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Abstract:
The reality of criminal enforcement depends only in part on the content and interpretation of criminal statutes. Criminal justice is also powerfully shaped by regulatory rules, civil penalties, and the detection strategies that investigators and prosecutors use to learn about offenses. Together these components can interact to produce a distribution of punishments radically disconnected from the justifications given for the criminal statutes. This article examines the fight against money laundering as a case study illustrating this dynamic. To launder money is to hide its illegal origin. The fight against money laundering is supposed to disrupt laundering in its various forms - especially what is done by third party launderers and leaders of criminal organizations. In the process, the fight is supposed to interfere with the activities of people who finance and profit from crime. Yet this fight delivers less than what it promises.

Like many other enforcement systems, the fight against money laundering involves three major components: statutes with criminal penalties charged by prosecutors, rules administered by regulators, and detection systems primarily run by investigators. A close analysis of its three components reveals the fight to have quite a limited scope, involving (1) the disproportionate imposition of severe penalties on predicate offenders who are easily detected; (2) lax and narrowly-focused regulatory authority; (3) limited capacity to detect a range of chargeable domestic and international offenses; and (4) global diffusion of a fight against money laundering that leaves implementing authorities plenty of room for discretion and lax enforcement.

These limitations probably arise not because of blindness or bad intentions but because the major players involved in running the system - including legislators, prosecutors, investigators, and regulators - face a tangle of incentives that leads them to dilute the intensity and scope of enforcement against some targets and to enhance the sanctions faced by other targets. While there is some evidence that suspicious activity reporting probably helps identify drug money placement in banks, the system seems ill-suited to detecting and disrupting the larger universe of criminal financial activity that is so often vilified by the rhetoric justifying the fight against money laundering. All of this makes it hard to target terrorist financing using the anti-laundering system, even though it is easy to freeze assets allegedly linked to terrorism. Some changes in the system, such as enhancing audit trails and strengthening suspicious activity analysis, could be defended in the name of making the system work, though politics would make their ultimate consequences hard to predict. In the meantime, any inequities in the detection of predicate crimes end up being reproduced in money laundering prosecutions, and the system's most compelling objectives - detecting crimes in a new way, and targeting third-party launderers and leaders of criminal networks - seem mostly beside the point.

money laundering, criminal finance, terrorist financing, political economy of regulation, enforcement discretion, transnational crime, regulatory policy, bureaucratic organizations

Abstract:
This article empirically examines participation in three regulatory rulemaking proceedings, involving financial privacy, nuclear regulation, and campaign finance. It then uses that analysis to critique - and suggest alternatives to - existing mechanisms to achieve public participation in the regulatory state. Under existing law, agencies writing regulatory rules receive input only from those who decide they have sufficient resources and interest to send it - such as organized interest groups or companies facing compliance costs under the new rule. While some consider this demand driven process close to ideal, other observers instead seem to accept the current approach only because it appears to be a reasonable compromise adequate for an imperfect world where legitimate aspirations for widespread public participation meet real world constraints such as limited public attention to complicated regulatory issues. Under this compromise acceptance view, current procedures seem easier to accept in light of certain empirical suppositions, such as that regulatory problems can be resolved through the application of technical, scientific expertise; that individual members of the public tend to lack interest in participating in regulatory policymaking; and that even if they had such interest, they would add little to a process already informed by the views of organized interests. Drawing on an empirical analysis of thousands of public comments on these three regulations as well as a rich empirical literature in political behavior, I question many of these suppositions. (1) Contrary to conventional wisdom, comments from the lay public make up a substantial proportion of total comments about some regulations, showing at least some potential public demand for participation. (2) Dramatic differences exist in the sophistication of comments from interest groups versus individual members of the public, even though laypeople nearly always raise concerns that are relevant to the agency's legal mandate. (3) Sophistication affects the agency's acceptance of suggestions in public comments even when controlling for differences in the person or organization making a comment. (4) Interest groups do not always raise the range of concerns raised by comments from the lay public. (5) The larger public's interest in a particular regulation, and its sophistication to take part in discussing it, are both themselves shaped by the process of how the public is consulted. All this hints at a rich set of possibilities for alternative institutional designs to involve the public in specific regulatory decisions and enhance governance as a whole. I argue that such alternative institutional designs are feasible, and that they would provide regulators with valuable expanded knowledge about how informed members of the public react to regulatory rules. A principled defense of the current approach would therefore rest most plausibly either on an idealized conception of representative politics and interest group politics, or on a sense that no changes to regulatory democracy are politically feasible. Both of those positions need to be defended, and many such defenses are far from satisfying.

