Opinio Juris http://www.opiniojuris.org/ en-us 2008-07-11T04:07+00:00 The View from Paris http://www.opiniojuris.org/posts/1215638771.shtml I'm afraid I haven't been holding up my end of this discussion very well because it turned out that I am traveling to Europe just as things got underway. I'm here... Ken Anderson 2008-07-09T21:07+00:00
Without exception, everyone involved agreed that American policy was characterized by deep continuity across administrations. There was also general agreement that an Obama administration would be a heartbreaker for a lot of people in the world, because people have projected so much onto its generally blank stage - and will be surprised when it turns out that American policy, while shifting at the retail and rhetorical level between American ideals and interests, is quite firm over the long term. I asked what made that so, and the answer was not what I expected - bureaucratic inertia, etc. One French friend said, here in France or Britain, the answer would be that the permanent government, the bureaucracy and officials who are really "eternal France," would immobilize things. In America, though, continuity arises because there really is a shared sense, even a vital center, even if American elites can't see it, can't see the forest for the trees. It was so under Clinton and under Bush.

Everyone pretty much wants to see Obama win. But many were equally fearful of what they fear his policies might be. A core concern is the area, interestingly, in which movement is seen as possible: trade and global economic relations. My heart wants Obama, said one senior elite journalist, but my head says if there's one thing he might really damage, it will be global trade. (And this from someone who proudly announces himself as a leftwing Gaullist, pour la France, baby!) The human rights people, for their part, hated the Iraq war, and yet fear that he will snatch defeat from victory: the Americans must stay and win (from a Nordic human rights activist) and defeat must not be the easy American option today. What does defeat mean, I asked; it means American withdrawal and civil war.

Finally, getting back to the book, the perception of the Clinton years was that it was "soft isolationism." Clinton was perceived by this dinner table as someone with little experience or interest in all that foreign stuff. The point of international law was to provide a rhetorical vehicle by which it would sound like it was getting taken care of, but there were no actual changes or obligations. It was only when the chickens came home to roost that things changed. International law, one experienced foreign policy person from that period said, was not a way to make things happen, but a way to avoid them. This is not a new view, of course, but time has not altered their perception of those years.

And the war on terror and 9-11? A senior French journalist said, Americans who get enthusiastic about the European approach to counterterrorism often mistake strategic necessity for strategic preference; we cannot have a war on terror because, unlike America, the enemy is as much inside Europe as anywhere. If we could conduct it as a war, we would. Meanwhile, within Europe, the weak links are Britain and the Dutch; if there is ever a return to internal passports in the EU (I quote) it will be because France will have tired of paying the costs in terror of what British civil libertarian self-righteousness has wrought. France is very practical; we say one thing and do another. American policy is madness, but it a madness that can be afforded by a country in which the risks are still mostly external.

Sorry that this is not more directly about the book, but it was all the very lively consequence of a dinner discussion stimulated by posts about the book! (My dinner companions were okay about being referred to in this unnamed way.)

]]> Grand Narratives and Grand Strategies Between the Wars http://www.opiniojuris.org/posts/1215531319.shtml 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... Chris Borgen 2008-07-08T15:07+00:00 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.


]]> Who Said This? (And Why You Should Care) http://www.opiniojuris.org/posts/1215461551.shtml 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... Chris Borgen 2008-07-07T20:07+00:00 “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…


]]> Second Circuit Decides that Constitutional Rights Litigation Does Not Follow the Flag http://www.opiniojuris.org/posts/1214872648.shtml The U.S. Court of Appeals for the Second Circuit has rejected an appeal by Maher Arar, a Canadian national who is suing various U.S. government officials for injuries suffered during... Julian Ku 2008-07-01T04:07+00:00 has rejected an appeal by Maher Arar, a Canadian national who is suing various U.S. government officials for injuries suffered during his "extraordinary rendition" shortly after 9/11 (h/t to Vince Vitowsky). The court, via Judge Jose Cabranes, held that Arar had failed to state a claim under the Torture Victim Protection Act and the Fifth Amendment of the U.S. Constitution, and that to the extent he had stated a constitutional claim, the court refused to create a cause of action in a case implicating foreign affairs and national security issues.

In essence, the majority followed the logic of the lower court (which I applauded at length here) by refusing to create a cause of action for a foreign national in a case implicating complex foreign affairs issues absent clear congressional authorization. It further held that Arar's confinement in the United States did not state a claim for violation of the Fifth Amendment Due Process Clause since it did not amount to gross physical abuse.

As I have stated before, this case is a tough one. Almost all the evidence I've seen points to Arar's blamelessness and to serious mistakes by the U.S. and Canadian governments. On the other hand, Bivens, which is the doctrine allowing courts to create a cause of action to recover damages for violations of constitutional right, is supposed to be used sparingly, especially in cases involving activities overseas and implicating foreign relations. I side with the majority on this prudential conclusion, but I do understand the temptation of the dissenting judge to give Arar the chance to get some relief for the horrors he appears to have suffered.

The majority and dissent got a little punchy in this opinion, which suggests the judges had some serious disagreements and that they see a cert petition to the Supreme Court in their near future. I think this case has a good chance to get to the Court given the astonishing facts and the unsettled nature of the law. Something to stay on top of...]]> There Will Be Blood http://www.opiniojuris.org/posts/1214760889.shtml 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... Chris Borgen 2008-06-29T17:06+00:00 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…

]]> Where Else Does the Great Writ Extend? Afghanistan??? http://www.opiniojuris.org/posts/1214701132.shtml ... Julian Ku 2008-06-29T04:06+00:00 WaPo article points out, the U.S. military base in Bagram, Afghanistan is likely to be the next source of litigation from detainees seeking to challenge their detention in U.S. courts. Of course, Boumediene doesn't make it clear that the writ extends to Guantanamo, but it does not rule out extending the Writ there either. That is part of the problem with the decision. It is pretty much impossible to predict how Justice Kennedy will rule on this? Will President Obama or McCain have to close Bagram as well as Guantanamo? I think the answer is "probably."]]> Wittes' <i>Law and the Long War</i>: Wise Counsel for the Age of Terror (If That's What We're In) http://www.opiniojuris.org/posts/1214561395.shtml Here's my review in the New York Obsever of Benjamin Wittes' new book, Law and the Long War: The Future of... Peter Spiro 2008-06-27T11:06+00:00 Here's my review in the New York Obsever of Benjamin Wittes' new book, Law and the Long War: The Future of Justice in the Age of Terror. The book is a must read for foreign relations law specialists, in many ways a companion volume to Jack Goldsmith's The Terror Presidency. Where Jack gives us the inside acount, Ben's represents the think-tank perspective, longer on prescription (in highly accessible form). Both are strong proponents of congressional participation in anti-terror policy. If there's a weakness, it's that neither pays much heed to international law as a part of the answer; and both assume that we are in fact in a "long war", which I think is at least debatable.

I'll have more to say during our online roundtable on the book in July. In the meantime, I highly recommend it. ]]> Thanks to Haider Hamoudi http://www.opiniojuris.org/posts/1214191362.shtml 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... Chris Borgen 2008-06-23T03:06+00:00 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. ]]>