Category: reason

Trump’s Speech Confirms That Soleimani Strike Didn’t Prevent Imminent Attack or Make Americans Safer

In the aftermath of the assassination of Iranian general Qassem Soleimani and an Iranian attack on American military bases in Iraq, President Donald Trump signaled Tuesday morning that he’s prepared to step back from the brink of war.

“We want you to have a future, and a great future,” Trump said, speaking directly to the Iranian government and the people of Iran. “The United States is ready to embrace peace with all who seek it.”

This is unequivocally good news. While Trump did not offer to open direct negotiations with Iran and spoke glowingly about the power of the American military—all while being flanked by uniformed military officials—his Tuesday morning address seems to suggest that the immediate danger of open war has, for now, been reduced ever so slightly. Iran’s government has already expressed a desire to avoid further escalation, so you can expect the president’s supporters to claim that developments in the past 24 hours vindicate Trump’s reckless and unpredictable version of Ronald Reagan’s “peace through strength” theory.

But once the threat of war has mostly passed, observers should start asking: What exactly has the saber-rattling of the past week accomplished for the United States?

For starters, it should be obvious by now that the most immediate justification for Soleimani’s assassination was either an outright lie or a strategic miscalculation. Killing Soleimani did not prevent an attack on American troops in Iraq; if anything, it appears to have triggered an attack, though thankfully there were no casualties.

It’s telling that the White House has already largely dispensed with the notion that the assassination was conducted in order to stop some impending attack. On Tuesday, Trump called Soleimani “the world’s top terrorist,” and talked up Soleimani’s history of organizing and planning militia attacks that have killed and maimed American troops in Iraq over the course of the past decade-plus. As other observers have noted, it’s now fairly obvious that Soleimani’s killing was about vengeance, not deterrence.

One could argue that killing Soleimani removed a dangerous opponent from the battlefield and that Soleimani’s absence will weaken Iran’s hand in Iraq, Syria, and elsewhere in the wider Middle East long-term. That’s certainly possible—plausible, even—but it probably overstates the extent to which Soleimani was dictating Iran’s foreign policy and  underestimates the resilience of the Iranian regime. It also ignores the potential dangers of using assassinations as a tool of foreign policy. And it gives the Trump administration credit for a strategic angle that even the administration itself has not publicly claimed. Indeed, the White House has tried to justify killing Soleimani in the present tense (“imminent threat”) and past tense (retribution for killing Americans in Iraq), but never in such a hypothetical, future-looking way.

What else has the assassination accomplished? It’s given the Iranian regime an even stronger incentive to obtain nuclear weapons as a deterrent against future American aggression. It’s exposed, once again, the extent to which Trump has alienated America’s allies. It’s caused the United States to deploy more troops to the Middle East, thus making any eventual withdraw during Trump’s first term even less likely than it already was. And it’s given the Iranian government a martyr to use for domestic political purposes in rallying anti-American sentiment.

Yes, Trump’s speech on Tuesday has reduced the chance of war with Iran. No, this was not a successful week for U.S. foreign policy, or for the man in charge of it.

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May an Individual Claim Minority Status Based on a DNA Test Showing a Small Amount of African Heritage?

Statutes that define African Americans or Blacks typically define them as individuals with “origins in any of the Black racial groups of Africa.” This raises the question of whether someone who has lived his life as a white person, but discovers that he has Black African ancestry, is entitled to minority status, which in turn presumptively qualifies a company he owns for disadvantaged business enterprise status, which in turns provides for preferential treatment in bidding for government contracts. Perhaps surprisingly, while there are several cases regarding whether simply having Spanish ancestry is sufficient to make one “Hispanic” for legal purposes (one SBA case, for example, concludes that Sephardic Jews are all “Hispanic” if they self-identity as such), I’ve only been able to locate one case discussing whether the statutory language should be taken literally, and any African ancestry is sufficient to make one legally African American. The case is Orion Insurance Group v. Washington’s Office of Minority & Women’s Business Enterprises 54 Fed. Appx. 556 (9th Cir. 2018), though you won’t learn many of the facts of the case from reading that opinion. Below is a summary of the case, from a draft law review article (hint to law review-editor readers) I plan to submit soon:

Ralph Taylor, a Washington State resident, owns Orion Insurance Company. Taylor is of Caucasian appearance and lived his life as white man. Apparently inspired (or disturbed) by competitors that received certification as Minority Business Enterprise status based on owners with only remote minority ancestry, Taylor took a DNA test. The test concluded that he had 6% Indigenous American origin, and 4% Sub-Saharan African origin. The test had a 3.3% margin of error. Based on those results, Orion applied for MBE status for state contracting purposes with the Washington State Office of Minority & Woman’s Business Enterprises (OMWBE), based on Taylor’s African ancestry.

When determining MBE status, Washington state law (uniquely) decrees that a state official first look at the picture submitted with an application. A OMWBE official determined that Taylor did not look African American, and therefore requested further information from him documenting his minority status, including other documentation of ethnicity; a narrative and documentation regarding the “cultural community” he considered himself to be a part of and how he held himself out in that particular community; a narrative and documentation regarding how “his cultural community” viewed him; and a narrative regarding how he had experienced social and economic disadvantage. Taylor submitted his DNA results, along with.other evidence, and Orion was certified as an MBE.

Having been so certified, Orion applied with the state for DBE status for federally-funded contracts based on Taylor’s Native American and African ancestry. A state official responded that the finding of state MBE status was not binding for federal DBE purposes, and requested further information documenting Taylor’s minority status. Orion responded with Taylor’s DNA test results, along with other evidence discussed below. Orion noted that the definition for “Black Americans” in the statute was solely “Having origins in any of the black racial groups of Africa,” and argued that failing to recognize Taylor as “Black” would amount to discriminating against him based on his appearance and skin color.

Orion also presented evidence that Taylor’s DNA test showed that he had more than ten times as much Native American heritage as the owner of a company that had been granted DBE status based on the owner’s membership in a Native American tribe. Orion noted that under Washington law, Native American status is not dependent on membership in a tribe.