Regulation, direct democracy, financial privacy, public funding of campaigns, nuclear energy, legal theory, empirical analysis of bureaucratic institutions, political economy

Abstract:
This Article examines U.S. opposition to the International Criminal Court (ICC) as a case study in how domestic and international politics shape discourse against new treaty-based legal obligations. When it comes to the ICC, official U.S. government discourse repeatedly alleges process-oriented shortcomings, particularly procedural due process problems and risks of prosecutorial abuse. This tendency to emphasize process-oriented arguments is borne out in a sample of public documents with dates between February 2001 and February 2003, where U.S. government officials made statements opposing U.S. participation in the ICC. Procedural due process and prosecutorial abuse claims account for about 80% of the lead arguments (i.e., arguments mentioned first in a series and developed in the most detail), and about 62% of the total arguments in the sample.

Just as process arguments about domestic criminal law sometimes masquerade for positions about substantive law, the process arguments against the ICC appear to under-explain the vehemence of U.S. rejection of the court. The ICC's procedural protections for defendants tend to be comparable to those in the U.S., and it is not obvious that the court's prosecutor will be free from at least some legal, political, and economic forces that also impact U.S. prosecutors. Conversely, even if the court copiously observed procedural safeguards and the prosecutor only proceeded with the utmost fidelity to the substantive law, the underlying international law the court would enforce would still interfere with unfettered military discretion likely to be valued by a number of U.S. domestic constituencies.

Despite their legalistic pedigree, the process-focused arguments and the underlying rejection of the court by the U.S. government appear to reflect the impact of international and domestic politics. A focus on procedure sounds marginally more principled to international audiences than a brute realist assertion that American interests are best served by keeping unfettered control of military decisions. The process arguments and rejection of the ICC exemplify the sort of discourse that can appeal to members of the public forming opinions about foreign policy that in turn shape more general evaluations of the government. Yet this comes with costs: It elides debate over the value of the brute realist position that American military power should be subject to few meaningful constraints, and instead makes it look like the most important question is about the procedural shortcomings of a court that is precisely meant to address the arbitrariness in international criminal justice that critics use to assail it.

International Criminal Court, Political Economy of Treaties, Criminal Enforcement, Law and the Political Process

Abstract:
While nation-states often possess substantial legal powers to punish transnational crimes such as money laundering, terrorism, drug trafficking, and international corruption, they frequently lack the capacity to focus such powers on the most serious offenders and threats. Power reflects a nation-state's authority to legitimately coerce individuals or organizations in an attempt to achieve some objective desired by policymakers. The hallmarks of power are expansively-worded criminal statutes that can be applied domestically or extraterritorially and extensive regulatory powers that can be imposed with minimal judicial intervention to detain people, effect forfeitures of bank accounts, freeze assets or impose civil penalties. Capacity, meanwhile, describes the nation-state's ability to detect the most serious offenders and to effectively focus its extraordinary legal powers specifically on them.

This article uses the global attack on criminal finance to highlight some of the agency problems created by the separation between power and capacity in transnational law enforcement, where the public (acting as "principal") may have trouble evaluating the work of government officials (the "agent"). "Criminal finance" refers to financial activity associated with funding or profiting from crime. The global attack on criminal finance is the most ambitious legal response to transnational crime: the conduct targeted in this attack includes both willful and also merely negligent conduct, the tools used to wage the attack include criminal penalties as well as regulation, and the predicate offenses range from drug trafficking to public corruption to terrorism.

