Why International Law Matters, Too

Maybe you're a "realist" -- you think pragmatism, not abstract principle ought to dictate our actions, especially in the international theater. Law, you figure, matters less than the application of influence and power in the greater national interest. And maybe you are right, in the end. But if you think that the rule of law is somehow not pragmatic, consider these two stories.

Fueled by information from Edward Snowden, The New York Times and the The Guardian have reported extensively on the widespread, even pervasive, snooping conducted by the NSA.


Edward Snowden

Now, the Agency itself is facing the consequences of its actions. In this piece by Scott Shane, who has been the lead reporter on this story, the spies consider the downside to breaking rules in the pursuit of power. The information gained may or may not be of any real value: do we really need the NSA to give us an economic advantage over Brazil? But, it turns out, our allies do not much like learning that the US government steals everything it can get its hands on. Turns out, theft undermines trust.

Not only that, but it's difficult to rally support allies against rogues like China when the US government itself sees no reason to limit its own behavior.

Likewise, the gunning down of people we do not like, even scumbags like Taliban leaders, can have unintended negative consequences. Sure, Hakimullah Mehsud was a rotten human being. He was brutal and self-centered and mean. He intended to harm American citizens and American interests. He was a liar. But his death at the hands of the US government -- really, at the hands of the President himself -- in a drone strike, may not help much in the long run.

Mehsud, from NYTimes

Just because we can kill people does not mean we ought to do so.

The underlying reasoning behind an adherence to the rule of law is that it provides long-range benefit at short-range cost. When we arrogate to ourselves the privilege of settling scores on our own, we separate ourselves from the larger community. As long as we are the biggest bully on the block, capable of defending ourselves unilaterally, that works for us, if for no one else. But what if we need help? What if we can't go it alone? How do we ask for the aid we need, and if we can we expect to get it?

So be pragmatic, if you like. Just don;t think you can do anything you want and get away with it forever.

Say Again, Who are the "Adults"?

After the fiasco of the first two weeks of October, in which the federal government ground to halt so we could all watch a few grown men throw a temper tantrum, there have been countless finger-pointing analyses. In this one, Senator Orrin Hatch laments the failure of "the adults" to take charge of the House of Representatives. He and other "establishment" Republicans, especially in the Senate would like to blame the Tea Party types like Texan Ted Cruz for making the party look like a bunch of fools.

But that's way too easy. Cruz is not in the House, and nobody has to listen to his self-serving nonsense, because he has no power and only limited influence. The people who refuse to accept the fact that Democrats, led by a black president -- that's right, I said this is about race -- won not one but two consecutive national elections represent only a small minority of the Republican Party. Why are they at fault?

Wack-jobs like those in the Tea Party movement only have seats in the government because "establishment" types gerrymandered their districts to ensure that no Democrat could win in certain parts of the country. Republicans did not invent this kind of vote rigging, but they have had to rely on it more in recent years as their policies have grown increasingly silly. Karl Rove was no rebel when he advocated this kind of cynical manipulation; in fact, he was the hero of the party back when his take-no-prisoners power grabbing helped the party win the White House. Now everybody acts like they never heard of the guy.

Furthermore, it was John Boehner's fool strategy not to accept any deal that required Democratic votes to pass it that caused the crisis. We all could have safely ignored all the noise from the wack-jobs if the two more reasonable factions had agreed to work out a deal. Instead, the "adults" insisted on enabling and coddling the "children" rather than working together to do the right thing. None of this stuff had to happen.

This Pretty Much Sums it Up

What one Congressman thinks the shut down is like:
http://gawker.com/gop-congressman-makes-park-ranger-apologize-for-shutdow-1440577868

What FoxNews thinks the shut down is like. (Actually, they call it a "slim down."):
http://www.foxnews.com/politics/2013/10/03/house-republicans-weigh-probe-monument-closures-amid-slimdown/

The Meaning of "Lawless"

Senator Mike Lee thinks that the Supreme Court's decision in National Federation of Independent Business v. Sebelius was a "lawless act." The argument, according to one sympathetic blog, goes like this:
"the people’s representatives may presume to pass laws in accordance with their constitutionally enumerated powers, but if the Supreme Court wishes to rubber stamp the president’s pronouncements and paint them with the color of law, the justices will simply substitute language permitting any imaginable act of despotism in open defiance of any congressional intent to the contrary."

So what is this supposed to mean? It seems to suggest that President Obama "proclaimed" the Affordable Care Act without Congressional approval, and that the Supreme Court then "rubber stamped" it without reference to the actual law. If such a thing were to happen, it certainly would not be a good thing. Of course, I'm not sure how it could occur short of a military coup, but hypothetically it would be bad.