In discovery, OMWBE later acknowledged that it had never asked any applicant the sorts of questions it asked Taylor, and that it had no formal procedures or rules for determining race and ethnicity other than interpreting the relevant statute. Doing so, OMWBE ruled that Orion failed to show that Taylor was a member of a minority group, or that others considered him to be a member of such a group. In its letter rejected Orion’s DBE application, OMWBE stated:

Mr. Taylor submitted a birth certificate that did not indicate race, so this document failed to prove that he is a member of a minority group. Mr. Taylor provided documentation of a Negro woman he claimed is an ancestor. This documentation is incomplete and does not prove that the individual is an ancestor of Mr. Taylor. Even if the individual is an ancestor of Mr. Taylor’s, it fails to prove that he is a member of a minority group, or regarded as a member of a minority group.

Mr. Taylor submitted a DNA test to prove he is 4% Sub-Saharan African and 6% Native American. The test results for Mr. Taylor and his father are highly inconsistent and incomplete. Half of a son’s DNA comes from his father and half comes from his mother. OMWBE acknowledges that the pieces of DNA from each parent are random and will not equal exactly half from each parent. The two DNA tests between father and son should, however, be related. Without a complete picture of Mr. Taylor’s mother’s DNA, OMWBE contends that the tests are not reliable to determine ethnicity. This information fails to prove that Mr. Taylor is a member of a minority group, or regarded as a member of a minority group.

Also, there is a 3.3% statistical noise associated with each test performed by Ancestry by DNA. Eliminating the statistical noise from the DNA test results provided would indicate that Mr. Taylor’s ancestry is 2.7% Indigenous American and 0.7% Sub-Saharan African. [DB: This is not how it works, it instead means instead there is a 95% probability, assuming the test is otherwise sound, that Taylor is of between .7 and 7.3 percent African origin.] Additionally, from reviewing the information on the Ancestry by DNA website, it is unclear if the website’s use of the term Sub-Saharan African corresponds to the definition of Black American in the CFR, which refers to “persons having origins in the Black racial groups of Africa.” Regardless, the low figures combined with the inconsistencies with the results for Mr. Taylor and his father render the test as insufficient to prove that Mr. Taylor is a member of a minority group, or regarded as a member of a minority group.
Mr. Taylor submitted two letters where the authors state they consider Mr. Taylor to be of mixed heritage, however, they do not identify Mr. Taylor as Black or Native American. These letters do not establish that Mr. Taylor, who is visually identifiable as Caucasian, is a member of a non-Caucasian group. Mr. Taylor has failed to meet his burden that he is a member of a minority group, or regarded as a member of a minority group.

Mr. Taylor submitted insufficient evidence when he was asked in an additional information request about his membership in the Black and/or Native American group. The only substantive evidence provided was a statement that he is a member of the NAACP, has a subscription to Ebony magazine, and he is very interested in Black social issues. All individuals, regardless of minority status, may join the NAACP and subscribe to Ebony magazine, or be concerned about issues. This fails to prove that Mr. Taylor is a member of a minority group, or regarded as a member of minority group.

As federal DOT rules permit, Orion appealed the decision to the DOT. The DOT, in turn, upheld the state denial of DBE status, ruling that the OMWBE’s decision did not fail the applicable “arbitrary and capricious” test because there was substantial evidence supporting it. The DOT ruling stated:

Orion does not demonstrate that its owner is a member of a group that is presumed to be socially and economically disadvantaged under § 26.67(n). The uncontroverted evidence is that Ralph Taylor is as much as 99.3 percent non-Black. The same evidence shows Mr. Taylor to be, minimally, 92.7% non-Black. [OMWBE] states that the bulk of available evidence indicates that Ralph Taylor is Caucasian or at least primarily, overwhelmingly, Caucasian. Accordingly, the Department agrees with [OMWBE] that the seeming inconsistencies (including between Mr. Taylor’s appearance and his notarized statement claiming group membership) gave rise to a question under § 26.63 which required [OMWBE] to make further inquiries of the kind described in that provision.

[OMWBE] consequently had grounds (“a well founded reason to question group membership”) under § 26.63(a) to request additional information under § 26.63(b). By operation of § 26.63(b)(1), Orion’s owner must demonstrate that he meets the § 26.67(d) requirements for individual social and economic disadvantage. Under the latter provision, the guidance found at Appendix E applies. As noted in the preceding section, Orion did not produce the evidence that Appendix E requires for an individual showing, of social and economic disadvantage. Accordingly, the firm is ineligible for certification. Orion protests this result as burdensome and discriminatory, but it accurately reflects the analysis that the Regulation requires.

On appeal, Orion would change the inquiry. Orion relies exclusively on the technical argument that one portion of the § 26.5 definitional provision speaks simply of “origins,” and Orion asserts that the Regulation nowhere prescribes an explicit percentage relating to ancestry. Orion is correct that Black Americans are defined to include persons with “origins” in the Black racial groups of Africa. Orion, however, neglects to note that the broader § 26.5 definition of “socially and economically disadvantaged individual” also requires that the person “have been subjected to racial or ethnic prejudice or cultural bias within American society because of his or her identity as a members [sic] of groups and without regard to his or her individual qualities.” We find no substantial evidence of such bias. See generally § 26.67(d) and the Regulation’s Appendix E.

Further, construing the narrower definition as broadly as Orion advocates would strip the provision of all exclusionary meaning. It is commonly acknowledged that all of mankind “originated” in Africa. Therefore, if any (Black) African ancestry; no matter how attenuated, sufficed for DBE purposes, then this particular definition would be devoid of any distinction-which was clearly not the Department’s intent in promulgating it. There is little to no evidence that Mr. Taylor ever suffered any adverse consequences in business because of his genetic makeup.

Sections 26.61.; 26.63(b)(l), and 26.67(d), in any event, independently require the applicant to demonstrate social and economic disadvantage. Orion fails to make that showing on the record before us, by a preponderance of the evidence. There is little to no persuasive evidence that Mr. Taylor has personally suffered social and economic disadvantage by virtue of being a Black American.

Orion appealed to federal district court. The court, like the DOT, found that there was substantial evidence supported OMWBE’s decision. With regard to Orion’s claim that it was inherently improper and discriminatory for Washington State to investigate Taylor’s background because he didn’t ‘look” Black or Native American the court responded that any discrimination by the state was based on Taylor appearance, not his genetic makeup, and that such discrimination was proper because it is not arbitrary and capricious way of determining whether Taylor was a member of the “Black or Native American groups.” The court did not discuss the relevant statutory language, which seems to rely purely on ancestry rather than appearance.

