The Volokh Conspiracy

Over the last two years, I have written numerous posts about the ways in which the War on Terror in Afghanistan is being undermined by our misguided War on Drugs (see here for my most recent post on this subject, and links to earlier ones). In this article on Slate, Joel Cohen and Bennett L. Gershman provide yet another example:

By all appearances, Haji Bashaar Noorzai is a scoundrel. A shadowy figure with ties to the Taliban, Noorzai is heavily involved in international heroin trafficking, according to a federal indictment that is pending against him in New York. But he is a tribal rogue whom U.S. terrorism fighters have relied on, while looking away from his darker side as a dope dealer. For years, the relationship was mutually beneficial—Noorzai helped U.S. authorities uncover huge numbers of terrorist weapons, including Stinger missiles, and in return he got to ply his drug trade with impunity.

In 2004, it appears, Noorzai was invited to the United States for further briefing on his undercover work by two freelance "contractors" associated with the FBI, who told Noorzai they were FBI and Defense Department agents. He was assured that he would not be arrested, and could return home whenever he liked. The contractors introduced Noorzai to actual federal drug agents, who warmly welcomed him. He was lodged in a fancy New York hotel and debriefed for 10 days. And then he was arrested for drug trafficking. For more than two years since then, he has sat in jail.

Noorzai may indeed be a "scoundrel," one who may have committed crimes worse than drug trafficking. But it is the latter sin that got him arrested by federal agents. As Cohen and Gershman point out, other Afghan warlords and drug dealers are unlikely to cooperate with the US against Al Qaeda and the Taliban if doing so might land them in a federal prison courtesy of the Justice Department. And they are especially unlikely to do so if promises of immunity issued by the Pentagon or the FBI can be violated by the DOJ at any time. Whether or not the DOJ's actions in this case were legal, they represent spectacular stupidity from the standpoint of waging the War on Terror. Which is more important: punishing a drug trafficker or improving our ability to get intelligence on terrorists? The Bush Administration's priority seems to be the former; or at least that's what the relevant Justice Department officials seem to think. If the next president reverses these priorities, that will be an important sign that he or she is truly serious about winning the War on Terror.

As a Boston Red Sox fan, I can't help but notice the large number of New York Yankees stars named as steroids or human growth hormone users in today's Mitchell Report on the use of banned substances in major league baseball (see here for a handy list of players named in the report). In addition to Jason Giambi and Gary Sheffield - whose likely steroids use had been disclosed previously as a result of the Balco investigation - the Report also accuses Roger Clemens, Andy Pettite, and Chuck Knoblauch of using banned substances at a time when they were major contributors to Yankees championship teams. Several lesser but still notable Yankees players are also listed, such as Mike Stanton (a key middle reliever on the 2001 pennant winning team), and David Justice. A few Red Sox players are also listed. But all are fringe players, with the exception of Mo Vaughn, a big star with the Red Sox in the 1990s. And even Vaughn is only mentioned as having used banned substances in 2001, several years after he had left the Sox. Clemens, of course, also played for the Red Sox for many years. But he, like Vaughn, is only accused of having used banned substances after he left the team (in Clemens' case during his stints with the Toronto Blue Jays and Yankees in 1997-2003).

Unfortunately, the prominence of Yankees stars in the Report and the near-absence of Red Sox stars raises the question of whether Senator George Mitchell, the Report's primary author, was compromised by his status as a Boston Red Sox director. Was he deliberately targeting Yankees players and/or purposely overlooking offenses by Red Sox?

Although I may be influenced by my own pro-Red Sox biases, I think it is unlikely that Mitchell was out to get the Yankees or covering up for the Red Sox. Since leaving the Senate, Mitchell has made a career of serving as an elder statesman/conflict mediator from Northern Ireland to the Israeli-Palestinian conflict. I highly doubt that Mitchell would be willing to risk that reputation - to say nothing of his lucrative consulting business - just to help out the Red Sox or stick it to the Yankees. Even if Mitchell were indeed willing to fall on his sword for the Sox, an experienced politician like the former Senator surely knows that any attempt at an anti-Yankees witch hunt or pro-Red Sox coverup would probably leak to the press. The resulting scandal would be extremely damaging to both Mitchell and the Red Sox. Finally, any witch hunt or coverup would have had to involve numerous staffers and investigators, as well as Mitchell himself. I don't see why these people would be willing to risk their own careers and reputations just to help Mitchell do a good turn for the Red Sox.

That said, it was a mistake for baseball Commissioner Bud Selig to appoint Mitchell to head this inquiry. Even if there wasn't any bias in Mitchell's investigation, there was certainly a conflict of interest - a conflict exacerbated by the longstanding Yankees-Red Sox rivalry and the prominence of Yankees players among those accused of steroids use. Surely Selig could have found some other elder statesman to take on this job, one with no affiliations with any major league team.

I may not know who I'm for in the Republican presidential race. But I do know one leading candidate I'm definitely against: newly anointed frontrunner Mike Huckabee.

Conservative UCLA law professor Steve Bainbridge, libertarian Cato Institute scholar Michael Tanner, and libertarian-leaning columnist Deroy Murdock present some excellent reasons why anyone who cares about limiting the power of government has every reason to oppose Huckabee's nomination. In addition, the pro-free market Club for Growth gives a strongly negative review of his record on economic policy as Governor of Arkansas, concluding that he holds "profoundly anti-growth positions on taxes, spending, and government regulation." As Bainbridge points out, the libertarian Cato Institute gave Huckabee an "F" on its fiscal policy report card, a worse record than numerous very liberal Democratic governors.

