The Trust Problem

Listening to the news this weekend, it occurred to me that my standard lecture on Marbury v. Madison highlights why Trump is unlikely to get a deal with North Korea. (Bear with me here.)

As most readers of this blog know, Marbury  established that the Supreme Court is the final arbiter of constitutionality. The case arose because President Adams–in the last hours of his term–nominated a number of people for judgeships (packing the courts ahead of Jefferson’s assumption of office). In those days, these “commissions” had to be delivered to the appointee to take effect, and due to the timing, Marbury didn’t receive his. Jefferson refused to honor his predecessor’s appointment by having his Secretary of State, James Madison, deliver the commission.

Justice Marshall, who authored the opinion, was between the proverbial rock and hard place. If Jefferson didn’t have to honor the commitments of his predecessor, the new government would be weakened; if he ordered Jefferson to deliver the commission, and Jefferson refused (which was likely), the Court’s authority would be permanently compromised.

I’ve always thought Marshall’s solution was on par with that of Solomon and the baby. He ruled that a commission properly made must be delivered–but he also found the law under which the appointment had been made constitutionally defective, and the commission null and void. Jefferson (I’m sure grudgingly) acquiesced to the decision–including the proposition that the Court was the final voice on constitutionality– since he got the practical result he’d wanted.

When we discuss this case in class, I usually pose a scenario: I have a student assume he owns a car-towing business. He just got a contract with the city, and in order to service it, hired two new people and bought a new truck. Business is great. Then a new Mayor is elected, and refuses to honor the contract.

I ask the student “Would you ever do business with the city again?” The answer is always no. (Sometimes, “hell no!”)

Which brings me to Trump and Korea. And Iran. And the Paris Accords.

At the same time Trump is bragging about his deal-making prowess and suggesting that only he can get a binding agreement with North Korea, he is hell-bent on rejecting the United States’ “binding” commitments to Iran. He has previously refused to honor his predecessor’s decision to join the Paris Accords. (For purposes of this discussion, I will omit mention of the numerous “deals” he reneged on as a private citizen, and the myriad times he stiffed people to whom he owed money. I will also forego discussion of the times the U.S. has bailed on its promises in the past.)

If I were Kim Jong Un, I wouldn’t trust the word of a President who is currently demonstrating that the nation’s word is worthless.

Kim’s hair may be as silly as Trump’s, but I get the impression that he is a whole lot smarter than the un-self-aware ignoramus who currently shames all sentient citizens. Trump is likely to get rolled–and unlikely to realize it.

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Wishful Thinking Isn’t Foreign Policy

A post-debate column from the Brookings Institution focused on a criticism of Administration foreign policy that is dangerously disconnected from reality in its naivete.

The Republican presidential candidates last night disagreed on many important issues, but on foreign policy, they showed a remarkable unanimity. Together, they presented what boils down to a consensus Republican foreign policy manifesto: “Obama is weak; I am strong.”

As the author notes, the message is simple: favoring diplomacy over force is weakness.

The problem with this very simplistic worldview is front and center in the current debate about the Iran nuclear agreement. Opponents–not all of whom are Republicans, and several of whom should know better (yes, Senator Schumer, I’m looking at you)–routinely fault the agreement as “not good enough,” but fall curiously silent when they are asked to propose alternatives. To date, I have not heard any of them offer a single specific suggestion; when pressed, they say something like “I’d get a better deal,” without explaining what “better” would look like or how they would achieve it.

None of those who are opposed to any deal at all with Iran have said what they would do instead. Implicitly, of course, they are counseling war.

All of the Republican candidates seem intent on ignoring the changes in the world that limit America’s capacity to achieve such dramatic outcomes. America’s military power is second to none, but it has been shown in both the George W. Bush and Obama presidencies to have severe limits in achieving foreign policy outcomes. Overall, particularly since the global financial crisis, power has diffused; strong, new competitors have emerged, and even America’s allies have grown more independent and willful as they have grown in relative power. No presidential act of will can change those stark realities.

Indeed, this was a realization not originally of President Obama, but of President Bush, whose second-term foreign policy looks much more like that of Obama than that articulated by the Republican candidates at the debate. It was George W. Bush after all, humbled by American difficulties in Iraq and Afghanistan, who started the process of withdrawal from Iraq, began the search for an Iran deal, and chose to respond to the 2008 Russian invasion of Georgia with sanctions and negotiation. The ideas of preemptive war and unilateral American action were essentially abandoned by the end of the Bush presidency, in fact if not entirely in rhetoric.

The Iran deal is a case in point. It is all well and good to counsel abandoning it on the first day. But, after scrapping the deal, the United States does not have the capacity to reconstruct the international coalition that kept Iran in its box the last 13 years. All of its allies have accepted this deal, and without them there can be no effective effort to deny Iran a nuclear weapon.

There’s a reason thoughtful and knowledgable people–from Dick Lugar and Madelyn Albright to nuclear weapons experts–have strongly endorsed the Iran agreement.

Wishful thinking is not strategy; posturing and self-delusion are not foreign policy. It took an unnecessary and costly war to teach George W. Bush that lesson; we don’t need a repeat performance.

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War and Peace and Chickenhawks

I rarely write about foreign affairs, because it is a complex policy arena in which I have little or no expertise, but the current right-wing hysteria over the (not-yet-fully-fleshed-out) deal with Iran is incredibly troubling for a number of reasons.

