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The Rule of Law and Foreign Policy

January 13, 2013 Leave a comment Go to comments

jonassalk

The writer Robert Wright (author most recently of the 2009 book The Evolution of God) was a regular contributor at The Atlantic for the past year. He has now moved on to other ventures, writing his valedictory post a week ago. I wish I read him more consistently.

Wright took advantage of his post to “articulate three beliefs of mine that I rarely articulated this year, but that informed much of what I wrote, especially in the realm of foreign policy.” All three are worthy of reflection. Here’s the third:

If the United States doesn’t use its inevitably fading dominance to build a world in which the rule of law is respected, and in which global norms are strong, the United States (and the world) will suffer for it. So when, for example, we do things to other nations that we ourselves have defined as acts of war (like cybersabotage), that is not, in the long run, making us or our allies safer. The same goes for when we invade countries, or bomb them, in clear violation of international law. And at some point we have to get serious about building a truly comprehensive nuclear nonproliferation regime–one that we expect our friends, not just our enemies, to be members-in-good-standing of.

We learned not to expect sensitivity to this issue during the reign of Bush-Cheney, as they willfully ignored the rule of law. But President Obama would be different, or so I thought on the eve of his inauguration four years ago. Alas, little has changed. Two examples:

1. Drones. I never got around to writing about this at the time, but as Scott Shane reported in the NYT back around Thanksgiving,

Facing the possibility that President Obama might not win a second term, his administration accelerated work in the weeks before the election to develop explicit rules for the targeted killing of terrorists by unmanned drones, so that a new president would inherit clear standards and procedures, according to two administration officials.

[snip]

The administration’s legal reasoning has not persuaded many other countries that the strikes are acceptable under international law. For years before the Sept. 11, 2001, attacks, the United States routinely condemned targeted killings of suspected terrorists by Israel, and most countries still object to such measures.

But since the first targeted killing by the United States in 2002, two administrations have taken the position that the United States is at war with Al Qaeda and its allies and can legally defend itself by striking its enemies wherever they are found.

Commenting on this story a few days later, Georgetown law professor David Cole wrote:

The real problem is not that there are no guidelines written down—though the administration itself seems now to acknowledge that what it has is insufficient—but that we the people don’t know what they are. The idea that the president can authorize the killing of a human being far from any traditional battlefield without any publically accessible set of constraints, conditions, or requirements is unacceptable in a country committed to the rule of law. In his first and only speech on security and our national ideals, at the National Archives in May 2009, President Obama insisted that adherence to the rule of law is essential in the fight against terror, and to that end, promised to be transparent about his actions “so that [the people] can make informed judgments and hold us accountable.” Yet after four years and hundreds of killings authorized in secret, the most the president has been able to offer us about the scope of his most awesome power is a handful of vague paragraphs in a handful of administration officials’ speeches, which experts must then parse for clues as to what the rules might actually be. This is more akin to what law looked like in the Soviet Union than to what it should look like in the United States of America.

2. Fake vaccination program. Capturing (or killing) Osama Bin Laden was a high priority, but the end didn’t justify the means, or one of the means: fake vaccinations. As The Guardian first reported two Julys ago, “the CIA organised a fake vaccination programme in the town where it believed Osama bin Laden was hiding in an elaborate attempt to obtain DNA from the fugitive al-Qaida leader’s family.” Three days later, The Guardian followed up with objections raised by Doctors Without Borders:

Médecins Sans Frontières has lashed out at the CIA for using a fake vaccination programme as a cover to spy on Osama bin Ladenon Thursday, saying it threatened life-saving immunisation work around the world.

The international medical aid charity said the ploy used by US intelligence, revealed this week in the Guardian, was a “grave manipulation of the medical act”.

[snip]

“The risk is that vulnerable communities – anywhere – needing access to essential health services will understandably question the true motivation of medical workers and humanitarian aid,” said Unni Karunakara, MSF’s international president. “The potential consequence is that even basic healthcare, including vaccination, does not reach those who need it most.”

Tom Scocca reviewed the details at the time, concluding that

Bin Laden had already been found. The vaccination campaign was a matter of bureaucratic self-protection—to get DNA samples from people inside the compound, to confirm that the target that the CIA had identified in Abbottabad was correct, so that the agency wouldn’t embarrass itself. The most that the vaccinations could have done, if the DNA tests had come back negative, would have been to allow the CIA to quietly add this particular house to the list of places in which, over the course of a decade, it had failed to find Bin Laden.

And that assumes the vaccination trick even worked. According to the Guardian, it was “not known whether the CIA managed to obtain any bin Laden DNA, although one source suggested the operation did not succeed.” Yet we got Bin Laden anyway. The necessity that [a “senior U.S. official”] was pleading was fake necessity.

Last month, eight vaccination workers were killed in Pakistan during a nationwide vaccination drive.

Obama’s inauguration is a week away. May he show greater respect for the rule of law in his second term.

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Categories: Journalism, Law, Politics
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