international law

As Peter Feaver observed over at Shadow Government, there's an ever-increasing number of leaks coming from the Obama administration on foreign policy. 

Beyond the drip-drip-drip on the Afghan strategic review, the foreign policy community is now agog at Massimo Calabresi and Michael Weisskopf's story in Time on the rise and fall of Greg Craig, Obama's first White House Counsel.  Former colleague Laura Rozen labels it as, "one of the most devastating accounts to have emerged of the Obama White House."

Calabresi and Weisskopf's story contains astonishing revelations, like the following: 

• Obama's foreign policy preferences changed as he confronted political realities;
• As time has passed, Obama has paid more attention to the political ramifications of his national security decisions;
• There were fierce bureaucratic battles over the release of national security memoranda;
• Greg Craig's influence waned when his policy recommendations produced political blowback;
• Over time, Obama has tried to balance national security concerns with his desire to unwind some of the Bush administraton's excessive actions.
• People who oppose Greg Craig did so mostly for short-sighted political reasons.

Well, blow me down.  

I don't mean to belittle those who either ardently support or ardently oppose the initial efforts to eliminate the legacies of Guantanamo and the like.  But stories that reveal politicians to be acting, er, politically don't really cause my jaw to drop. 

The only interesting thing I found in this piece was the part Rozen excerpted:

Obama arrived at Emanuel's office a few minutes later, took off his windbreaker and sat down at a table lined with about a dozen national-security and political advisers. He asked each to state a position and then convened an impromptu debate, selecting Craig and McDonough to argue opposing sides. Craig deployed one of Obama's own moral arguments: that releasing the memos "was consistent with taking a high road" and was "sensitive to our values and our traditions as well as the rule of law." Obama paused, then decided in favor of Craig, dictating a detailed statement explaining his position that would be released the next day.

But for Craig, it turned out to be a Pyrrhic victory. Four days later, former Vice President Dick Cheney attacked Obama on Fox News Channel for dismantling the policies he and Bush had put in place to keep the country safe. More significant was the reaction within Obama's camp. Democratic pollsters charted a disturbing trend: a drop in Obama's support among independents, driven in part by national-security issues. Emanuel quietly delegated his aides to get more deeply involved in the process. Damaged by the episode, Craig was about to suffer his first big setback.

In other words, the  median American voters are comfortable with using illiberal means to protect the national interest (hmmm... that sounds familiar).  And, shock upon shock, politicians respond to public attitudes.   

Bryan Bender had a long story in yesterday's Boston Globe about the Obama administration's aspirations for treaty ratification: 

Marking a major reversal from the Bush administration, which considered most treaties to be too restrictive of US sovereignty, the Obama administration says it will seek ratification of three major pacts aimed at reducing nuclear weapons. It also will seek approval of a set of regulations to manage use of the oceans and, by the end of the president’s first term, a new treaty to combat global climate change....

International treaties are signed by the president, but under the Constitution must be ratified by the Senate to become law. They need at least 67 votes to pass, not a simple majority of 51, typically requiring strong support from the president’s own party and a significant number of votes from the opposing party. Democrats now control 60 seats in the Senate, counting two independents who usually vote with the party.

Obtaining 67 votes has proved difficult under the best of circumstances and helps explain why fewer than 20 major security treaties have been ratified since the end of World War II, according to David Auerswald, a professor of strategy and policy at the National War College in Washington.

“The foreign policy consensus in this country has disappeared on many issues,’’ said Auerswald, a leading specialist on treaties. “Given that the Democrats only have 60 of the 67 votes necessary to approve a treaty, they have to hold their ranks and pick off seven Republicans. Yet moderate Republicans are a dying breed in the Senate, making the Democrats’ task that much harder.’’

At first glance, I'd share Auerswald's skepticism.  The Bush administration, for example, wanted the Senate to pass the Law of the Sea Treaty.  Despite Bush's support and the ardent backing of the U.S. Navy, ratification went nowhere -- there were a suficient number of "new sovereigntists" to kill the chances for a floor vote.     