While there are principled reasons to pursue a global attack on criminal finance, in practice the attack may demonstrate a pattern of separation between state power and state capacity. (1) The offenses most likely to be punished may often be the ones that can be most easily detected, which are rarely "serious" in any defensible sense. Interest groups may oppose regulatory policies designed to enhance detection capacity. (2) Given their incentives, policymakers in developing countries may adopt new laws and regulations without changing underlying patterns of non-enforcement against criminal financial activity. (3) Some kinds of criminal financial activity - whether impelled by intrinsic objectives or a craving for profits - will remain extraordinarily difficult to deter, because of offenders' motivations and their ability to substitute among different types of transactions. (4) Executive officials often have incentives not to make the investment in creating capacity. Instead they may prefer to use their powers to create an impression of greater security, even in the absence of the capacity to impose substantial costs on the most troubling offenders, or to detect them.

As with other challenges in transnational law enforcement, the global attack on criminal finance evinces a trend toward growth in state legal power - a trend as clear as the extent of capacity is opaque. I explain how the gap could be narrowed in specific and rare circumstances, such as when swing voters are disproportionately sophisticated, or when exogenous shocks dramatically improve the efficiency of investigative methods and technologies. Without these developments, the seductive scenario where the nation-state actually augments its capacity by expanding its legal powers will remain on the horizon, tantalizingly close - but perhaps relentlessly out of reach.

Transnational law enforcement, terrorism, political economy,regulatory policy, international crime, law and the political process.

Abstract:
This article discusses some of international law's contributions to international security, focusing primarily on the United Nations Charter and related doctrines that emphasize the importance of national territorial sovereignty. I analyze the Charter system's promise and limitations in dealing with certain persistent international security problems, including the existence of noncompliant states, threatening non-state actors, and normative challenges to expansive conceptions of national territorial sovereignty. I report data indicating that the United Nations framework -initially designed primarily to prevent aggressive war - has largely failed to contain violent international crises or to grapple with increases in the prevalence and intensity of civil war. To assess the importance of dealing with internal civil conflict in addition to aggressive war, I estimate the average length and intensity of civil wars taking place during several periods in history. The length of an average civil war has increased from just over 20 months in the 1901-1950 period to about 60 months in the period from 1951-1992, and intensity (measured by the number of battle deaths per hundred thousand people in the population of the country in question) has increased from under 3 (in the 1901-1950 period) to over 6 (1951-1992). I then review theories supporting the claim that international law can contribute to security despite the continuing extent of global conflict and violence, and conclude by discussing strategies to reform the United Nations system and enhance international law's contributions to peace in light of those theories. In particular, I emphasize the importance of two issues that affect international law's contributions but have not received sufficient attention. The first is the need for more empirical analysis of when domestic political bargains become sensitive to international law. The second issue concerns how international law should structure the choice between imposing collective sanctions on the people of a nation-state and using targeted remedies even if they involve incursions into a nation's territorial sovereignty. To address both of these issues, international law scholars may have to further reexamine assumptions about national territorial sovereignty long identified with international law.

United Nations, international security, international law and domestic politics, nonstate actors, regulation of conflict, collective sanctions, sovereignty, civil conflict

Abstract:
Policymakers fight over bureaucratic structure because it helps shape the legal interpretations and regulatory decisions of agencies through which modern governments operate. In this article, we update positive political theories of bureaucratic structure to encompass two new issues with important implications for lawyers and political scientists: the implications of legislative responses to a crisis, and the uncertainty surrounding major bureaucratic reorganizations. The resulting perspective affords a better understanding of how agencies interpret their legal mandates and deploy their administrative discretion.

We apply the theory to the creation of the Department of Homeland Security. Two principal questions surrounding this creation are (1) why the president changed from opposing the development of a new department to supporting it and (2) why his plan for such a department was far beyond the scope of any other existing proposal. We argue that the president changed his mind in part because he did not want to be on the losing side of a major legislative battle. But more importantly, the president supported the massive new department in part to further domestic policy priorities unrelated to homeland security. By moving a large set of agencies within the department and instilling them with new homeland security responsibilities without additional budgets, the president forced these agencies to move resources out of their legacy mandates. Perversely, these goals appear to have been accomplished at the expense of homeland security.

