Greek Election Bears a Gift for Europe?

Euro Sign of the Times
NYT Image

Everyone's asking about the meaning of the recent Greek vote. Markets swung up high and down low in confused reaction. Let me clarify this for the markets. The Greek vote tells us that misery loves company. Why fail alone when you can fail with about half a billion other folks?

But will the EU really fail?

Success requires more centralization in monetary, fiscal, and political terms, but that would demand each state to give up individual sovereignty, which they might all be loath to do. The future of the EU may have just come down to a democratic vote in Greece, but the voices urging more centralization might insist that the technocrats take charge for now, with a promise of greater democracy for the EU further down the road toward stability.

That would be a risky promise to bank upon.

David Neff on Cheney's Rex Lex Political Views

Calvin and 'Hobbes'

Reading Right to Left

(Image from Christianity Today)

I've just read an informative article by David Neff, the editor-in-chief of the Christianity Today Media Group, which includes Christianity Today, Christian History & Biography, and Books & Culture, among other publications. He also serves as moderator for the Christian History Blog. From reading his recent Christianity Today article, "Long Live the Law: What would John Calvin say to Dick Cheney?" (March 2009, Vol. 53, No. 3), I finally understand the problem with Cheney's political views.

Some readers might ask, "What took you so long?"

Well, the world is full of things to know about -- and even fuller of perspectives about those things. I've heard a lot of overwrought emotional opinions about various political issues and exaggerations about every politician that I know of. So unless somebody spells an issue out for me clearly and factually, I maintain agnosticism (unless I happen to already know something about the issue).

Moreover, the passing of a administration is a time for taking stock of where we find ourselves.

I won't go into the entire argument about the West's historical rejection of rex lex (the king is the law) in favor of lex rex (the law is the king), as set out in the article, for readers can click on the link and quickly read for themselves.

For his views concerning the return of rex lex in the American context, Neff draws upon Charlie Savage's book Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy. I haven't read Savage's book (and its title sounds a bit over the top), but Neff presents a reasonable case that the so-called 'imperial presidency' heralds the return of rex lex (a twentieth-century American trend toward increasing presidential power that had been reversed in reaction to Richard Nixon's presidential overreach). Here's the crux of his argument:

[O]ne young staffer in the Nixon administration, future Vice President Dick Cheney, became a champion of expansive executive power. Serving in Congress and in subsequent administrations, Cheney helped promote the theory of the "Unitary Executive," the idea that, in Savage's words, the White House should exercise complete control over everything in the executive branch, which could be conceived of as a unitary being with the President as its brain. Attorney General Ed Meese, then-Representative Dick Cheney, and others pushed that notion in order to reclaim the de facto presidential powers that were squandered by Nixon's overreach.

But after 9/11, the push to consolidate presidential power over national security issues took on new momentum. Sometimes Cheney's rhetoric has gone to extremes. For example, he told Fox News's Chris Wallace that because the President always has at his side a military aide carrying the nuclear "football," and because the President therefore has the ability to launch a nuclear attack at any time without checking with Congress, he is free of any responsibility to check with Congress in exercising his national security duties.

This is clearly an example of category confusion -- mistaking ability for authority, confusing capability for constitutional powers.

This nuclear argument is a huge leap along a trajectory outlined in earlier arguments Cheney made. For example, in his 1990 conversations with President George H. W. Bush, he argued that the President did not need congressional authorization to go to war in order to drive Saddam Hussein out of Kuwait. Indeed, Cheney later said that despite the fact that Bush sought congressional approval, if Congress had said no, he would have urged the President to launch Desert Storm over Congress's objections.

Despite the Constitution granting war-making power to Congress, Cheney has argued that Congress is essentially deliberative in nature, and therefore unsuited to deal with national security, something that always requires swift action. "The legislative branch is ill equipped to handle many of the foreign policy tasks it has been taking upon itself lately," he wrote. The executive branch, by contrast, was characterized by "decision, activity, secrecy, and dispatch," and therefore far better suited to deal with national security.

