Renegotiating a role for Congress in American Foreign policy

Throughout much of the 19th century Congress played a central role in the development and leadership of American Foreign Policy. While the Constitution designates the President as Commander in Chief, Congress is empowered to constrain the Executive on foreign policy in areas of trade and the use of force.

Clear in the Framer’s intentions for the United States was a struggle between the branches for the power to make America’s foreign policy. However, since the mid-1990’s Congress’ voice in US foreign policy has gradually quietened.   

This ushered in the modern political era of the ‘imperial presidency’ where the substantive power to determine America’s foreign policy agenda now lies in the hands of the Executive. While this concentration of foreign policy power is appropriate at times of crisis, Congress must reclaim its rightful constitutional role in the establishment and review of US foreign policy during peacetime.

Regrettably, Americans have become too comfortable with a legislature, now complacent with its diminished influence in this area. Today, congressional representatives are lacking in the institutional experience and knowledge required to skilfully administer their role in the making of American foreign policy.

To tackle these issues, I suggest that congressional committees develop a greater capacity to research and analyse U.S. Foreign policy and that all members of Congress participate on foreign policy task forces. If successfully implemented, these proposals will welcome a return to more collaborative, nuanced foreign policy that is shared between Congress and the Executive.

It is remarkable that the two Senate committees tasked with oversight of foreign policy and national security – the Foreign Relations Committee and the Armed Services Committee – have held fewer hearings on the wars in Afghanistan and Iraq, than was the case during the era of Cold War military interventions. This reflects the depleted will and capabilities of Congress to review, challenge and drive American foreign policy. At least part of this problem is related to insufficient staffing of the congressional committees.   

While the number of staff working for the executive branch has grown over the past 40 years, the number of staff supporting congressional committees has significantly declined in this same period. Inadequate staffing of committees has hindered the ability of congressional representatives to draft foreign policy legislation and review executive strategy. Today members are forced to rely upon lobbyists to garner legislative analysis. The solution here is straightforward: committees should be allocated the funds necessary to hire more policy-focused committee staff. This would help to facilitate a more transparent and robust foreign policy process in the United States.

There is currently a great knowledge asymmetry between Congress and the Executive on Foreign policy. Members of Congress serve for only part of the year and increasingly begin as legislative amateurs, lacking specialisation in foreign policy. These factors alone place congressional representatives far behind the full-time Executive branch when it comes to the mastery of foreign relations issues.

The knowledge, experience and interest in foreign policy within Congress must be improved to enable members to work constructively with the Executive on U.S. foreign policy. The establishment of congressional foreign policy task forces would be an encouraging first step. The task forces could focus on specific issues which concern America’s national interests abroad, the main purpose being – to provide a forum for exploration and discussion of international issues for members of Congress.

This would enable representatives of the legislature to be better informed, more confident and capable of assessing foreign policy issues logically as they arise. The perspectives generated through the task forces could then also be used to inform executive branch deliberations on foreign policy decisions. This would enable Congress to reclaim some of the ground previously relinquished to the Executive, paving the way for a more authoritative voice of Congress in American foreign policy.  

By reinvigorating the institutional foreign policy knowledge, experience and interest of   members, this will enable Congress to feed into the deliberative process of foreign policy making in the United States. As the Founders intended, more thoughtful, cohesive and durable foreign policy outcomes will likely ensue.

Why did President Bush take America to war with Iraq in 2003?

The decision for the United States and its allies to invade Iraq in 2003 is one of the most controversial foreign policy acts in modern US history. The reasons for going to war in Iraq remain at the centre of contemporary debate. Those critical of the war argue that Bush acted irrationally, with some suggesting that the Administration’s judgment was clouded by the tragedy of 9/11. Others suspect that the war effort was an attempt to control Iraq’s oil. I make the case against these theories and argue that Washington’s officially stated reason for invasion- the national security threat posed by Saddam Hussein, remains the most plausible explanation for the war. Though America’s invasion did not find conclusive evidence of Hussein’s alleged Weapons of Mass Destruction (WMD) or links to Al Qaeda, these threats were reasonably believed at the time and justifiably acted upon by the Bush Administration. The promotion of democracy in Iraq is a further purported reason for the war. I argue that rather than underpinning the decision to go to war, the prospect of a democratic Iraq was merely a supporting factor. 

Then President George W Bush is seen addressing the US Army soldiers at Fort Hood, Texas about the possibility of military action against Iraq in January 2003 [File: Jeff Mitchell/Reuters]

9/11

The devastating effects of 9/11 reflected a turning point in American foreign policy. Some suggest that the decision to invade Iraq was impulsively made by officials who were jaded by the tragedy. However, this accusation does not stand up to scrutiny. The terror attacks demonstrated the capacity of lightly armed terrorists to wreak havoc and destruction on the United States. The Bush Administration’s fears were only heightened by allegations of Saddam Hussein’s WMD capability. The 9/11 attack on America’s homeland induced a visceral response that made Washington more acutely aware of their vulnerability to international terrorism. This awareness fundamentally transformed American foreign policy. The Bush Doctrine assumed that Cold War standards of deterrence and containment were no longer effective in regulating the actions of rogue states in a new age of international terrorism. Aware of the risks that Saddam Hussein could pose to the US, Bush called for assertive US leadership and the strategy of pre-emptive attack ‘against emerging threats before they are fully formed and can appear suddenly in our skies and cities.’

The necessity of pre-emptively attacking rogue states to protect national security was reinforced by the international community. Following the 2002 Bali Bombings which killed 88 Australians, Prime Minister John Howard stated the need to consider pre-emptive action as a last resort. Likewise, the European Union agreed that ‘threats such as terrorism may require action even before crises arise.’ This further strengthens the claim that the US declaration of war in 2003 was a prudent and reasonable response to the threat assessments of the time. In the US, 9/11 provided the wake-up call that thrust national security to the top of the Bush agenda. This change was echoed by policy makers throughout the world who also became more aware of the need to combat international terrorism. Therefore, the decision to invade Iraq was not impulsive or irrational, it was practical and made in accordance with the most accurate threat perceptions of international terrorism at the time.

