Opinio Juris

Following up on my previous post, and as Peggy pointed out, one of the themes in America Between the Wars is the struggle to “define the era” since the fall of the Berlin Wall and to provide a grand strategy, much in the same way as George Kennan’s “X” article had provided the intellectual underpinnings for the policy of containment of the USSR.

Even if the efforts to define the era turned out to be, in Daniel Benjamin’s words, a “waste of time” because “[i]t wasn’t what you were going to call it that was important but what you were going to do,” (p.71), it is still an issue we struggle with. We still have debates about how to define the current international system (as opposed to defining our response to the threats within that system). Are we living in the Post Cold War? The Post Post Cold War? The Post 9/11 Era? The Long War?

It’s all just semantics unless if the various terms signify a real difference in world view. For example, someone who (still) calls this the Post Cold War world may imply that the changes caused by the Cold War--the foundering of the USSR, the rise of the newly independent states, the rise of China, etc.--are the defining characteristics of our time. And, consequently, these are the issues on which we should focus. Someone who calls this the 9/11 World or the Long War (perhaps—I don’t want to imply that this is specifically Ben Wittes’ world view) may consider the rise of non-state actors as being the primary threat around which our new grand strategy should be organized.

Of course, US strategy can’t respond to China or Russia or al Qaeda. It needs to be able to answer all threats and issues. The issue of definition is one of emphasis. In a world of resource constraints, what should be #1 on the agenda? Why?

So, in this sense, ideas matter. (See Judith Goldstein and Robert Keohane’s book Ideas and Foreign Policy for an in depth consideration of how ideas affect foreign policy and vice versa.) A telling comparison is between the Clinton foreign policy team of the early years as opposed to his economic team led by Robert Rubin and Larry Summers. Chollet and Goldgeier quote an NSC official who said of the economic team: They “were a group wielding disproportionate power because they had an intellectual concept and discipline.” (emphasis mine.) Having an overarching world-view is not the only reason Rubin and Summers were especially effective. But it helped.

America Between the Wars brings back to the foreground the Washington-insider debates of the 1990’s. While Kennan had suggested to the Clinton team that they set aside finding a “bumper sticker” and instead write a few good paragraphs, it is clear that the foreign policy wonks were in theoretical overdrive. Chollet and Goldgeier’s narrative discusses, among other essays, speeches, and memos: Samuel Huntington’s Clash of Civilizations, Francis Fukuyama’s The End of History, Tony Lake’s “democratic enlargement” speech, Michael Mandlebaum’s “foreign policy as social work” critique, Robert Kagan and Bill Kristol’s “benevolent global hegemony,” Robert Kaplan’s Coming Anarchy, Madeleine Albright’s “assertive multilateralism” speech, as well as memos by Dick Cheney, Lawrence Eagleberger, and others. The problem with the 1990’s was not that we had too few ideas. The problem was choosing which one or ones we should emphasize in our actual policies.

Daniel Benjamin was right: it’s not what you call it, it’s what you do about it. (Even Kennan’s strategy of containment would not have amounted to much were it not for the Marshall Plan, NSC-68, etc.) However, whether or not you even perceive a problem can affect your policy response. In 1993 pretty much all the foreign policy elites across the political spectrum thought Somalia was a strategic backwater. In the revisionist history of some conservatives, they now say Somalia was the front line in a new war being waged by al Qaeda (and this was missed by the Clinton Administration). But few people had actually appreciated the danger of failed states like Somalia or Afghanistan because these issues (and the risk of terrorism) were not significant factors in any of these theories (except, perhaps for Robert Kaplan’s Coming Anarchy and The Ends of the Earth and Martin van Creveld’s The Transformation of War, which I understand was much-read in the DoD of the 1990’s).

So, one lesson I take from America Between the Wars is that in the interplay of ideas and foreign policy, it is the decision to adopt a worldview and act on it that makes it seem accurate in retrospect. You need to get people to see the world as you see it in order for an era to truly seem as such. In the early days of the Cold War, many Americans had to be convinced that Russia was a threat. At the time, there was no general agreement that "containment" was required or even wise. A grand strategy rarely just rises out of the fog. You need to adopt it and sell it.

A second, related, lesson is that you need to choose your worldview carefully. We need to be careful about what we missed and what we are missing in our description of world events. If you don’t factor in certain threats, then those threats may end up overtaking you and your theories about the international system. Conversely, if you don’t factor in certain aspects that are in your favor, then you may squander opportunities.

The strength of grand theory—that it helps organize responses and resources—is also its weakness: you find yourself responding to a simplified model and not the real world.