Of course, that was a whole election cycle ago.  Looking at the U.S. Senate, let's do some arithmetic.  Assuming Obama has the backing of all 60 Democrat-ish Senators, who might offer support on the GOP side for, say, the Law of the Sea Treaty?  My tentative list: 

1. Olympia Snowe (ME)
2. Susan Collins (ME)
3. Richard Lugar (IN)
4. Orrin Hatch (UT)
5. Lisa Murkowski (AK)
6. George Voinovich (OH)
7. John McCain (AZ)

So it's possible... hmmm.... well, maybe not McCain.  It's a little unclear, actually. 

I suspect this is going to boil down to whether John McCain wants to be the Arthur Vandenberg of his era. 

Either way, however, I suspect the Obama administration would encounter difficulties getting these same seven senators to vote yea on a raft of international treaties.  Unless there are more GOP Senators available for the picking, I suspect Obama will have to pick only his favorites to push. 

I've been playing catch-up this evening by reading Obama's speech on homeland security and then Cheney's speech on homeland security in succession.  Some quick thoughts: 

• My hypocrisy detector went off with both speeches.  For all of Obama's eloquence, there's simply no way to square his position on releasing torture photos with the other aspects of his speech.  Cheney, on the other hand, kept blasting Democratics for using "euphemisms" -- and yet, when describing what happened to Khalid Sheikh Mohammed, Cheney fell back on "enhanced interrogations." 
• I agree with Christian Brose that it's odd to read these two speeches in light of Jack Goldsmith's TNR essay comparing the Obama and Bush approaches.  Well, actually, it was mostly odd to read Cheney's speech.  The guts of Obama's critique of the prior administration's approach to these issues was nearly identical to Goldsmith's -- a failure to construct a proper legal edifice, a failure to respect checks and balances, etc.  Given that Jack is a rock-ribbed conservative, this is a point for Obama.  I'm pretty sure, however, that Goldsmith agrees with Cheney on the negative effects of the NYT revealing the Terrorist Surveillance Program. 
• I also agree with Joshua Keating that Obama's speech by and large anticipated many of Cheney's arguments.  Obama's rebuttal on the transfer of Guantanamo detainees to the United States was particularly effective.
• Politically, Obama has inherited George W. Bush's greatest political gift -- having adversaries more boneheaded than himself.  While Will Inboden, Philip Zelikow, and Peter Feaver all had some good responses to my lament last week about the state of the GOP on foreign policy and national security, Dick "18% approval rating" Cheney has now cemented his grip on being the party spokesman on this issue in the eyes of the media and the American public.  That's great for Obama and not so good for the GOP.  Beyond the 18% who like Cheney, does anyone think that his speech will persuade others to change their minds? 

What did you think?

David Brooks' column today looks at the lessons that the swine flu outbreak have for the future of global governance: 

So how do we deal with [transnational problems]? Do we build centralized global institutions that are strong enough to respond to transnational threats? Or do we rely on diverse and decentralized communities and nation-states?

A couple of years ago, G. John Ikenberry of Princeton wrote a superb paper making the case for the centralized response. He argued that America should help build a series of multinational institutions to address global problems. The great powers should construct an “infrastructure of international cooperation ... creating shared capacities to respond to a wide variety of contingencies.”

If you apply that logic to the swine flu, you could say that the world should beef up the World Health Organization to give it the power to analyze the spread of the disease, decide when and where quarantines are necessary and organize a single global response....

The response to swine flu suggests that a decentralized approach is best. This crisis is only days old, yet we’ve already seen a bottom-up, highly aggressive response....

If the response were coordinated by a global agency, those local officials would not be so empowered. Power would be wielded by officials from nations that are far away and emotionally aloof from ground zero. The institution would have to poll its members, negotiate internal differences and proceed, as all multinationals do, at the pace of the most recalcitrant stragglers.

Second, the decentralized approach is more credible. It is a fact of human nature that in times of crisis, people like to feel protected by one of their own. They will only trust people who share their historical experience, who understand their cultural assumptions about disease and the threat of outsiders and who have the legitimacy to make brutal choices. If some authority is going to restrict freedom, it should be somebody elected by the people, not a stranger.

Finally, the decentralized approach has coped reasonably well with uncertainty. It is clear from the response, so far, that there is an informal network of scientists who have met over the years and come to certain shared understandings about things like quarantining and rates of infection. It is also clear that there is a ton they don’t understand.

A single global response would produce a uniform approach. A decentralized response fosters experimentation.