Oil

Great powers of the past have often been driven by resource control. The interpretation of the Iraq war as a ploy to gain control of Iraq’s oil reserves continues to enjoy widespread currency today. To make this case, critics point to the oil industry links of Bush Administration officials ranging from President Bush himself, to the Secretary of Treasury Paul O’Neill and National Security Advisor Condaleeza Rice. Gaining control of oil in the Middle East would have enabled the US to control the resources of China and India, the fastest growing economies in the world. However suspicious these factors may seem, both indicate a coincidence rather than a conspiracy. Closer examination of the facts leads to the conclusion that the Iraq war was not fought for oil. 

In the wake of the overthrow of Saddam Hussein, America did not significantly benefit from Iraqi oil contracts. Despite the deployment of 200,000 US troops to Iraq and the estimated $2 trillion expended during the war effort, American companies were not given preferential treatment in virtue of their country’s involvement. Indeed, companies from nations that were neutral or hostile to the Iraq war were given equal footing to the US during oil negotiations. Only one US company (Exxon-Mobil) was successful in gaining a contract. This deal was no more impressive than the deals achieved by Russia’s Lukoil, Norway’s Statoil, Malaysia’s Petronas or Japan’s Japex. Furthermore, the most significant beneficiary of post-war oil contracts was China, emerging as the largest buyer of Iraqi oil in 2013. Considering that the Iraq war came at such a high cost to the American tax payer, while doing little to fuel the profits of American oil companies, it is extraordinary that the oil conspiracy continues to hold such popularity today. Defenders and detractors of the 2003 decision alike should acknowledge that the ‘oil narrative’ is a selective and speculative account at best.

National Security  

The officially stated and most plausible reason for the 2003 Iraq war was the national security threat that Saddam Hussein posed to the United States. At the time of the war, Saddam Hussein had been a brutal dictator of 25 years and a central threat to peace in the Middle East. Prior to 2003, the US had made ‘honourable efforts’ to contain and deter the threat of Iraq. Notably, the US engaged in diplomacy at the UN, imposing sanctions on Iraq and participating in the passage of 16 UN Security Council resolutions between 1990-1999 which demanded Iraq destroy all WMD and cease support for international terrorism. Hussein repeatedly defied these resolutions and responded to US funded peace keeping initiatives such as the Oil-for-Food Programme with corruption. Hussein also shot down US aircrafts which were in place to protect the Iraqi people from genocide. It was in this context that the Bush administration decided that the containment of Iraq through sanctions and deterrence was ineffective and could no longer ensure the national security of American citizens. The use of American military force was intended to defeat Saddam while also sending a cautionary message to any other nation currently harbouring or enabling terrorists.

From the American perspective, the two most concerning accusations of Saddam Hussein’s regime were his alleged WMD programme and ties to Al Qaeda. Though these allegations have since been discredited, the decision to go to war was based on leading threat perceptions of the Iraqi regime available at the time. While the intel regarding Saddam’s links to terrorism and WMD later proved to be incorrect, Saddam Hussein was a known aggressor of peace within the Middle East who had proven a distain for cooperation with the United States. Even putting the WMD and terrorism threats to one side, this regime was one that posed considerable dangers to the national security of the US. 

WMD Threat 

Saddam’s purported possession of WMD was of great concern to the United States. The reasonable chance that Saddam possessed WMD was a risk that President Bush was unwilling to gamble on. As he stated in the 2002 State of the Union address ‘We must prevent the terrorists and regimes who seek chemical, biological or nuclear weapons from threatening the United States and the world.’ In the case of Iraq, Saddam Hussein had a history of using WMD to murder thousands of his own citizens, ‘leaving the bodies of mothers huddled over their dead children.’ Thus, America only needed to refer to recent history to establish Hussein’s tolerance for utilising WMD. The Bush Administration then had to determine whether Saddam continued to possess WMD. This suspicion was difficult to prove, but equally difficult to rule out as the full account of chemical warfare munitions was never verified and international inspectors were routinely met with obstruction from the Iraqi government.

While the purported WMD were never found in Iraq, this does not mean that their potential existence did not warrant the invasion in the first place. Akin to all major foreign policy decision making, Bush’s declaration of war was a decision made under time-pressure constraints and with intel that was still in the development stages. Only after the war would it become known that Saddam’s deception about his WMD capacity stemmed from his desire to deter adversaries, such as Iran, and intimidate domestic foes, such as the Kurds.

Prior to the declaration of war, US intelligence strongly supported the theory that Saddam Hussein possessed WMD. Critics argue that analysts were bullied into finding evidence to support the Bush Administration’s agenda. However, American bipartisan inquiries such as the Senate Select Committee on Intelligence and Robb-Silberman Commission, established to investigate the post-war intelligence, overwhelmingly found that analysts were not forced to manipulate their findings regarding Saddam’s alleged WMD. A further critique is that some intelligence agencies discovered evidence which contradicted the widespread belief of Saddam’s WMD capabilities and that Bush policy makers ‘cherry picked’ intelligence which bolstered the case for war while ignoring contrary evidence. Such claims are significantly weakened by the weight of the international consensus at the time. Suspicions of Hussein’s WMD program were not only supported by American intelligence analysts but also the clear majority of analysts working within the international intelligence community. This included analysts from countries strongly opposed to the war such as France, Germany and Russia. Though intelligence on Saddam’s WMD possession was inaccurate at the time of invasion and Saddam was arguably not as dangerous as the international community had initially believed, the Bush Administration made a time-pressured decision based on the genuine and most commonly held threat perceptions of the day.     