Nixon White House lawyer John Dean noted the flaws in Cheney's argument: "Cheney seems to be oblivious to the fact that the type of government he advocates is not, in fact, the government our Constitution provides . . . . His argument also assumes that a more agile, energetic, and fast-acting chief executive is the better system, but history does not support that contention. Presidential leadership has consistently shown itself less wise and less prudent than the slower but more deliberative nature of the system that we have."

Neff continues:

Much of Cheney's perspective was summed up in a confidential memo written by former Deputy Assistant Attorney General John Yoo. He argued that the President's wartime powers give him, the CIA, and the military the discretion to do whatever he thinks is necessary, including coercive interrogation techniques that most experts consider to be torture. The President has a completely free hand, Yoo argued, simply by claiming national self-defense. Congress and the courts should have no say. The executive branch is not accountable.

This expansion of presidential power at the expense of the legislative and judicial branches has worried conservatives every bit as much as it has worried liberals. After all, it is a core conservative principle to mistrust concentrations of government power, especially at the federal level.

Neff presents a troubling picture of Cheney's views on presidential power as relatively untrammeled by limits set forth in the US constitution or by a division of powers among executive, legislative, and judicial branches. What is less clear to me is whether or not the Bush presidency consciously and actively adopted these views. That Cheney urged them is clear. That he succeeded is less clear.

Neff, in contrast to Cheney, urges us to champion certain principles:

[M]utual accountability among the branches of government; rule by law, not by the raw assertion of power; and government actions limited by the nature of the liberties government is called to protect.

He hopes that the Obama administration will hold to these principles, but also worries:

We are grateful that the new administration seems to understand this. But power has a way of corrupting. It shouldn't surprise us if this or future administrations are also tempted to expand their powers unreasonably.

The problem goes beyond Cheney's political views on the executive branch. Untrammeled power is ever a temptation, not only to the right but also to the left.

John Calvin would likely say, "It's in our nature."

National Sovereignty and the "Responsibility to Protect"

Gareth Evans
President and CEO
International Crisis Group
Brussels, Belgium
(Image from ICG)

I receive regular updates on international conflicts from the International Crisis Group (ICG). I'm not actually a member of this organization, but I think that its former Northeast Asia Director Peter Beck put me on the emailing list a couple of years ago after I had met him at a dinner in an Uzbek restaurant in downtown Seoul.

Anyway, I'm on the list, and I received an update this morning that illuminates the issue of national sovereignty and its limitations, a point that I've been looking into since reading Philip Bobbitt's Terror and Consent. The light shed on this issue comes from ICG president Gareth Evans, writing for the Los Angeles Times. His article, "Russia and the 'Responsibility to Protect'" (August 31, 2008), analyzes Russia's appeal to its responsibility to protect Ossetians against 'genocide'.

Evans does not find this appeal credible, nor do I, but what caught my interest was the limited national sovereignty implied by this principle, "the responsibility to protect":

The Russian government has argued that its recent military operations in Georgia were justified by the principle of "responsibility to protect" (colloquially known as R2P). This is the approach to dealing with mass-atrocity crimes that was embraced by 150 member states at the 2005 U.N. World Summit.

Evans examines Russia's appeal to the R2P in the light of five criteria -- seriousness of the threat, primary purpose of the response, military action only as a last resort, proportionality of response, and more good than harm from the intervention -- and finds the appeal does not clearly satisfy any of the criteria. Presumably, Evans knows the principle's proper application since he "co-chaired the International Commission on Intervention and State Sovereignty, which introduced the 'R2P' concept," which he identifies as an "approach to dealing with mass-atrocity crimes that was embraced by 150 member states at the 2005 U.N. World Summit."

To turn now to my interest, I concede that this R2P principle doesn't directly meet Gopal Balakrishnan's argument in "Algorithms of War" (New Left Review 23, September-October 2003), in which he critiques Philip Bobbitt's Shield of Achilles, for the R2P principle was some 15 years after the "Peace of Paris" that Bobbitt discusses, and it concerns only "mass atrocity crimes," which makes the principle less restrictive of national sovereignty than the sort of limitations that Bobbitt discusses.

