Romney's Foreign Policy Blunders, Laid Bare By His Defenders

Twelve years ago we were told not to worry about voting for G.W. Bush, even though he had little interest in or aptitude for foreign affairs, because we could assume he would surround himself with foreign policy geniuses who would give him the best possible advice and guidance. We weren't voting for a President - we were voting for a team!

Five years later, G.W. had learned enough to fire most of his initial advisers, and to ignore Dick Cheney, but the nation is still trying to dig its way out of Bush's first term disasters. Meanwhile, the Republican Party is pushing upon us another candidate who quite obviously has little interest in or aptitude for foreign affairs - one who has been running for President for six years, after positioning himself for that run over a period of decades - and we're supposed to be reassured because some of his advisers are drawn from Bush's second term, or something like that.

But you know what we're not hearing? We're not hearing an honest defense of the Republican Party's choice of candidates, or an honest explanation of why we should trust a foreign policy ignoramus to again serve as President. We're instead told that if the candidate, visibly sweating and stumbling every time he goes off script, does not diverge too far from memorized talking points, he should be deemed to have "passed" a test of his foreign policy credentials.

During the debate, Romney attempted to equate naval strength with the number of ships in the fleet. By Romney's standard, a kid in a bathtub could conceivably have a stronger Navy than the U.S. There's a lot more to naval power than a raw ship count. One of the defenses of Romney that has gathered some traction among his low-information adherents is an attempt to fact-check Obama's successful joke about Romney's measure,

You — you mentioned the Navy, for example, and that we have fewer ships than we did in 1916. Well, Governor, we also have fewer horses and bayonets — (laughter) — because the nature of our military's changed. We have these things called aircraft carriers where planes land on them. We have these ships that go underwater, nuclear submarines.

Really, when you are so desperate to dig your candidate out of a hole that you try to fact-check the punch line of a joke, you may as well cash in your chips and go home. You can fact check my bath tub joke above, if you like - you can explain that bathtub toys aren't Navy ships and that Romney was talking about ships. But the larger point holds.

On top of that, the "fact check" is pretty pathetic - back when bayonets were essential to combat they were in high demand and short supply, but now that most of the services no longer use them in combat we have heaps of them, used at times for training or for ceremonial purposes. And at times military officers still wear sabers. As a comeback, that's called missing the forest for the trees.

Romney made another comment that gained him immediate Internet attention, that "Syria is Iran's only ally in the Arab world. It's their route to the sea." People got out their maps and noted not only that Iran is not landlocked, it shares no common borders with Syria. When asked to explain Romney's statement, his campaign replied,

“It is generally recognized that Syria offers Iran strategic basing/staging access to the Mediterranean as well as to terrorist proxies in the Levant. This is a large reason why Iran invests so much in Syria.”

Which, of course, does nothing to rehabilitate the assertion.

If you step back and look at Romney's history of foreign policy statements, you will find that he says a lot of things that don't make much sense or don't fit with the facts. Why? Because he knows little about the subject, and is primarily reciting poll-tested, scripted sound bites that are meant to make him look informed and serve as ground from which he can attack the Obama Administration's record. With some of his positions, such as the mythic "apology tour", given that Romney is not a stupid man he knows he's lying. But with some of his more bizarre, low-level errors, it's reasonable to infer that it's a scripting (or, if you prefer programming) error. He misremembers a talking point, but it's a relatively minor issue so nobody notices or corrects him, or if they do it gets lost in the noise of more substantive issues.

I'll grant, there is a third possibility, one we saw play out in the second presidential debate when Romney fell flat on his face while trying to attack the President on Libya. Some of his advisers don't seem to get outside of the bubble. Romney delivered his attack line as scripted, and what a delivery it was, but he and his advisers had the facts wrong.

I suspect what happened with the "route to the sea" comment is that somebody gave Romney a talking point about how Iran was smuggling arms through Iraq to groups like Hamas and Hezbollah, and as a result has influence on terrorist groups that those groups could potentially attack communities on the Mediterranean Sea" and, with apologies to Gary Larson, Romney heard something along the line of "Iran, blah blah blah, smuggling, blah blah blah, Syria, blah blah blah, sea", or perhaps that's all that stuck. And thus it came out as "[Syria is] their route to the sea."