Terrorism Threat 

In light of Washington’s heightened sense of vulnerability to international terrorism, Saddam Hussein’s alleged and substantiated links to international terrorist groups further cemented the case for war in 2003. The Iraqi regime had a history of aiding, training and harbouring terrorists. Captured Iraqi documents published by the Institute for Defence Analyses reveal that although Saddam had no operational links to Al Qaeda, he did have ties to multiple terrorist groups, including the Palestine Liberation Front, Hamas, Egyptian Islamic Jihad, and Afghanistan’s Hezb-e-Islami. Bush feared that Saddam’s links to terrorism could result in the deployment of further terrorist attacks against the United States. The risk of another devastating terrorist attack on American home soil was tangible as terrorism continued to destabilise the international community after 9/11. In 2002, journalist Daniel Pearl was beheaded, there was also an assault on a synagogue in Tunisia and American diplomat Laurence Foley was killed in Jordan. In October of the same year, the Bali Bombings killed more than 200 people. As Saddam Hussein was a clear enemy, President Bush could not rule out the potential for him to deploy terrorism against the United States or support another organisation to do so. Though Saddam Hussein was not found to have links to Al Qaeda or the 9/11 terrorist attack, his ties to other Islamic terrorist groups still characterised him as a threat. The US strategy to pre-emptively destabilise the Saddam regime was therefore warranted.   

Democracy 

Fostering democracy in the Middle East, was a supporting reason for President Bush’s campaign to oust Saddam Hussein in 2003. The Bush doctrine at its core advanced the theory ‘that people who are free and prosperous do not fly airplanes into skyscrapers.’ Toppling the Saddam regime gave the US the opportunity to help the Iraqi people build a new democracy. In the same way that post-war reconstruction had been successfully achieved in Germany and Japan, the Bush administration hoped that the instatement of democracy in Iraq would ‘fundamentally reshape the Middle East.’ Though there were considerable failures and setbacks in the reconstruction effort following the war in Iraq, today Iraq is a strategic partner of the United States and a voice of democracy in the Middle East. The war in Iraq enabled the fall of the brutal regime of Saddam Hussein — something that the Iraqi population had not been able to achieve. If Saddam had managed to transfer power to his sons, the regime may have survived for years or even decades. Though the democracy in Iraq remains fragile and imperfect today, the US role in overthrowing the Hussein regime subsequently enabled Iraqis to participate in their first relatively free and fair elections at both the national and local levels in 2005. This was a victory and promising path to freedom for a country that had a history of authoritarian political culture, tribalism and ethnic and sectarian violence.

A woman voted in Najaf, Iraq in 2014, in the first national election after U.S. forces pulled out of the country in 2011.
PHOTO: ALAA AL-MARJANI/REUTERS

There are numerous reasons that are purported to have been behind Bush’s decision to invade Iraq in 2003. Those critical of the decision argue that the war was motivated by America’s lust for oil or was merely a knee-jerk reaction to the tragedy of 9/11. I have argued against these theories and have instead asserted that the Bush administration went to war first and foremost for the stated national security threat posed by Saddam Hussein. Following the honourable attempts to diplomatically disarm the Iraqi regime, the US and their allies invaded Iraq due to fears of Saddam’s WMD possession and links to terrorism. Both allegations held widespread bipartisan support in the US and were also reinforced by the international intelligence community. Though the accusations against Hussein were not established, 9/11 made the US aware of their vulnerability to international terrorism and the need to quash threats early on. An additional benefit of invading Iraq and winning the war, was the promotion of democracy. Though this was not Bush’s sole objective, it was a strong consideration which supported the final decision to go to war. 

The Iraq war remains a contentious aspect of US foreign policy today. However, most arguments made against the war have been made with the benefit of hindsight. It is important to remember that the war in Iraq was waged on the relevant information and risk assessments available to the Bush Administration in 2003. The US acted under time constraint and developed foreign policy that intended to protect the security of the international community.   


The 2020 US election, Prostitution Laws & Human Trafficking

In many ways, Senator Joe Biden’s selection of Kamala Harris as his Vice President is historic: She is the first woman of colour on a major party ticket, as well as the first female Vice-Presidential Democratic pick in more than three decades. 

However, many on the left were not overly pleased with the decision, critical of Harris’s  regressive record when she was District Attorney of San Francisco and Attorney General of California. Among these critics were sex workers’ rights advocates, who have been vocal about Harris’s historically aggressive approach to policing the community and her perceived backflips on the decriminalisation of prostitution. 

The legal status of sex work is a domestic factor which can impact upon the incidence of sex trafficking. Under the Trump administration prostitution has remained illegal in all states (with the exception of Nevada). Alternatively, much of Europe as well as Australia and New Zealand have opted to decriminalise or legalise sex work. Eight countries have also adopted the ‘Nordic Model’ where the buying of sex is criminalised, not the seller. 

Senator Harris recently commented that a Biden Administration would be in favour of a national decriminalisation agenda. Would this legislative change work in favour of America’s fight against human trafficking or against it?

Regardless of the 2020 outcome, the current debate on how to best regulate prostitution has divided America. The core legal approaches are as follows:

Prohibition

Prohibition aims to eradicate the market for paid sex, undercutting the sex trafficking business model, by targeting both supply and demand. In practice, this approach is problematic. In the United States, law enforcement overwhelmingly targets the sellers rather than buyers of sex. Annually 70,000-80,000 people are arrested for prostitution and estimates suggest that 70% of those arrested are female prostitutes and madams, 20% are male prostitutes and pimps, while only 10% are buyers. This approach carries an unfair gender bias against females and discourages victims of sex trafficking from coming forward to authorities due to fears that they may be punished. Thus, the sex industry is driven underground making it difficult for the legal system to deliver justice to victims.

Legalisation 

Through legalisation, states opt not deter people from selling or buying sex. Proponents of this approach argue that the criminalisation of prostitution makes trafficking more attractive. They argue that permitting prostitution reduces the prevalence of sex trafficking by allowing sex businesses to recruit local women who freely choose prostitution as their occupation There is insufficient evidence to support such claims. Research suggests that rates of sex trafficking remain high in places where prostitution is legal. European adopters of the legalisation approach, such as the Netherlands and Germany, have ‘the highest numbers of trafficked women in Europe.’

Critics argue that legalisation increases the size of the sex market, encouraging traffickers to exploit women and girls in greater numbers to meet increased demand. Evaluations have also found that legalised prostitution allows traffickers to hide victims in plain sight as consenting sex workers. The Chief of the German organised crime fighting unit in Stuttgart claimed that, since legalisation, his unit was fighting organised crime with ‘one hand tied behind their back’ as legal brothels provide ‘the perfect place to launder the proceeds of other organised crime.’

