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Friday, January 3, 2020

The Pottery Barn Rule: Do We Owe People Whose Countries We Break (and Who Should Pay)?

The best way to disincentivize warmongering is to hold the decisionmakers directly accountable. Currently, however, decisionmakers are immune from the consequences of their decisions under the Westfall Act.

Image Credit: Wiki Commons-Public Domain

In a recent article, Katherine Mangu-Ward, the editor-in-chief of Reason Magazine, posits the question: “What do we owe to people whose countries we have broken [through our foreign policy]?”

The question is an excellent one and one worth discussing.

The author attempts to answer the question by suggesting we adopt a less restrictive immigration policy for those in countries we have broken through our foreign policy as a means of recompense. This is dubbed the “Pottery Barn rule,” based on Colin Powell’s characterization of his 2002 admonition of “You break it, you own it” to George W. Bush in relation to the decision on whether to invade Iraq.

Mangu-Ward argues that the Pottery Barn rule would create a “virtuous cycle” and “provide a useful reminder that we’d better not pick a fight unless we’re sure it will make people better off or unless we’re willing to welcome thousands or even millions of additional immigrants to our shores.” Specifically, she argues that this—tying military intervention to more liberal immigration policies—would disincentivize the pursuit of unnecessary wars by those foreign policy hawks who are also immigration restrictionists (a pairing she characterizes as being predominantly within the GOP, although that characterization may no longer be accurate on the war question).

Currently, the decisionmakers in government who choose to launch wars are completely immune to the consequences of those decisions.

However, Mangu-Ward does not consider the flip side of the equation. How would such a policy affect those decisionmakers who are not necessarily military hawks but are supportive of more lenient immigration policies? Could such a policy change not provide an incentive for those types of decisionmakers to become more hawkish? And would this not especially be the case if those decisionmakers believed that immigrants from such countries would be more likely to vote for their party in the future?

In essence, military adventurism could actually become a long-term political strategy for certain decisionmakers if the United States were to adopt the Pottery Barn rule, and it could also simply serve to accelerate the flipping of positions on war among the mainstream political parties.

Mangu-Ward is correct in her assessment that there needs to be accountability and consequences for military adventurism to keep it in check. However, the Pottery Barn rule in the form of liberalized immigration is not the best means to impose that accountability. In addition to the risk of simply flipping the political parties’ positions on war rather than actually reducing the overall penchant for war, the results of the Pottery Barn rule would befall the entire country—which in large part already does not support military adventurism—rather than those directly responsible. Instead of liberalized immigration policies as a form of reparations, what we owe those in countries we’ve broken is the right to hold the decisionmakers pursuing unnecessary wars personally liable for their decisions.

Currently, the decisionmakers in government who choose to launch wars are completely immune to the consequences of those decisions under the Westfall Act. The Westfall Act was a statute passed in 1988 in response to the US Supreme Court’s decision in Westfall v. Erwin, 484 US 292 (1988), from which the law’s name originated. In Westfall v. Erwin, the Supreme Court rejected a broad reading of government official immunity to tort claims and attempted to delineate certain limits on such immunity. In response, Congress reacted by passing the Westfall Act, which granted broad sweeping immunity to government officials with very few limitations.

The best way to disincentivize warmongering is to hold the decisionmakers directly accountable.

This broad-sweeping immunity under the Westfall Act was recently considered by the Ninth Circuit Court of Appeals in Saleh v. Bush (9th Cir. 2017). Saleh v. Bush involved a class action suit against Bush administration officials brought on behalf of Iraqi civilians for damages incurred as a result of the Iraq war. In that case, the Court held that Bush administration officials could not be sued in their personal capacities because the Westfall Act provided them with absolute immunity from suit and that “this immunity covered even heinous acts.” Thus, despite Colin Powell’s admonition to George W. Bush in 2002 of the Pottery Barn rule with regard to Iraq, no members of the Bush administration actually had to “own it” even though they unquestionably “broke it.”

Supporters of the broad immunity conferred by the Westfall Act would likely argue that without such immunity, the decisionmakers in our government would become unduly timid in taking action for fear of the prospect of ensuing litigation. On its face, this should be an unpersuasive argument for anyone who already desires smaller government. However, for those who truly believe the government should do more rather than less, the cost and tradeoffs for such far-reaching immunity need to be understood and considered.

The late Supreme Court Justice Thurgood Marshall summarized those costs and tradeoffs best in Westfall v. Ervin when he stated,

[O]fficial immunity comes at a great cost. An injured party with an otherwise meritorious tort claim is denied compensation simply because he had the misfortune to be injured by a federal official. Moreover, absolute immunity contravenes the basic tenet that individuals be held accountable for their wrongful conduct.

If you want to create a “virtuous cycle” and disincentivize warmongering, the best way to do that is to hold the decisionmakers directly accountable and eliminate, or at least pare down, the broad-sweeping immunity they enjoy from the consequences of their decisions. In essence, we should require those decisionmakers to have some of their own skin in the game when they are literally playing with other people’s lives.

  • The author of this essay requested to remain anonymous.