Reading this, my first thought was, "wait a minute... Brooks' characterization of Ikenberry's poition ("Power would be wielded by officials from nations that are far away and emotionally aloof from ground zero.") doesn't sound like Ikenberry's stuff. 

If you look at the Ikenberry paper that Brooks cites, he proposes, "a strategy in which the United States leads the way in the creation and operation of a loose rule-based international order. The United States provides public goods and solves global collection action problems (emphasis added)."  That doesn't sound terribly centralized to me.  Indeed, my hunch would be that Ikenberry would find centralized and decentralized responses to complement rather than substitute for each other. 

Don't trust me on this, however.  I asked John Ikenberry this morning what he thought about Brooks' argument.  Here's his response in full: 

The problem with David’s analysis is that he thinks the two strategies – national and international – are alternatives. We need both. National governments need to strengthen their capacities to monitor and respond. International capacities – at least the sorts that I propose – are meant to reinforce and assist national governments. This international capacity is particularly important in cases where nations have weak capacities to respond on their own or where coordinated action is the only way to tackle the threat. When it comes to transnational threats like health pandemics everyone everywhere is vulnerable to the weakest link (i.e. weakest nation) in the system, and so no nation can be left behind.

This is not a new idea – it is the idea that underlay America’s strategy of order building after WWII. Jacob Viner, a leading international economist of that era, captured the logic in 1942 as it relates to global markets: "There is wide agreement today that major depressions, mass unemployment, are social evils, and that it is the obligation of governments. . . to prevent them." Moreover, he said, there is "wide agreement also that it is extraordinarily difficult, if not outright impossible, for any country to cope alone with the problems of cyclical booms and depressions. . . while there is good prospect that with international cooperation. . . the problem of the business cycle and of mass unemployment can be largely solved." What Viner says about economic cooperation in the 1940s is even more the case for the diffuse, shifting, and uncertain threats of our era. States need collective capacities to they can make good on their own national obligations to respond.

[You've been dreaming of this kind of Annie Hall/Marshall McLuhan moment for a while, haven't you?--ed.  Yes.  Yes I have.]

UPDATE:  Anne Applebaum offers a more focused critique of the World Health Organization -- and its critics -- in her column today. 

Let me be the first FP blogger to welcome Shadow Government into the fold. As the Democrats take over the executive branch, it will be good to have some critical voices around to push and prod their foreign policies.

That said, I'd also love it if Shadow Government could also provide some evaluation on any criticism provided by other former Bush officials as the changeover commences. Do these criticisms have validity, or are they merely tactical justifications given the GOP's minority status?

For example, consider today's New York Times op-ed by John Bolton and John Yoo:

The Constitution’s Treaty Clause has long been seen, rightly, as a bulwark against presidential inclinations to lock the United States into unwise foreign commitments. The clause will likely be tested by Barack Obama’s administration, as the new president and Secretary of State-designate Hillary Clinton, led by the legal academics in whose circles they have long traveled, contemplate binding down American power and interests in a dense web of treaties and international bureaucracies.

Like past presidents, Mr. Obama will likely be tempted to avoid the requirement that treaties must be approved by two-thirds of the Senate. The usual methods around this constitutional constraint are executive agreements or a majority vote in the House and Senate to pass a treaty as a simple law (known as a Congressional-executive agreement).

Executive agreements have an acknowledged but limited place in our foreign affairs. Congressional-executive agreements are far more troubling.

Now, on the one hand, one could interpret this advice as a warning about the dangers of implementing international agreements without the broad support of Congress and the American people.

One could also, however, interpret this advice as awfully strange, as it emanates from officials who have, heretofore, been mostly concerned with the augmentation of the executive branch's power at all costs (and implemented plenty of congressional-executive agreements while in office).

It is terribly convenient, now that they are out of power, to be suddenly concerned with Obama running roughshod over the legislative branch. The domestic parallel would be if Bush officials who embraced No Child Left Behind and intervened in the case of Terry Schiavo suddenly developed a Strange New Respect for federalism.

So, Shadow Government, should one take Bolton and Yoo at face value?

UPDATE:  Drezner gets results from Shadow Government.  [Has the ten-year old in you has always wanted to type that sentence?--ed.  Yes.  Yes, he has.]