Orion then appealed to the Ninth Circuit. Considering the interesting statutory and constitutional issues the case raises, the Ninth Circuit’s affirmance of the district court was surprisingly conclusory: “OMWBE did not act in an arbitrary and capricious manner when it determined it had a ‘well founded reason’ to question Taylor’s membership claims and, after requesting additional documentation from Taylor, determined that Taylor did not qualify as a ‘socially and economically disadvantaged individual.'”

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May an Individual Claim Minority Status Based on a DNA Test Showing a Small Amount of African Heritage?

Statutes that define African Americans or Blacks typically define them as individuals with “origins in any of the Black racial groups of Africa.” This raises the question of whether someone who has lived his life as a white person, but discovers that he has Black African ancestry, is entitled to minority status, which in turn presumptively qualifies a company he owns for disadvantaged business enterprise status, which in turns provides for preferential treatment in bidding for government contracts. Perhaps surprisingly, while there are several cases regarding whether simply having Spanish ancestry is sufficient to make one “Hispanic” for legal purposes (one SBA case, for example, concludes that Sephardic Jews are all “Hispanic” if they self-identity as such), I’ve only been able to locate one case discussing whether the statutory language should be taken literally, and any African ancestry is sufficient to make one legally African American. The case is Orion Insurance Group v. Washington’s Office of Minority & Women’s Business Enterprises 54 Fed. Appx. 556 (9th Cir. 2018), though you won’t learn many of the facts of the case from reading that opinion. Below is a summary of the case, from a draft law review article (hint to law review-editor readers) I plan to submit soon:

Ralph Taylor, a Washington State resident, owns Orion Insurance Company. Taylor is of Caucasian appearance and lived his life as white man. Apparently inspired (or disturbed) by competitors that received certification as Minority Business Enterprise status based on owners with only remote minority ancestry, Taylor took a DNA test. The test concluded that he had 6% Indigenous American origin, and 4% Sub-Saharan African origin. The test had a 3.3% margin of error. Based on those results, Orion applied for MBE status for state contracting purposes with the Washington State Office of Minority & Woman’s Business Enterprises (OMWBE), based on Taylor’s African ancestry.

When determining MBE status, Washington state law (uniquely) decrees that a state official first look at the picture submitted with an application. A OMWBE official determined that Taylor did not look African American, and therefore requested further information from him documenting his minority status, including other documentation of ethnicity; a narrative and documentation regarding the “cultural community” he considered himself to be a part of and how he held himself out in that particular community; a narrative and documentation regarding how “his cultural community” viewed him; and a narrative regarding how he had experienced social and economic disadvantage. Taylor submitted his DNA results, along with.other evidence, and Orion was certified as an MBE.

Having been so certified, Orion applied with the state for DBE status for federally-funded contracts based on Taylor’s Native American and African ancestry. A state official responded that the finding of state MBE status was not binding for federal DBE purposes, and requested further information documenting Taylor’s minority status. Orion responded with Taylor’s DNA test results, along with other evidence discussed below. Orion noted that the definition for “Black Americans” in the statute was solely “Having origins in any of the black racial groups of Africa,” and argued that failing to recognize Taylor as “Black” would amount to discriminating against him based on his appearance and skin color.

Orion also presented evidence that Taylor’s DNA test showed that he had more than ten times as much Native American heritage as the owner of a company that had been granted DBE status based on the owner’s membership in a Native American tribe. Orion noted that under Washington law, Native American status is not dependent on membership in a tribe.

In discovery, OMWBE later acknowledged that it had never asked any applicant the sorts of questions it asked Taylor, and that it had no formal procedures or rules for determining race and ethnicity other than interpreting the relevant statute. Doing so, OMWBE ruled that Orion failed to show that Taylor was a member of a minority group, or that others considered him to be a member of such a group. In its letter rejected Orion’s DBE application, OMWBE stated:

Mr. Taylor submitted a birth certificate that did not indicate race, so this document failed to prove that he is a member of a minority group. Mr. Taylor provided documentation of a Negro woman he claimed is an ancestor. This documentation is incomplete and does not prove that the individual is an ancestor of Mr. Taylor. Even if the individual is an ancestor of Mr. Taylor’s, it fails to prove that he is a member of a minority group, or regarded as a member of a minority group.

Mr. Taylor submitted a DNA test to prove he is 4% Sub-Saharan African and 6% Native American. The test results for Mr. Taylor and his father are highly inconsistent and incomplete. Half of a son’s DNA comes from his father and half comes from his mother. OMWBE acknowledges that the pieces of DNA from each parent are random and will not equal exactly half from each parent. The two DNA tests between father and son should, however, be related. Without a complete picture of Mr. Taylor’s mother’s DNA, OMWBE contends that the tests are not reliable to determine ethnicity. This information fails to prove that Mr. Taylor is a member of a minority group, or regarded as a member of a minority group.

Also, there is a 3.3% statistical noise associated with each test performed by Ancestry by DNA. Eliminating the statistical noise from the DNA test results provided would indicate that Mr. Taylor’s ancestry is 2.7% Indigenous American and 0.7% Sub-Saharan African. [DB: This is not how it works, it instead means instead there is a 95% probability, assuming the test is otherwise sound, that Taylor is of between .7 and 7.3 percent African origin.] Additionally, from reviewing the information on the Ancestry by DNA website, it is unclear if the website’s use of the term Sub-Saharan African corresponds to the definition of Black American in the CFR, which refers to “persons having origins in the Black racial groups of Africa.” Regardless, the low figures combined with the inconsistencies with the results for Mr. Taylor and his father render the test as insufficient to prove that Mr. Taylor is a member of a minority group, or regarded as a member of a minority group.
Mr. Taylor submitted two letters where the authors state they consider Mr. Taylor to be of mixed heritage, however, they do not identify Mr. Taylor as Black or Native American. These letters do not establish that Mr. Taylor, who is visually identifiable as Caucasian, is a member of a non-Caucasian group. Mr. Taylor has failed to meet his burden that he is a member of a minority group, or regarded as a member of a minority group.