So you have a statement that makes no sense on its face, and an explanation from the Romney campaign that sheds no light on its meaning. With no punch line to "fact check", what's a partisan to do? The Volokh Conspiracy's David Kopel gives it his best shot.

1. A poorly written, unattributed online article, published six years ago, purports that Iran's initial vehicle for delivering a nuclear warhead would have to be by sea. Unless I somehow overlooked the canal between Iran and a port city in Syria, though, that claim has no relevance. If the idea is that Iran would have to build the nuke into a ship and sail it into a port, concern about that form of delivery has been around for a long time. But if you presuppose that Iran can smuggle all of the necessary parts and components of a nuclear device out of the country by land and air, and assemble the device at a remote location, Syria would be an incredibly poor choice of location.
   
   Kopel extrapolates from the article, adding any number of leaps of his own, "Syria is Iran’s route for the projection into the Mediterranean Sea (and from there, the Atlantic Ocean) of conventional naval power, and, perhaps soon, of nuclear weaponry." Leaving aside the fact that having zero naval vessels in Syrian ports makes for a weak projection of conventional naval power (even Romney and Obama can agree that zero ships makes for a weak navy) there's nothing in Romney's language that would suggest Kopel to have correctly identified his thought, it's not actually supported by Romney's chosen words, and there is no reason to believe that Romney was talking about this particular issue.

2. Kopel found a claim from March of this year that Iran had sent a tanker to China filled with Syrian oil, "to evade the economic sanctions on Syria". Kopel appears to believe, based upon that single, reported incident, that if Iran provides Syria with sea access in order to avoid sanctions, the reverse must also be true. He also seems to believe that oil tankers project "naval power".

3. Kopel then switches gears, turning to a fact check by Glenn Kessler that, after consultation with experts, had Kessler conclude that Romney had served up word salad. Kopen focuses on the passage, "Tehran certainly uses Syria to supply the militant groups Hezbollah and Hamas, but that has little to do with the water. The relationship with Syria could also effectively allow Iran to project its power to the Mediterranean and the border with Israel. But does that really mean, 'a route to the sea'?"

   It's not "a route to the sea", though - "their route to the sea". Nonetheless, Kopel contends that Kessler's conclusions are wrong, and that Romney was really talking about "Syria as the base for the projection of Iranian naval power", while using words that... say nothing of the sort. Kopel does not explain how you can project naval power without a naval presence.

4. What better way to top off a serving of weak tea, than with a large side order of umbrage. Kopel references an unsourced post by somebody on Yahoo! Answers, sneering, if "you find yourself being outclassed by Yahoo! Answers, perhaps it’s time to rethink your assumptions that you’re much smarter and better informed than Mitt Romney". The same author answers questions of constitutional law - perhaps the Conspirators should invite him to join their blog.

   The Yahoo comment claims, "Although Iran is indeed located on the seacoast of the Indian Ocean and the Persian Gulf, the international trade sanctions have restricted and impeded its ability to transport armaments and other goods through its own seaports. To defeat these trade sanctions, Iran has resorted to using its air transportation to transport goods through an air corridor in Iraqi airspace into Syria and its seaports, such as Latakia." In other words, Kopel is endorsing the position that Syria is smuggling... consumer goods?... by air, over Iraqi airspace, into Syria, where they are loaded onto ships and exported to nations eager for Iranian manufactured goods at any price. Because if you're going to try to export your goods in violation of international sanctions, the best approach is to pick the most expensive means of getting them out of the country (air transport) into a nation with... ports operating under similar international sanctions.

I gave Kopel far more attention than he deserves. A shorter version of Kopel's defense of Romney,

1. Romney made a statement that he has made on several prior occasions and, at first blush, is both wrong and nonsensical.

2. If you ignore Romney's words and his campaign's explanation of those words, you can pretend Romney was talking about something else.

3. Once you substitute your speculation about what Romney may have meant for what he actually said, you can contrive facts that make the pretended argument somewhat defensible.

4. If you disagree with the contrived explanation of the reinvented comment, you're dumb and uninformed.

I wish we could go back to the "good old days" when G.W.'s backers were reasonably honest about his foreign policy ignorance, not because I'm comfortable having a president who shows little interest in or aptitude toward foreign policy, but because I would like the voting public to know that's the choice they're making. Why aren't we being offered that choice, this time around, despite the similarities between Romney and G.W.? Because the Republican Party fears the comparison. And with the help of people like Kopel, they hope that people won't figure out the full extent of Romney's ignorance until after the election.