Is that what happened? Of course not. A majority of both houses passed this law, and Obama signed it into law. A series of suits arose in court questioning the constitutionality of the law, and appellate courts differed in their conclusions on the matter. The Supreme Court then accepted the case, heard it, and ruled on it. In terms of process, nothing could be more routine or lawful.

The law regulates a type of activity -- the delivery of health care -- that spans all states and therefore might be considered, though it does not have to be, an form of interstate commerce. It requires that people acquire health insurance so that individuals, and not the collective society via the government, are responsible for paying for their own health care. 

Whether medicine is commerce, and whether the delivery of medicine to a patient constitutes interstate commerce are interesting questions, though I tend to think it's pretty clear that the answer to both is "yes." But neither conclusion is "lawless." 

That's what is so damaging about the shrill, irrational declarations of people like Mike Lee. They throw themselves from ordinary political discourse into hyper-moral opposition to the whole system -- and to discourse itself. These people think they are like the antebellum abolitionists (although I doubt Lee and other Tenth Amendment aficionados would have supported abolition), battling a fundamentally corrupt system. And what's the answer to such a problem? War.

Lee and others misapply the kind of inflammatory rhetoric that leads to actual physical conflict. Over how to reduce the cost of healthcare? Really? 

Now that is lawless.

Best High School Reform? Change College Admissions

Not long ago, Andrew Delbanco, from Columbia University, visited our school to talk about his book, College: What it Was, Is, and Should Be. His argument is that American colleges have lost sight of their most important goal, which he sees as teaching young people to think for themselves and understand the world in its broadest moral and personal senses.

I agree with his priorities, and appreciated his talk, but his book seemed more like a faculty room rant than a systematic treatment of the subject.

And while it may be flip, I have an answer that does not require a book to explain. If you want to fix American secondary and university education, abolish early admission programs. Early admission robs students of one quarter of their high school careers. The perceived need to get high grades in September makes them risk-averse, they spend the first few weeks worrying (or feeling they ought to worry) about applying, and then the feel they ought to be "done" as soon as they are admitted. It takes a lot of energy, attention and sympathy to talk them out of these warped -- but understandable attitudes.

It steams me to hear college professors talk about what high school graduates can't do when they arrive as freshmen because it is the professors' employees who contribute most to that failure.

Democracy, Transparency and Foreign Policy

As Robert D. Kaplan wrote for Stratfor Glogal Intelligence Reports a couple of days ago, good foreign policy is not always entirely honest. In "Syria and Byzantine Strategy," Kaplan criticizes the Obama Administration for showing too many of its cards in the matter of Syria intervention. "Never tell your adversary what you're not going to do!" he says,  "Let your adversary stay awake all night, worrying about the extent of a military strike!"


http://superradnow.wordpress.com/2012/09/19/spy-vs-spy/

That's probably right. But in democratic governments, secrecy and deception are also problematic. In order for Obama to deceive Bashar al Assad, he would also have to deceive the American public and most of Congress, too. That's not really what he's supposed to do. Maybe that's why dictatorships -- like the Byzantine Empire Kaplan praises in the piece -- execute foreign strategy more effectively.

Obama's strength is his weakness: he's an honest man, fundamentally, and he prefers to talk straight. Such an approach to life is not helping him here. 

Syria and "Politics"

I don't watch CNN or Fox News or any of that 24-hour-news-cycle junk, but I have caught wind of the bizarre perceptions of the Syria problem just by looking at Facebook once a day. One person wanted to know why the president was "stalling." Another lauded him for following the democratic process by consulting Congress even if it did make him look weak. Another predicted that whatever Obama would do would fail, and that he would blame it on "someone else, just like he always does."

The question of whether to bomb or attack or leave Syria alone has profound consequences. Assad's use of chemical weapons on his own people is a serious breech of every norm of international law. As the most powerful military force in the world, the United States can not simply claim moral neutrality in the matter and walk away. But the alternatives to Assad may be nasty, too. One opposition group just posted a video of its most recent execution. And whether the United States can have any positive impact on the situation is not at all obvious.

That is to say, this is a problem for politics. We need to engage in a serious discussion, through legitimate political processes, about what to do as a nation. Tea Party isolationism may be a fair position to take, just as Republican interventionism or Democratic interventionism may be.

What's not helpful or productive or even justifiable is glib mudslinging or name calling. This is serious. If you don't have something serious to say, pipe down and let us work it out.

Donald Rumsfeld, for example, whose entire career has been a series of disgraceful miscalculations and cynical manipulations, should get no air time at all, especially if he is just going to be insulting.