TGIF: Let’s NOT Go to War with China

The word that strikes fear in the power elite is China. It’s not fear of an existential threat; rather it’s fear that America is becoming second fiddle in world politics. As a result, some believe, or say they believe, that war with China is inevitable. For them, that’s a fancy word for desirable.

Here’s an idea: let’s not go to war with China. China has nuclear bombs, although not nearly as many as America has. No good would come from war for the people of China, the American people, or almost everyone else if you don’t count the advocates of centralized authoritarian power here and the military-industrial complex. They will make out like bandits and murderers.

The limited choice between regarding China as an enemy (or adversary) and as a competitor is bogus. It’s neither. China is a country with lots of people. Yes, it has a bad centralized government that tells people in some ways what to do. But it’s neither “our” enemy nor “our” competitor. When Americans buy goods assembled in China (though the parts were made in many other places), they are cooperating, indirectly at least, with Chinese individuals acting together as a business firm. American consumers do not compete with Chinese manufacturers. If an American company makes a product that a Chinese firm also makes and exports, that is competition, but it’s against the Chinese firm not the nation of China.

We have to get over seeing the world economy as a race among nation-states. That attitude leads to limits on freedom here, such as tariffs and quotas. Despite much government interference, including from the U.S. government, we still have a world market, and that means a worldwide division of labor, which is cooperation.

No one who values individual liberty would want to live under the Chinese government. No political liberty exists, and economic liberalization is limited. Further, the Chinese government reportedly enslaves one or more groups. Whether that is true, I do not know. But it’s not grounds for war, whether nuclear or conventional.

The Chinese government, of course, looks after its security in its neighborhood, just as the U.S. government does — except that the U.S. government sees the whole world as its neighborhood. It surely doesn’t help that the U.S. government conducts war exercises with Taiwan. China is the target. I presume China spies on the United States, but the U.S. government spies on everyone, as we know from recent revelations. It’s what big (and smaller) powers do. Hide your secrets better.

Whatever the merits or demerits of the dispute over Taiwan, it is not a matter for the U.S. government. Its claim to be acting for American security is about as believable as a Federal Reserve chairman declaring the American banking system sound. Taiwan, Hong Kong, and some small islands in the South China Sea are not our concern, not if we care about our own liberty and prosperity, not to mention the rest of the world’s. Needless to say, decent people will wish everyone in that region life, liberty, and the freedom to pursue happiness, but a war won’t bring those things.

The concern over China affects other issues, as to be expected. The latest is social networking in the form of TikTok, a social network that 150 million Americans use. Joe Biden and congressional Republicans and Democrats (with honorable exceptions like Sen. Rand Paul) want to ban TikTok because it’s owned by a Chinese company and the Chinese government allegedly uses it, or may use it, to gather information about Americans. This is denied by TikTok’s CEO, who is not Chinese and who has American partners.

The irony here is that the Chinese government notoriously bans and restricts social networks for its people to keep them from learning what the communist party doesn’t want them to learn. In other words, those who would have the U.S. government ban or otherwise interfere with TikTok want the government to be more like the Chinese Communist Party. I can’t find the sense in that.

As we well know the U.S. government has routinely pressured American social networks to ban or restrict information and opinions it did not want the American people to learn. Do we want to give this government even more power? That’s exactly what members of Congress would do; pending legislation (acronym RESTRICT Act) would give the commerce secretary ominously broad and vaguely defined power to interfere with any social network allegedly to protect us from “foreign” influence. You know that can’t be a good idea. The government’s record to date in his regard is alarming. Government-connected organizations and individuals have interfered with the free exchange of ideas over the social networks by claiming that the sources of those ideas are foreign adversaries when in fact they came from Americans, as the Twitter Files about Hamilton 68 have disclosed.

Finally, China surprised everyone by facilitating renewed diplomatic relations between Iran and Saudi Arabia. This is good for several reasons, among them: it signals a waning of America’s role as the self-appointed world guardian. One hopes it will also formally end the brutal Saudi war against the Yemeni people. It should also thwart the U.S. and Israeli governments’ ambition for war with, or capitulation of, Iran and undermine the pursuit of the Abraham Accords, begun under American arms-salesman-in-chief Donald Trump, which aim for a united front against Iran and further marginalization of the Palestinians. The Israeli and the U.S. governments have wanted Saudi Arabia to sign such an accord. (Why hasn’t Biden reinstated the nuclear deal with Iran, which his old boss Barack Obama signed, and end the cruel sanctions against the Iranian people?)