For now, ask yourself... if Romney's foreign policy expertise were defensible, why is he offering such a weak defense? Why isn't he explaining what he actually meant instead of cowering and hoping nobody asks follow-up questions?

Silver Lining or Sow's Ear

What's that word Ilya Somin likes, again... was it "overwrought"? Here's his effort to find a silver lining in what he views as a bad decision:

I do think the ruling is a cloud over the Constitution, and I do believe that Chief Justice John Roberts’ opinion allows Congress to mandate almost anything it wants, so long as the mandate is structured as a so-called “tax” similar to the individual health insurance mandate. In addition, the ruling upholds a major unconstitutional statute.

You see, the Supreme Court isn't the final arbiter of what is or is not constitutional. Those five votes mean nothing without Somin's endorsement. Seriously, I understand why people, particularly laypeople, complain that matters deemed constitutional by the Supreme Court are "unconstitutional", but last I checked Marbury v. Madison was still good law.

One thought that comes to mind is, "Be careful what you wish for, because you just might get it." One of Somin's co-bloggers was the inventor of the "activity/inactivity" distinction and it must feel pretty good to devise an entirely new legal construct to defeat a specific major statute and, in less than two years, have five justices of the Supreme Court embrace it. But this decision would have been a lot cleaner, a lot more honest, had the Court followed a traditional Commerce Clause analysis. It would have been possible to address "activity/inactivity" within that context, and to make clear to Congress that the mandate was only permissible because of the unique aspects of the health insurance market. But with four justices embracing the newly concocted distinction as a basis to overturn the entire law, rather than producing a modest decision that clarified the limits of the Commerce Clause, Roberts ended up endorsing an extraordinary expansion of the tax power of Congress.

Somin adds, "I am also far from certain that the Court will stick to Roberts’ dubious Tax Clause analysis in future, less politically charged cases." If you take Roberts' position at face value, the expansion of the tax power is far more frightening than the "activity/inactivity" distinction. If you take the position that Roberts didn't really mean it - that he was making an argument of convenience in order to save the statute, but he'll never again support such broad tax powers - you would appear to be taking the position either that Roberts contrived a justification, to be used once and never used again, to uphold an unconstitutional statute, or that he was sufficiently embarrassed by the idea of using a specious Commerce Clause analysis to overturn a statute he believed to be constitutional that he resorted to a second specious argument to save the statute. Is there a third alternative?

The "activity/inactivity" distinction is now a footnote, about as important to future litigation as Third Amendment jurisprudence.¹ Congress will simply be careful about its phrasing, and will never again pass a mandate. Yes, it will pass taxes, subsidies, or regulate "inactivity" in a manner that is virtually indistinguishable from the regulation of activity but, as they say, same as it ever was.

Somin dreams of a future in which the Supreme Court revisits the issue, "It depends on future events such as the identity of the next few Supreme Court appointments, and whether or not Obama’s health care law can be repealed or modified." Odd, isn't it, how he doesn't see that as the job of Congress?

In my opinion, there never should have been a mandate. It would have been much more simple, for example, to impose a modest tax that would be applied toward premiums or returned as a tax credit for the insured. But that sort of thing is impossible in this era of Republican demagoguery about "new taxes", so Congress adopted the Republican idea of the mandate. And the next thing you knew, Republicans were arguing that the sky was falling. Now, as it turns out, we did get a tax - because Justice Roberts says it's a tax.

One of Somin's co-bloggers, David Kopel, wrote a post titled, "Next step: Repeal the individual mandate because it is unconstitutional". Again, he means "should have been held unconstitutional", but he gets ahead of himself, dreaming of a future court packed with justices who think like Alito or Scalia.

I predict that the individual mandate will never mandate anyone. Yet the mandate will be long remembered as one of the most consequential laws enacted by a Congress.

I can only hope that, in the wake of this decision, the Repubicans get over their obstructionism and participate in the creation of a superior alternative to the mandate. Unless that happens, though, I think Kopel is dreaming if he believes the health insurance industry will stand for its repeal. If it is repealed or modified, I disagree that the impact of the mandate will be significant. Mandates seem principally to be a Republican thing - other than the Republican ideas for a health insurance mandate and Social Security privatization, what else is there? If the Republicans again push Social Security privatization they'll follow Roberts' lead and say "It's a tax, not a mandate - and we're reforming the tax to make it better." Beyond that, actually including that, it's all semantics.

