Go Lean…Caribbean

Go Lean Commentary

“Exigent circumstances” call for extraordinary measures.

The textbook definition is a situation that demands prompt action or remedy; an emergency. On the other hand, the actual legal definition:

An exigent circumstance, in the criminal procedure law of the United States, allows law enforcement, under certain circumstances, to enter a structure without a search warrant or, if they have a “knock and announce” warrant, without knocking and waiting for refusal. It must be a situation where people are in imminent danger, evidence faces imminent destruction, or a suspect’s imminent escape.  (Source: https://en.wikipedia.org/wiki/Exigent_circumstance)

What would constitute an “exigent circumstance” requiring national attention?

War (or any threat to national defense), of course …
… high-crime incidents and natural disasters.

These are all physicals circumstances. In American jurisprudence, physical threats are categorized as a ‘Clear and Present Danger’ where a potential danger must be assuaged otherwise it will likely cause a catastrophe. (This point was detailed in a previous blog-commentary).

But as for economic exigent circumstances, these can also be catastrophic!

The prominent economic exigent circumstance of recent history is the Great Recession of 2008 – see VIDEO here. (The whole world has been shaped by the events of 2008).

The US Secretary of the Treasury at that time, Henry Paulson, recognized the urgency and emergency of the financial crisis early in 2008 and asked the President (George W. Bush) for a War Powers Declaration; (Appendix A). This refers to the federal law intended to allow the US Congress to declare war, while the President executes the war as Commander-in-Chief.

In 2008 historicity, Congress did approve legislation to declare and fund a defense against the financial crisis; and the President did command a Bail-out strategy to restore the integrity of the economy.

This was economic war! Not just some normal market correction.

But were the actions legal?

This was the premise for the new book by Philip Wallach “To the Edge: Legality, Legitimacy, and the Responses to the 2008 Financial Crisis“. The Amazon summary follows:

Were the radical steps taken by the Treasury Department and Federal Reserve to avert the financial crisis legal? When and why did political elites and the general public question the legitimacy of the government’s responses to the crisis?

In [the book] To The Edge: Legality, Legitimacy, and the Responses to the 2008 Financial Crisis, Philip Wallach chronicles and examines the legal and political controversies surrounding the government’s responses to the recent financial crisis. The economic devastation left behind is well-known, but some allege that even more lasting harm was inflicted on America’s rule of law tradition and government legitimacy by the ambitious attempts to limit the fallout. In probing these claims, Wallach offers a searching inquiry into the meaning of the rule of law during crises.

The book provides a detailed analysis of the policies undertaken – from the rescue of Bear Stearns in March 2008 through the tumultuous events of September 2008, the passage of the TARP and its broad usage, the alphabet soup of emergency Federal Reserve programs, the bankruptcies of Chrysler and GM, and the extended public ownership of AIG, Fannie Mae, and Freddie Mac. Throughout, Wallach probes the legal bases of the government’s actions and explores why concerns about the legitimacy of government actions were only sporadically grounded in concerns about legality – and sometimes ran directly against them.

The public’s sense that government officials operated through ad hoc responses that favored powerful interests has helped bring the legitimacy of American governmental institutions to historic lows. Wallach’s book recommends constructive and sensible reforms policymakers should take to ensure accountability and legitimacy before the government faces another crisis.

Product Details

• Paperback: 319 pages
• Publisher: Brookings Institution Press (April 21, 2015)
• Language: English
• ISBN-10: 0815726236
• ISBN-13: 978-0815726234

Source: http://www.amazon.com/dp/0815726236/ref=rdr_ext_tmb

The book Go Lean…Caribbean was written in the wake of this same 2008 Financial Crisis, but for the limited perspective for the Caribbean. Many lessons-learned from 2008 are considered and applied in appropriate strategies, tactics and implementations to re-boot the Caribbean region from the catastrophe of this crisis; many member-states of the region are still suffering; i.e. Puerto Rico. The foregoing Book Review highlights a publication that is a study of the depth-and-width of the legal maneuvering for the 2008 crisis; now the same writer, Philip Wallach, has composed a supplemental essay asserting a new label to the crisis “lawfare”; see Appendix B for definition and the essay in Appendix C below.