Mr. Taylor submitted insufficient evidence when he was asked in an additional information request about his membership in the Black and/or Native American group. The only substantive evidence provided was a statement that he is a member of the NAACP, has a subscription to Ebony magazine, and he is very interested in Black social issues. All individuals, regardless of minority status, may join the NAACP and subscribe to Ebony magazine, or be concerned about issues. This fails to prove that Mr. Taylor is a member of a minority group, or regarded as a member of minority group.

As federal DOT rules permit, Orion appealed the decision to the DOT. The DOT, in turn, upheld the state denial of DBE status, ruling that the OMWBE’s decision did not fail the applicable “arbitrary and capricious” test because there was substantial evidence supporting it. The DOT ruling stated:

Orion does not demonstrate that its owner is a member of a group that is presumed to be socially and economically disadvantaged under § 26.67(n). The uncontroverted evidence is that Ralph Taylor is as much as 99.3 percent non-Black. The same evidence shows Mr. Taylor to be, minimally, 92.7% non-Black. [OMWBE] states that the bulk of available evidence indicates that Ralph Taylor is Caucasian or at least primarily, overwhelmingly, Caucasian. Accordingly, the Department agrees with [OMWBE] that the seeming inconsistencies (including between Mr. Taylor’s appearance and his notarized statement claiming group membership) gave rise to a question under § 26.63 which required [OMWBE] to make further inquiries of the kind described in that provision.

[OMWBE] consequently had grounds (“a well founded reason to question group membership”) under § 26.63(a) to request additional information under § 26.63(b). By operation of § 26.63(b)(1), Orion’s owner must demonstrate that he meets the § 26.67(d) requirements for individual social and economic disadvantage. Under the latter provision, the guidance found at Appendix E applies. As noted in the preceding section, Orion did not produce the evidence that Appendix E requires for an individual showing, of social and economic disadvantage. Accordingly, the firm is ineligible for certification. Orion protests this result as burdensome and discriminatory, but it accurately reflects the analysis that the Regulation requires.

On appeal, Orion would change the inquiry. Orion relies exclusively on the technical argument that one portion of the § 26.5 definitional provision speaks simply of “origins,” and Orion asserts that the Regulation nowhere prescribes an explicit percentage relating to ancestry. Orion is correct that Black Americans are defined to include persons with “origins” in the Black racial groups of Africa. Orion, however, neglects to note that the broader § 26.5 definition of “socially and economically disadvantaged individual” also requires that the person “have been subjected to racial or ethnic prejudice or cultural bias within American society because of his or her identity as a members [sic] of groups and without regard to his or her individual qualities.” We find no substantial evidence of such bias. See generally § 26.67(d) and the Regulation’s Appendix E.

Further, construing the narrower definition as broadly as Orion advocates would strip the provision of all exclusionary meaning. It is commonly acknowledged that all of mankind “originated” in Africa. Therefore, if any (Black) African ancestry; no matter how attenuated, sufficed for DBE purposes, then this particular definition would be devoid of any distinction-which was clearly not the Department’s intent in promulgating it. There is little to no evidence that Mr. Taylor ever suffered any adverse consequences in business because of his genetic makeup.

Sections 26.61.; 26.63(b)(l), and 26.67(d), in any event, independently require the applicant to demonstrate social and economic disadvantage. Orion fails to make that showing on the record before us, by a preponderance of the evidence. There is little to no persuasive evidence that Mr. Taylor has personally suffered social and economic disadvantage by virtue of being a Black American.

Orion appealed to federal district court. The court, like the DOT, found that there was substantial evidence supported OMWBE’s decision. With regard to Orion’s claim that it was inherently improper and discriminatory for Washington State to investigate Taylor’s background because he didn’t ‘look” Black or Native American the court responded that any discrimination by the state was based on Taylor appearance, not his genetic makeup, and that such discrimination was proper because it is not arbitrary and capricious way of determining whether Taylor was a member of the “Black or Native American groups.” The court did not discuss the relevant statutory language, which seems to rely purely on ancestry rather than appearance.

Orion then appealed to the Ninth Circuit. Considering the interesting statutory and constitutional issues the case raises, the Ninth Circuit’s affirmance of the district court was surprisingly conclusory: “OMWBE did not act in an arbitrary and capricious manner when it determined it had a ‘well founded reason’ to question Taylor’s membership claims and, after requesting additional documentation from Taylor, determined that Taylor did not qualify as a ‘socially and economically disadvantaged individual.'”

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Is Climate Change Making Australia’s Bushfires Worse?

“Australia is committing climate suicide,” declares the headline of a New York Times op-ed. An op-ed in The Washington Post similarly admonishes, “Australia’s apocalyptic fires are a warning to the world.” Apocalyptic as a descriptor is not far off for the folks experiencing the fires in southeastern Australia that have burned 15.6 million acres (an area about the size of West Virginia) and killed 24 people so far.

“Australia is a fire continent,” states Arizona State University environmental historian Stephen Pyne in his (2015) book World Fire: The Culture of Fire on Earth. A 2009 report to the Australian Senate confirmed Pyne’s moniker when it noted that “about 50 million hectares [123 million acres] of land are burned across Australia each year on average and about 80% of fire-affected areas are in northern savanna regions.”

In any case, is man-made climate change a significant contributor to the current conflagration?

Certainly, the last year in Australia has been one of the hottest and driest on record.

Hot enough for you?
Fire weather

Australia’s weather patterns are driven in part by the Indian Ocean Dipole—a phenomenon in which hotter and cooler water sloshes back and forth between the east coast of Africa and the western islands of Indonesia. During its positive phase warmer water near east Africa produces lots of rain there while cooler water near Indonesia dries out Australia. In the past year or so, the IOD has been in an unusually strong positive phase, reaching record values for at least the past 60 to 80 years. The result has been widespread drought Down Under.

Not a drop to drink
Widespread drought

November rainfall was the lowest on record for Australia, according to the country’s Bureau of Meteorology. The southeastern state of New South Wales experienced record low rainfall in 2019.

Water water nowhere
New South Wales Drought

Is climate change contributing to the current outbreak of fires? A September 2019 article by two Australian researchers in the journal PLoS One notes that the trend in the McArthur Forest Fire Danger Index has been rising since 1973. The index assesses dryness, based on rainfall and evaporation, along with temperature, humidity, and wind speed. After taking into consideration the effects of various global weather oscillations, the researchers propose that “anthropogenic climate change is the primary driver of the trend, through both higher mean temperatures and potentially through associated shifts in large-scale rainfall patterns.” They specifically note that rise in the fire danger index is strongest in southeastern Australia, and that is exactly where the fires have been worst this year.