I’ve heard commentators dismiss China’s Middle East diplomacy as naked self-interest because China buys Saudi and Iranian oil and wants uninterrupted commercial relations with both. But if China’s self-interest lies in substituting diplomacy for war, what’s wrong with that? Rational self-interest is a feature, not a bug. There are signs that China may do something similar with Ukraine and Russia. (Zelensky, but not Biden, says he’s interested.) A ceasefire should have been arranged a long time ago.

The American state has been a force for global disruption, misery, and war for a long time. Its repeated bullying over sanctions, regime-change operations, and covert and overt warfare have increasingly disgusted much of the world, which is fed up with the dominance of “the exceptional nation.” That had to happen sooner or later. The U.S. government cannot design a world order. It’s time to liquidate the empire and come home. It not only harms foreigners but also makes Americans unfree and poorer.

Welcome to the World of ‘Novel Legal Theories’

When Rudy Giuliani was pursuing his infamous Wall Street prosecutions in the 1980s, his aides admitted that they were indicting people on “novel legal theories” that had not been used before. A Giuliani lieutenant bragged to a group of law students that prosecutors in his office:

were guilty of criminalizing technical offenses…Many of the prosecution theories we used were novel. Many of the statutes that we charged under…hadn’t been charged as crimes before…We’re looking to find the next areas of conduct that meets any sort of statutory definition of what criminal conduct is.

At that time, federal prosecutors were going after people like investment banker Michael Milken, but even they would have stopped at indicting a former president. That day is gone, however, and today we have Manhattan district attorney Alvin Bragg following what John Cassidy of The New Yorker calls a “novel effort” to combine both state and federal laws to create what clearly is a bill of attainder to convict Donald Trump of a crime. Even if the courts rule against Trump and permit the charges to stand—and it is certain that Trump and Bragg will litigate the charges all the way to the Supreme Court themselves—that does not change the fact that Bragg has cobbled a number of statutes together to create something the U.S. Constitution forbids: a bill of attainder.

Although the indictment is still sealed at this writing, the gist of the charges is as follows: (A) Donald Trump, who was running for president, authorized payment of $130,000 to a woman known as Stormy Daniels to keep her quiet about an affair between them, with Trump’s lawyer Michael Cohen making the payments; (B) he listed the payments as a campaign finance expense and Cohen pleaded guilty to federal campaign fraud; (C) the Trump Company reimbursed Cohen for the payments and claimed them as a legal expense.

Bragg is alleging that Trump approved these payments while breaking federal campaign law, which makes them a felony (under New York law, simply falsifying business records is a misdemeanor). Writes attorney and New York Times columnist David French:

So how can Trump be prosecuted? If Bragg can prove that, contrary to New York State law, Trump falsified records when the “intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof,” he can prove that Trump committed a felony, and a felony not only carries stiffer penalties; it has a five-year statute of limitations.

He continues:

But what is the other crime that can convert a charge of records falsification to a felony? Most likely prosecutors will rely on an allegation of violating federal campaign finance law, specifically the claim that the hush money payments to Daniels were illegal campaign contributions. But this is also not a simple case to make: The prosecution may claim that state campaign finance laws apply to Trump, and his payments thus violated New York law, but remember we’re talking about a presidential election. A federal statute expressly states that the relevant campaign finance laws “supersede and pre-empt any provision of state law with respect to election to federal office.” This law represents a formidable barrier to prosecuting Trump under state campaign finance laws, and there is no obvious path around it.

This is a problem because during the infamous “Russiagate” investigations, special prosecutors looked at this situation and concluded that the facts were too sketchy to charge Trump with breaking federal campaign laws. However, Bragg will be calling for a state jury to conclude that Trump actually did break federal law—something a state jury should not be doing. Because Trump was never charged with breaking campaign laws, there is now no legal way to claim he broke them.