The principle does, however, lend credence to one of Bobbitt's basic points, namely, that our understanding of national sovereignty is shifting as we concede limitations on the right of a state to do whatever it pleases concerning its internal affairs -- the older conception that Bobbitt calls "opaque sovereignty."

But daylight is approaching, so I'll have to return to this issue another time.

Philip Bobbitt's Response to Critics?

UN Security Council
Construing the UN Charter
with
Implications for the Charter of Paris
(Image from Wikipedia)

As I noted yesterday, Philip Bobbitt's chapter 10 of Terror and Consent 'appears' to present a response to critics of The Shield of Achilles who argued that he had misconstrued the Peace of Paris as legitimating military intervention for humanitarian reasons.

Recall the words of the "Charter of Paris for a New Europe":

"we renew our pledge to refrain from the threat or use of force against the territorial integrity or political independence of any state, or from acting in any other manner inconsistent with the principles or purposes of these documents. We recall that non-compliance with obligations under the Charter of the United Nations constitutes a violation of international law." (Page 5, Charter)

I noted that this is no ringing endorsement of intervention but that some ambiguity remains due to an appeal to the UN Charter. Consequently -- or so one might suspect -- on pages 453-454 of Terror and Consent, Bobbitt argues:

Humanitarian intervention would also appear to be a violation of the text of the charter [of the UN] and its notions of opaque sovereignty [i.e., a state's "supreme authority to govern matters within its domestic jurisdiction," among other powers] . . . . Nevertheless, humanitarian intervention has been endorsed by the Security Council. This brings intervention on humanitarian grounds within the custom and practice of the [UN] charter, which has recently come to reflect ideas of translucent sovereignty. On this view, anticipatory intervention can be lawfully undertaken, but only with the [Security] Council's blessing. (Terror and Consent, 453-454)

Does this answer Bobbitt's critics? I'm no lawyer, but I do know that interpretations of constitutions evolve in practice, and I imagine that the same can hold for interpreting a charter.

In reflecting upon Bobbitt's 'answer', I noticed that he doesn't explicitly mention the Peace of Paris in chapter 10 of Terror and Consent. I looked over the chapter twice after reading critics attacks on Bobbitt's construal of the "Charter of Paris for a New Europe," and unless I overlooked an explict reference, then none appears. That absence left me wondering if Bobbitt was consciously responding to critics, so I emailed him and inquired:

Was this chapter a response to your critics concerning the significance of the Peace of Paris?

I received a quite prompt reply, within hours, in fact:

I am at present . . . in Vineyard Haven with only a Blackberry to respond and I wonder if you might wait until I return to NY in mid-week for a proper response?

The short answer to your question is that I do not read the UN Charter, as construed by the Security Council, in the same way as my reviewer and therefore did not think it necessary to defend my claims about the Peace of Paris which, as you know, goes well beyond the Charter of Paris.

The fact that my most recent book appears to buttress my earlier claims is either a lucky fortuity or merely a reflection of a deplorable lack of imagination on my part. I was not consciously responding to the review, only a small part of which I have read.

Many thanks for writing and apologies for the fragmentary nature of my reply.

Bobbitt's reply clarifies one point. He didn't compose the chapter as an intentional response to critics' remarks on his reading of the Peace of Paris. However, it raises other questions for me. By "Peace of Paris," Bobbitt means more than the literal "Charter of Paris for a New Europe," a point that I had missed -- probably because I was relying on the critics for my knowledge of what he argues in his earlier book, The Shield of Achilles. What, precisely, Bobbitt means by "Peace of Paris" is therefore a question that I must answer for myself by reading that earlier book . . . maybe over the winter break. I'm also left wondering about Bobbitt's understanding of the UN Charter since he mentions that he does not read it the same way as his critics. Plus wondering about how he views the UN Security Council's construal of the UN Charter.