Of course, fires need fuel. Landscape management for fire prevention, specifically using prescribed burning to reduce fuel loads in the Australian bush, is controversial. In the wake of devastating fires in 2009, a royal commission issued a report that recommended raising the target of burning across all public lands from 1.7 to 5 percent annually in the southeastern state of Victoria where massive fires are currently burning. The state never met that goal. The current outbreak has torched around 3 million acres in that state so far.

As Wired observes there is an ongoing “tension in Australia between pro-fire foresters and urban environmentalists who lamented the destructive potential of fire, for wildlife in particular.” Sadly, University of Sydney environmental scientist Chris Dickman estimates that at least 480 million animals have been killed by the fires.

The fire disaster has predictably been used by climate activists to cudgel Australian politicians, including Prime Minister Scott Morrison, who oppose deep cuts in their country’s greenhouse gas emissions. (And it certainly didn’t help that Morrison went on vacation to Hawaii as the fire emergency intensified.) But as the politicians correctly point out, man-made global warming is a global commons problem. Australia’s greenhouse gas emissions amount to only about 1.3 percent of the annual global total, so cutting all of them would have essentially no impact on warming trends. On the other hand, as politicians like Morrison observe, the economic impacts of steep immediate emissions cuts would not be negligible.

The good news is that some rain has now fallen in southeastern Australia as the IOD has shifted into its neutral phase. However, Australian authorities expect only a brief reprieve from the recent rains and cooler temperatures.

As the world likely continues to warm over the course of this century, it is clear that Australians will need to be more vigorously proactive in managing their wild landscapes to ameliorate future fire risks.

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Is Climate Change Making Australia’s Bushfires Worse?

“Australia is committing climate suicide,” declares the headline of a New York Times op-ed. An op-ed in The Washington Post similarly admonishes, “Australia’s apocalyptic fires are a warning to the world.” Apocalyptic as a descriptor is not far off for the folks experiencing the fires in southeastern Australia that have burned 15.6 million acres (an area about the size of West Virginia) and killed 24 people so far.

“Australia is a fire continent,” states Arizona State University environmental historian Stephen Pyne in his (2015) book World Fire: The Culture of Fire on Earth. A 2009 report to the Australian Senate confirmed Pyne’s moniker when it noted that “about 50 million hectares [123 million acres] of land are burned across Australia each year on average and about 80% of fire-affected areas are in northern savanna regions.”

In any case, is man-made climate change a significant contributor to the current conflagration?

Certainly, the last year in Australia has been one of the hottest and driest on record.

Hot enough for you?
Fire weather

Australia’s weather patterns are driven in part by the Indian Ocean Dipole—a phenomenon in which hotter and cooler water sloshes back and forth between the east coast of Africa and the western islands of Indonesia. During its positive phase warmer water near east Africa produces lots of rain there while cooler water near Indonesia dries out Australia. In the past year or so, the IOD has been in an unusually strong positive phase, reaching record values for at least the past 60 to 80 years. The result has been widespread drought Down Under.

Not a drop to drink
Widespread drought

November rainfall was the lowest on record for Australia, according to the country’s Bureau of Meteorology. The southeastern state of New South Wales experienced record low rainfall in 2019.

Water water nowhere
New South Wales Drought

Is climate change contributing to the current outbreak of fires? A September 2019 article by two Australian researchers in the journal PLoS One notes that the trend in the McArthur Forest Fire Danger Index has been rising since 1973. The index assesses dryness, based on rainfall and evaporation, along with temperature, humidity, and wind speed. After taking into consideration the effects of various global weather oscillations, the researchers propose that “anthropogenic climate change is the primary driver of the trend, through both higher mean temperatures and potentially through associated shifts in large-scale rainfall patterns.” They specifically note that rise in the fire danger index is strongest in southeastern Australia, and that is exactly where the fires have been worst this year.

Of course, fires need fuel. Landscape management for fire prevention, specifically using prescribed burning to reduce fuel loads in the Australian bush, is controversial. In the wake of devastating fires in 2009, a royal commission issued a report that recommended raising the target of burning across all public lands from 1.7 to 5 percent annually in the southeastern state of Victoria where massive fires are currently burning. The state never met that goal. The current outbreak has torched around 3 million acres in that state so far.

As Wired observes there is an ongoing “tension in Australia between pro-fire foresters and urban environmentalists who lamented the destructive potential of fire, for wildlife in particular.” Sadly, University of Sydney environmental scientist Chris Dickman estimates that at least 480 million animals have been killed by the fires.

The fire disaster has predictably been used by climate activists to cudgel Australian politicians, including Prime Minister Scott Morrison, who oppose deep cuts in their country’s greenhouse gas emissions. (And it certainly didn’t help that Morrison went on vacation to Hawaii as the fire emergency intensified.) But as the politicians correctly point out, man-made global warming is a global commons problem. Australia’s greenhouse gas emissions amount to only about 1.3 percent of the annual global total, so cutting all of them would have essentially no impact on warming trends. On the other hand, as politicians like Morrison observe, the economic impacts of steep immediate emissions cuts would not be negligible.

The good news is that some rain has now fallen in southeastern Australia as the IOD has shifted into its neutral phase. However, Australian authorities expect only a brief reprieve from the recent rains and cooler temperatures.

As the world likely continues to warm over the course of this century, it is clear that Australians will need to be more vigorously proactive in managing their wild landscapes to ameliorate future fire risks.

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Iran’s Foreign Minister: ‘We Do Not Seek Escalation or War’

“All is well!” declared President Donald Trump on Tuesday night, after a barrage of Iranian missiles hit two U.S.-manned military bases in Iraq. Though some prominent Republicans immediately began banging the war drums last night, others fell in line with the president, asserting that the attack⁠—in retaliation for America’s murder of Iranian military leader Qassem Soleimani⁠—was not that big of a deal and certainly not a sign that killing Soleimani was a bad plan.

Some downplayed the attack on bases in Ain al-Asad and Irbil, Iraq, on the grounds that no lives (American or Iraqi) were lost. Journalists and pundits have been running with that, too, suggesting that Iran hitting obvious and nearby targets that the U.S. had already cleared was a way to give the appearance of escalating while actually de-escalating.

