The Limiting of American Power
The New York Times reported today that the Bush administration has since 2004 secretly given broad authority to the military to carry out attacks on al-Qaeda in 15 to 20 countries including Pakistan, Syria, Yemen, Saudi Arabia, Somalia, and others. Some thoughts on the implications on American foreign policy follow.
Julian Ku at Opinio Juris comments:
[T]he question is much harder to answer as a matter of international law – indeed, it would have to be some theory of preemptive self-defense. Expect to see denunciations of these raids from international lawyers in the next few days, as well as from foreign governments on the list of countries named in the order.
As a policy matter, though, this seems by far the least controversial aspect of President Bush’s conduct of the war on terrorism. In 2004, Democratic candidate John Kerry promised to double the budget of U.S. Special Forces presumably to carry out just these sorts of attacks. And, President-elect Obama seems to have endorsed similar attacks into Pakistan.
But if President-elect Obama expressly embraces this sort of policy, will he continue to enjoy the worldwide adulation he is currently basking in? Will his “soft power” start eroding as he exercises U.S. hard power? No doubt it will.
To which I say: maybe. I think it’s correct to say this is an uncontroversial, even common sense, policy shift. I also think Ku is right to expect condemnations from international lawyers – established standards of international law would seem to pretty clearly suggest that this is a violation of sovereignty. But the advent of terrorism has obviously given rise to some difficult questions for international lawyers, and close to everybody would probably agree some evolution in norms would be appropriate. What Ku refers to as “some theory of preemptive self-defense” shouldn’t be automatically offensive to people who care about international law. The obvious connotation there is that it’s reminiscent of the legal defenses for President Bush’s invasion of Iraq. But there are plenty of limiting principles that could be placed on a legal rationale for the kind of raids the New York Times is reporting on which would preclude the sort of behavior the Bush administration has engaged in that so many in the world find egregious.
And it’s those limiting principles that I think will separate the Obama administration from the Bush administration. Recall the debate during the campaign over whether the US should claim the right to take out al-Qaeda targets in Pakistan. John McCain called Obama’s stated support for such a position “irresponsible,” but note that in the debates he didn’t say it would be bad policy, he simply said, “You don’t say that out loud.” And it seems the Bush administration agreed: it kept this policy highly classified for the past four years. Obama rejected this view and openly stated what his policy would be. And, importantly, he stated several limits on when he would be willing to exercise that power: there would need to be solid intelligence, it would have to be a high-ranking target, the Pakistani government would have to display an unwillingness to act, etc.
The same logic carries over to Guantanamo. The AP reported today that Obama plans to follow through on his promise to close down the prison at Guantanamo Bay. But the article notes that legal advisers to Obama, including Harvard’s Lawrence Tribe, may see some necessity for an alternative to the existing court system:
“It would have to be some sort of hybrid that involves military commissions that actually administer justice rather than just serve as kangaroo courts,” Tribe said. “It will have to both be and appear to be fundamentally fair in light of the circumstances. I think people are going to give an Obama administration the benefit of the doubt in that regard.”
That last sentence is an arguable one, and the devil is very much in the details. But too often progressives oversimplify the complications around Guantanamo: it is true that suspected terrorists fall into a tricky middle ground between prisoners of war and ordinary criminals. Some new way of dealing with such people will probably need to be crafted given that we are in a new age where conventional warfare is becoming increasingly uncommon.
The problem with the way the Bush administration has handled things, however, is in its refusal to place any restrictions on its own behavior, or to make those restrictions known to the world. If, in the wake of the US’s invasion of Afghanistan, the Bush administration had announced specific limiting principles on its treatment of detainees and called (in good faith) for negotiations on new international standards, America would likely not have taken such a beating in public opinion – even if we had not strictly followed every single existing international legal norm. The Obama administration won’t necessarily need to follow all these norms, as long as the method he does pursue is, in Tribe’s words, “fundamentally fair in light of the circumstances.”
Similarly, Obama should announce some specific limiting principles on when it will exercise the authority to pursue al-Qaeda targets in countries with which we are not at war. He should make these standards as transparent as possible, and make clear that these standards conform with American law. Then he should declare that he is willing and eager to listen to the rest of the world on this and other issues, and he should actually do so. A desire to craft new international standards should be displayed, and a willingness to give up some of what we might want in such negotiations should be displayed. The key isn’t to strictly follow every international norm even when it no longer makes sense to do so. The key is to make clear that we care about international norms and understand their value. If Obama does that, I don’t think his soft power will decline much at all.
Comment by Billy Joe Mills on 10 November 2008 at 11:13 pm:
Good essay, Brian. Your thoughts here remind me of how you used to think before your brain drowned in the east coast liberal gruel.
Comment by Tom on 11 November 2008 at 3:38 pm:
During the post-Napoleonic 19th Century, there was an unprecidented period of international peace in the world. It was not the enforced peace of the Roman Empire, but one in which the nations of the world enjoyed soverignty and the ability to pursue their own ends. The only major exceptions were the Crimean War and the very short Franco-Prussian War of 1870. (The American Civil War was an internal matter.)
Why did this occur? It lasted so long that it seems outside human nature, especially since there was no overwatch authority like the League of Nations or the United Nations to do peacekeeping duties.
The answer lies in the diplomats who participated in the Congress of Vienna in 1815. Von Metternich and the others understood the necessity of there being a “balance of power” between nation-states. Without such a balance, one nation, seeking its own aggrandizement, will invariably move into imperialism and therefore cause coalitions to appear against it and forment warfare. They redrew the map of Europe in such a way as to insure such a balance and created a continent where people could live in peace.
