Democracy Arsenal

November 12, 2006

Justice

Dealing With Anti-American Rhetoric
Posted by Ali Eteraz

Who will be the global footsoldiers in Progressive American Hegemony ("PAH")? I ask this question because under Old School Realism, with respect to the Muslim world and Third World Countries, the "footsoldier" question was eliminated completely by total and absolute reliance on the puppet Tyrant. Today, the PAH crew believes that reliance on tyrants no longer servers its function. In other words, it seems that the PAH crew wants to undermine the tyrants in favor of the populist underbelly of Muslim and other Third World countries. I recall Shadi suggesting -- by way of an example -- that we needed to open up dialogue with the populist Islamists of Egypt and Jordan. Skeptics say: can we even accomplish such a dialogue? Isn't it the case that the populist Islamists draw their legitimacy from their Anti-Americanism? How can we support people who don't like us? (They also add, how can we support people who don't share our values, but I addressed that in my first post already).

My response is that: part of the reason Islamists of today are anti-American has been because of their experience where we supported those tyrants who in turn  repressed the Islamists. In Pakistan, during the 80's, we supported the Islamists (by supporting a tyrant who supported them), there wasn't much anti-American rhetoric coming out of Pakistani Islamist circles. Let's say the Democratic Congress passes a resolution in favor of the populist Islamists of Egypt tomorrow. Immediately they come to our side. At this point we can dangle our $2 billion a year over them (as we currently do with Mubarak). (Pakistan is a more difficult situation because we have no leverage with the Islamists).

In short, if Islamists come to power without our assistance, or without having needed our legitimization, they will remember that. They will know that they did it on their own -- "without America" -- and then they will work with an agenda that makes no consideration for our views.

There remains one major problem: the moment there is any indication to any of the dictators that he has lost favor with the US, he will turn to a massive project of internal repression. It is here that I hesistate because now the question becomes: would the American public be prepared to take military action? If not military, what could be done?

September 28, 2006

Justice

Torture: anti-military, unChristian, unAmerican
Posted by Lorelei Kelly

How's that for a message? Now that we're at the lowest point in our constitution's history, the left is agonizing over how to respond to today's vote on military commissions (the torture bill) which passed in the House 253-168. The dilemma: Oppose it on principle and open yourself up to Rove's campaign vultures--vote for it and depress your liberal and activist base--who see this not as a small compromise for some larger good, but a big time betrayal of principle. Many liberal Dems will have a lot of explaining to do over the next six weeks. Hopefully, the Senate will offer a sunset amendment to the bill Thursday--so a future Congress will have to reauthorize it.

This gnashing of teeth is a healthy sign. But the tardiness of the collective outrage (The Supreme Court passed Hamdan months ago) points out that we still have a lot of progressive infrastructure to build, i.e. philosophical frameworks linked to individual  messages, domestically focussed organizations that work together and have a national security component, etc.  One would think these larger themes would be obvious: After all,  America's founders fought and died so that everyone should have the right to trial and to be able to face their accusers. Members of Congress swore to uphold the Constitution, and this bill is clearly unconstitutional.  But that word has too many dang syllables for a campaign ad...sigh. The constitution's got nothing on Rove--not yet.

Well, do Americans believe that it is unAmerican to torture?  Polling that is publicly available is all over the place.  Sometimes it is strongly for torture, sometimes strongly against it - it seems to depend mainly on how the questions are framed.  I think the answer is destined to be unsatisfactory, but its somewhere in the middle.  Members who can speak out did so most eloquently. Others (those in tight races) voted yes. That is not an indictment of the entire Democratic party. They offered many amendments and other maneuvers, all were rejected.  Again, the process that led to this vote sheds light on the decayed innards of our legislature.  Suddenly arcane actions like today's "motion to recommit" become heroic.  We need to pay more attention to details far, far ahead of time from here on out.

Here is a partial list of statements that makes me proud of the Dems: watch
all of them on youtube .

Rep Ike Skelton (D--MO) "If you want to be tough on terrorists, pass a statute that will meet the scrutiny of the Supreme Court of our country."

Rep. Steve Israel (D--NY) "If I am asking young men and women to die for what we stand for, I want to stand for something."

*Rep. Jerrold Nadler (D-NY): We rebelled against King George for far less infringements"

Continue reading "Torture: anti-military, unChristian, unAmerican" »

January 06, 2006

Justice

Obeying the Law
Posted by Morton H. Halperin

While signing the bill containing the McCain anti-torture amendment this week, President Bush made explicit his view of the constitution.  It is a frightening position which threatens the separation of powers which is at the heart of our government.   

