2001, through mid-summer 2021: 1.

“Tonight’s withdrawal signifies both the end of the military component of the evacuation but also the end of the nearly 20-year mission that began in Afghanistan shortly after September 11th, 2001,” McKenzie said yesterday.

But will we stay out? Or, perhaps a better question, will our “withdrawal” be meaningfully different?

On Sunday, America launched a drone strike on the suicide bombers from the Islamic State groups’ Afghanistan affiliate in retaliation for attacks that killed at least 170 people, including 13 American service members, last week. The specifics of the strike are murky, but there are reports that civilians—including seven children—were killed. It’s unclear if these deaths stemmed from an ISIS attack or if they’re a result of the U.S. drone strike.

“The United States has been killing civilians in Afghanistan, Pakistan, Syria, and Somalia for years, under the guise of the so-called ‘war on terror,’ with impunity,” pointed out Paul O’Brien, executive director of Amnesty International USA, in a statement.

“It is unconscionable that the Biden administration continues airstrikes in this shroud of secrecy. This airstrike is a glimpse into the future U.S. involvement in Afghanistan if the Biden administration pushes ahead with an ‘over the horizon’ counter-terrorism program that does not prioritize civilian protection,” O’Brien said.

Asked if the U.S. would work with the Taliban to take on the Islamic State group’s Afghanistan affiliate, McKenzie said:

I can’t foresee the way future coordination between us would go. I would leave that for—for some future date. I will simply say that they wanted us out; we wanted to get out with our people and with our—and with our friends and partners. And so for that short period of time, our issues…our view of the world was congruent, it was the same.

Still, many in the U.S. media and policy world seem unwilling to let the war in Afghanistan go. (For President Joe Biden, “the end of the ‘forever war’ is more of an inflection point than an actual conclusion,” suggests Ashley Parker at The Washington Post.) Since withdrawal has begun, newspapers and cable TV have been filled with folks clamoring for us to stay.

Never mind that “in terms of actual staying power, all our nation-building efforts couldn’t even match what the Soviet Union managed in its dotage,” as New York Times columnist Ross Douthat puts it. “That knowledge has not prevented a revival of the spirit that led us to this sorry pass.”

“I don’t mean the straightforward criticisms of the Biden administration’s handling of the withdrawal,” continues Douthat, who seems to be the only pundit in America who has learned from previous errors of judgment on Afghanistan.

I mean the way that in both the media coverage and the political reaction, reasonable tactical critiques have often been woven together with anti-withdrawal arguments that are self-deceiving, dubious or risible.

The argument, for instance, that the situation in Afghanistan was reasonably stable and the war’s death toll negligible before the Trump administration started moving toward withdrawal: In fact, only U.S. casualties were low, while Afghan military and civilian casualties were nearing 15,000 annually, and the Taliban were clearly gaining ground—suggesting that we would have needed periodic surges of U.S. forces, and periodic spikes in U.S. deaths, to prevent a slow-motion version of what’s happened quickly as we’ve left.

Or the argument that an indefinite occupation was morally necessary to nurture the shoots of Afghan liberalism: If after 20 years of effort and $2,000,000,000,000, the theocratic alternative to liberalism actually takes over a country faster than in its initial conquest, that’s a sign that our moral achievements were outweighed by the moral costs of corruption, incompetence and drone campaigns.

ll these arguments are connected to a set of moods that flourished after 9/11: a mix of cable-news-encouraged overconfidence in American military capacities, naïve World War II nostalgia and crusading humanitarianism in its liberal and neoconservative forms. Like most Americans, I shared in those moods once; after so many years of failure, I cannot imagine indulging in them now. But it’s clear from the past few weeks that they retain an intense subterranean appeal in the American elite, waiting only for the right circumstances to resurface.

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FREE MINDS 

Backpage on trial. The trial of Backpage founders Michael Lacey and James Larkin and several other former executives begins tomorrow—more than three years after they were arrested and the platform was seized by the federal government. “As journalists and publishers with more than 40 years of experience in the business of news, we firmly believe our prosecution represents epic government overreach and an unprecedented assault on the First Amendment and freedom of speech,” Lacey and Larkin say in a new statement. More:

On April 6, 2018, the federal government eradicated an entire classified ads website containing speech that was 100-percent legal for the site to publish—speech presumptively protected by the U.S. Constitution and also protected by federal statutes.