I don't quite agree with all of Bainbridge, Tanner, and Murdock's points. Like Huckabee and unlike Bainbridge, I support the death penalty; like Huckabee and unlike Murdock, I am skeptical of the need to use waterboarding of prisoners as part of the War on Terror. However, the overall picture of Huckabee that emerges is one that exemplifies the worst elements of "big government conservatism." Huckabee combines a predilection for high levels of government spending and economic regulation with an even stronger commitment to nanny state regulation of personal behavior. The latter is exemplified by such positions as his support for a national smoking ban, his advocacy of government programs to prevent obesity, and his enthusiasm for government enforcement of conservative social mores.

To be sure, as I noted in one of my earlier posts on the presidential race, candidates' records are difficult to interpret because many of the positions they take are produced by the political constraints they face rather than by conviction. Perhaps some of the more objectionable elements of Huckabee's record are products of the vagaries of Arkansas politics. Nonetheless, it is telling that in his years as governor of relatively conservative Arkansas, Huckabee posted a significantly more anti-market record on economic policy than did Romney as governor of liberal Massachusetts and Giuliani as mayor of liberal New York City; indeed, his record was worse than that of many liberal Democratic governors of liberal states. It is also noteworthy that Huckabee endorses not only those forms of social regulation that other conservatives embrace (e.g. - cracking down on pornography), but also many of those usually associated with liberals (e.g. - the smoking ban). The latter can't easily be explained by the constraints Huckabee faced in conservative Arkansas.

I'll end on this note: the real danger posed by Huckabee is not so much his potential impact on specific policies as his impact on the future of the Republican Party. As president, Huckabee's policy initiatives will to some extent be constrained by a Democratic Congress and other factors. However, if he attains a reasonable degree of popularity and political success, a President Huckabee would have a freer hand in reshaping his own party in his image. He might be able to complete the work begun by George W. Bush and his congressional allies: the transformation of the Republican Party into a pro-big government party emphasizing populism and social conservatism. At this point, of course, it is still much more likely that the next president will be a Democrat. However, if things continue to improve in Iraq and the economy doesn't go south, there is some chance of a Republican victory. If it does happen, let's hope the lucky beneficiary won't be Mike Huckabee. One big government conservative administration in the 21st century is more than enough.

When the Supreme Court upheld the condemnation of private property for transfer to other private parties in Kelo v. City of New London, it was in large part on the theory that courts should defer to local governments' judgments about when the use of eminent domain is needed to promote "economic development." However, two and one half years after the Supreme Court ruled in favor of the city and some seven years after the condemnation proceedings were first initiated, little or no economic development has occurred on the condemned land. As the New London Day documents in this recent article and this editorial, the New London Development Corporation (the city agency responsible for the condemnations) and its designated private developer Corcoran Jennison have missed repeated deadlines to begin construction of the new housing that they were supposed to build in the area. Indeed, as The Day points out, no construction at all has taken place on the site since the Supreme Court's decision was issued in June 2005.

Yesterday, the NLDC and Corcoran reached an agreement under which the developer must meet a May 29, 2008 deadline to secure financing for the construction of 66 luxury apartments and 14 townhouses in the area. If it fails to do so, it will forfeit its right to develop the property and the NLDC will be free to pick a new firm to develop the area.

Even if Corcoran Jennison and the NLDC finally get their act together, it is unlikely that their project will produce enough economic development to offset the more than $80 million public funds that have already been spent on the project (see my article on Kelo for the source for this figure). And that estimate does not include the economic damage inflicted on New London by the destruction of the precondemnation uses of the property, including a significant number of homes and businesses. It also does not include the economic costs of letting the area lie unused for a period of several years while the NLDC and Corcoran tried to find a way to finance their planned development project.

If the Kelo condemnation ultimately ends up creating more economic costs than benefits, that would not be a surprising development. For reasons I have explained in great detail in several articles (e.g. here and here), economic development takings often harm local economies more than they benefit them. Local governments and the private interest groups that seek to acquire condemned land have strong incentives to overstate the benefits of such condemnations, while understating the costs. And it is extremely difficult - often impossible - for voters to assess their self-serving claims accurately.

What is striking about the Kelo takings is that this pattern held true even in a case where intense nationwide media scrutiny was focused on the local government and its chosen developer. The Day also deserves credit for providing some excellent local coverage of the controversy. In more typical cases, where there is much less media attention, local governments have even less incentive to actually produce the "economic development" that supposedly justified condemnation in the first place.

Lawprof Dave Hoffman has an interesting interview with fantasy writer Patrick Rothfuss on the portrayal of law in the fantasy genre.

Rothfuss makes the interesting point that there is nothing antithetical between having a functioning legal system and a society that believes in and uses magic. After all, ancient and medieval legal systems functioned in a society where most people took the idea of magic seriously and believed in the existence of demons, witches, monsters, and so on. The real reasons why civil law doesn't play a big role in fantasy literature area combination of 1) the relative ignorance of most fantasy writers about law and legal systems, 2) the fact that legal disputes are usually not a good way to advance a fantasy plot (as Rothfuss implicitly points out), and 3) the strong demand of much of the fan base for "action"-oriented plots that feature lots of violence and sorcery. However, as Hoffman and Rothfuss discuss, that may be changing with the rise of more "realistic" fantasy literature in recent years; "realistic" not in the sense that the authors' imaginary worlds conform to the laws of science as we know them, but in the sense that the story is set in a more fully developed and internally consistent society. This has already led to a more realistic and sophisticated treatment of political systems by fantasy writers. The same development might also impact the portrayal of legal systems.