Others say that’s ridiculously naive and this is just the start of Iran’s revenge.

It is soothing to think of the attack last night as the end of this frightening episode. Could Iran’s no-casualty attack last night really be an attempt at de-escalation? Or was it only the beginning of the country’s payback for Soleimani’s death?

Iranian leaders have indicated both.

Ayatollah Ali Khamenei, Iran’s supreme leader, said that last night’s attack was but “a slap in the face” and “not sufficient. What is important is ending the corrupting presence of America in the region.”

And here’s a senior adviser to Iran’s president:

But Iran’s Foreign Minister Javad Zarif said “We do not seek escalation or war.”

Zarif told reporters in Tehran this morning that the attack highlighted how Iran was “not the United States” and did not want war. “It is up to the United States to now come to its senses and stop its adventurism in this region,” he said.

President Trump is expected to speak today at 11 a.m.

Shortly after the missile attack, a Boeing 737-800 passenger plane leaving the Tehran airport crashed, killing all 176 people onboard, and initially, many suspected the Ukraine International Airlines crash was related to hostilities between Iran and the U.S.

“At first I thought [the Americans] have hit here with missiles and went in the basement as a shelter,” one man who lives near where the plane crashed told the Associated Press.

Iranian authorities, however, said the plane suffered from a mechanical issue. Ukrainian officials said an investigation will be conducted.

According to the Ukrainian foreign minister, those killed in the crash included mostly Iranian and Canadian passengers and no Americans. He said those on board included 82 people from Iran, 63 from Canada, 11 from Ukraine, 10 from Sweden, four from Afghanistan, three from Germany, and three from the U.K.

“The plane had been delayed from taking off from Imam Khomeini International Airport by almost an hour,” AP reports. “It took off to the west, but never made it above 8,000 feet in the air, according to data from the flight-tracking website FlightRadar24.”

FREE MINDS

Some anti-war responses from members of Congress:

And some reminders for President Trump:

FREE MARKETS

The Trump administration announced last week that flavored vaping products with pre-filled cartridges are to be banned, while exempting flavored nicotine liquids that customers can load into tanks themselves. The former are much more popular, and include all flavored vape pods from the market-dominant Juul. Here’s Kat Timpf at National Review on the stupidity and frustrations of the new vaping restrictions:

Yes: I myself vape, and that’s part of the reason why this news upsets me. What’s more, as a vaper who has tried “open tank” systems—which the administration exempts from the ban—I find absolutely no solace in this fact, as I know from experience how fiddling with these sorts of systems often inevitably results in your hands and furniture and purses and life getting completely soaked with nicotine liquid.

My personal use, however, is far from the only reason that I am upset about this ban. In fact, the main reason I’m opposed to it is that it may, quite frankly, kill people.

See, President Trump insists that the purpose behind the ban is to “protect our families,” but the truth is, anyone who is informed on the facts of the issue would understand how it will only have a negative impact. In case you yourself aren’t informed, here are some of those facts.

More here.

QUICK HITS

  • Last night, Pentagon officials were reportedly hard to reach when the attack started because they had been sent home in anticipation of bad weather in D.C. that never amounted to more than some non-sticking snowfall.
  • A little good news for a change:

(Sorry, sorry.)

  • OK for real on the good news this time:

  • And on to the bad and bizarre: Paul Petersen, Phoenix-area county assessor (an elected office), resigned yesterday “months after being charged with running a human smuggling operation that paid pregnant women from the Marshall Islands to give up their babies in the United States.”
  • Joe Biden “sometimes gets himself in trouble with flat declarations and evolving versions of the same story.” The Washington Post checks out Biden’s recent claims about Bin Laden.
  • The Methodist Church might be breaking up over same-sex marriage:

  • The Goldwater Institute is suing over Arizona’s alleged mishandling of its school choice program:

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Iran’s Foreign Minister: ‘We Do Not Seek Escalation or War’

“All is well!” declared President Donald Trump on Tuesday night, after a barrage of Iranian missiles hit two U.S.-manned military bases in Iraq. Though some prominent Republicans immediately began banging the war drums last night, others fell in line with the president, asserting that the attack⁠—in retaliation for America’s murder of Iranian military leader Qassem Soleimani⁠—was not that big of a deal and certainly not a sign that killing Soleimani was a bad plan.

Some downplayed the attack on bases in Ain al-Asad and Irbil, Iraq, on the grounds that no lives (American or Iraqi) were lost. Journalists and pundits have been running with that, too, suggesting that Iran hitting obvious and nearby targets that the U.S. had already cleared was a way to give the appearance of escalating while actually de-escalating.

Others say that’s ridiculously naive and this is just the start of Iran’s revenge.

It is soothing to think of the attack last night as the end of this frightening episode. Could Iran’s no-casualty attack last night really be an attempt at de-escalation? Or was it only the beginning of the country’s payback for Soleimani’s death?

Iranian leaders have indicated both.

Ayatollah Ali Khamenei, Iran’s supreme leader, said that last night’s attack was but “a slap in the face” and “not sufficient. What is important is ending the corrupting presence of America in the region.”

And here’s a senior adviser to Iran’s president:

But Iran’s Foreign Minister Javad Zarif said “We do not seek escalation or war.”

Zarif told reporters in Tehran this morning that the attack highlighted how Iran was “not the United States” and did not want war. “It is up to the United States to now come to its senses and stop its adventurism in this region,” he said.

President Trump is expected to speak today at 11 a.m.

Shortly after the missile attack, a Boeing 737-800 passenger plane leaving the Tehran airport crashed, killing all 176 people onboard, and initially, many suspected the Ukraine International Airlines crash was related to hostilities between Iran and the U.S.

“At first I thought [the Americans] have hit here with missiles and went in the basement as a shelter,” one man who lives near where the plane crashed told the Associated Press.

Iranian authorities, however, said the plane suffered from a mechanical issue. Ukrainian officials said an investigation will be conducted.

According to the Ukrainian foreign minister, those killed in the crash included mostly Iranian and Canadian passengers and no Americans. He said those on board included 82 people from Iran, 63 from Canada, 11 from Ukraine, 10 from Sweden, four from Afghanistan, three from Germany, and three from the U.K.