This lawfare consideration is presented in conjunction to mitigations and remediation for protecting the Caribbean homeland. The assertion in the book Go Lean … Caribbean (Page 23) is that with the emergence of new economic engines, “bad actors” will also emerge thereafter to exploit the opportunities, with good, bad and evil intent. But the book warns against more than just people, rather “bad or exigent circumstances”; thusly referring to corporate entities, natural disasters and other cross-border threats; 2008 would have fit this definition. The book relates that “bad actors” is a historical fact that will be repeated again and again.

This point is pronounced early in the book with the Declaration of Interdependence (Page 12) that claims:

i.       Whereas the earth’s climate has undeniably changed resulting in more severe tropical weather storms, it is necessary to prepare to insure the safety and security of life, property and systems of commerce in our geographical region. As nature recognizes no borders in the target of its destruction, we also must set aside border considerations in the preparation and response to these weather challenges.

ii.      Whereas the natural formation of the landmass for our lands constitutes some extreme seismic activity, it is our responsibility and ours alone to provide, protect and promote our society to coexist, prepare and recover from the realities of nature’s occurrences.

x.      Whereas we are surrounded and allied to nations of larger proportions in land mass, populations, and treasuries, elements in their societies may have ill-intent in their pursuits, at the expense of the safety and security of our citizens. We must therefore appoint “new guards” to ensure our public safety and threats against our society, both domestic and foreign. The Federation must employ the latest advances and best practices … to assuage continuous threats against public safety.

xii.    Whereas the legacy in recent times in individual states may be that of ineffectual governance with no redress to higher authority, the accedence of this Federation will ensure accountability and escalation of the human and civil rights of the people for good governance, justice assurances, due process and the rule of law…

xxv.  Whereas the legacy of international democracies had been imperiled due to a global financial crisis, the structure of the Federation must allow for financial stability and assurance of the Federation’s institutions. To mandate the economic vibrancy of the region, monetary and fiscal controls and policies must be incorporated as proactive and reactive measures. These measures must address threats against the financial integrity of the Federation and of the member-states.

The Caribbean appointing “new guards” (security pact) to ensure public safety must include many strategies, tactics and implementations considered “best-practices” for economic crimes and systemic threats. We must be on a constant vigil against “exigence”, man-made, natural and economic. This indicates being pro-active in monitoring, mitigating and managing risks. Then when “crap” happens – economic crises – the “new guards” will be prepared for “exigent circumstances”.

The Go Lean book is a petition for change, serving as a roadmap for the introduction and implementation of the technocratic Caribbean Union Trade Federation (CU). The CU is set to optimize Caribbean society through economic empowerment, and also homeland security in the region, since these are inextricably linked to this same endeavor.

Therefore the Go Lean roadmap has 3 prime directives:

• Optimization of the economic engines in order to grow the regional economy to $800 Billion & create 2.2 million new jobs.
• Establishment of a security apparatus to protect the resultant economic engines and the Caribbean homeland.
• Improvement of Caribbean governance to support these engines.

This is not just academic, as in the case of the foregoing Book Review and supplemental essay in Appendix C. Principals among Go Lean planners were there in 2008, engaged with major stakeholders of the Global Financial crisis: Lehman Brothers, BearStearns, JPMorganChase, CitiGroup, etc. This is real experience from the real crisis; see documentary VIDEO here:

VIDEO – Meltdown – The Men Who Crashed the World – Part 1 – https://youtu.be/JYTyluv4Gws  

This 1^st of 4 parts documentary elapses 2 and half hours in total. It is recommended that this be consumed at some point as extra-credit to this discussion.
Uploaded on Oct 13, 2011- In the first episode of Meltdown, we hear about four men who brought down the global economy: a billionaire mortgage-seller who fooled millions; a high-rolling banker with a fatal weakness; a ferocious Wall Street predator; and the power behind the throne.
The crash of September 2008 brought the largest bankruptcies in world history, pushing more than 30 million people into unemployment and bringing many countries to the edge of insolvency. Wall Street turned back the clock to 1929. But how did it all go so wrong?
Lack of government regulation; easy lending in the US housing market meant anyone could qualify for a home loan with no government regulations in place.
Also, London was competing with New York as the banking capital of the world. Gordon Brown, the British finance minister at the time, introduced ‘light touch regulation’ – giving bankers a free hand in the marketplace.
All this, and with key players making the wrong financial decisions, saw the world’s biggest financial collapse.