In short, the President asserts that he can decide which laws he should obey. If he believes that legislation violates what he calls the unitary presidency he will not veto the bill, but rather he will simply ignore the law. Sometimes he does that publicly and on other occasions he pretends to be following the law while secretly operating in defiance of it.

Presidential signing statements were, in fact, invented by Judge Alito, whose hearings for a Supreme Court seat starts on Monday.  The original purpose was to enable the President to participate in creating legislative history.  Now President Bush uses the statements to identify some of the provisions he plans to ignore.

Continue reading "Obeying the Law" »

December 23, 2005

Human Rights, Intelligence, Justice

Imbalance of Power
Posted by Spencer Boyer

Spencer P. Boyer

Season's greetings.  Suzanne Nossel asked me to be a guest contributor while she is in South Africa. By way of background, I am a Fellow to the Security and Peace Initiative of the Center for American Progress and The Century Foundation.

President Bush defends his program of warrantless surveillance of Americans, in violation of the Foreign Intelligence Surveillance Act, by pointing to a 2001 congressional resolution authorizing him to use all necessary force against those responsible for the attacks of September 11, 2001. He also makes the case that, as Commander in Chief in a time of war, he has the power do whatever he sees fit, regardless of legal prohibitions, when he believes it is in the national interest to do so. Unfortunately, his actions are indefensible.

To start with, there is no ambiguity when it comes to FISA. Congress made it clear when it enacted the law in 1978 that the President must have a judicial warrant to eavesdrop on Americans. Congress clearly rejected the idea of inherent Presidential authority to conduct warrantless wiretaps in the U.S. and made such actions by the executive branch a crime.

The administration cites Congress’s 2001 use-of-force statute, which authorized the President to use “necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001,” as giving him the authority to conduct these warrantless searches on Americans. Attorney General Alberto Gonzales attempted to bolster this point by stating that domestic surveillance by the National Security Agency only occurs where there is a reasonable basis to conclude that one of the parties of the communication is a member of al Qaeda or otherwise affiliated. The administration’s points do not, however, make the domestic spying program any more legal.

As a general matter, a declaration of war, which we have not had since World War II, arguably triggers a range of common law-of-war authorities in addition to standby statutes keyed to “declared war,” “war,” or “time of war.” Use-of-force statutes, on the other hand, have less of a domino effect and do not trigger certain standby authorities, such as the power under the Alien Enemy Act to detain alien enemies, keyed to a declaration of war. But nothing in the 2001 congressional authorization, which was specific in its language, gives the President power to ignore the clear statutory prohibitions in FISA. FISA does allow the Attorney General to use warrantless wiretaps for fifteen days after a declaration of war. But even if the 2001 authorization was a declaration of war, which it was not, the surveillance would have been authorized for only that short period of time. 

In addition, in a Washington Post Op-ed on Friday, former Senate Majority Leader Tom Daschle rejects the notion that Congress intended the 2001 authorization to exempt the President from FISA. Senator Daschle, who helped negotiate the authorization, states that the administration tried, and failed, to insert language allowing for expansive Presidential powers in the U.S.  Thus, there can be no illusion concerning Congress’s intent.

This administration’s penchant for increasing executive power in the name of national security – denying prisoners access to lawyers or courts, indefinitely detaining individuals as enemy combatants, rejecting the applicability of the Geneva Conventions – continues to trample on civil liberties. If we are to accept President Bush’s claim, he could ignore any clear law he disagrees with during our war on terrorism, which could last for decades. The Constitution requires the President to take care that all laws are faithfully executed, not just the ones he likes. The Framers of our Constitution guarded against an abuse of power by the President by embedding governmental powers in a system of checks and balances. It is time for Congress and the courts to re-establish the equilibrium.

August 22, 2005

Democracy, Human Rights, Justice, Progressive Strategy, Terrorism

Foiled by Idealism? - The US Foreign Policy Pendulum
Posted by Michael Kraig

Foreign Affairs Managing Editor Gideon Rose recently wrote a very provocative column in the NYT on August 18, appropriately titled, "Get Real."  It is a Realpolitik bashing of America's proclivity for swinging wildly between unrealistic ideals in international relations and prudent balance-of-power pragmatism. He's definitely on to something, but I question his description of current policy realities.