Perhaps if Bobbitt has time midweek, we'll hear more about these things.

"Peace of Paris?" Balakrishnan on Bobbitt

Organization for Security and Cooperation in Europe
Green: OSCE Participating States
Tan: Partners for Co-operation with OSCE
(Image from Wikipedia)

Some readers will recall my earlier post concerning a review by Gopal Balakrishnan, "Algorithms of War" (New Left Review 23, September-October 2003), in which he critiques Philip Bobbitt's Shield of Achilles. I've not read this earlier work by Bobbitt but Balakrishnan's review serves to illuminate Bobbitt's thinking in the more recent Terror and Consent, which I have read.

In a section titled 'Dawn or dusk at Paris?', Balakrishnan questions Bobbitt's understanding of the "Charter of Paris for a New Europe":

Bobbitt portrays what he calls the Peace of Paris -- the 'Charter for a New Europe' adopted by the CSCE [i.e., Commission on Security and Cooperation in Europe] in late 1990 -- as the diplomatic stage upon which the liberal-democratic constitutional norm of the victorious West finally achieved the universal recognition it missed at Versailles. The importance of this moment for the architecture of Bobbitt's narrative is decisive: it is the true hinge of contemporary history, on which the present continues to turn. Yet just at this crux, the third and most fundamental aporia in his construction breaks open. For on the one hand, the Peace of Paris signals a new constitution of the society of states, based on worldwide legitimation of democracy, human rights and the market economy. As such it provides the empowering charter for military interventions to secure these norms wherever they are too grossly defied. As Bobbitt puts it:

The Peace of Paris ought to settle this constitutional question for the society of states: no state's sovereignty is unimpeachable if it studiedly spurns parliamentary institutions and human rights protections. The greater the rejection of these institutions -- which are the means by which sovereignty is conveyed by societies to their governments -- the more sharply curtailed is the cloak of sovereignty that would otherwise protect governments from interference by their peers. us action against the sovereignty of Iraq, for example, must be evaluated in this light. [16]

So too, he adds, the Peace of Paris strips the mantle of national sovereignty away from any government seeking nuclear weapons that fails to conform to its norms, warranting pre-emptive strikes against the delinquent. [17] In this register, the Charter of 1990 appears as the lineal successor of the Congress of Vienna, setting the terms of legitimate diplomacy and war for an entire epoch, the period ahead.

The briefest glance at the text of the Charter, however, makes clear that the 'Peace of Paris' bears no relation to this construal. It expressly rules out the actions Bobbitt would have it endorse. 'In accordance with our obligations under the Charter of the Nations and commitments under the Helsinki final act,' declared its signatories, 'we renew our pledge to refrain from the threat or use of force against the territorial integrity or political independence of any state, or from acting in any other manner inconsistent with the principles or purposes of these documents. We recall that non-compliance with obligations under the Charter of the United Nations constitutes a violation of international law'. [18] That this was no mere clause de style can be seen from the reaction of the figure who was historically speaking its most significant signatory -- given that most of the document was standard boiler-plate for Western politicians -- namely Gorbachev: who denounced both NATO’s attack on Yugoslavia and the Anglo-American invasion of Iraq.

Footnote 16: "SA, p. 680."

Footnote 17: "'No state that does not derive its authority from representative institutions that coexist with fundamental rights can legitimately argue that it can subject its own people to the threat of nuclear pre-emption or retaliation on the basis of its alleged rights of sovereignty because the people it thus makes into nuclear targets have not consented to bear such risks. At a minimum, the Peace of Paris stands for this': SA, p. 680."

Footnote 18: "See 'Charter of Paris for a New Europe': http://www.osce.org/." This footnote refers to page five of the Charter of Paris for a New Europe, which is located on the website for The Organization for Security and Co-operation in Europe.