Bragg’s entire case hinges upon this point, which is why French—who clearly despises Trump and would rejoice if he were convicted of something—advised against bringing state criminal charges in the first place. He writes:

It’s no wonder that even Bragg’s aggressive former prosecutor Mark Pomerantz was concerned that the Daniels case was, as The New York Times reported, “too risky under New York law.” A Reuters article described the legal theories supporting a prosecution for the Daniels payments as “untested.” A January New York Times story also accurately called the theories “largely untested.”

While one can condemn Trump for the reckless behavior that brought about this situation in the first place, I would argue that Bragg’s behavior is much more reckless, given that he is cobbling state and federal statutes together to target a political figure roundly hated by the Democrats. Bragg is using criminal law for political purposes, and while such actions have a sorry history going back to the Franklin D. Roosevelt administration’s hounding of critics of the New Deal, including former Treasury Secretary Andrew Mellon, they have no place under the rule of law.

The Wall Street Journal editorial board (unlike The New York Times editorial board, which prattled on about Trump “not being above the law”) recognized the greater danger of unleashing what it called a “Pandora’s box” that has “political ramifications that are unpredictable and probably destructive.” This indictment, unfortunately, is politically popular with Democrats (and some never-Trump Republicans), and the usual brakes that accompany political processes have been discarded in the hopes that the Great Orange Whale will see the inside of a prison cell.

While Trump and his supporters will rightly argue that Bragg is manipulating the law in a special way to go after one person, this case highlights greater abuses of the law attributable to what Candice E. Jackson and I labeled almost twenty years ago as “derivative crimes.” Under a “derivative crime” regime, which makes up the bulk of federal criminal statutes, a “crime” such as “racketeering” is not defined as a specific act, but rather is derived from other actions that may either be actual crimes or acts that someone might call criminal but do not break any laws.

For example, Jackson and I described the RICO statutes in our 2004 Independent Review paper:

The “crimes” under the RICO statute are essentially fictitious, created to enable federal authorities to avoid the state courts in which accused “mobsters” traditionally had been prosecuted. Because reputed “mob” figures were being acquitted in state courts—often in the face of overwhelming evidence of guilt—the government created a new set of “derivative crimes,” a class of offenses that by definition are derived from other criminal acts.

One does not “racketeer” anyone. Instead, the government permits federal prosecutors to present evidence of lawbreaking elsewhere, but the defendants are not charged with those crimes (such as extortion, murder, and robbery). Instead, they are charged with racketeering, which is derived from those other alleged actions. With derivative crimes, federal prosecutors were able to win cases against alleged organized crime figures such as John Gotti, who was convicted in federal court of…racketeering.

While the U.S. Constitution forbids passage of bills of attainder, clever prosecutors find other ways of implementing them by piecing together various statutes to form criminal charges that are specifically aimed at one person. The conviction of Charles Keating, whose savings and loan business failed in the late 1980s, is a case in point. In a courtroom where the infamous Judge Lance Ito (of O.J. Simpson fame) was presiding, California prosecutors managed to get Keating convicted on yet another “novel” legal theory, as noted by Forbes:

The results, as laid out by Roberts, are certainly disturbing. Savings and loan financier Charles H. Keating Jr. was convicted of the crime of employing fraudulent bond salesmen, even though there was no evidence he knew of their activities, and the crime was not on the books when he supposedly committed it. His conviction was overturned on constitutional grounds after he served 4 1/2 years in jail.

One unique aspect of Trump’s case is that state prosecutors are deriving their charges from federal criminal statutes instead of the other way around, but the particulars of this case are especially troubling, given the politics involved and the fact that Trump was never charged with breaking federal campaign law, much less convicted of it. In order for Bragg to gain a conviction, jurors will have to conclude that Trump broke federal law, something that they are not legally entitled to do, given that lawbreaking never was demonstrated in federal court. To put it another way, New York jurors are being asked to declare Trump guilty of a crime for which he never was charged.

There is no doubt that Trump will litigate the charges himself, making many of the same legal arguments that have appeared in this article. Note that these charges are also unique in New York legal history. That alone should give pause.