The publication of speech posted to interactive websites by users is legally protected; so is “offensive” speech and speech the government does not like. Numerous federal courts said just that, in cases involving Backpage.com. Yet our prosecutors steadfastly refuse to admit that the First Amendment has any bearing on our prosecution for being associated with Backpage.com—a website the eminent jurist Richard Posner called a First Amendment-protected “avenue of expression of ideas and opinions.” 

Read the whole thing here.

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FREE MARKETS 

Vegan “butter” and “cheese” OK. The U.S. District Court for the Northern District of California says Miyoko Creamery can call its vegan products “butter” and “cheese.” The products are made from substances such as cashews and coconut oil. Last year, the California Department of Food and Agriculture ordered the company to stop using dairy-related words on packaging. But “the state’s showing of broad marketplace confusion around plant-based dairy alternatives is empirically underwhelming,” wrote Judge Richard Seeborg in a recent ruling. Seeborg ruled that the creamery has a First Amendment right to use these words.

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FOLLOWUP

American Civil Liberties Union (ACLU) and abortion providers ask Supreme Court to intervene. Yesterday, I noted that a Texas law restricting abortions and allowing people to sue if they suspect one has taken place after fetal cardiac activity can be detected is slated to take effect on September 1. Abortion providers and the ACLU have now asked the U.S. Supreme Court to intervene, saying the law “would immediately and catastrophically reduce abortion access in Texas.”

“We have filed an emergency motion in the Supreme Court to block this law before clinics are forced to turn patients away, and patients will have to travel out of state—in the middle of a pandemic—to receive constitutionally guaranteed healthcare,” Nancy Northup, president and CEO of the Center for Reproductive Rights, said. “Many will not be able to afford to. It’s cruel, unconscionable, and unlawful.”

“The emergency application was directed to Justice Samuel A. Alito Jr., who reviews such requests from that region of the country,” reports The Washington Post. “Alito called for the response from the state officials and individuals named in the case.”

The state has until 5 p.m. today to respond.

Fallout from the Supreme Court’s eviction moratorium ruling.  

Sources say the legislature will meet as early as Wednesday in an extraordinary session to extend the eviction moratorium until January 15, 2022. To address the SCOTUS ruling, it will create a mechanism for homeowners to challenge a tenant claim of extraordinary hardship in court

— Zack Fink (@ZackFinkNews) August 30, 2021

Meanwhile in New York:

New York’s largest landlord group is threatening to sue the state Legislature if lawmakers extend the pandemic-era eviction moratorium slated to expire Tuesday—a new measure that sources say could run through Jan. 15—arguing the law negatively impacts property owners.

“If New York State lawmakers enact legislation that disregards and attempts to circumvent the decision by SCOTUS, we will immediately take legal action, this time asking for damages,” said Joe Strasburg, president of the Rent Stabilization Association—a trade association that represents 25,000 building owners and managers in over one million apartments throughout the five boroughs.

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QUICK HITS

As a general matter, no one should use our hate crime data. Period. That’s it.

There’s absolutely no way to trust comparisons over time, and cross-state comparisons go beyond useless to clearly misleading.https://t.co/junSFgOaFT

— John Pfaff (@JohnFPfaff) August 30, 2021

• Economist Emily Oster throws water on a study purporting to show a major drop in baby IQs during the pandemic. “Taken at face value, these results are worrisome. However—and I cannot stress this enough—they are completely implausible,” writes Oster. “There is absolutely no way that there was a reduction in IQ of 82 points as a result of being born during the pandemic.”

• The Federal Trade Commission is going after gas stations.

• An Ohio hospital has been ordered to treat a COVID-19 patient with ivermectin. “A suburban Cincinnati woman, whose husband has been on a ventilator at West Chester Hospital with COVID-19, won a court order forcing the hospital to treat her husband’s novel coronavirus infection with an antiparasitic treatment commonly used for livestock,” reports The Enquirer.