• Category News & Politics
• License: Standard YouTube License

Part 2: https://youtu.be/Bp7c2Wo9YDc
Part 3: https://youtu.be/L20DhfgPugE
Part 4: https://youtu.be/osAYMnqZyZc

Planners of the Go Lean movement were there, on the inside looking out, not the outside looking in. They were among the movers-and-shakers of the macro economy, not just armchair “Monday-morning” quarterbacks.

Thusly the CU Trade Federation is set to be “on guard”, on alert for real or perceived economic threats. The legal concept is one of being deputized by the sovereign authority for a role/responsibility in the member-state. As a security apparatus, the CU must always be a sentinel to monitor known threats; this includes man-made, natural and economic threats. Many of these exigent circumstances would be designated as primarily assigned to the CU to assuage. And then the related CU agencies will be expected to aid, assist, and support local resources in the member-states.

This is more and better than the region’s prior response in 2008. “Step One, Day One” in the Go Lean roadmap is to assume this stewardship of the regional economy. The CU organizational structure must be empowered for proactive and reactive management of economic threats and exigent circumstances. The Go Lean book details this series of community ethos, strategies, tactics, implementations and advocacies to provide this better stewardship of the economic engines of the Caribbean region:

This commentary has frequently focused on the lessons-learned from 2008. Some other blogs related to the challenge to Caribbean economic security and governance as a result of 2008 are listed here:

According to the foregoing blog references, the Caribbean parasitic regional economy has not being gracious to its citizens, and other stakeholders (visitors, lenders, Direct Foreign Investors). We need the empowerments of the Go Lean roadmap for so many reasons; one strong motivation is to turn-around this status quo; another reason is to diversify our economy. All of this will fortify our economic security and improve our governance. Considering the history of these North American and Western European powers, we do not want to be their parasites, rather their protégé.

This is the purpose of the Go Lean roadmap, to provide a turn-by-turn direction to move the region to that destination. The advocacy here is to adopt the structure of an economic technocracy. The term technocracy is used to designate the application of the scientific method to solving social and economic problems. The CU must start off as such a technocracy, not grow into being a technocracy – too much is at stake.

All of the Caribbean is hereby urged to lean-in to this roadmap for a technocracy, to make the Caribbean a better place to live, work and play. 🙂

Download the book Go Lean…Caribbean now!

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Appendix A: War Powers Declaration

Article I, Section 8, Clause 11 of the United States Constitution, sometimes referred to as the War Powers Clause, vests in the Congress the power to declare war, in the following wording:

[The Congress shall have Power…] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

A number of wars have been declared under the United States Constitution, although there is some controversy as to the exact number, as the Constitution does not specify the form of such a declaration.
(Source: https://en.wikipedia.org/wiki/War_Powers_Clause; retrieved September 22, 2015)

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Appendix B: Lawfareblog.com

Law + Warfae = Lawfare

This name Lawfare refers both to the use of law as a weapon of conflict and, perhaps more importantly, to the depressing reality that America remains at war with itself over the law governing its warfare with others. (It could apply equally to any other country). This blog by Benjamin Wittes, Robert Chesney, and Jack Goldsmith is devoted to that nebulous zone in which actions taken or contemplated to protect a nation interact with the nation’s laws and legal institutions. In addition, this term refers to a nation’s use of legalized international institutions to achieve strategic ends, so in effect the “use of law as a weapon of war”. – Source: https://www.lawfareblog.com/about-lawfare-brief-history-term-and-site

According to Wikipedia, Lawfare is asserted by some to be the illegitimate use of domestic or international law with the intention of damaging an opponent, winning a public relations victory, financially crippling an opponent, or tying up the opponent’s time so that they cannot pursue other ventures such as running for public office,^[1][2] similar to a SLAPP (strategic lawsuit against public participation) lawsuit.

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Appendix C – Essay Title: Hard Financial Crisis Choices    

By: Philip Wallach

Providing physical security to its citizens is undoubtedly the core function of the state. As readers of Lawfare well know, it is hard work to figure out how that security function should be reconciled with sometimes-conflicting imperatives of legal process, constitutional separation of powers, and transparent and accountable government. Especially challenging is the question of how much, and for how long, exigent circumstances should expand the sphere of legitimate government activities.