Finally, we briefly discuss more general implications of our perspective: first, previous reorganizations (such as FDR's creation of a Federal Security Agency and Carter's creation of an Energy Department) also seem to reflect presidential efforts to enhance their control of administrative functions - including some not directly related to the stated purpose of the reorganization; and, second, our analysis raises questions about some of the most often-asserted justifications for judicial deference to agency legal interpretations.

Homeland security, national security, bureaucracy, legislation, positive political theory, organizational design, regulatory policy, administrative law, Katrina, FEMA, Coast Guard

Abstract:
Executive branch officials routinely make thousands of decisions affecting public security and welfare. While it is rare that such discretionary decisions are entirely immune from some kind of judicial review, courts' role is often so circumscribed or deferential that in some domains the probability of uncovering problems through such review almost certainly falls close to zero. The resulting amount of executive discretion carries considerable risks along with rewards. Some discretionary decisions undoubtedly benefit from the speed and flexibility associated with limits on judicial review. Yet judicial review's evisceration as a tool to restrain certain forms of discretion also makes it easier for some officials to promote appealing political impressions by subtly manipulating decisions, for others to engage in outright malfeasance, and for still others to simply fail to correct mistakes. Reliance on judicial review to generate information about executive discretion makes it difficult to address these concerns because courts routinely define much of their work in terms of applying the same standard of deference to every case in a particular class, limiting possibilities to increase the stringency of review in some policy domains without making the costs allegedly prohibitive. As a conceptual alternative for monitoring executive discretion, this article develops a framework akin to that employed by courts engaged in the sample adjudication of class action and government fraud cases. It relies on the possibility of systematically auditing samples of discretionary decisions and making those results public. Although the efficacy of such a system depends on the political context and details of its institutional design, audits have the potential to sever the connection between the perceived costs of encroaching on discretion and the stringency of review. They also avoid the potentially distorted picture of bureaucratic activity created by a litigation-driven process. Despite their value, such audits are nonetheless almost never undertaken by existing federal audit bureaucracies, nor does the legislature seem to conduct them in connection with oversight hearings. I discuss the political and bureaucratic dynamics working against these audits, suggesting how they may be weakened, and conclude by discussing three implications of the analysis. (1) Judicial review fails to constrain a broad range of discretionary executive decisions subject to mistakes or malfeasance. (2) The limitations of traditional judicial review do not imply that discretionary executive branch decisions should be immune from some form of review. (3) Arguments for broad executive discretion are often radically underdeveloped and fail to withstand scrutiny.

Political economy of discretion, law and organization, audits, administrative law, GAO, Inspector General, regulation, national security

Abstract:
Long understood as a specialized branch of law applicable to unambiguously harmful transgressions, criminal law has become instead a mechanism for routine social regulation. As Jonathan Simon puts it in a recent book on the subject, politicians increasingly govern through crime, by framing social policy choices as criminal justice problems. Such choices, in turn, engender expansive criminal jurisdiction, powerful enforcement bureaucracies, and ever more capacious concerns about crime-control. This essay makes three arguments in response to the idea that society is governed through crime. First, it explains why Simon's description of the crime-governance nexus yields important contributions to our understanding of law in its social context. These include a rich historical account of the connection between crime control and the power of the American nation-state, along with the idea (which I term contagious framing) that certain approaches to governance problems are capable of spreading across time, space, and subject-matter. Second, it analyzes the range of different political dynamics affecting criminal justice - including some beyond the scope of Simon's project - and considers their effects. Though aspects of the governing through crime phenomenon unquestionably yield troubling results, the multiple dynamics driving criminal justice complicate its evaluation. Criminal enforcement engenders a punitive and encarceral machinery of staggering scope, but also fosters organizations with distinctive capacities to engage in social regulation. The institutional realities identified with governing through crime - including the prominent role of prosecutors and attorneys general, the use of expansive criminal statutes to manage risks, and social programs justified on the basis of crime prevention - draw political support from multiple sources, not all problematic. This mixture of causes and results makes it harder to generalize about the crime-governance nexus, but provides a more descriptively convincing account of criminal law's role. Third, because the crime-governance connection has distinct manifestations and origins, reshaping it to achieve more defensible social goals is a subtle enterprise. Sensible changes in criminal justice could almost certainly yield an acceptable social equilibrium less dependent on incarceration. That society, however, will likely feature a continuing nexus between crime and governance powerfully rooted in the nature of the modern nation-state.