• CVS is going to expand its mental health services, after a successful pilot program.

• A new South African coronavirus variant called C.1.2 has scientists worried. “It contains many mutations associated in other variants with increased transmissibility and reduced sensitivity to neutralising antibodies, but they occur in a different mix and scientists are not yet sure how they affect the behaviour of the virus,” says Reuters.

• “The Department of Education announced Monday that it would launch civil rights investigations into five states whose governors have banned school districts from imposing mask mandates on students and teachers,” reports Reason‘s Eric Boehm. “The department’s Office for Civil Rights says those mandates might ‘discriminate against students with disabilities who are at heightened risk for severe illness from COVID-19 by preventing them from safely accessing in-person education.'”

• Cathy Young on Chris Rufo’s terrible Afghanistan tweets.

• Protecting and serving:

DOJ says a drug dog not alerting but seeming to almost alert because he's sniffing a lot can help form the legal basis for the police to conduct a search of a car.https://t.co/T9oSkd0T9h pic.twitter.com/lJysTtxgi6

— Brad Heath (@bradheath) August 30, 2021

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Cook County, Illinois, Judge James Shapiro has stripped Rebecca Firlit of all rights to see her 11-year-old son until she gets vaccinated for COVID-19. She shares custody of the boy with her ex-husband. The father did not request the order. Rather, the judge asked Firlit if she was vaccinated during a child support hearing, and when she said no, Shapiro revoked her visitation rights. The attorney for the boy’s father said the judge’s decision came as a surprise but is supported by the dad.

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Chief Justice Burger may be the least influential member of the Burger Court. In modern-day discussions about constitutional law, he barely registers. Justice Blackmun wrote Roe. Justice Powell wrote the Bakke concurrence. Justice Rehnquist led the federalism revolution. Justice Stevens led the Court’s liberal wing for decades. Justice O’Connor was the first female Justice. Indeed, the members of the Burger Court that preceded Burger–Black, Douglas, Harlan, Brennan, Stewart, White, and Marshall–still feature prominently in any study of constitutional law. The most significant Burger decision in our casebook was INS v. Chadha, and we have since removed it. Perhaps Burger has a bigger influence in Criminal Procedure. But for Constitutional Law, I spend very little time talking about Chief Justice Burger. Maybe Burger’s only modern-day relevance is his short essay about the Second Amendment in Parade Magazine.

For these reasons, I was unaware that Chief Justice Burger did not have an official biography. Tony Mauro explains why.

Shortly after Burger died in 1995, three of his law clerks met to discuss an official biography: Ken Starr, Mike Luttig, and Tim Flanigan. According to Flanigan, “no one was really interested in doing a biography of the chief justice, at least that we could find, and it came, ‘Well, should one of us do it?'” At the time, Starr was busy with the Clinton investigation, and Luttig was a busy federal judge. According to Flanigan, “They both kind of looked at me and said, ‘Well, you’re just practicing law, Tim. Why don’t you do the biography?'”

According to the New York Times, the Federalist Society “administered the financing for the project.” The benefactor was Dwight Opperman. By 2001, the Federalist Society paid more than $600,000 “for researchers, expenses and a salary for Mr. Flanigan.” That amount was equivalent to Flanigan’s salary from the New York law firm he left to work on the project. At that point, the book was apparently 2/3 complete. But “Flanigan . . . put it aside to work” as deputy White House counsel.

Two decades later, Tony Mauro reports, the book remains unfinished. According to Flanigan, he has only covered the first forty years of Burger’s life. “I’ve written about his early life, his family background. I have rough drafts about his rise in politics and civic affairs and his legal practice in Minnesota, taken up to about 1947 or so.” I eagerly await the discussion of 1948-1953, when Burger worked on the Minnesota Governor’s interracial commission. I’m not sure how this book could have been deemed 2/3 complete.

What is the cause for the delay? Flanigan, who is 67, plans to return to the project when he retires. He told Mauro, “I am very much looking forward to picking up the writing again, as soon as my current career phase is over.”