Not far behind physical security as a core function of the state is providing some baseline of financial stability and economic security, especially through the protection of a functional banking system and financial markets. Once again, it is hard to discern the appropriate relationship between this financial stability function and other mission-critical governmental activities. Because financial stability in a dynamic market economy includes the expectation that downturns are a healthy part of the process, it is often difficult to distinguish between a developing crisis and normal market corrections, making the balancing act between expedient action and a commitment to act through deliberate processes all the more difficult.

But while there are volumes enough on the question of why economies experience financial crises, and torrid debates on which responses are most effective, there is a striking absence of commentary about “hard financial crisis choices,” and especially their legal aspects. Applicable judicial precedents are few and far between, the Federal Reserve’s emergency decision-making processes are shrouded in mystery (in contrast to its monetary policy decisions), and the Treasury Department is accustomed to extraordinary deference. This vacuum has had some very unfortunate practical consequences for those who fashioned the responses to our financial crisis response, which I explain in my new book, To the Edge: Legality, Legitimacy, and the Responses to the 2008 Financial Crisis (Brookings Institution Press, 2015).

Why on earth should Lawfare readers care?

Treating national security as sui generis, while obviously appropriate in some contexts, unhelpfully narrows thinking in many others. If the question is how emergencies change the scope for government action, how legitimacy is achieved by crisis responders, or what the rule of law means in times of crisis, then adding financial crises to national security crises expands the material available for analysis. Doing so may also help clarify exactly what makes national security distinctive.

Some of my book’s analysis was directly inspired by Jack Goldsmith’s Power and Constraint. The latter explains how the government is actually empowered by various watchdogs and legal requirements that seem to constrain it, because they give it credibility and validation in a way that it could not otherwise produce. In the language of my book, such things provide legitimacy, which is often a necessary precondition for effective government action. If citizens had profound trust in their government (or a quasi-religious reverence for their leaders), legitimation might require very little other than some modicum of competence. But in the world of Snowden and Enron, Abu Ghraib and revolving doors, that trust is missing. Like Jack, I argue that accountability mechanisms provide at least a partial substitute by making citizens feel confident that leaders will be held to standards of reasonableness and propriety, if not immediately in the heat of a crisis response then at least afterwards, once the dust has settled.

American leaders once took this principle to its logical conclusion by openly acting extralegally and then seeking retroactive validation, either through a congressional indemnity or by appealing to a jury. The classic examples are antiques: Thomas Jefferson’s spending without appropriations in response to the HMS Leopard naval incident; General Andrew Jackson’s maintenance of martial law in New Orleans (vividly described in a classic article all Lawfare readers would enjoy); or Abraham Lincoln’s famous resort to constitutional dictatorship from March to July of 1861.

From the beginning of the twentieth century onward, Presidents and other crisis responders have unfailingly offered legal hooks for their emergency actions. Some academic theorists’ ambitions notwithstanding, openly extralegal declarations of prerogatives seem to have no place in our thoroughly legalized modern world (as Jack argues in a rather trenchant essay in this edited volume).

Instead of asking whether law will be the tool of legitimation, the question now becomes: just how reliable a check and a legitimator is the now-universally-obligatory exercise of legal justification? If justification is based on law that itself possesses no legitimacy, or if it misuses existing law, then it cannot provide much legitimacy. On the other hand, even in the era of ubiquitous legal justification, actions with poor legal pedigrees can be accepted as legitimate if they are acceptable to the public on other grounds. We can draw some useful analogies between national security and financial crises for both of these situations in which legality and legitimacy diverge.

Woodrow Wilson’s leadership during World War I provides an interesting instance in which poor legal justifications led to legitimacy problems. Congress gave Wilson’s administration unprecedented delegated powers through a number of enabling acts (the National Defense Act, Army Appropriations Act, Lever Act, and Overman Act), thus furnishing an easy way to legally justify most of his policies. But even in that context Wilson managed to push the envelope quite aggressively, both by using the vaguely defined powers as justifications for decisions that Congress refused to support (e.g., arming merchantmen, creating the Committee on Public Information—which was effectively a propaganda ministry—and censoring telegraphs) and by sustaining his wartime institutions past the end of the war against the desires of Congress. This willingness to aggressively wield emergency powers contributed to the public’s desire for a “return to normalcy” and Democrats’ resounding defeat in 1920.