Political economy of regulation, politics of criminal justice, preference-formation, criminal law, organizations, governance, security, bureaucracy, Jonathan Simon

Abstract:
American public law is affected by two important dynamics impacting the relationship between citizens and their government: how the executive branch defines national security, and how politicians compete to secure control of the vast public organizations through which governments implement the law. This article analyzes the intersection of these dynamics by investigating the now-forgotten history of the U.S. Federal Security Agency (FSA) and drawing perspectives from separation of powers, organization theory, and the study of American political development.

In 1939 the Roosevelt White House overcame strong political opposition to centralize vast legal responsibilities within the FSA. Soon after its creation, the agency had acquired responsibility for social security, education, drug regulation, protection of the food supply, civil defense preparedness, supplying employees to war-related industries, facilitating the relocation of Japanese-Americans, anti-prostitution enforcement, and biological weapons research. By 1953, the FSA engendered one of the most important American bureaucracies of the 20th century: the Department of Health, Education, and Welfare. Yet little is known about precisely how or why the White House fought to create the FSA, why the agency pervasively mixed domestic regulatory and national defense functions both before and after World War II, or what its creation wrought for the legal mandates entrusted to the agency.

The analysis reveals how, on the eve of World War II, the White House sought to use the restructuring to achieve greater control over the agency's multiple domains of legal jurisdiction by building oversight capacity in an organizational environment more congenial to the bureaus' functions. It then used that control to publicly promote a broader conception of the "security" issue that held the prospect of more thoroughly protecting domestic programs important to the Administration. And by rendering ambiguous the distinction between domestic and international security functions, the Administration enlarged support for some of its signature programs at a time when the New Deal legislative coalition was eroding. In effect, the agency's amalgam of legal functions epitomized the Administration's ambitious conception of "security," which became sufficiently elastic to encompass legal responsibilities now routinely segregated into domains involving social services, economic security, health regulation, and geostrategic national defense. The creation of the FSA also appears to have fomented more subtle (intended and unintended) impacts on matters such as the organization of congressional committees overseeing the agency's legal functions, and the prospects for bureaucratic autonomy among the agency and its bureaus.

These dynamics illustrate limitations in prevailing theories of law and organization emphasizing deliberately engineered bureaucratic failure or purely symbolic position-taking. They also showcase the connection between the design of public agencies, separation of powers, and the ambiguities inherent in the definition of "security" as a category of government responsibility. History reveals how presidential administrations and bureaucratic actors once used that ambiguity to bolster political coalitions supporting social welfare and regulatory mandates. The recent spike of interest in homeland security is furnishing similar opportunities to reshape the domestic regulatory state.

National security, administative law, positive political theory, bureaucracy, organizations, discretion, Franklin Roosevelt, New Deal, Federal Security Agency, Department of Health, Education, and Welfare, homeland security, Public Health Service, FDA, Social Security, separation of powers

Abstract:
In the months and years following September 11, senior al Qaeda strategists and sympathizers disseminated a series of manuscripts revealing the terrorist network's aims and its internal management dilemmas. This Article elucidates how policymakers can better evaluate changes in counter-terrorism laws and policies by scrutinizing the goals and internal organizational problems of terrorist entities. Conventional wisdom paints terrorist networks such as al Qaeda and state bureaucracies in advanced industrialized countries as starkly different. Al Qaeda and its allies are assumed to pose particularly severe dangers because they are flexible, adaptable, decentralized, and staffed by committed supporters with a common goal. By contrast, state bureaucracies in advanced industrialized nations are often described as suffering from plodding, rule-bound decision-making structures that hobble their response to our nimble adversary.