$600,000 is an obscene amount of money for a book project about a fairly non-influential Justice. My goodness. In the span of a decade, Joan Biskupic wrote four excellent biographies about significant Supreme Court justices. And, I suspect, she did not have a team of researchers who were paid that much money. Writing a book is an arduous project. You must have the commitment and passion to write, write, and write every day.  And you must love the project, even when you hate it. Joan talked about her writing process in a recent SCOTUSBlog podcast. (No, I did not listen to the podcast, but I used Otter to transcribe it):

Howe: Yeah, so you’ve written four books. And that is a lot for somebody with a full time job, even with, you know, even with book leaves, it’s still a lot, because I’m sure you were working on the books, even on both sides of the book leaves.

Biskupic: You know, you’re right, and probably what at first of all, I’ve always had a very high energy level, and, you know, going to law school at night, gets you into a mindset of your day becomes just a long day, you come home, you make dinner, you eat with your family, then you go up to this very crowded room of books and papers and everything else and have at it. And then you do it on weekends. And I actually enjoyed it  so much. And that’s the thing I say to people, when people ask about going to law school, or they ask about writing a book, and I said it, it will always be hanging over your head. So you really have to love doing it.

I second everything Joan said. She is a tenacious reporter and a committed author. It is no surprise she puts out so many high-quality biographies. Flanigan is obviously not up to the task. It is impossible to start a book, stop for twenty years–the length of the entire Afghanistan campaign–and complete the project. There are many articles I start and stop. After about six months, I have to abandon the project altogether. It is no longer in my mind. I have many, many half-written, half-baked articles that will never see the light of day. If only someone paid me $600,000 to write them!

Tony’s piece also sheds light on Burger’s decision to restrict his papers for “10 years after the last Justice who served with Warren E. Burger on the Supreme Court has passed away, or 2026, whichever comes later.” It will be later. Justice Sandra Day O’Connor is still alive. At the earliest, the papers will not be open till 2031. At present, only one person has access to the papers. You guessed it. Tim Flanigan. And he hasn’t looked at them in a decade! Oh, and the William and Mary law library spent $6 million to house Burger’s papers. What a staggering amount of money for documents very few people will ever visit Williamsburg to read. Is there anything in the Burger papers that are not in the Blackmun and Marshall papers?

I doubt the New Hampshire Historical Society will spend nearly that amount on Justice Souter’s papers, which will become available 50 years after his death! When those papers are finally available–circa 2090 or so–I may be one of the few attorneys who lived through Souter’s service on the Supreme Court. (He stepped down after I graduated law school in 2009, but before I got my bar results). At that point, perhaps Gerard Magliocca’s granddaughter will write a biography about an obscure and forgotten justice.

You may discern a bit of anger in this post. Indeed. So much time and effort was wasted because none of Burger’s clerks actually wanted to write the book. They could have contracted with an actual author to complete the project. But instead, Flanigan drew the short straw and blew through $600,000 with nothing to show for it. That money could have been used for so many more worthwhile causes.

The Federalist Society should try to claw back whatever money it paid Flanigan.

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Still more from the free speech and social media platforms symposium in the first issue of our Journal of Free Speech Law; you can read the whole article (by Alan Rozenshtein, Minnesota) here, but here’s the abstract:

The technology giants that dominate Silicon Valley are facing unprecedented calls for regulation across a wide range of policy areas, ranging from content moderation and surveillance to competition, privacy, and consumer protection. But, as this Article explains, the First Amendment may stymie such efforts in ways that go far beyond the much-discussed “First Amendment Lochnerism.” Because technology companies’ core busi­ness activity is the facilitation of communication through computer code, they are particularly well suited to wield a deregulatory First Amendment.

To avoid the First Amendment becoming a new, digital Lochner, this Article argues that First Amendment doctrine must sharply distinguish between arguments made on behalf of the First Amendment rights of users, which should be embraced, and those made on behalf of the companies themselves, which should be credited only if they advance the First Amendment interests of society, not merely those of the companies themselves. This Article concludes by using the recently enacted Florida law limiting social-media content moderation as a case study for how courts and other legal actors can determine what degree of First Amendment protections is appropriate for Silicon Valley’s speech.

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