“The plane had been delayed from taking off from Imam Khomeini International Airport by almost an hour,” AP reports. “It took off to the west, but never made it above 8,000 feet in the air, according to data from the flight-tracking website FlightRadar24.”

FREE MINDS

Some anti-war responses from members of Congress:

And some reminders for President Trump:

FREE MARKETS

The Trump administration announced last week that flavored vaping products with pre-filled cartridges are to be banned, while exempting flavored nicotine liquids that customers can load into tanks themselves. The former are much more popular, and include all flavored vape pods from the market-dominant Juul. Here’s Kat Timpf at National Review on the stupidity and frustrations of the new vaping restrictions:

Yes: I myself vape, and that’s part of the reason why this news upsets me. What’s more, as a vaper who has tried “open tank” systems—which the administration exempts from the ban—I find absolutely no solace in this fact, as I know from experience how fiddling with these sorts of systems often inevitably results in your hands and furniture and purses and life getting completely soaked with nicotine liquid.

My personal use, however, is far from the only reason that I am upset about this ban. In fact, the main reason I’m opposed to it is that it may, quite frankly, kill people.

See, President Trump insists that the purpose behind the ban is to “protect our families,” but the truth is, anyone who is informed on the facts of the issue would understand how it will only have a negative impact. In case you yourself aren’t informed, here are some of those facts.

More here.

QUICK HITS

  • Last night, Pentagon officials were reportedly hard to reach when the attack started because they had been sent home in anticipation of bad weather in D.C. that never amounted to more than some non-sticking snowfall.
  • A little good news for a change:

(Sorry, sorry.)

  • OK for real on the good news this time:

  • And on to the bad and bizarre: Paul Petersen, Phoenix-area county assessor (an elected office), resigned yesterday “months after being charged with running a human smuggling operation that paid pregnant women from the Marshall Islands to give up their babies in the United States.”
  • Joe Biden “sometimes gets himself in trouble with flat declarations and evolving versions of the same story.” The Washington Post checks out Biden’s recent claims about Bin Laden.
  • The Methodist Church might be breaking up over same-sex marriage:

  • The Goldwater Institute is suing over Arizona’s alleged mishandling of its school choice program:

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Trump’s Soleimani Strike Turns Democratic Hawks into Doves and Republican Doves into Hawks

President Donald Trump’s decision to carry out a targeted assassination of Iran’s top military leader, Gen. Qassem Soleimani, has resurrected a much-needed debate about America’s use of military power in the world. After two decades of occupying and bombing large swaths of the Middle East, most American politicians now treat war-making like any other government action: how they feel about it depends on who’s in the White House, not who it hurts.

It was just nine years ago that the House of Representatives voted on a War Powers resolution to limit former President Barack Obama’s military actions in Libya, which he pursued without congressional oversight. Speaker Nancy Pelosi (D–Calif.) announced yesterday that she would similarly move to rebuff Trump this week. (It’s worth noting, however, that the resolution may be on hold in the wake of Iran’s attack on two bases holding U.S. military personnel early on Wednesday.) Writing to House Democrats, she said that the resolution “reasserts Congress’s long-established oversight responsibilities by mandating that if no further Congressional action is taken, the Administration’s military hostilities with regard to Iran cease within 30 days.”

Yet when it came to Obama, Pelosi departed from bipartisan consensus and voted in favor of military intervention without approval from Congress.

There are differences, of course, between the two conflicts. The White House wrote in 2011 that U.S. efforts in Libya “do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve U.S. ground troops.” That amounts to little more than semantics. The deposition and subsequent killing of Col. Muammar Gaddafi in 2011 sparked chaos in North Africa and the Libyan Civil War, which is still ongoing. (Obama would go on to call his failure to plan for that the “worst mistake” of his presidency.) 

In other words, the major difference between Gaddafi and Soleimani is Trump.

There is a long list of Republican culprits here, as well. The House GOP voted overwhelmingly in 2011 to admonish Obama for participating in NATO combat operations in Libya without congressional approval, despite the fact that Gaddafi had ordered the downing of Pan Am Flight 103 in 1988, which was flying from Frankfurt to Detroit and carrying both American civilians and American government officials. Republicans did not consider that fact—nor Gaddafi’s slaughter of Libyan civilians during a popular uprising in 2011—justification enough for waging war without congressional consent. Yet, conservatives thus far have overwhelmingly supported the assassination of Soleimani.

“As a father, this isn’t complicated: The United States took out an evil terrorist who killed thousands of people so he couldn’t kill more people,” Rep. Steve Scalise (R–La.), the second-ranking member of the House’s Republican minority, tweeted. “Amazing how many on the far left will cover for a terrorist rather than give credit to @realDonaldTrump.” 

Did Scalise vote to rein in Obama’s military interference in Libya in 2011? Reader, he did. 

House Minority Leader Kevin McCarthy (R–Calif.) placed some blame on Adam Schiff (D–Calif.), the head of the House Intelligence Committee, telling Fox and Friends that, had the congressman not been so focused on impeachment, he might’ve been able to protect the U.S. from Iranian aggression. “The world is safer today because this president took action,” McCarthy said. “I don’t think it’s a place for them to play politics.”

McCarthy also voted with the majority of his Republican colleagues in 2011 to admonish Obama for waging war without congressional approval. 

Speaking of Schiff: the Democrat recently called for open hearings on Trump’s airstrike. “The president has put us on a path where we may be at war with Iran,” he told The Washington Post. “That requires the Congress to fully engage.”

Schiff sided with the Obama administration in 2011.

Are you sensing a pattern here?

While ideological inconsistency is the norm, there are a few notable exceptions. Just 10 House Republicans sided with Obama in 2011. Of that cohort, only two are still serving: Reps. Louie Gohmert (R–Texas) and David Schweikert (R–Ariz.). Neither member has released a statement in response to Trump’s actions.

Forty-five House Democrats in 2011 voted against their party and in favor of constitutionality, pushing back against Obama’s lack of restraint in Libya. That resolution, although it was non-binding, declared “that the President shall not deploy, establish, or maintain the presence of units and members of the United States Armed Forces on the ground in Libya.” It also requested that Obama give Congress more information on the administration’s military objectives and provide lawmakers with reasons for why the president chose to circumvent them.