Strongly supporting the experiences of the Netherlands and Germany, a 2010 quantitative analysis reported that ‘sex trafficking is most prevalent in countries where prostitution is legalised.’ A 2012 study also overwhelmingly supported these findings. Researchers investigated the effect of legalised prostitution on human trafficking inflows from 150 countries and found that on average ‘those with legalised prostitution reported a greater incidence of human trafficking inflows than countries where prostitution is prohibited.’ The study also reviewed the longitudinal effects of legalising and criminalising prostitution and found that the criminalisation of prostitution in Sweden resulted in the shrinking of the prostitution market and the decline of human trafficking inflows while the inverse was true in Germany.

Nordic Model 

The Nordic model, also known as the Demand model, criminalises the buyers of sex, but not sellers. This approach has grown in popularity as it focuses on shrinking the market for prostitution in order to reduce demand for trafficked women. This approach assumes that sex trafficking is lucrative due to the economic principles of supply and demand. ‘Traffickers choose to trade in humans due to the low start-up costs, minimal risks, high profits, and large demand.’

The Swedish law aims to combat human trafficking by acknowledging the connection between prostitution and trafficking. Approximately 400- 600 people are trafficked into Sweden each year. Since Sweden’s adoption of the Nordic model, this number has remained constant, with no significant increase in the number of recorded victims. Two years following the passage of the law, a Swedish taskforce reported a 50% decrease in the number of women prostituting and a 75% decrease in the number of men who bought sex. Thus, while the number of people trafficked into Sweden is believed to have remained level, there have been reported decreases in the number of people selling and buying sex which has reduced the attractiveness of the Swedish sex market for human traffickers. Critics claim that since the Swedish law passed, prostitution has not decreased, but rather been forced underground. While it is difficult to assess these arguments empirically, Sweden is no longer an attractive market within Europe for human traffickers. Swedish police have confirmed this view that the Nordic model has resulted in deterring traffickers from Sweden and pushed them into other countries.

The normative objectives and results of the Nordic model also cannot be underestimated. When Sweden introduced the legislation, it had merely 30% community support. Today the figure is close to 80%. The legislation has had the effect of changing Swedish culture. It is no longer socially acceptable to pay a woman for sex. This, alongside harsher penalties for buyers, has led to Sweden having a much smaller human-trafficking problem compared to other European nations. 

Recommendation

The fight against global sex trafficking is counterproductive if countries have conflicting approaches to regulating domestic prostitution. Having reviewed the various legislative approaches, it is evident that targeting demand is an integral part of any legal solution. Though imperfect, the Nordic model has a proven track record of reducing the demand for prostitution which minimises the incentives for human traffickers to conduct their businesses. 

According to the most recent polling, the Biden Harris ticket will be victorious in November. As the decriminalisation model has proven unsuccessful in reducing human trafficking, Biden and Harris should re-calibrate their official stance on regulation to reflect the Nordic Model. This will shrink the demand for prostitution in the US, thus making the American sex market less attractive to human traffickers. 

The battle to fill the Supreme Court vacancy left by the passing of Justice Ruth Bader Ginsburg

The sudden passing of US Supreme Court Justice Ruth Bader Ginsburg on September 18 has ignited another intense feud over the future of America’s highest court. While there was always the real possibility that 87-year-old Ginsburg might lose her years-long battle with cancer prior to the November 2020 US Presidential Election, the timing of her passing – 46 days out from the election – guarantees another bitter partisan standoff in the US Senate.

Many Democrats seemed certain that Ginsburg would live into 2021, imagining that a Democratic President would then be able to nominate a suitably liberal replacement. Unlike then-candidate Trump in 2016, Joe Biden has so far seemed less eager to make this election a referendum on the Supreme Court. Other than indicating that he would nominate an African American woman, the Biden campaign is yet to publish a list of potential SCOTUS nominees. With Trump set to announce his nominee next week, they will be under increasing pressure to do so in the days ahead.

Senate Republicans are likely to vote to confirm Trump’s nominee in the coming weeks and the predictable partisan cries of hypocrisy have already begun. Democrats argue that Republicans should not be allowed to fill a Supreme Court vacancy before the election because Republican Senate Leader Mitch McConnell refused to do so in 2016 after the death of Justice Antonin Scalia. These arguments are disingenuous.

It is at best misleading to suggest that McConnell ever refused to bring on a vote on Obama nominee Merrick Garland simply because it was an election year. At the time, McConnell and his Republican colleagues were very precise about their reasons for not filling a Supreme Court vacancy in an election year in a situation of divided government. They have also been very transparent about their preparedness to confirm a nominee in 2020.

On 22 February 2016, immediately after Scalia’s passing, McConnell noted that ‘the Senate has not filled a vacancy arising in an election year when there was divided government since 1888.’ When asked in February 2020 about the possibility of a vacancy he stated that, unlike 2016, the Senate was controlled by ‘the same party as the President of the United States. And in that situation we would confirm.’

On this point, history is on McConnell’s side. He is correct that for more than 130 years a pre-election SCOTUS nominee has not been confirmed when the Senate and White House have been controlled by different parties. He is also correct that the Senate, on nine separate occasions, has confirmed the nominee of a President from the same party as the Senate Majority before election day. In fact, sitting Supreme Court Justice Stephen Breyer was confirmed to the First Circuit in the final days of Jimmy Carter’s Presidency – after he lost his re-election bid to Ronald Reagan.

But this will not satisfy Democrats. The Democratic Chairman of the House Judiciary Committee, Jerrold Nadler, has already called for Democrats to ‘pack’ the Supreme Court with new progressive judges should they regain control of the White House and Senate in 2020. Democratic House Speaker Nancy Pelosi has even suggested that Democrats may attempt to impeach President Trump or Attorney-General William Barr in order to stymie any Senate vote on Trump’s nominee. No matter the outcome, it’s clear that another rancorous and protracted DC battle lies ahead.

The passing of any significant public figure is a time for reflection and compassion. The community should be honouring the person that Ruth Bader Ginsburg was and commemorating a woman who, alongside Justice Sandra Day O’Connor, has become an inspiration to girls across the World. All sides should look to her decades-long close personal friendship with conservative Scalia as a much-needed example for today’s divided America. The US’ first thought should not be the political ramifications for contentious issues such as abortion and government mandated health insurance. It’s a sad indictment of the politicisation of the judiciary that, against the intentions of the Founding Father’s, some just can’t seem to help politicising almost every aspect of modern life in the US.