As The Wall Street Journal editors noted, this opens a true “Pandora’s box” that is going to have major ramifications for generations. If the Democrats manage to convict and imprison Trump, the rush to bring criminal charges for political reasons will not stop with him. Future Republican administrations, not to mention state prosecutors, will extract their revenge by going after Democratic politicians.

This is a recipe for a banana republic. If Donald Trump has committed a real crime, then the authorities should charge him for it. Instead, the Democrats have decided that they want Trump in prison, and they don’t care if they have to bend the legal system out of shape to get what they want. As I recently wrote, our political elites are unleashing an evil legal and political genie that once out cannot be put back into the lamp. They are sowing the wind, but all of us will reap the whirlwind.

This article was originally featured at the Ludwig von Mises Institute and is republished with permission.

Arizona State Senate Passes ‘Defend the Guard Act’

[Yesterday], the Arizona Senate narrowly passed the Defend the Guard Act, a bill to require the governor to stop unconstitutional foreign combat deployments of the state’s National Guard troops. Passage into law would take a big step toward restoring the founders’ framework for a state-federal balance under the Constitution.

Sen. Wendy Rogers (R) and three fellow Republicans introduced Senate Bill 1367 (SB1367) on January 31. Titled the Defend the Guard Act, the legislation would prohibit the governor from releasing any unit or member of the Arizona National Guard into “active duty combat” unless specific constitutional requirements are met:

The United States Congress passes an official declaration of war or takes an official action pursuant to article I, section 8, clause 15, United States Constitution, that calls on the National Guard to expressly execute the laws of the union, repel an invasion or suppress an insurrection.

“Active duty combat” is defined as performing the following services in the active federal military service of the United States:

  • Participation in an armed conflict;
  • Performance of a hazardous service in a foreign state; or
  • Performance of a duty through an instrumentality of war.

“Official declaration of war” is defined as “an official declaration of war made by the United States Congress pursuant to Article I, Section 8, Clause 11 of the United States Constitution.”

Last month, the Senate Military Affairs and Public Safety Committee approved the Arizona Defend the Guard Act by a vote of 4-3. On March 6, the Senate Rules committee also passed SB1367 by a 4-3 vote. Today, the full Senate approved SB1367 by a vote of 16-13-1.

In Practice

National Guard troops have played significant roles in all modern overseas conflicts, with over 650,000 deployed since 2001. Military.com reports that “Guard and Reserve units made up about 45 percent of the total force sent to Iraq and Afghanistan, and received about 18.4 percent of the casualties.” More specifically, Arizona National Guard troops have participated in missions in Iraq, Afghanistan and other countries.

Since none of these missions have been accompanied by a Constitutional declaration of war, nor were they in pursuance of any of the three conditions set forth in Article 1 Sec. 8, the Defend the Guard Act would have prohibited those deployments.


Article I, Section 8, Clauses 15 and 16 make up the “militia clauses” of the Constitution. Clause 16 authorizes Congress to “provide for organizing, arming, and disciplining, the Militia.” Through the Dick Act of 1903, Congress organized the militia into today’s National Guard, limiting the part of the militia that could be called into federal service rather than the “entire body of people,” which makes up the totality of the “militia.” Thus, today’s National Guard is governed by the “militia clauses” of the Constitution, and this view is confirmed by the National Guard itself.

Clause 15 delegates to Congress the power to provide for “calling forth the militia” in three situations only: 1) to execute the laws of the union, 2) to suppress insurrections, and 3) to repel invasions.

During state ratifying conventions, proponents of the Constitution, including James Madison and Edmund Randolph, repeatedly assured the people that this power to call forth the militia into federal service would be limited to those very specific situations, and not for general purposes, like helping victims of a disease outbreak or engaging in “kinetic military actions.”

Returning to the Constitution

The founding generation was careful to ensure the president wouldn’t have the power to drag the United States into endless wars. James Madison made this clear in a letter to Thomas Jefferson.

The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legislature.

Congress has abrogated its responsibility and allowed the president to exercise almost complete discretion when it comes to war. The passage of Defend the Guard legislation would pressure Congress to do its constitutional duty.

West Virginia Rep. Pat McGeehan served as an Air Force intelligence officer in Afghanistan and has sponsored similar legislation in his state.