Balakrishnan would appear to have raised a devastating point in citing the precise words of the Charter of Paris for a New Europe:

"we renew our pledge to refrain from the threat or use of force against the territorial integrity or political independence of any state, or from acting in any other manner inconsistent with the principles or purposes of these documents. We recall that non-compliance with obligations under the Charter of the United Nations constitutes a violation of international law."

On the face of it, this pledge would seem a rather clear affirmation of national sovereignty. Yet in looking closer, I note that the point seems to be about "territorial integrity or political independence," which I take to mean that no state can attack another to incorporate some or all of its territory. Moreover, this Charter of Paris refers to "obligations under the Charter of the United Nations," which is surely ambiguous wording. Granted, Balakrishnan is correct that this Charter of Paris announces no ringing endorsement of limited national sovereignty, but since this charter refers the reader to the United Nations, one would need to analyze what the UN allows in terms of interventions.

This might explain why Bobbitt, in chapter 10 of his more recent Terror and Consent -- "Mise-en-Scène: The Properties of Sovereignty" -- turns to an analysis of what is allowed by the United Nations.

Perhaps I'll look further into this tomorrow, but that's enough for now. A new semester has started, and I've now accepted a new position, at Ewha University, where I'm teaching undergraduate students the techniques of essay composition . . . and, for this semester at least, teaching graduate students the finer points of Gnosticism and Johannine theology.

Absolute National Sovereignty to the Taliban?

Taliban's Destruction of the Bamyan Buddhas

All power to the Taliban?

(Image from Wikipedia)

Over at Malcolm Pollack's WakaWakaWaka, an individual going by the name "Gak Seolli" has posted a comment about the Korean hostage crisis in Afghanistan that includes the following remark:

The Taliban, no matter how morally repugnant we may find them, doesn't [sic: don't] have to answer to anyone in regards to what they do on their own land. They've guaranteed no safety for foreigners, offered no invitation to missionaries. They've quite plainly done the opposite....

When questioned on this point, Gak Seolli elaborated that concerning the Taliban, he had merely:

...inquired into the rights anyone had to enter their territory and what rights outsiders would have to demand that the Taliban allow certain behaviors or visitors on their lands. Did the Taliban not make it pretty clear that outsiders and non co-religionists should stay out of their land? The US/Korean governments got the message, By what right do we declare that their declaration is invalid?

These two brief statements don't provide much for me to go on, but the basic position seems to be what one might call "absolute national sovereignty," for the Taliban need not "answer to anyone in regards to what they do on their own land."

There seem to me to be two problems with this position, one empiricial and the other theoretical:

Concerning the former, empirical problem: Are the Taliban actually the political authority in Afghanistan? If they are not -- and they don't seem to have political power at the moment -- then is Afghanistan "their own land" in the relevant political sense? If the Taliban are to speak in terms of absolute national sovereignty, then they ought at least to hold political power before doing so. Political power, however, is currently held by the government of President Hamid Karzai under a constitution ratified by the loya jirga in 2003. This official government has demanded that the Taliban free the Korean hostages. If absolute national sovereignty is accepted, then how can the Taliban oppose its own government?

Concerning the latter, theoretical problem: Is absolute national sovereignty a reasonable political position? Does a governing authority really not have to answer to anyone with regard to what it does on its own land? That seems counterintuitive to me, for it implicitly leaves one without the right to criticize the internal affairs of any foreign country for any policy whatsoever. Does one truly not have this right? If a country is committing genocide within its own borders, can one really not legitimately criticize this? My moral intuition suggest that we should not only criticize such an internal policy, we should also attempt to stop it. If this intuition is correct, then absolute national sovereignty is an unreasonable political position to hold.

My intent here is not to set up a straw man for attack, and I don't know that I've correctly understood Gak Seolli's position, but absolute national sovereignty would seem to be the logical implication of the view that the Taliban need not "answer to anyone in regards to what they do on their own land."

Variants of absolute national sovereignty have had eminent theoreticians, such as Thomas Hobbes or Carl Schmitt, but most political thinkers decline to adopt such a political philosophy.