Xavier has written more on this subject for an article in The Spectator Australia, accessible here.

How human trafficking is enabled

We often associate human trafficking with a visceral image of young girls being exploited and sold for sex at the hands of ruthless pimps. Google an image of human trafficking and results of this description will be found. While this depiction reflects much of the human trafficking which is reported to authorities, it is an incomplete image of a much broader issue. Less attention is typically devoted to the trafficking of people into exploitative agricultural work, construction work, domestic work, or other non- sexual labor.

Acknowledging one form of human trafficking while remaining ignorant to all others, only addresses a fraction of what is a highly prevalent transnational crime. Society’s lack of understanding of the complexity of human trafficking is largely to blame for our crippling inability to protect victims and prosecute perpetrators.

The United States of America v Farrell illustrates the vulnerability of migrant workers and lack of public awareness of human trafficking warning signs.

Human trafficking - Crime Stoppers Australia
Resource derived from Crime Stoppers Australia, https://crimestoppers.com.au/resource/human-trafficking/.

United States of America v Farrell

In 2005, Robert and Angelita Farrell, owners of a Comfort Inn hotel in South Dakota arranged for nine Filipino workers to obtain visas to work in their hotel. 

The Farrells took care of all visa fees and drafted employment contracts for each worker. They told workers that they would not be reimbursed for travel to the US and that their visas would be denied if they revealed this to the consular authorities. Despite beginning the employment relationship financially indebted to the Farrells, the workers anticipated that their wages would enable them to promptly repay their debts.     

When the workers arrived, the couple confiscated their passports and other immigration documents. The Farrells took advantage of the workers making them work 12-16 hour days and paying them half the wages initially promised. The defendants also charged the victims for previously undisclosed fees such as unwanted food and transportation to and from work. Recognising that the workers would never be able to repay their increasing debts, the Farrells demanded that the workers obtain outside employment. 

Each worker initially expected to have two trips sponsored by the Farrells to work at the hotel. However, the Farrells’ informed their workers that no one was going to be brought back to the US for a second trip unless he or she submitted a letter requesting re-employment. The workers complied and returned to South Dakota, facing the same enslaved conditions as last time.

One evening, the Farrell’s contacted the chief of police to intimidate the workers after two had expressed a desire to leave. Sensing something was amiss after visiting the hotel, the officer removed the victims from the couple’s possession and the Farrells were subsequently arrested on the charge of conspiracy to commit peonage.

On November 2007, a federal jury found Robert and Angelita Farrell guilty of peonage, document servitude, visa fraud and making false statements. Robert Farrell was sentenced to a term of 4 years and 2 months in federal prison and his wife, Angelita, a 3-year sentence. The defendants were individually fined US$15,000 and subject to three years of supervised release following their respective prison terms.

The Farrell case stresses the underreporting of human trafficking in the US. This couple managed to forge immigration documents twice and illegally administer second jobs for their workers, while enslaving them in horrendous living conditions for some time, without triggering immigration officials, police or members of the public. 

Partially to blame for this is the inaccurate, widely held public perception of human trafficking and the culture of law enforcement.

Failing Public Perceptions of Human Trafficking

A key issue in this case was whether the victims worked voluntarily for the Farrells. While it would have been a simpler case if police had found victims chained in the Farrell’s basement, the reality is that many human trafficking cases occur within the context of a voluntary working relationship. Thus, the degree to which the victims’ work was involuntary was difficult to prove.  

Akin to many human trafficking cases, the victims initially worked voluntarily for the Farrells, testifying that they wanted to better their livelihoods in the US. The Farrells possessed strong evidence in favour of a finding that the employees were in a voluntary working relationship. For instance, the Farrells’ presented the signed contracts and the fact that the workers agreed to begin their working relationship indebted to the Farrells. Additionally , the Farrells had letters written by the workers, each requesting a second trip to the US to work at the hotel.   

In this trial, the testimony of human trafficking expert Joy Zarembka enabled jurors to better understand the behaviour of victims and assess the truthfulness of their allegations. Zarembka provided a testimony of the various warning signs in employer-employee relationships that may indicate the employee is not labouring voluntarily but rather in a climate of fear. In her opinion, there was a climate of fear in the Farrells’ relationships with their workers. 

In this way, the role of expert witnesses in human trafficking cases can be paramount to ensuring victims receive a fair trial. Experts should also play a more substantial role in public education to alleviate widely held misconceptions of human trafficking. This will equip people with knowledge of warning signs to look out for that may be indicative of human trafficking.

The culture and framework of Law enforcement

Police rely on community members to report crimes by calling 911. Their work is reactionary rather than investigatory. This is problematic for victims of human trafficking as the crime usually occurs behind closed doors or without community awareness. If the public fail to report on instances of human trafficking, the framework of law enforcement is such that police cannot protect victims or charge perpetrators.

For these reasons, Police in the US focus on the prevention of sex trafficking of U.S. female minor victims, whom they perceive to be the most vulnerable, publicly supported victims. We know from the Farrell case that human trafficking can seamlessly occur outside of the sex-slavery paradigm, however more often than not it seems that cases like these are falling through the cracks of our justice system. Human trafficking does not discriminate against gender, age or culture, it impacts girls, boys, men and women alike. The double standard of US law enforcement efforts to address the sexual slavery of US female minors, while remaining legally blind to other forms of modern slavery that exist is a true failing of the justice system.

Though the institutional weaknesses of law enforcement and lack of public awareness for human trafficking are grim, greater understanding of the problem among ordinary people like you and I will lead to increased reporting of the crime. If we acknowledge that human trafficking is happening in our communities and educate ourselves on its many variations, this will inevitably lead to a world where more perpetrators are held legally accountable for their actions.


A Model Partnership

When two Australian Ministers travel to the US at such an uncertain and volatile time in history, it says something about the strength and significance of the relationship between the United States and Australia.