And finally, third: I am skeptical when one claims they have "no worldview" or "no grand theme." Those who claim not to have a particular "vision" are often merely blind to their own ideological bias. Despite the "vision thing" disclaimer of the Bush I Administration, Scowcroft and Baker actually hewed a fairly traditional realist strategy, with some nods to multilateralism. They shied away from the internal affairs of states, they placed military issues at the top of foreign policy, they down-played economic issues and human rights, they emphasized great power diplomacy and largely ignored events of the "periphery." If this needed a bumper sticker, I would call it "Business As Usual."

The problem was that their worldview factored out many of the key issues that would define the post 11/9 world. Whatever that is.

Before turning to some of the broader themes that Chollet and Goldgeier have set out, in this post I want to focus our readers on two quotes from one person. The authors describe how, in the days after the 1991 Gulf War, an interested party was asked about why we did not drive all the way to Baghdad and oust Saddam. (I won’t say yet if it was an Administration official, another politician, or a think tank expert.) The answer, even in 1991, was prescient:

“Once we got to Baghdad, what would we do? Who would we put in power? What kind of government would we have? Would it be a Sunni government, a Shia government, a Kurdish government?... Would it be fundamentalist Islamic?... I do not think the United States wants to have U.S. military forces accept casualties and accept the responsibility of trying to govern Iraq. It makes no sense at all.”

This person added at another time:

“I think that was a quagmire we did not want to get involved in.”

Who was being interviewed and what does this have to do with the broader themes of America Between the Wars? The answer is after the jump…

The NY Times Week in Review has an article written by Graham Bowley on the effect of recent attacks by Movement for the Emancipation of the Niger Delta (MEND) on Nigeria’s oil infrastructure and the effects of these attacks on world oil prices. The piece begins:

When armed rebels from the Movement for the Emancipation of the Niger Delta attacked an enormous oil facility 75 miles off the swampy West African coast on June 19, traveling hours by speedboat under cover of darkness and kidnapping an oil worker, their brazen assault underlined the perhaps underappreciated dependence of the United States — and the world — on oil from Nigeria.

Three days afterward, Nigerian officials said at a hastily arranged global energy summit in Jidda, Saudi Arabia, that recent attacks had cut Nigeria’s oil production to its lowest level in nearly two decades, giving oil markets the jitters and helping to send prices higher…

“We always focus on the Persian Gulf but this is one of the key oil security issues in the world today,” said Daniel Yergin, one of the nation’s best-known energy experts and chairman of Cambridge Energy Research Associates, a consulting firm. “It’s tied up with Nigerian politics, regional and national battles for power, and criminality.” When Mr. Yergin spoke to lawmakers at a hearing in Congress last week, he was asked what would most help stabilize world markets. “Helping bring peace to the Niger Delta would be a major contribution,” he responded.

The Times article continues that responding to the situation in Nigeria will need both a sound development policy and a counter-insurgency strategy:

According to J. Stephen Morrison, director of the Africa program at the Center for Strategic and International Studies in Washington, the government led by Nigeria’s new president, Umaru Yar’Adua, must break with decades of neglect and pay attention to the troubles of the southern delta region by promoting development but also cracking down on the rebels and “demonstrating that these guys cannot operate with impunity.”

He’s not very optimistic, however. “When you look at the delta, the overwhelming picture is that the situation has very little promise of being fixed,” he said.

While development policy is always a complex issue, the “operate with impunity” part is also a problem, as MEND has started attacking not just oil pipelines, but offshore oil platforms, as well. MEND even issued a press release that states, "The location for today's attack was deliberately chosen to remove any notion that off-shore oil exploration is far from our reach." Jeff Vail of The Oil Drum explains that this is especially significant as 90% of Nigeria’s oil growth is expected to be via new offshore platforms. Which now seem vulnerable to attack.

John Robb, who writes extensively on guerilla-based “fourth generation warfare” is concerned that destabilization from infrastructure attacks will worsen:

So, given production limitations and strong/concentrated demand, even small disruptions by guerrilla groups on light sweet crude production is likely to have a direct influence on global oil pricing (in contrast, disruptions aimed at heavy crude production should have little impact on global pricing). Further, there are already active groups in many of the most critical production areas.

Fortunately, from the demonstrated behavior of these groups it doesn't appear that guerrilla/terrorist groups have fully grasped their potential market power with small attacks (despite aspirational pronouncements from al Qaeda and large scale attacks in 2005/2006). Once they do, as bad as disruption is today, it could get MUCH worse.

Why? A direct connection to scalable profits...

As we saw with e-mail spam/phishing, even the faintest whiff of profits can turn a loose collection of individuals/groups into a torrential crime-fueled marketplace generated billions and attracting tens of thousands of participants. Are we about to see the same occur with oil?