Part of the push-back, of course, can be attributed to the Right’s pathological hatred of Obama. But a lot of it goes well beyond that and into the psyches of the GOP’s “Cheney wing”–those saber-rattling lawmakers who enjoyed multiple deferments or otherwise avoided military service themselves, but who sneer at diplomacy and seem bound and determined to send other people’s children into combat.

That “ready, shoot, aim” approach cost us dearly in Iraq and Afghanistan, not to mention that it decimated and destabilized large portions of an already volatile region. You’d think we might have learned a lesson…

Of course, American Right-wingers aren’t the only paranoids participating in the debate. Netanyahu (Israel’s Dick Cheney) isn’t helping matters. To the contrary, he is inflicting significant damage on the American-Israeli partnership that is critical to Israel’s continued survival.

As Political Animal reports

As Israeli Prime Minister Netanyahu continues to decry the landmark deal between the U.S. and Iran, more evidence is emerging that Israel’s current leadership is alienating Americans in droves:

The number of Americans who view Israel as an ally of the United States has sharply decreased, according to a new poll published Thursday. Only 54% of Americans polled said that Israel is their country’s ally, a decline from 68% in 2014 and 74% in 2012.

It isn’t just non-Jews who find Netanyahu’s positions counter-productive and ultimately dangerous to the Jewish state. J Street, a Jewish, pro-Israel lobbying group, is alarmed by his rhetoric, as are numerous Israelis in and out of that country’s defense forces. His unseemly and partisan alliance with Congressional Republican hawks is nothing new, nor is his track record of being wrong about pretty much everything.  His narrow re-election  has made rational debate much more difficult.

Early indications are that the deal struck by Kerry is better than most experts had hoped for. That doesn’t mean it should be uncritically endorsed; the details to be worked out are important, and the stakes are too high for an agreement based only upon “trust me.” That said, the current status is promising, and neither Bibi’s longstanding paranoid fantasies nor the wet dreams of American chickenhawks should derail continuing work on a comprehensive agreement.

As they said in the 60s, all we are asking is to give peace a chance.

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47 Senators We Need to Send Home

By  now, anyone who regularly reads this blog is aware of the letter sent to Iran by 47 Republican Senators.

Vice-President Biden’s response was–considering the provocation–temperate.

The Constitution vests authority for international relations in the President, as the Supreme Court has confirmed. Until we elected a President named Obama, there was also widespread political consensus that partisan squabbles stopped at the water’s edge.

The appalling conduct of Congressional Republicans–first, thumbing their nose at the President by circumventing protocol and inviting Netanyahu, and now, with an effort to sabotage delicate negotiations with Iran (and in so doing probably plunge the nation into yet another war)–is surely illegal, if not traitorous.

My friend Bill Groth is a lawyer who has researched the Logan Act, 18 U.S.C. § 953. He reports:

It was passed in 1799 and last amended in 1994. Here’s what it says: “Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.”

In 1936 the U.S. Supreme Court in U.S. v. Curtiss-Wright Export Corp., 299 U.S. 304, noted that the President is the sole constitutional representative of the U.S. with regard to foreign nations.

Even people who detested and despised George W. Bush, who believed his decisions were taking the country down a dangerous, wrong-headed road, never stooped to this level. And while I never expected to agree with Dick Cheney about anything, here’s what he said about the respective roles of Congress and the Executive when the shoe was on the other foot:

[T]hroughout the Nation’s history, Congress has accepted substantial exercises of Presidential power — in the conduct of diplomacy, the use of force and covert action –[M]uch of what President Reagan did in his actions toward Nicaragua and Iran were constitutionally protected exercises of inherent Presidential powers. … [T]he power of the purse … is not and was never intended to be a license for Congress to usurp Presidential powers and functions.”

Elections are the remedy for Presidential decisions with which we disagree.

When elected lawmakers allow their hatred of a President to outweigh their duty to their country, they are unfit for public office.

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We Need a Prime Directive

My husband and I recently watched a re-run of Star Trek: Voyager. The story-line revolved around the application and importance of the “Prime Directive.”

For those of you unfamiliar with Star Trek (is that even possible??), the Prime Directive is the guiding rule developed by the future’s Federation of Planets: officers of Starfleet are expressly forbidden from interfering with the internal affairs of other planets and civilizations, no matter how well-meaning that interference or how potentially disastrous the results of non-intervention. The difficulty of complying with the Prime Directive has obvious dramatic possibilities, most of which have been mined extensively by the various Star Trek spin-offs.

On rare occasions, where the provocation was overwhelming, interference with other civilizations worked out, but usually in episodes where the Prime Directive was ignored, things ended badly.

Americans could learn a few things from Star Trek. At this stage of planetary development, we are the “big kahuna’s,” the analogs of the sheriffs in the old westerns, or the Federation forces in Star Trek. We are all too easily seduced by the temptations–and delusions–that come with power.

A Prime Directive might have kept us out of Viet Nam and Iraq. It might have kept us from confusing self-interest with self-defense.

At the very least, the existence of a Prime Directive would require serious public consideration of the  reasons being offered to justify a proposed intervention, the adequacy of those reasons, and the validity and reliability of the facts offered to support such justification.

When I hear Santorum, Gingrich and Romney rattling sabers at Iran and spouting nationalistic bromides in an effort to pander to the least thoughtful elements of the electorate, I can’t help marveling that an old science-fiction series displays more substance, more gravitas, more maturity, than the Republicans who are currently competing for their party’s nomination for President.

I can’t imagine Santorum, for example, a man who feels no compunction telling other people and other nations how (his) God wants them to live, and who promises to impose (his version of) “morality” on the rest of us should he be elected, embracing–or even understanding–a Prime Directive.

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