This week, Australian Foreign Minister Marise Payne and Defence Minister Linda Reynolds traveled to Washington D.C for the Australia-US Ministerial Consultations. AUSMIN provides a principal bilateral forum to discuss approaches on major global and regional political issues and cooperate on foreign security and defence. Notably, Marise and Linda are the first members of the Australian executive to travel overseas since Australia borders closed in March.

While other American allies have declined the Trump administration’s request to resume in-person meetings, suggesting instead to delay appointments or hold conferences virtually, the effort made by Payne and Reynolds to attend AUSMIN in Washington D.C demonstrates the level of priority that the Australian government places on the bilateral relationship.

A hallmark of the Trump Administration has been the trade war against Beijing. Trump has clashed with Beijing over numerous issues including Huawei, unfair trading practices and China’s cyber warfare. COVID-19, has only agitated tensions further with the US strongly criticising China for its mismanagement of the pandemic which has taken the lives of 150,000 Americans to date, destroyed the US economy and severely harmed Trump’s re-election prospects. Throughout this time, members of the Trump Administration such as Secretary of State, Mike Pompeo have rallied for their partners to take a unified stand with them against China.

Australia, a small population in the Indo-Pacific region of the world has managed to live up to this call by confronting the challenge of an increasingly belligerent China. Australia was the first among the international community to call for an inquiry into the mismanagement of the COVID-19 crisis, a move that deeply angered and offended China. Despite relentless economic threats and bullying from Beijing, the Australian government also declared that China’s territorial claims in the South China Sea were illegal. Further, in response to China’s new security laws in Hong Kong which seek to undermine the human rights protections of Hong Kong citizens, Australia suspended its extradition treaty with Hong Kong and offered citizenship to dissidents.

Australia has shown that when it counts, it is not afraid to stand up for its values and choose a side. For decades, politicians, diplomats and scholars have stressed the difficult decision Australia will be forced to make due to its strong trade with China and military alliance with the United States as tensions between the countries reach an inevitable boiling point. While it is early days, it appears the choice has not been as difficult as some presumed. Australia has chosen to uphold its values and stand by its closest ally, despite the obvious risk of economic reprisal.

The AUSMIN meeting between the respective foreign and defence ministers – Mike Pompeo, Mark Esper, Marise Payne and Linda Reynolds went beyond the usual formalities as both countries are deeply engaged and committed to the challenge presented by China. The US acknowledged Australia’s bravery in standing up to China’s threats and utilised the opportunity to model the AUS-US alliance, juxtaposing Australia’s support with the tepid support it has received from some of its other allies.

A commitment to stick closest when times are tough is the true test of any relationship. This year, Australia and America have continuously proven that the relationship is far more than mateship or an obligatory tradition, it is a world-class model of an alliance which is above personalities and greater than the challenges of the day.

Does American National Identity still exist in 2020?

Watching the state of affairs in the US over the past few months has left many of us in a state of paralysis. Our hearts have bled for the millions of American lives lost to COVID. The violent imagery of George Floyd’s last breath and subsequent violent riots and protests have poured across our screens. From an Australian perspective, it seems America has never been more politically and socially divided. One might argue that Americans have lost the connective national tissue which once bound them together.

In spite of the recent social and political upheaval we are observing within the United States, it is important to keep in mind that socio-cultural movements are nothing new for the American people. A glance at US history depicts numerous movements which have fought to uphold and actualise the rights of minorities. I argue that the social movements bubbling within America today such as Black Lives Matter do not undermine the notion of an American identity, rather they demonstrate the attempt of modern Americans to live up to the founding values of their nation. In this way, movements of social change can help the United States move closer towards actualising the hopes and dreams that the American founding fathers had for a new nation.

American national identity is built upon the unique and radical founding of the United States.   Unlike nations whose identity is based on shared ethnicity and ancestry, America was formed on the idea of “the essential dignity of the individual human being, and of certain inalienable rights to freedom and justice.” Though at the time of America’s founding, these admirable ideals were not realised for most citizens, American history has steadily embraced and began to live up to the freedoms expressed in seminal founding texts such as the Declaration of Independence and U.S Constitution. Leader’s such as Abraham Lincoln and Martin Luther King Jr. come to mind as men who enabled America to live up to their founding commitments by abolishing slavery and segregation. While America has never been perfectly aligned with its founding values, what appears to bind Americans together is a dedication to see the United States lives up to its founding values.

The idea of American identity is under constant pressure to change by those who experience barriers when attempting to access freedom and equality in the United States. Racism is one of these barriers that is deeply rooted within American history. The United States will always contend with the harsh reality that while European colonists could claim an American identity, people trafficked as slaves from Africa were not entitled to the same privileges. The practice of slavery continued in the United States until 1865 with the introduction of the 13th Amendment.  Following this, black Americans endured an entire century of racial persecution and discrimination before the promises of the Civil War were realised. While America’s Declaration of Independence and the Constitution proclaimed universal liberty, such documents coexisted alongside the exploitation and exclusion of black Americans. Despite an increasingly diverse US population and racial progress [evidenced through achievements such as the election of Barak Obama, the first African American president], some Americans argue that there is an entrenched racial component to American identity that divides whites and non-whites. 

Building upon historic injustices against African Americans, The Black Lives Matter movement has emerged in response to controversial law enforcement policies and police brutality against members of the African American community. At the core of this issue is the social concern that African Americans are not afforded the same societal protection as other Americans. Black Lives Matter demonstrates a powerful message: African Americans, like all Americans, long for freedom, equality of opportunity and access to the American Dream. Historic and contemporary racism in the United States have prevented African Americans from accessing this promise. American citizens responsible for discriminating and continuing to exclude African Americans from the benefits of American identity are contradicting the very values which underpin American identity. In this way, the plight of members of the African American community throughout history expresses a pattern: the continuous attempt to reconcile society with the country’s founding values.

Social change in the United States has improved the freedoms of its people, reconciling the US with its founding principles and helping to evoke the true sense of what it means to be American.



What makes America unique?