When this broke down in 1914, due to the error of the participating nations in signing interlocking “security documents” requiring them to go to war even if their interests were not at stake, a balance was not restored until 1945. Warfare between the Soviet Bloc and NATO was not directly possible due to the equality of armaments–therefore the atomic arsenals rusted in their silos while their colonies fought each other with varying results.
Since the fall of the Soviet Union, there has not been a balance of power in the world. The United States during the “end of history” emerged without peer as far as economic, military, and political power. I read the above blog article with its endorsement of the “ideals” (but not the details) of the Bush Doctrine in horror, not understanding how someone of the liberal bent could be defending pre-emptive war–the anathema of international law.
It hit me then…those of grad school age or under have not experienced a world where the United States was not allowed to do as it pleases, running roughshod over the other nations of the world. The intervention in a soverign nation, especially if that nation is unwilling to permit it, is a tactic of the darkest of historical despotism and a hallmark of a nation that believes, in its hubris, to be the “World-Spanning Empire.”
We need to end this attitude and return to the “Reverse Golden-Rule” doctrine we used before…”If you wouldn’t want it to happen to your country, don’t do it to others.”
Let me give you an example, so you can understand this on a gut level. Let’s suppose that the Soviet Union did not fall and that the United States got bogged down in such a way as to be impotent militarily. In this world, there’s a group of anti-Castro revolutionaries in Florida who are threatening to assassinate Castro and supporting other groups who caused property damage in the USSR.
How would the United States feel if the Soviets used their technology to launch a strike against targets in Miami against individuals, even ones declared criminals by the United States? We would consider this to be no less than an act of war and respond accordingly.
It is only the lack of a balancing opposing nation that has allowed the United States to go down this path to empire. It should be the duty of the newly-elected President of the United States to reject this doctrine and take other, more reasonable steps to protect our soverignty, keeping in mind that we had few problems with the Moslem world until we supported the Shah’s brutal dictatorship and placed American troops in Beirut.
It’s time for a sane foreign policy. Let’s return to being the world’s shining example, rather than its schoolyard bully.
Comment by Brian Pierce on 11 November 2008 at 4:04 pm:
That’s interesting stuff, Tom, but I think you’re misunderstanding what I’m saying. I’m not disagreeing with the “details” of Bush’s approach. When I say there should be clear limiting principles and a genuine push for common international standards in an age of non-governmental actors like terrorists, I’m agreeing with your view of a “balance of power.” The US does need to reign itself in, and it does need to look at things through the lens of the “Reverse Golden Rule” you cite. But to take your hypothetical, if the United States were harboring a group that was a genuine threat to Cuba’s sovereignty, and if the United States refused to do anything to stop this group’s illegal and violent activity, and Cuba gathered broad international support for a policy of highly limited, transparent, and rare incursions into US territory in response to the US’s inaction, that would not be necessarily out of bounds – indeed, it would be quite understandable.
In any case, we do fundamentally agree – neither of us thinks the US has any basis for doing what it pleases without restriction. Neither of us thinks the US is an “exceptional” nation. It’s the two of us who disagree on details, not me and Bush. (I suspect that if we had a more detailed discussion, the two of us would disagree in other fundamental ways unrelated to this particular issue, but that’s a conversation for another day.)
Comment by Tom Trumpinski on 11 November 2008 at 6:16 pm:
So, you’re saying that under certain circumstances, a strike by a hypothetical Soviet Union on the United States would be understandable, not out of bounds, if there was “broad international support”? Even though we’re talking about despotic states?
I think we disagree on more than details.
Comment by Brian Pierce on 11 November 2008 at 8:44 pm:
You of all people, Tom, surely do not believe that merely because a state is despotic it sacrifices its sovereignty and its right to self-defense, no? And surely you don’t believe that merely because the United States is a democracy it can harbor terrorists without repercussion?
Comment by Tom Trumpinski on 11 November 2008 at 9:57 pm:
I believe that in order to have peace in our imperfect world, national soverignty must be respected unless that nation state willingly attacks first, no matter whether we approve of that governmental form or not.
So, no, a despotic state must keep both its soverignty and its right to self-defense. A form of government that we dislike is not grounds for crossing a border without a declaration of war.
On the other hand, since the United States is a democracy and has rule of law, it should not harbor terrorists…as a matter of fact, it should prosecute them as criminals, AS I MENTIONED IN MY EXAMPLE.
Now, there is an intermediate situation where a nation state harbors terrorists willingly. Such a situation could be grounds for war, assuming that enough of an attack was made on the receiving country and the support of the harboring nation is purposeful and meaningful. It is then the duty of the attacked country to either declare war on the nation harboring the terrorists or work through diplomatic means to convince, by compromise, the harboring nation to prosecute the terrorists.
(This was used successfully used in the real world to bring Libya back into the status of “non-terrorist” nation, so it is possible to do this.)
It comes down to these three simple rules:
1) Don’t attack another nation first unless they, attack you first, no matter whether you agree with them or not, even if individuals from that country have done you damage.
2) Use diplomatic means to encourage countries harboring terrorists (who did you measurable damage) to turn them over. If that fails, you can then either declare war on that nation or increase your defenses to stop another attack.
3) Under no circumstances can a soverign state’s borders be violated short of a declaration of war.
This was the policy of the United States of America prior to 1986. We got along just fine with the rest of the world, without any terrorist attacks in our nation whatsoever. It was after the pre-emptive and retaliatory doctrine was promoted that terrorist attacks on our soil began.
Comment by Brian Pierce on 11 November 2008 at 11:35 pm:
I agree with all of that except the formal declaration of war stuff. The world, in my mind, doesn’t work like that anymore, and in situations where time is of the essence, we can’t wait for a declaration of war and we can’t make our actions immediately known to the world. But we CAN make our policies transparent beforehand, ensure that those policies are seen as legitimate by the rest of the world, act on those policies in a limited manner, and be honest in the aftermath.