Rose's argument is compelling: the United States has swung back and forth for decades between getting into international messes because of ideals/culture/nationalism, after which pragmatic policies reign and the US extricates itself, only to repeat the idealist debacle again under another Administration.  This pattern, according to Rose, does not respect partisan lines; Dems or Republicans are both prone to the errors of idealism, and both sides have had their chance to extricate America from its unrealistic messes.

There is one problem, however: we are not swinging back to pragmatism this time around - at least, not yet. 

First, Rose forgets what all of DC and much of America have "learned" from their supposed past Realpolitik misdeeds during the Cold War: namely, it was not idealism that led to 9-11, according to this argument, but rather Realism itself that is the cold-blooded culprit.   In the new DC Consensus, our active aiding and abetting of all sorts of authoritarian nasties during the Cold War is what got us into the current mess and made us a hypocrtical sham the world over.  According to both Dems and Republicans, it is time to make things right.

Thus, despite the debacle in Iraq, there is still a largely unquestioned assumption - growing increasingly popular to the point of becoming received wisdom - that the US can only be secure through spreading and supporting true democracy and economic liberalization the world over.  In this new Consensus, the path to Realism is Idealism.   To lessen one's ideals in the name of pragmatism is to invite disaster. 

For this reason, authors such as Reinhold Neibuhr and Hans Morgenthau, and the halcyon Wise Men of post-WW II international system building  (Marshall, Acheson, Kennan, etc.), are no longer being held up as revered historical gurus.  After Vietnam, these Realists felt vindicated in their earlier assessment that our failure was due to an overzealous application of an unrealistic "domino theory" of communism based on the obsessive need to spread systems like ours throughout the Developing World.   There is no similar vindication occurring now; rather, criticism tends to be on the Bush Adm.'s bad methods and faulty original rationales (WMD arguments), rather than criticism of the core assumption of "transforming the Middle East."

More to the point, there is no indication that Condi Rice's State Department is prepared to implement a truly "balance of power" policy of Realpolitik pragmatism and/or a progressive policy of reciprocal engagement and cooperation with the enemy (i.e., detente or rapprochement).   Rose makes much of the new and improved operation at State, but here's what's missing in our actual security policies:

--support for a new security consensus, or common security vision, between the Developed and Developing World at the upcoming negotiations in NY for UN Reform (see Thursday's Washington Post story to see what I mean);

--support for new confidence-building measures (CBMs) toward "rogues" such as Syria, Iran, and North Korea, all of which essentially say, "We recognize you as a sovereign state with legitimate security concerns, interests, and anxieties, and we will talk with you about security guarantees that will meet the interests of both of us without undermining the other." 

--(in other words: a balance of interests, which is what the Realist's balance-of-power is meant to create);

--statements to the effect that our goal toward these 3 states is not regime change, preemptive, preventive, or otherwise, but rather is one of reaching detente or a "grand bargain" that meets the interests of both sides without endangering either side's security;

--allowance of our friends and allies in these respective regions to engage the rogues, invest in them, and trade with them, without punishment from us (for instance, allowing India to negotiate with Iran on a new oil pipeline for South Asia);

--engaging Iran to better manage the threat of a disintegrating Iraq, which would make both Iran and the US massively insecure;

--in sum: the idea of Nixon going to China, with a view of transforming things gradually through achieving a balance of interests and values, rather than radical transformation through winning a competition and delivering outright defeat via coercive methods (i.e., one side's values/interests overturning the other);

--all of this based on the assumption that North Korea, Iran, and Syria are not expansionist powers chomping on the bit to kick out the Americans and win aggressive wars against their neighbors, but rather are insecure regional powers who feel under constant threat of extinction - an assumption that is neither idealistic or realistic, but is simply the truth (see for instance Leon Sigal's argument in Arms Control Today concerning North Korea's motivations and intent, based on actual behavior).

Whatever the current realities, is Rose right in his prescriptions?  Yes.  I do hope that Rose's pragmatic turn will happen soon, as laid out above, because as recently argued by Realpolitik Middle East analyst F. Gregory Gause in Foreign Affairs,

"Is it true that the more democratic a country becomes, the less likely it is to produce terrorists and terrorist groups? In other words, is the security rationale for promoting democracy in the Arab world based on a sound premise? Unfortunately, the answer appears to be no....Terrorism appears to stem from factors much more specific than regime type. Nor is it likely that democratization would end the current campaign against the United States. Al Qaeda and like-minded groups are not fighting for democracy in the Muslim world; they are fighting to impose their vision of an Islamic state. Nor is there any evidence that democracy in the Arab world would "drain the swamp," eliminating soft support for terrorist organizations among the Arab public..."