Defining Elements of American national identity: Exceptionalism, Volunteerism and the American Dream

In an ordinary year, the United States expects roughly 76 million people to visit their country. People from all over the globe come to enjoy the beauty of American landscapes from the breathtaking Grand Canyon to the Utah Mountain ranges. They come to re-live American history by visiting the many historical landmarks and museums such as the nation’s capitol in Washington D.C, Gettysburg cemetery and Mount Vernon.

If those things don’t do it for you, there is a multitude of entertainment on broadway, world-class theme parks and sporting events, the best shopping in the world and a choice of global cuisines – available with a supersize option!

The United States of America certainly is the land of the plenty, and tourists commonly marvel at the confident, patriotic and entrepreneurial nature of the American people. We can point to these common stereotypes, but what is it that actually makes the American nation and its people so different and remarkable from the rest of us?

Having lived and worked in the United States, I boil it down to three defining characteristics. American Exceptionalism, Volunteerism and the Dream. It is these three components that have defined America since its founding and set the U.S apart from the rest of the globe.

In the era following World War II, America has made strides to become the world’s economic, military and cultural hegemon. US exceptionalism is predicated on American’s strong tradition of successful immigration. Since its founding, America has been the ‘nation of nations’ and a refuge for the poor, oppressed and persecuted; sentiments which are inscribed inside the base of the Statue of Liberty. In 1858, Lincoln stated that when immigrants internalised the creed that “all men are created equal,” they “have a right to claim it as though they were blood and flesh of the men who wrote the Declaration of Independence.” Today, immigration continues to be largely supported by both major political parties. In contrast to much of Europe, America has no major political party calling for ethno-cultural policies that would see a ban on immigration. These combined factors afford Americans a world-leading standard of living. Such standards outrank all other countries of major size and geopolitical importance. US history of post-WWII dominance and leadership on the international stage has reinforced and magnified traditional conceptions of American exceptionalism: a core aspect of American national identity today.

A long-standing tradition of volunteerism is another hallmark of American national identity based on the founding values of personal responsibility, moralism and equality of opportunity. It was Benjamin Franklin who formed the first volunteer fire department in 1736, and many American militias during the Revolutionary War were comprised of volunteers. Some of the most well-known American charitable organizations, such as the YMCA and the American Red Cross, date back to the 19th century. Writing about his travels through the US in the 1830s, the French political scientist Alexis de Tocqueville frequently commented on Americans’ tendency to form voluntary civil associations. He was impressed by their desire to come together with their friends and neighbours to accomplish community goals. Today, this same tradition of civic duty and community development is exemplified by the 40% of Americans who actively volunteer their time. This figure sets the United States apart as one the most philanthropic nations in the world. The strong culture and history of volunteerism in the United States lives on today and continues to enable a highly diverse population to unite around shared goals and common purpose.

A further core element of American national identity with particular relevance today is the concept of the American Dream. While the US is a country consisting of a ‘melange of beliefs, cultures and traditions,’ its common thread is that America is the land of opportunity.  The Pilgrims realised this dream, imagining a new destiny for themselves as did the founding fathers. In the 1830’s de Tocqueville observed the ‘charm of anticipated success’ in American society and his research led him to discover that this same optimistic outlook existed among the European colonists some 200 years’ prior.The American Dream is an elastic element which continues to be a defining element of American identity in the 21st century. Athletes invoke it during championship games, immigrants leave their homes in search of it and aspiring politicians appeal to it as a basis for their candidacies. Imbued with a sense of community, the Dream speaks to people of all races, ethnicities. From its earliest settlers to its most recent arrivals, the shared hope and aspiration at the heart of the American Dream is another key unifying concept of American identity. American exceptionalism, the American Dream and volunteerism each remain central in American culture today and establish a shared American identity that is consistent with the nation’s founding ideals of freedom, personal responsibility, equality of opportunity, stewardship and hope. 

The United States of America is a wonderful country, though it is not perfect, it has never claimed to be. Today it is promising to see that the values of US Exceptionalism, giving back to one’s community through volunteering and the American Dream of a better life have endured from the nation’s founding and enable today’s American citizens to live prosperous and free lives.

Hong Kong: One Country, One System

In light of the ongoing 2019-20 Hong Kong protests, China’s ceremonial parliament has voted to bypass Hong Kong’s Legislative Council to enact dramatic national security legislation. According to the Chinese government, these new laws are intended to crackdown on ‘secessionist and subversive activity … terrorism and foreign interference’. Beijing has previously blamed the lack of a national security law for last year’s alarming anti-extradition protests. However, activists remain concerned that these laws will undermine civil liberties and bring an end to Hong Kong’s unique partial autonomy.

Hong Kong is currently governed under a “one country, two systems” model underpinned by two key documents: The Sino-British Joint Declaration and the Basic Law. These established China’s rule over Hong Kong – subject to significant caveats including the continuation of British capitalism, maintenance of the common law, protection of civil liberties and an understanding that Beijing would not directly intervene in the city for a period of 50 years from the city’s 1997 handover. Significantly, Article 23 of the Basic Law stipulates that Hong Kong shall enact national security legislation “on its own.”

While details about the application of these new security laws remain unclear, they clearly encroach upon Hong Kong’s existing autonomy from China. The ‘crimes’ stipulated in the security laws have vague definitions and could potentially include any attempts to voice dissent against the Government. Such laws may also lead to widespread arrests on arbitrary political charges, a crackdown on free speech, and the unleashing of China’s security organs, such as the Ministry of State Security and the People’s Armed Police. If these reforms are unable to bridge the divide between Hong Kongers and Beijing, then Hong Kong may remain a tinderbox of revolt for years to come.

The enactment of this legislation has prompted wide-spread criticism from international actors such as the United Kingdom, Australia and Canada. In the United States, the Trump Administration has announced that it will no longer treat Hong Kong as being autonomous from the Chinese mainland as a result of Beijing’s latest intervention. In addition to the political ramifications, Hong Kong’s status as a financial hub is now in danger. For businesses, the main value of the city is that its financial and legal systems are more transparent and fair compared to China’s. These features make Hong Kong an attractive option for both foreign and Chinese firms looking to prove their credibility in the region. Any erosion of the rule of law and freedom of speech risks undermining this appeal.

