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January 02, 2006

Russia Turning Off the Gas
Posted by Suzanne Nossel

Gazprom  Many thanks to those who kept up the stream of commentary as some of us regulars took a holiday break.   For readers who had a respite Spencer and Mort's posts on the unauthorized White House eavesdropping are must-reads.  Mort speaks from personal experience about having his phone tapped by the President.  He provides a watertight legal argument that Bush's actions are illegal, offering citations and history that will prove useful references as the investigations unfold.   It's long, but well worth a look.

A brewing controversy boiled over today when a dispute between Russia and Ukraine over Russia's decision to end deep subsidies of Ukrainian natural gas prompted accusations that Ukraine was unlawfully siphoning gas supplies from a pipeline that serves most of Europe. 

Several European countries including Serbia, Hungary, Croatia and Slovakia experienced dramatic drops in gas supplies, while France and other Western European nations faced smaller shortfalls.  Facing heavy pressure from European Union officials terrified by the prospect of inadequate heating supply in mid-Winter, Russia has said that its state-controlled gas monopoly, Gazprom, will restore a full flow to Europe, though the fight over rates with Ukraine is unresolved.  (Here's a good explanation of what natural gas is, for anyone who cares.  Here's a a helpful CSM piece on the standoff).

Here's what a spokesman from a state-funded Russian think tank had to say about Russia's heavy-handed hydrocarbon diplomacy:  "We have vast resources and they give us political influence . . .If we give a lower price to somebody, we have the right to demand political concessions . . . This may not be a great geopolitical policy, but it's better than nothing."

What's notable here:

- First, is its a powerful illustration of enduring Russian leverage over Ukraine, despite the Orange Revolution.   Russia's move appears timed to influence the March Ukrainian elections, in which Yuschenko - facing challenges from the indomitable, meticulously braided Yulia Tymoshenko and his erstwhile pro-Moscow opponent, Viktor Yanukovych - has been running on a policy of standing up to the Kremlin.    The fracas is expected to deepen polarization between the more nationalistic Western Ukraine and its more Moscow-oriented east. 

- Second, its a sobering reminder of Europe's dependency on Russia.   Europe gets 80% of its gas supplies via the Ukrainian pipeline, and 25% from Russia itself.  German and US officials have raised concerns about Russia's "credibility" as a supplier in light of the dip, but that ignores the absence of alternatives to supply Europe's needs.    Germany is on to this and is working on a massive pipeline project with the Russians.

- Third, its evidence of the rise of resource-driven international diplomacy spreading beyond the Middle East, where its held sway for decades.  China's foreign policy is increasingly guided by its demand for fuel.   Given our own feckless consumption habits, the same will be true for Washington.  Over time, this has the potential to effect pretty seismic shifts in the global balance of power, shifts that are unlikely to favor the US.

- Fourth, coinciding with Russia's assumption of the G8 Presidency, this incident could mark the beginning of Russia's reemergence as a larger independent force in international relations, building on its control over energy to resist outside pressure for reforms, and to throw its weight around on other foreign policy matters (terrorism, the former Soviet Republics and Iran come to mind).

Lots to watch.


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A "watertight legal arguement" is exactly what it was not. While it certainly appears the President broke the law one might also consider any or all of the following: Is FISA constitutional and will this be a test case; Does the 4th amend. border exception to unlawfull search and seizure cover electronic communication that crosses the "border" (this is the most important and rarely mentioned argument and exactly why the use of "watertight" is silly); Does any of this stem from the commander in chiefs warfighting power which is extremely broad: Does the fairly recent US Supreme Court case that allows broad searches without warrant, but not specific, cover broad software data mining?

As I said it appears the President broke the law but it also appears that so far the whole issue only involves phone calls between an international caller and one within the US. There are untested but specific constitutional exceptions that might apply. The use of "watertight" is just a tad hyperbole.

Lane Brody

I have to agree. Halperin's case is anything but watertight.

1) Halperin fails to address adequately whether this surveillance was incidental to the AUMF authority. He correctly notes the Hamdi finding, but then argues that it requires some monumental stretch of logic to find that the United States constituted a battlefield for the purposes of the AUMF authority. Quoting Daschle does little on this point; the Administration argues, and rightly so in my opinion, that the AUMF authority applies for this surveillance.

2) As Lane notes, Halperin does not address the border exception at all. It is not clear how the case law on the border exception to 4th Amendment search and seizure applies here and how it might interact with FISA.

3) In my opinion Halperin slides over the dicta from In Re Sealed. He is correct to note that it was dicta and not central to the finding, but he doesn't do justice to the argument that the court recognized - i.e. that there exist powers inherent in executive authority in wartime, warrantless wiretapping for foreign intelligence, that cannot be circumscribed by statue, making the entire Halperin discussion of FISA secondary. The legislative history is nice, but it does not take seriously the argument made in favor of inherent authority.

The presumptuousness of these conclusions - "watertight" with lots of "citations"- is overwhelming. We still know very little about the technical details involved; this knowledge is critical for some of these legal judgements. This question remains open, and both supporters and opponents of the administration have made strong cases for and against the program.

"As I said it appears the President broke the law but it also appears that so far the whole issue only involves phone calls between an international caller and one within the US."

The President has been doing things with no oversight at all, and arguing that he has the right to do things with no oversight.

There is no reason to think that the issue is calls that involve one international caller -- unless you believe that Bush wouldn't lie. Once you believe that the President will always do the right thing even when nobody checks up on him at all, then there isn't any issue here.

So instead of saying what you said, it would be much simpler and easier to just say "It appears that Bush and his administration wouldn't do anything to mislead us." Then we all know where we stand without a lot of extra words.

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Several European countries including Serbia, Hungary, Croatia and Slovakia experienced dramatic drops in gas supplies, while France and other Western European nations faced smaller shortfalls.

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