Similarly, having the backing of an expansive enabling act—namely the Emergency Economic Stabilization Act of 2008, better known as TARP—proved no guarantee of legitimacy in recent years. The Act itself was bitterly contested, with bipartisan congressional leaders failing to persuade populist backbenchers of either party.  (This made TARP different from most enabling acts; the September 2001 AUMF, passed nearly unanimously, is far more typical.) There was also a sense that TARP was dangerously free of actual guidance for the executive branch, providing only a panicked sanction for whatever the Treasury Department found necessary. Such criticisms were well-founded: TARP was used in ways that wildly diverged from its original stated purpose of purchasing troubled assets, eventually including loans to GM and Chrysler when Congress failed to provide a separate pot of money for them in December 2008. Of course bank bailouts will tend to be unpopular in ways that defending the homeland will not, but even so the sense that the executive branch was doing as it pleased—even after Congress had belatedly acted—contributed to the crisis responses’ legitimacy problems. Neither in Wilson’s case nor in TARP’s were qualms about improper legal justifications the driving force behind dissatisfaction, but they served to intensify existing concerns. (Coincidentally, TARP’s most fervent opponents also yearned for a return to the normalcy of federal government circa 1921…)

Conversely, legal flaws don’t always entail legitimacy problems. Franklin Roosevelt’s Destroyer Deal in 1940 was supported by an at-best tendentious memorandum from Attorney General Robert Jackson, but it was widely popular and never caused Roosevelt any real political problems. In the boldest maneuver of the 2008 Financial Crisis, the Treasury Department used the Exchange Stabilization Fund to guarantee money market funds in September of that year—with only a paper-thin legal justification and absolutely no precedent to support such a strange use of an authority nominally dedicated to stabilizing international currency markets. But it was a striking success, so much so that the program it supported actually brought fees into the Treasury without ever paying any money out. The weakness of its legal justification is already nearly forgotten, of interest only to the very small handful of people interested Lawfare-like subjects.

A similarity between the Destroyer Deal and the money market rescue is worth noting: both involved the federal government giving rather than taking, which limits popular opposition and also the pool of potential litigants who might have standing to challenge the action. Acting so as to only cost taxpayers generally, rather than rights-holders specifically, offers a way to avoid the determined pryings of lawyers and the unpredictable rulings of judges—harder to pull off in the national security realm, but not impossible. It is worth considering how this desire to push policymaking into less heavily lawyered areas might shape the evolution of security policy in years to come.

One last musing here (if you’re eager for more, please get yourself the book!) in the form of a question, which I’d be eager to get the Lawfare community’s thoughts on. Early on during the crisis, the well-known economist and blogger Mark Thoma suggested that economists thinking about the balance between facilitating timely responses to emergencies and the need to honor the democratic process should learn from the compromise embedded in the War Powers Resolution, in which expedient action is allowed but time-limited. Sounds like a good idea…except for the whole history of the War Powers Resolution, which as I understand it is none too encouraging.

Financial crisis responders also sometimes figured out ways to circumvent rather clear time limits. Support for Fannie Mae and Freddie Mac under the Housing and Economic Recovery Act of 2008 was supposed to be cut off at the end of 2009, but the Treasury interpreted that to mean nothing more than that its maximum level of support had to be specified by that time. As they understood them, the commitments put in place by then were effectively unlimited and indefinite guarantees of the two firms.

What is it that makes putting hard time limits on executive branch unilateral actions so difficult? The obvious generic answer is enforceability. An enforcer must be both willing and able to meet violations with serious consequences, and it is hard to find institutional actors who are both. Courts may sometimes be willing—their tendency to defer to the executive in troubled times has limits, as Lawfare’s contributors have explored many times—but with neither purse nor sword judges’ ability to stand in the way of a determined executive branch is quite modest. With its power to withdraw funding, Congress is potent enough to enforce the limits put in force by its previous incarnations, but it seems generally unwilling to exercise that power, as doing so offers no political gain and considerable political risks. Are there other possible enforcers for time limits built into grants of extraordinary executive power? Are there ways to make limits genuinely self-enforcing, such that inaction will not render the limits nugatory? Thoughts about the War Powers Resolution or about the problem more generally would be greatly appreciated, as these questions are not rhetorical.
Phil Wallach is a Fellow in the Brookings Institution’s Governance Studies Program.
Source: LawFare Legal Analysis Online Community; posted May 21, 2015; retrieved September 22, 2015  from: https://www.lawfareblog.com/hard-financial-crisis-choices