But a closer look at al Qaeda's own strategic studies - read in light of social scientists' emerging analyses of terrorist organizations - reveals a more complex picture. In it, the distinction between terrorist networks and bureaucratic agencies is less pronounced than commonly supposed. Both entities face pervasive problems involving the harnessing of expertise, the resolution of conflict among politically important players, reconciliation of competing goals, restraints on overzealous action, building public legitimacy, and monitoring subordinate activity. By scrutinizing terrorist networks as collective entities with conflicting goals facing elusive administrative problems, we can better understand three things: (1) that, in fact, terrorist networks have repeatedly sought to develop administrative procedures and law-like hierarchical arrangements to manage their problems; (2) that the efficacy of counter-terrorism strategies depends crucially on the extent to which they exacerbate (at a reasonable cost) rather than diminish these networks' administrative problems; and (3) that legal arrangements characteristic of U.S. public law - particularly those governing the administrative decisions of bureaucratic institutions - are valuable in part because they help the nation avoid the same type of problem that terrorist entities are trying to solve in their own context.

Political economy of discretion, organization theory, bureaucracy, terrorism, administrative law, al Qaeda, intelligence, hierarchy, national security law

Abstract:
While the refugee protection system is one of international law's most recognizable features, it routinely places massive numbers of refugees in camps in the developing world, where they face chronic threats to their physical security from crime and disorder, physical coercion, and military attacks. Yet key actors responsible for refugee protection, including host states, advanced industrialized countries, and the United Nations High Commissioner for Refugees (UNHCR), have failed to prioritize refugee security. This article asks: (1) Why? (2) What have been the consequences? (3) And what do these answers reveal about how organizations carry out legal mandates in complicated political environments? Conventional wisdom holds that security only recently became a major problem in the refugee protection system, that UNHCR's role in enhancing refugees' physical security is limited by the agency's legal mandate and practical constraints, and that problems of violence and physical security are largely episodic concerns affecting small numbers in discrete refugee populations. Drawing on historical documents, interviews, data on budgets and performance measures, and legal doctrine, I show this conventional wisdom to be wrong. Only some of the problems associated with the current system can be explained by international geopolitics or by legal compromises reflected in refugee law. Instead, that system's brutal realities also reflect the intersecting effects of bureaucratic dynamics, political pressures, and legal interpretations shaping the discretionary choices of UNHCR and its nongovernmental organization partners. I develop the argument by tracing the remarkable history of UNHCR as it transformed itself from a refugee advocacy organization with a limited mandate into a modern relief agency. This evolution helps explain the persistence of security problems, and sheds light on the challenges of implementing ambitious legal mandates under uncertainty, particularly when the organizations doing so operate in complex political environments.

Political economy of discretion, law and organization, refugees, UNHCR, international institutions, bureaucracy, autonomy, institutional redefinition

Abstract:
Criminal justice plays a major role in regulating undesirable conduct. As part of that role, the system relies on deterrence, incapacitation, and the shaping of social norms and preferences in an effort to prevent conduct considered harmful. But that preventive role is routinely misunderstood. This paper rethinks preventive enforcement by training attention on the relationship between criminal law and the institutional realities affecting risk regulation in environmental, health, and national security regulation. First, while not denying a host of problems with the expansive reach of criminal enforcement, the article describes how the structure of criminal enforcement does not draw particularly stable or convincing lines excluding risk regulation from its domain. Distinctions between administrative regulation and criminal enforcement therefore blur on the issue of whether preventing harm and regulating risks are crucial goals, but remain important with respect to matters such as type of sanction available (a commonly appreciated distinction) and type of agency used for enforcement (a less-commonly appreciated distinction).

Second, the analysis trains attention on preventive enforcement in a world where social regulation faces a variety of institutional constraints and where multiple political dynamics drive expansive criminal liability. In such a world, a coercive and costly darker side of criminal justice coexists with the socially-valuable institutional characteristics of law enforcement organizations. As examples from food and drug regulation, environmental policy, and national security demonstrate, the mix of unique sanctions and procedural constraints associated with criminal enforcement have distinct institutional effects on public agencies. Specifically, the criminal justice system is capable of fostering a measure of autonomy that often eludes conventional regulatory agencies, provides incentives for investigative competence, and creates contextual effects in the choice of sanctioning regime, allowing politicians to signal the national state's competence to a potentially skeptical public.