Michael Kraig, Director of Policy Analysis and Dialogue, The Stanley Foundation

June 06, 2005

Justice

Darfur's day in court
Posted by Suzanne Nossel

Today the International Criminal Court officially opened its investigation into war crimes in Darfur.   This was made possible by the U.S.'s historic decision to abstain in a UN vote referring the Darfur killings and abuses to the tribunal.  Now the question is whether the U.S. will cooperate with the ICC prosecutors in helping them build the case, or give succor to the Khartoum government which is trying to argue that the Court's involvement will undercut a "peace process" now underway.  The Sudanese government also claims to be assembling its own local tribunals, an effort to push the ICC to the sidelines.

The U.S.'s abstention on the ICC referral was the camel's nose under the tent of an admission that as the world's most powerful democracy and best champion for the rule of law, the U.S. cannot afford to stand outside an international criminal court that's gradually building credibility.  The court's not perfect, but ignoring it and hoping it will go away isn't the solution.  Working with its members to remedy U.S. concerns is.  Cooperation with the Darfur prosecution is a next step that the Administration can quietly take, consistent with its stance that what's happening in Darfur constitutes genocide.   Let's hope Bush keeps moving forward on this.

For measures short of sending in U.S. combat troops to help stop the killings in Darfur read here (no, I don't believe and ICC investigation will do much to halt the slaughter and abuses).

March 31, 2005

Justice

The Law Won
Posted by Suzanne Nossel

U.S. abstains in UN vote, allowing Darfur war crimes cases to go to the Hague. 

Justice

Long arm of the law may actually reach Darfur (if the U.S. lets it)
Posted by Suzanne Nossel

It's gonna be a long night at UN headquarters, with the Security Council in the endgame of a months-long debate over Darfur.  It's expected that provided they can ram through a six-fold belt-and-suspenders approach to ensuring that Americans serving in Sudan will never be subject to international justice, the US will abstain on a resolution that would--among other measures to address the Darfur crisis--refer Sudanese war crimes cases to the International Criminal Court in the Hague.

(See earlier post on this arguing that the US has nothing to worry about in terms of Americans being hauled before the court, and the comments by the estimable Jeffrey Laurenti and others.  No, Jeff, American-style investigations into alleged war crimes are probably not beyond international reproach.  But as a practical matter any attempt by an international court to assume jurisdiction over American nationals against the U.S.'s would make George Wallace in the schoolhouse door look like the welcome wagon.)

If this goes through as expected, at least two points jump to mind:

First off, attempts to influence Bush Administration policy are not futile.  An NGO coalition got together and pushed hard on the ICC referral.  The Security and Peace Institute was a big part of this effort.  I have worked as a U.S. diplomat at the UN and know first hand how tough it is to corrall the world body even when you speak on behalf of its largest member and contributor.  So when I first heard of this NGO effort I saw little chance they'd affect the outcome of the UN debate.  Obviously a host of diplomatic considerations came into play, and the organizations did not change U.S. policy single-handedly.  But they made a difference here and can make a difference elsewhere.  We should not give up on trying to influence policy in the here-and-now.

Relatedly, we need to take credit for our successes.  I am looking forward to seeing how the Administration will spin this--likely as a courageous stand on behalf of American servicemembers.   But the truth is that conservatives have resisted mightily calls to refer Darfur to the ICC.  They made a convoluted argument that, notwithstanding the US's longstanding position that international tribunals cost too much and are inefficient, rather than relying on the ICC a new, separate, ad hoc Court ought to be created for Sudan (the Argentinians and others were up in arms over the needless excess cost of this approach).  Under pressure from critics, they were forced to reverse themselves and accept the result progressives pushed for all along.   The ICC is not perfect and needs to be further developed, but nonetheless this is a victory for the core belief in the need for durable, empowered international institutions, and we ought to claim it.

The second point is that, indispensable nation though we are, the rest of the world can and will move ahead without us when we choose to stand outside multinational organs and treaties.  When they do so, try as the U.S. government may to hold out against their efforts, the press of events, logic, world opinion, and our own public has the power to suck us in.   