For example, consider Columbia. John Robb notes that

Disruption isn't limited to Nigeria. A remote control bomb by the FARC on Occidental Petroleum's pipeline in Colombia just knocked out 100,000 barrels a day. It's also interesting to note how irrelevant the US military/national security system has become in regards to global energy security. The entire paradigm of warfare has changed but the $1 Trillion behemoth has barely budged.

While I doubt that the end is nigh, the situation is obviously serious and it won’t be solved by a combination of a dithering domestic energy policy and a foreign policy of “assisted” regime-change. So, for now, only one thing is certain…

We at Opinio Juris want to thank once again Haider Hamoudi for guest-blogging with us this past week. For more on the issues he has raised, be sure to visit his blog, Islamic Law in Our Times and read his memoir, Howling in Mesopotamia.

We hope he will soon join us again for another guest-blogging stint.

I have been particularly interested in Haider Hamoudi's observations in his book on cultural differences within Iraq. In two contratsing examples, Haider describes his visit to Basra in Southern Iraq and Suleymania in the North. Basra is predominantly Shi’a and Suleymania is in Kudish territory.

A couple of vignettes were striking. First, there was a guard in Basra asking Haider to prove he was Iraqi by reciting the Muslim profession of faith… specifically the Shi’a version. But what if you are a Sunni? (Or a Christian?)

That same day he was in a faculty meeting in the law school in Basra and the faculty discussed the possibility of starting a graduate level program there, which they noted would be especially useful for female students. One of the other USAID consultants explained that funding was questionable as the CPA may simply say such programs already exist in Baghdad and that the female students could study there. The response was interesting:

Howls of protest interrupted him. A more conservative professor, Ali, said, “Our women aren’t going to Baghdad unaccompanied!”

“Not everyone has a relative in Baghdad,” another added. ‘What about the ones who don’t?”

“And there are cultural and social norms they have to respect,” chimed in a third…

What strikes me about these, and other observations in other parts of the book, is the description of the different communities in Iraq and how these differences affect day-to-day life. Of course we hear about the sectarian conflicts often from the punditocracy, but it is often couched in sensationalistic “they’re all killing each other” terms.

My question to Haider is this: how deep are the commonalities as opposed to the differences? Some U.S. observers argue that it took (and will take) an authoritarian regime to hold Iraq together. (This is essentially the "it took a Tito to keep Yugoslavia together" argument.) Based on your time there, what are your thoughts on whether Iraq is primarily a cohesive community (with some violent sectarian elements that are fighting each other) or three (or more) communities that really are separate? If the latter, how effective are the efforts to knit them together? And what do you think of this talk by some foriegn policy commentators of the near-inevitability of a soft partition, if not a hard break-up?

Foreign Affairs Magazine Online has just posted a review essay by Curtis Bradley of Benjamin Wittes' new book, Law and the Long War. Bradley writes:

In an important new book, Law and the Long War, Benjamin Wittes, a fellow and the research director in public law at the Brookings Institution, critiques what he calls the "legal architecture" of the war on terror. He finds fault with many players: with the Bush administration, for its "consistent — sometimes mindless" fixation on executive power and its repeated unwillingness to seek support from Congress; with Congress, for not asserting itself; with the administration's critics, for attempting to deny the White House the flexibility it legitimately needs to fight the war on terror; and with the Supreme Court, for using ongoing legal disputes "to carve itself a seat at the table in foreign and military policy matters over which it has [had], for good reasons, a historically limited role." Wittes' purpose, he explains, is to "shake somewhat the certainty" of both the executive-power enthusiasts and the administration's critics alike. He also seeks to move the debate beyond formal arguments about what is and what is not allowed under existing law toward consideration of a new legal regime that would provide the government with needed flexibility while protecting individual liberties.

I am sure that this is an essay--and a book--that will interest many Opinio Juris readers. So check out the essay (if not the book) and start thinking-up some comments as Ben Wittes and others will be joining us next month for an Opinio Juris symposium on his book.

We are pleased to welcome guest blogger Professor Haider Ala Hamoudi of the University of Pittsburgh School of Law. Professor Hamoudi is a prolific scholar on Islamic and comparative law and also has a blog, Islamic Law in Our Times.

Professor Hamoudi has also recently published Howling in Mesopotamia: an Iraqi-American Memoir, described on Amazon.com as

… a groundbreaking insider's story about America's war in Iraq. His unique perspective and fresh insight into the conflict that has divided our country were informed by living with relatives in an average residential neighborhood in Baghdad during the war. Many of his relatives were intimately involved in the unfolding political process, such as his uncle, who became chair of the Iraqi Constitutional Committee, and his cousin, Ahmed Chalabi, one of the most prominent Iraqi exiles to return after the fall of the previous regime.