Rep. Dave Lipinski (D–Ill.), a pro-life Democrat, formally expressed his desire for congressional oversight and will likely do so again in this week’s vote. Reps. Dave Loebsack (D–Iowa), Paul Tonko (D–N.Y.), and Peter DeFazio (D–Ore.) also voted to constrain Obama’s actions in Libya. DeFazio told the East Oregonian this week that “there is still time to stop this risky escalation, but Congress must assert its constitutionally-granted war powers immediately to do so.”

Rep. Justin Amash (I–Mich.), a Republican in 2011 and now an independent, is also expected to vote with most Democrats.

“When a president engages in war without congressional authorization and Congress does nothing to stop him, the two branches cut the American people out of the process, in violation of our Constitution’s design,” he tweeted. “This undermines both the liberty and the safety of the people.”

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Trump’s Soleimani Strike Turns Democratic Hawks into Doves and Republican Doves into Hawks

President Donald Trump’s decision to carry out a targeted assassination of Iran’s top military leader, Gen. Qassem Soleimani, has resurrected a much-needed debate about America’s use of military power in the world. After two decades of occupying and bombing large swaths of the Middle East, most American politicians now treat war-making like any other government action: how they feel about it depends on who’s in the White House, not who it hurts.

It was just nine years ago that the House of Representatives voted on a War Powers resolution to limit former President Barack Obama’s military actions in Libya, which he pursued without congressional oversight. Speaker Nancy Pelosi (D–Calif.) announced yesterday that she would similarly move to rebuff Trump this week. (It’s worth noting, however, that the resolution may be on hold in the wake of Iran’s attack on two bases holding U.S. military personnel early on Wednesday.) Writing to House Democrats, she said that the resolution “reasserts Congress’s long-established oversight responsibilities by mandating that if no further Congressional action is taken, the Administration’s military hostilities with regard to Iran cease within 30 days.”

Yet when it came to Obama, Pelosi departed from bipartisan consensus and voted in favor of military intervention without approval from Congress.

There are differences, of course, between the two conflicts. The White House wrote in 2011 that U.S. efforts in Libya “do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve U.S. ground troops.” That amounts to little more than semantics. The deposition and subsequent killing of Col. Muammar Gaddafi in 2011 sparked chaos in North Africa and the Libyan Civil War, which is still ongoing. (Obama would go on to call his failure to plan for that the “worst mistake” of his presidency.) 

In other words, the major difference between Gaddafi and Soleimani is Trump.

There is a long list of Republican culprits here, as well. The House GOP voted overwhelmingly in 2011 to admonish Obama for participating in NATO combat operations in Libya without congressional approval, despite the fact that Gaddafi had ordered the downing of Pan Am Flight 103 in 1988, which was flying from Frankfurt to Detroit and carrying both American civilians and American government officials. Republicans did not consider that fact—nor Gaddafi’s slaughter of Libyan civilians during a popular uprising in 2011—justification enough for waging war without congressional consent. Yet, conservatives thus far have overwhelmingly supported the assassination of Soleimani.

“As a father, this isn’t complicated: The United States took out an evil terrorist who killed thousands of people so he couldn’t kill more people,” Rep. Steve Scalise (R–La.), the second-ranking member of the House’s Republican minority, tweeted. “Amazing how many on the far left will cover for a terrorist rather than give credit to @realDonaldTrump.” 

Did Scalise vote to rein in Obama’s military interference in Libya in 2011? Reader, he did. 

House Minority Leader Kevin McCarthy (R–Calif.) placed some blame on Adam Schiff (D–Calif.), the head of the House Intelligence Committee, telling Fox and Friends that, had the congressman not been so focused on impeachment, he might’ve been able to protect the U.S. from Iranian aggression. “The world is safer today because this president took action,” McCarthy said. “I don’t think it’s a place for them to play politics.”

McCarthy also voted with the majority of his Republican colleagues in 2011 to admonish Obama for waging war without congressional approval. 

Speaking of Schiff: the Democrat recently called for open hearings on Trump’s airstrike. “The president has put us on a path where we may be at war with Iran,” he told The Washington Post. “That requires the Congress to fully engage.”

Schiff sided with the Obama administration in 2011.

Are you sensing a pattern here?

While ideological inconsistency is the norm, there are a few notable exceptions. Just 10 House Republicans sided with Obama in 2011. Of that cohort, only two are still serving: Reps. Louie Gohmert (R–Texas) and David Schweikert (R–Ariz.). Neither member has released a statement in response to Trump’s actions in Iraq.

Forty-five House Democrats in 2011 voted against their party and in favor of constitutionality, pushing back against Obama’s lack of restraint in Libya. That resolution, although it was non-binding, declared “that the President shall not deploy, establish, or maintain the presence of units and members of the United States Armed Forces on the ground in Libya.” It also requested that Obama give Congress more information on the administration’s military objectives and provide lawmakers with reasons for why the president chose to circumvent them.

Rep. Dave Lipinski (D–Ill.), a pro-life Democrat, formally expressed his desire for congressional oversight and will likely do so again in this week’s vote. Reps. Dave Loebsack (D–Iowa), Paul Tonko (D–N.Y.), and Peter DeFazio (D–Ore.) also voted to constrain Obama’s actions in Libya. DeFazio told the East Oregonian this week that “there is still time to stop this risky escalation, but Congress must assert its constitutionally-granted war powers immediately to do so.”

Rep. Justin Amash (I–Mich.), a Republican in 2011 and now an independent, is also expected to vote with most Democrats.

“When a president engages in war without congressional authorization and Congress does nothing to stop him, the two branches cut the American people out of the process, in violation of our Constitution’s design,” he tweeted. “This undermines both the liberty and the safety of the people.”

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#TwitterLaw IRL @ #AALS2020

I have been quite critical of how academics tweet. Reactions to my post on social media were savage. Indeed, academics routinely assail my work on Twitter. Readers of this blog may assume that this sort of hostility bleeds into real life (IRL, if you will). Thankfully, it doesn’t.

Last weekend I attended the annual conference for the Association for American Law Schools. Law professors from every law school attend. I was happy to catch up with many friends. I also visited with many professors who have been extremely critical of my work on social media, and in the blogosphere. And those interactions were always cordial and friendly. None of us brought up our Twitter tiffs.

As a general matter, academics are well equipped to compartmentalize disagreements, and find common ground during common times.

Do not take social media snips as an indication of how academics interact in the real world.

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