In this case, its ideals that were to a significant extent made-in-the-USA--accountability, the rule of law, justice for all--that have propelled global support for the ICC, and are now pulling even a reluctant U.S. government into its orbit.  U.S. abstention on this resolution is the camel's nose under the tent of ultimate acceptance of the ICC.  Provided the Court performs, there will be no turning back. 

When it comes to the next treaty or body that we don't like, will we stand apart in protest, or--as President Clinton advocated vis-a-vis the ICC--sit down at the table and try to steer the deliberations to suit U.S. interests.  It's too early to say, but the outcome of this sleepless night at the UN will help determine the answer.

Justice

The Right Thing on Darfur
Posted by Suzanne Nossel

This is big stuff.  See prior discussion.  More later or from others.

Washington will let ICC hold Darfur trials: report
Last Updated Wed, 30 Mar 2005 23:45:07 EST
CBC News

WASHINGTON - The United States has agreed to let the International Criminal Court try people accused of committing war crimes in Sudan's Darfur region, a news report says.

Washington had strongly opposed holding the trials at the UN court in The
Hague, but agreed to a compromise on Wednesday, the Associated Press
reported, citing officials from the administration of President George W.
Bush.

The United States doesn't support the court because it says it fears
political enemies might launch frivolous or politically motivated prosecutions against U.S. citizens.

The officials, who asked not to be named because the deal hasn't been
made public, told the news agency the compromise includes guarantees that the ICC could not prosecute Americans deployed in Sudan

The compromise marked the latest development in drawn-out efforts by the
Security Council to deal with the crisis in Darfur.

Fighting between government-backed militias and rebels has killed about
180,000 in the region. As many as 350,000 people may have died of pneumonia, diarrhea and malnutrition and more than 1.2 million have been driven from their villages in the past 18 months alone.

Human-rights groups and other observers - including former U.S. secretary
of  state Colin Powell - have condemned the violence as genocide.

Many have urged the UN to deploy a peacekeeping force to quell the world's worst humanitarian crisis.

But discussions at the UN's Security Council have repeatedly been stalled
by political wrangling, as the deaths continue.

On March 29, the Security Council voted to impose a travel ban and freeze
assets of people who commit atrocities in Darfur.

A few days earlier, it unanimously approved a resolution to send 10,000
peacekeepers to southern Sudan - but the troops won't be going to Darfur.

March 26, 2005

Justice

Failure to Prosecute Deaths in Detention
Posted by Suzanne Nossel

Many liberals like blogger Steve Clemons are up in arms about the Pentagon's decision not to prosecute the 17 soldiers investigated in connection with three separate deaths of prisoners in Afghanistan and Iraq.  Army investigators had recommended that all 17 be charged, and human rights groups are said to be outraged by the decision not to act against them.

One side-effect of the decision is yet another potent illustration of the utter baselessness of conservatives' supposed fear of the consequences of joining the International Criminal Court.  Conservatives have long argued that by joining the Court we would subject our own servicemembers to prosecution for actions undertaken in as part of U.S. military interventions around the world.  The Court's proponents have long countered that the ICC's jurisdiction is limited to cases where the country in question is unable or unwilling to investigate or prosecute the wrongdoing - mainly situations where the country lacks a functioning legal system.  Court proponents maintain that such a finding would never be made in regard to a judicial system as developed as that of the U.S.

Those opposed to the U.S. joining the Court worry that in a case like that of these 17, where U.S. authorities declined to prosecute, the ICC could somehow step in.  Yet the Court's rules are clear that once an investigation has taken place, the ICC cannot second-guess the decision not to prosecute.  So, no matter how outraged human rights advocates may be, even if the U.S. were to join the Court the military will dispense its own justice, free from review or intervention by the ICC.

Although conservatives have yet to identify a plausible scenario of ICC meddling in U.S. military justice, their opposition to the ICC is untrammeled and is having a destructive affect on U.S. policy toward Darfur in particular.  While the Administration claims to want forceful action to counter what it has dubbed genocide, it has allowed anti-Sudan measures to languish for months in the UN Security Council for fear that a proposed referral of Darfur war crimes to the ICC will further legitimize that court (this snippet from a State Department press conference lays out the Administration's convoluted position). 

Darfur still offers the Administration a chance to begin to gracefully back down from a position that looks increasingly untenable as the ICC continues to build credibility.  By simply abstaining from a Security Council resolution putting Darfur at the ICC, the Administration would avoid outright reversing itself, but at the same time prevent its anti-ICC policy from shooting its Darfur policy in the foot.

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