“For decades, the power of war has long been abused by this supreme executive, and unfortunately our men and women in uniform have been sent off into harm’s way over and over,” he said. “If the U.S. Congress is unwilling to reclaim its constitutional obligation, then the states themselves must act to correct the erosion of constitutional law.”

Passage of Defend the Guard would also force the federal government to only use the Guard for the three expressly-delegated purposes in the Constitution, and at other times to remain where the Guard belongs, at home, supporting and protecting their home state.

While getting this bill passed won’t be easy and will face fierce opposition from the establishment, it certainly is, as Daniel Webster once noted, “one of the reasons state governments even exist.”

Webster made this observation in an 1814 speech on the floor of Congress where he urged actions similar to the Oklahoma Defend the Guard Act. He said, “The operation of measures thus unconstitutional and illegal ought to be prevented by a resort to other measures which are both constitutional and legal. It will be the solemn duty of the State governments to protect their own authority over their own militia, and to interpose between their citizens and arbitrary power. These are among the objects for which the State governments exist.”

What’s Next

SB1367 will now move to the House for further consideration. It will first need to pass through the committee process before the full Chamber can concur. Residents of Arizona are strongly urged to contact their state representative to firmly request that they support the bill (locate contact info here).

This article was originally featured at the Tenth Amendment Center and is republished with permission.

These Iraq War Supporters Are Still in Congress

On March 19, 2003 the United States began its military invasion of Iraq. The Authorization for Use of Military Force Against Iraq passed Congress in October 2002, with 296 congressmen and 77 senators voting in favor of giving President George W. Bush carte blanche authority to decide if and when to go to war.

Twenty years later, this is a list of members of Congress who voted for the AUMF and are still in office.

There are sixteen congressmen, including nine Republicans and seven Democrats.

  • Ken Calvert (R-CA)
  • Darrell Issa (R-CA)
  • Mike Simpson (R-ID)
  • Hal Rogers (R-KY)
  • Sam Graves (R-MO)
  • Chris Smith (R-NJ)
  • Frank Lucas (R-OK)
  • Joe Wilson (R-SC)
  • Kay Granger (R-TX)
  • Sanford Bishop (D-GA)
  • Steny Hoyer (D-MD)
  • Stephen Lynch (D-MA)
  • Bill Pascrell (D-NJ)
  • Adam Schiff (D-CA)
  • Brad Sherman (D-CA)
  • Adam Smith (D-WA)

There are ten senators, including five Republicans and five Democrats.

  • Susan Collins (R-ME)
  • Mike Crapo (R-ID)
  • Chuck Grassley (R-IA)
  • Mitch McConnell (R-KY)
  • Lisa Murkowski (R-AK)
  • Maria Cantwell (D-WA)
  • Tom Carper (D-DE)
  • Dianne Feinstein (D-CA)
  • Chuck Schumer (D-NY)
  • ​Ed Markey (D-MA)1Ed Markey voted for the AUMF as a member of the House and has since been elected to the Senate.

These politicians voted for arguably the most unnecessary foreign policy blunder in United States history and incurred no electoral repercussions.

TGIF: Beware of All Tribalism

Tribalism is bad. Sensible people will know what I mean by tribe. It’s not a club based on some common preference like stamp collecting or bowling or cooking. It’s more than that. It involves a judgment-suspending commitment. Nationalism is a good example.

Tribalism is bad because it can erode important social cooperation, which comes in many forms including the division of labor and trade, domestic and foreign. It’s also bad because it encourages people to overlook even the grossest injustice that they would not tolerate if their tribe was on the receiving end.

We lately have witnessed increasing and more virulent tribalism in the area of race and certainly in politics. If you want to see it in action, watch how the Democrats treated journalist Matt Taibbi when he appeared before a House committee recently. It was disgraceful.

But tribalism can occur when you least expect it. For example I was surprised when I watched Mark Steiner of The Real News Network interview Kenneth Roth the other day. Roth, the executive director of Human Rights Watch (HRW)  from 1993 to 2022, was invited in 2021 to assume a fellowship at Harvard Kennedy School’s Carr Center for Human Rights Policy. But disinvited this year because, he says, after he and HRW had criticized Israel’s apartheid rule over the Palestinians, he was accused of antisemitism. After protests on Roth’s behalf, however, Roth was re-invited. The Kennedy School denies that charges of antisemitism were the reason for the invitation withdrawal (Roth disputes this), instead calling it a mistake and not an attempt to limit debate.