I would have preferred that the mandate had met its end yesterday morning, but the fact that the mandate will have to be finished off by the People in November and their elected officials in January may lead to even better long-term results for advocates of a constitutionally limited federal government.

Funny, isn't it, how reliance upon the democratic process is possible, and perhaps even better than a Supreme Court ruling, once you lose your case in court. But you know, maybe that should have been the Republican Party's starting point. Winning at the ballot box, not the court. Republicans used to at least pretend they preferred that approach....

Update: Via the VC:

"I think I figured out what happened. Randy Barnett made a wish on a cursed monkey’s paw that his commerce clause argument would be accepted. It explains everything, no?"

(Randy Barnett being the inventor of the "activity/inactivity" argument).
------------
1. Before you go looking, there isn't any.

Is Heller Maximization The Best Idea?

Usually in gun control arguments, the slippery slope is used as an argument in favor of gun control. The inherent weakness of that argument often works in favor of those on the other side. But now, as David Kopel demonstrates, advocates of gun rights are taking a maximalist approach to Heller that reminds me of the slippery slope. "I want it all, and I want it now." Particularly when arguing for sweeping change based on a right granted not by a state constitution but by legislation, shouldn't care be taken not to signal the legislature to tighten the language? Kopel's approach of arguing for the most expansive possible reading of Heller and then arguing that New York is compelled to follow most or all of what he argues seems, to me, to be a very effective way of inspiring legislative action - and not in the direction Kopel desires.

The New York City law which most obviously violates the right to arms is the complete ban on air guns. The venerable Daisy Red Ryder BB gun is contraband. Heller and the Supreme Court's previous major Second Amendment precedent, United States v. Miller (1939) forbid the prohibition of arms "typically possessed by law-abiding citizens for lawful purposes."

Has Kopel read Miller, the case that upheld a ban on short-barrelled shotguns? That case said this:

In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.

Note, I'm not defending the air gun ban. To me it seems excessive. I suspect that the concern is that people will commit crimes using air guns that the victims believe to be actual firearms, or that the police will encounter civilians or children with air guns potentially resulting in tragedy. But I'm not going to premise a Second Amendment argument for a right to possess air guns on, of all cases, Miller.

I recognize that Kopel is alluding to Scalia's sniffing at Miller, a case Scalia described as "virtually unreasoned", but Kopel's interpretation of Scalia's synopsis of Miller is not well supported by its text, and it seems rash to extrapolate that Miller upholds a Second Amendment right to possess air guns. It seems even more rash to disregard Scalia's open contempt for Miller in arguing that it is the "previous major Second Amendment precedent". It was major up to the time Scalia's majority opinion called it "virtually unreasoned". Now I suspect it's a footnote.

I also question Kopel's attenuated argument,

Unlike firearms, air guns (which shoot small BBs or pellets) can be safely used inside an apartment or house. An old sofa cushion is a safe backstop. In a city where target ranges are few and expensive, air guns offer a practical way for people to practice safely with a gun. The right to arms necessarily includes the right to practice arms safety.

So if you have a right to keep and bear arms, you have a right to practice firing your arms. But the government has legitimate safety reasons to prevent you from doing so in your home. And it's inconvenient to go to a shooting range. So you should be able to shoot other things that resemble the weapons you actually want to train with, within your home. Provided you stack some couch cushions against the wall. Okay - but how many people actually do that - use their BB guns to train instead of using their actual firearms? And why don't I have the right to shoot actual firearms into a stack of sandbags in my basement, assuming reasonable noise proofing?

Regarding gun carrying, Heller might, arguably, mean that New York City would have to follow a similar policy to Connecticut (and 39 other states): issue permits to carry a concealed handgun for lawful defense if the applicant is over 21, and passes a fingerprint-based background check and a safety class.

My initial reaction is, "Not gonna happen." Or perhaps it will happen, but only after a lengthy period of adjustment to the new case law and its effect on crime (which I expect to be minimal). But I can't think of a better way to cut off that process of adjustment and inspire the New York legislature to amend state civil rights law than to argue, "Second Amendment scholars are arguing that under Heller, most people will be allowed to freely carry concealed weapons throughout New York City."