Hamoudi saw firsthand the frustrations and fears that plagued Iraqi civilians during a crucial period of the war. As an American in Iraq working on a USAID-funded contract, he also interacted with American administrators regularly, and was able to see the developing situation from their point of view as well. Howling in Mesopotamia is a critical look at what went wrong in Iraq from a person who was there. Hamoudi's gripping memoir will shed light on the events, mistakes, and misunderstandings.

We look forward to Professor Hamoudi joining us this week for a conversation about his book, the fate of Iraq, Islamic law, and other related issues.

The British newspaper The Guardian is currently having Hay Festival, major book festival.

With all these writers and public figures around, there are some fun possibilities. As the folks at The Guradian put it:

Hay is full of the cleverest and sharpest minds, but if they could ask one person just a single question, who would they choose - and what would they ask? We brought them together to find out.

Here are two examples that I thought Opinio Juris readers might find interesting:

George Monbiot, author and Guardian columnist asks John Bolton, former US ambassador to the UN

Q The International Military Tribunal at Nuremberg ruled that "to initiate a war of aggression ... is not only an international crime; it is the supreme international crime". You were instrumental in manufacturing the case for war with Iraq, using false intelligence. Why should you not be put on trial as a war criminal?

A Since the Security Council's unanimous 1991 adoption of Resolution 678 - the ceasefire resolution ending the first Persian Gulf war - Saddam Hussein's regime repeatedly violated it. By systematically demonstrating its unwillingness to abide by Security Council resolutions, Iraq violated the terms of the ceasefire in countless ways. By so doing, Iraq vitiated the ceasefire, and revived the initial authority under Security Council Resolution 678 to use all necessary means to deal with the threat posed to international peace and security by Iraq. Accordingly, the premises of your question are erroneous in law and erroneous in fact.

…

John Bolton, former US ambassador to the UN asks James Naughtie, broadcaster

Q How much longer will the state own the BBC and why?

A If John Bolton hasn't yet worked out the difference between state-owned and publicly funded, it's probably too late to hope for enlightenment. But the distinction is the one that matters. The implication that the BBC's public funding puts it in thrall to government is simply wrong. The founding charter protects us from interfering ministers just as it obliges all of us to practise independent journalism. I think that has produced a healthier broadcasting environment than the one the US now enjoys. And as it happens, many Americans seem to agree, because the number of listeners and viewers there is rising fast. So I hope our form of ownership remains indefinitely.

We all know the adage that those who ignore history are condemned to repeat it. In a recent op-ed, Mark Shulman of Pace Law School shows how if only the Bush Administration had remembered history, they may have repeated it.

Shulman, who besides being a lawyer also has a doctorate in history and a particular expertise in military history, explains how the legacy of Telford Taylor, one of the Nuremberg prosecutors, could have been a guide to avoid the pitfalls of the current administration’s detention and interrogation policies.

The op-ed was published on May 23rd, the tenth anniversary of Taylor’s death. Shulman reminds us that Taylor used humane methods when interrogating Nazis prior to the trial. But, more than that, Shulman also highlights how Taylor's experiences at Nuremberg informed his ongoing legal career and his devotion to the rule of law:

Having spent the 1940s witnessing the effects of a government that held itself above the law, Taylor dedicated the remainder of his long life to ensuring a robust rule of law, evenly applied.

During the McCarthy era, he defended the First Amendment rights of Communists. In the 1960s he appeared before hostile Southern courts to defend the Freedom Riders from persecution. In 1970 he decried both North Vietnam's heinous treatment of POWs and the indiscriminate U.S. bombing campaigns.

He wrote, "The laws of war do not apply only to the suspected criminals of vanquished nations. There is no moral or legal basis for immunizing victorious nations from scrutiny. The laws of war are not a one-way street."

Throughout his career, Taylor promoted a strong America guided by wise policies and robust institutions. His final report from Nuremberg concluded: "By prudent military preparedness, by unflagging efforts to lay the groundwork for international society and the rule of law among nations, and by constant improvement in the economic and social foundations of our own democracy, we may hope at one and the same time to undermine these destructive and tyrannical forces and obviate the necessity for a victory by force of arms."

Contrast Taylor's words and actions with those of so many senior adminsitration lawyers. And then imagine if history had, in one small way, repeated itself: if the War on Terror had actually inspired in the the current administration an increased commitment to the rule of law, both domestic and international. But unfortunately that is an alternate history to our own.

Shulman’s whole essay is well worth the read. Especially by those who do (or hope to) wield power.