Human Rights Watch and other prestigious human-rights organizations, including Israeli Jewish groups, have certainly criticized Israel for how it abuses the Palestinians. (HRW criticizes many states throughout the world for violating individual rights; it has also criticized the Palestinian Authority, which Israel set up under the Oslo Accords.) In 2021 the HRW report “A Threshold Crossed” stated,

Across these areas and in most aspects of life, Israeli authorities methodically privilege Jewish Israelis and discriminate against Palestinians. Laws, policies, and statements by leading Israeli officials make plain that the objective of maintaining Jewish Israeli control over demographics, political power, and land has long guided government policy. In pursuit of this goal, authorities have dispossessed, confined, forcibly separated, and subjugated Palestinians by virtue of their identity to varying degrees of intensity. In certain areas, as described in this report, these deprivations are so severe that they amount to the crimes against humanity of apartheid and persecution.

The idea that criticism of Israel is ipso facto antisemitic is worse than wrong. It is designed to innoculate Israel against all criticism. And that aim, I believe, is premised on the notion that after the monstrosity of Nazi Germany — indeed, after the long history of anti-Jewish persecution — the normal moral rules do not apply to Jewish people, at least not those in Israel. “How dare you criticize the Jewish State?” is a way to tell Palestinians and their defenders to shut up and go away, stigmatizing them as bigots in the process.

You can imagine my surprise when I heard Roth talk about his case and Israel without discussing the plight of the Palestinians. Here’s the key part of the interview. Roth said:

I am 100 percent Jewish. I totally identify…. I am not advocating for a weak state [of Israel], but even a strong state has to respect rights because ultimately, people’s sense of right and wrong, the sense that everybody has rights that need to be respected is key to the long-term survival of Israel and the Jews, particularly when Israel lives in such a hostile neighborhood where who knows what the crazies in Iran might do if they get a nuclear bomb? So you want these norms against abusing people to be as strong as possible. That’s a critical part of their defense not only of Israel but of Jewish people around the world. [Video at 12:24. Emphasis added.]

He went on to say that although accusing Israel’s critics of antisemitism may strengthen that state by silencing some people, this comes “at the expense of Jews wherever they live and that is not a smart move.” How so? By watering down the term antisemitism, which helps real antisemites.

To give Roth the benefit of the doubt, I’ll emphasize that his organization and he personally have criticized Jewish supremacy and apartheid policies toward the Palestinians. Also, he may have been taking his lead from the interviewer, Mark Steiner. Finally, it is certainly effective to point out that, as he says, “cheapen[ing]” the meaning of antisemitism does Jews no favor, even if it silences some of Israel’s critics.

Still … how could he not even mention the long-suffering Palestinians? He says Israel ought to stop the injustice because “ultimately” the survival of Israel and the Jewish people hangs in the balance. He makes it sound as if it’s all about the Jews and not the Palestinians.

Roth even worked in the “hostile neighborhood” trope and the Iranian “crazies” who allegedly want a nuclear weapon. The main reason for the hostility is that in 1947-48 and in 1967 Israeli forces led by Europeans seeking a Jewish state dispossessed innocent Palestinians of land they had worked and lived on for many generations. They’ve been oppressed and subjected to apartheid policies ever since.

As for Iran, it is a member of the Nuclear Non-Proliferation Treaty and inspected regularly; plus it signed, along with the Obama administration and several other nations, the redundant JCPOA (Joint Comprehensive Plan of Action), which would have made it even more certain that Iran would not build a bomb. In return, the West would lift the sanctions that have increasingly crushed the Iranian people. But Donald Trump pulled out of the JCPOA, and Biden has yet to restart it. The sanctions continue. Meanwhile, Israel has conducted covert warfare against Iran and has been trying to get the U.S. government to attack Iran.

The point here is that even Kenneth Roth has not escaped tribalism.


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