This perspective does not necessarily legitimize all preventive criminal enforcement. Instead, three major implications follow from the analysis. (1) Policymakers should rethink the unfavorable comparisons of law enforcement to intelligence agencies in the national security context. (2) Society should recognize that circumscribing preventive criminal liability has subtle and underappreciated costs for regulatory policy. (3) Scholars should better appreciate the interdependence between legal mandates and the evolution of organizations. By ignoring or minimizing the importance of criminal enforcement's distinctive institutional structure, however, scholars and policymakers have often misconceived the central role of criminal enforcement agencies in advanced industrialized states, providing policy prescriptions that are at best incomplete and at worse perverse and highly problematic.

Criminal justice, risk regulation, organizations, bureaucracy, administrative law, political economy of discretion, health and safety, national security

Abstract:
Although the global refugee population has dropped by a third since 1980, to 8.4 million, serious refugee problems continue to fester throughout the world. Most refugees live a marginal existence in sprawling camps in the developing world where they are subject to the threat of violent attacks from combatants, coercion, and banditry. Millions of internally displaced people are on the verge of becoming refugees if they cross international borders. And the civil strife, official brutality, persecution, and ethnic cleansing currently fueling refugee flows show no signs of abating. These realities raise important questions about the role of geostrategic interests and humanitarian goals in a world of competing nation-states, and particularly about the role of the United States in addressing global refugee problems.

In response, this essay makes three points. First, despite its historic focus on asylum and resettlement, American refugee policy - which constitutes a major part of the global response to mass human displacement - should focus more than it currently does on the millions of refugees living in camps in the developing world. Only a tiny fraction of the refugee population ever makes it to an advanced industrialized country; the fate of those left behind can impact the spread of conflict, atrocity, and political instability around the world. Second, American officials could enhance refugee policy by adopting a number of strategies sensitive to institutional and political constraints. These include enhancing bureaucratic capacity to identify and resettle refugees through existing U.S. resettlement programs, focusing greater funding and attention on policing in refugee camps, and preparing for potential refugee influxes in this hemisphere by designing responses that honor international legal commitments but realistically provide for international cooperation in meeting refugee burdens. Third, arguments advocating the primacy of national interests over humanitarian goals do not settle - but instead simply raise - the question of how humanitarian policies relate to the interests of the domestic public. At least one principled answer to that question would focus on how a pragmatic, strategic approach to humanitarian problems supports substantial American engagement with refugee problems, whether these arise nearby in the Caribbean or across the world in Darfur. Idealism without limits is all but impossible. But a policy of limits without idealism in a world capable of engendering such capacious misery and expectations of American leadership poses its own dangers.

Refugees, international law, humanitarianism, bureaucracy, political economy, international security, American foreign policy

Abstract:
This paper examines a little-noticed way in which the burgeoning focus on homeland security since the attacks of 9-11 has affected domestic regulatory policy. It argues that the government reorganization that took place when the Department of Homeland Security (DHS) was created, which included converting the U.S. Coast Guard into a bureau within the vast new DHS bureaucracy, is taking a toll on protection of the environment. The analysis focuses particular attention on the Coast Guard, which has significant responsibilities for protecting the environment; indeed, it has over twice as many employees as the entire Environmental Protection Agency, and its employees work on missions of comparable environmental importance. The Coast Guard is charged with limiting risks from dangerous oil spills, guarding against toxic chemical leaks from ship engines, regulating the cruise ship industry, and protecting against over-fishing and the elimination of marine endangered species. But as part of DHS, the Coast Guard's environmental mandate is being eclipsed by other priorities, and its already-scarce resources strained by new demands. The result has been a significant decline in the hours it devotes to environmental protection activities, the size of the budget it allocates to them, and the regulatory actions it is taking on critical environmental matters. These changes reflect larger forces allocating scarce public attention among different domains of public policy, thereby affecting the competition for control of the regulatory state. They also showcase the extent to which Congressional oversight can play a role in supporting the significant environmental and regulatory responsibilities of DHS.

Regulatory policy, homeland security, Coast Guard, Department of Homeland Security, bureaucracy, accountability, administrative law, political control