Following US President Donald Trump’s announcement that he would strip Hong Kong of its special privileges, China’s state media have taken aim at the US by comparing #BlackLivesMatter protests with the pro-democracy movement in Hong Kong. A commentary published in China Daily – a mouthpiece of the ruling Communist Party – said US politicians should do their jobs and help solve problems in the US, instead of trying to create new problems and troubles in other countries.

Chinese attempts to equate protesting in some US cities with wide-spread calls for democracy and freedom from China in Hong Kong are disingenuous and politically-motivated. At this critical time, it is important that Western media outlets critically assess China’s claims and report them for what they are. Racial tensions in the US and Chinese interventions in Hong Kong are entirely seperate issues. Failure to recognise these clear differences and blind acceptance of CCP rhetoric plays right into Beijing’s hand and may cost the people of Hong Kong their freedom.

American national identity: land of the free

National identity refers to a shared belief among a group of individuals that they form a cohesive whole due to shared history, connection to a territory and common distinctive characteristics. Within modern America there are some who question the existence of a national identity. Others argue that while a shared American identity currently exists, social division and fragmentation will result in the demise of US national identity. Contrary to such views, national identity in the United States has proven to be resilient throughout history and plays an important role in continuing to unify a diverse population.

The US was formed on the idea of “the essential dignity of the individual human being, and of certain inalienable rights to freedom and justice.” This identity is exemplified in American leaders and seminal texts such as the Declaration of Independence, The U.S Constitution and Bill of Rights, Abraham Lincoln’s Gettysburg Address and Martin Luther King Jr.’ s “I Have a Dream” speech. US national identity continues to be comprised of America’s founding ideals, evidenced through the American Dream, American Exceptionalism and volunteerism.

Puritan settler John Winthrop conceived of America as a “city on a hill,” a distinct place with a heaven-sent obligation to build a new world. In the aftermath of the War of Independence, many citizens agreed that Americans had “formed a character peculiar to themselves, and distinct from other nations.” Today, many Americans continue to perceive their nation in this exceptional light. In the era following World War II, America has made strides to become the world’s economic, military and cultural hegemon. US exceptionalism is further predicated on American’s strong tradition of successful immigration. Since its founding, America has been the ‘nation of nations’ and a refuge for the poor, oppressed and persecuted; sentiments which are inscribed inside the base of the Statue of Liberty. In 1858, Lincoln stated that when immigrants internalised the creed that “all men are created equal,” they “have a right to claim it as though they were blood and flesh of the men who wrote the Declaration of Independence.” Today, immigration continues to be largely supported by both major political parties. In contrast to much of Europe, America has no major political party calling for ethno-cultural policies that would see a ban on immigration. These combined factors afford Americans a world-leading standard of living. Such standards outrank all other countries of major size and geopolitical importance. US history of post-WWII dominance and leadership on the international stage has reinforced and magnified traditional conceptions of American exceptionalism: a core aspect of American national identity.   

A long-standing tradition of volunteerism is another hallmark of American national identity based on the founding values of personal responsibility, moralism and equality of opportunity. It was Benjamin Franklin who formed the first volunteer fire department in 1736, and many American militias during the Revolutionary War were comprised of volunteers. Some of the most well-known American charitable organizations, such as the YMCA and the American Red Cross, date back to the 19th century. Writing about his travels through the US in the 1830s, the French political scientist Alexis de Tocqueville frequently commented on Americans’ tendency to form voluntary civil associations. He was impressed by their desire to come together with their friends and neighbours to accomplish community goals. Today, this same tradition of civic duty and community development is exemplified by the 40% of Americans who actively volunteer their time. This figure sets the United States apart as one the most philanthropic nations in the world. The strong culture and history of volunteerism in the United States lives on today and continues to enable a highly diverse population to unite around shared goals and common purpose.

Another aspect of American national identity with particular relevance today is the concept of the American Dream. This refers to the belief that anyone can attain their own version of success in a society where upward mobility is possible for everyone. Imbued with a sense of community, the Dream speaks to people of all races, ethnicities and cultures. The Pilgrims realised this dream, imagining a new destiny for themselves as did the founding fathers. In the 1830’s de Tocqueville observed the ‘charm of anticipated success’ in American society and his research led him to discover that this same optimistic outlook existed among the European colonists some 200 years’ prior. The American Dream is an elastic element which continues to be a defining element of American identity in the 21st century. Athletes invoke it during championship games, immigrants leave their homes in search of it and aspiring politicians appeal to it as a basis for their candidacies. From its earliest settlers to its most recent arrivals, the shared hope and aspiration at the heart of the American Dream is a key component of American identity.

The idea of American identity is under constant pressure to change by those who experience barriers when attempting to access freedom and equality in the United States. While America’s Declaration of Independence and the Constitution proclaim universal liberty, such documents have coexisted alongside the exploitation and exclusion of black Americans and women. Despite immense social progress, some Americans argue that racism and sexism continue to divide American societies. The Black Lives Matter movement (BLM) has emerged in response to controversial law enforcement policies and police brutality against members of the African American community. At the centre of this issue is the social concern that African Americans are not afforded the same societal protection as other Americans. The #MeToo movement similarly draws upon the historic injustices encountered by American women while also raising awareness of the contemporary experiences of sexual abuse survivors. The movement exemplifies the intention of American women to seek freedom from barriers of sexual exploitation they experience, which currently prevent them from realising the full effects of freedom, equality and the hope implicit within the American Dream.

These movements both symbolise a powerful message: all Americans long for freedom, equality of opportunity and access to the American Dream. Historic and contemporary racism and sexism in the United States have prevented people from accessing these promises. In Gunnar Myrdal’s description, America has represented the ideals—not the perfect execution—of liberty. Therefore, contest within the United States does not undermine the concept of US national identity, rather the ongoing quest for greater freedom within America attempts to reconcile society with the country’s founding values, emphasising the continued relevance of core aspects of American identity: liberty, equality and hope.

American national identity is broad enough to encompass all citizens, yet powerful enough to establish a shared connection between Americans, their country and their national aspirations. Though the United States will continue to face pressure to change, American identity will remain consistent and will continue to uphold the shared culture, ideals and values which founded America. 

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