The AUMF and War in the Middle East

June 18, 2019

Among the problems with the outdated Authorizations for the Use of Military Force are the countries trying to get Uncle Sam to fight their wars, the difficulty in telling who did what, and in knowing what even our own Administration is up to. Remember that one American Administration took us into Vietnam on the basis of attacks on American military vessels that never happened, and another Administration took us into Iraq on the basis of similarly cooked evidence.

Nor is it easy to tell what the current Administration is doing. The Administration tells us it is confronting Russia by implanting weapons in their power grids.[1] But Trump Administration officials warned the former secretary of Homeland Security not to bring up its efforts to confront Russian interference with upcoming American elections.[2] Are we facing them or bowing to them? As Bret Stephens put it, “the Trump administration has credibility issues, to put it mildly, which is one reason why electing a compulsive prevaricator to the presidency is dangerous to national security.”[3]

Should we support the Administration’s warlike stance toward Iran, on the assumption that we have accurate information that Iran torpedoed two tankers in the Gulf of Oman, including one that is Japanese owned, or should we believe the Japanese that the ships were attacked “by a ‘flying object’” from the air, not torpedoes in the water?[4] Is the best comparison the cooked attack in the Gulf of Tonkin in the Johnson Administration or the cooked claims that Iraq had weapons of mass destruction in the George W. Bush Administration?[5]

And what is all this for? Trump says he wants to stop Iran from going nuclear but Obama had already done that for the foreseeable future. Trump instead released Iran from its obligations under the nuclear agreement. The difference seems to be that Trump wants the credit. But he keeps threatening Iran and getting mad when they don’t lie down and play dead. Worse, Iran is disciplined and intelligent enough to find ways to fight back. Trump seems to figure that Iran alone has no right to fight back, though that way of thinking is likely to involve us in a totally unnecessary war, unnecessary because the agreement he terminated did a pretty good job.

The fist pumping and showing off of military hardware is supposed to make Trump look tough, but it risks the lives of American men and women, not to protect America, but to protect Trump’s reputation, whether as tough guy or as bully depending on whom you ask.

American lives should not be spent in the Middle East. There’s little evidence that we can do any good. Its oil is no longer important and would be better left in the ground. It’s run by a bunch of petty dictators, most of whom would fade into insignificance without American aid and involvement. Moreover, by comparison to most countries in the Middle East, Iran has a relatively stable democratic system. Iran’s clerics have certainly imposed limits but nevertheless the people have a major voice in the choice of the Prime Minister and the legislature. Let Saudi Arabia and the other Gulf states fight their own battles.

Meanwhile, I completely agree with Paul Barker, another former Peace Corps Volunteer who served this country in Iran, like I did, and who wrote the LA Times that before this Administration “leads the U.S. into yet another disastrous war, our lawmakers must repeal the 2001 and 2002 Authorizations for the Use of Military Force and secure the passage of the Prevention of Unconstitutional War with Iran Act. The U.S. can ill afford to stumble into yet another forever war in the Mideast.”[6]

[1] David E. Sanger and Nicole Perlroth, U.S. Escalates Online Attacks on Russia’s Power Grid, https://www.nytimes.com/2019/06/15/us/politics/trump-cyber-russia-grid.html.

[2] Eric SchmittDavid E. Sanger and Maggie Haberman, In Push for 2020 Election Security, Top Official Was Warned: Don’t Tell Trump, https://www.nytimes.com/2019/04/24/us/politics/russia-2020-election-trump.html?action=click&module=RelatedCoverage&pgtype=Article&region=Footer.

[3] Bret Stephens, The Pirates of Tehran: If Iran won’t change its behavior, we should sink its navy, https://www.nytimes.com/2019/06/14/opinion/iran-oil-tanker-attack.html?action=click&module=Opinion&pgtype=Homepage.

[4] Eliot Higgins, Was Iran Behind the Oman Tanker Attacks? A Look at the Evidence, June 14, 2019, https://www.nytimes.com/2019/06/14/opinion/iran-tanker-attacks.html?action=click&module=RelatedLinks&pgtype=Article.

[5] Id.

[6] Paul Barker to the LA Times, , 5/18/19.

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Problems Proving Obstruction and Conspiracy

April 2, 2019

Two statutes add to the many issues that complicate the status of Robert Mueller’s investigation of Russian interference in the 2016 presidential election.

One defines obstruction of justice as “imped[ing] the due administration of justice.”[1] It has been treated as necessary that one have specifically intended to obstruct a proceeding. One can prove that someone like Trump intended to impede justice either by statements of intent or actions that make it obvious. Obstruction is about such things as Trump’s dismissal of Comey and urging an end to the investigation. It would have been cleaner if Trump had recused himself from the investigation. But he didn’t dismiss Rosenstein or Mueller or order either Comey or Sessions to end the investigation, only encourage them to. Was that enough? It probably would be if you told a police officer to get lost. But, even though Congress is not limited by the same rules of evidence, Supreme Court decisions about evidence of intent will complicate things. Let me come back to that in a moment.

A second statute makes “[A]ny conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of government . . .” a violation of federal law.[2] Participants must agree, intend, and do something to further the conspiracy. Once again, intent might be proven by explicit statements, or by actions that make it obvious.

The Supreme Court, however, is not a friend of the obvious. It ratcheted back the law of conspiracy in an antitrust case saying that it is not enough to show that two people or companies acted as if they were acting in concert. The Court wants something closer to an explicit statement or admission.[3]

The Court doesn’t like to infer intent from behavior, except for infering intent to favor African-American efforts to equalize their opportunities with those of whites. The Court decided that many electoral district lines were unconstitutional racial gerrymanders in favor of African-Americans based on the shapes of the lines, even where the more obvious purpose was political gerrymandering which, to this day, they refuse to condemn.[4] But the Court resists finding that white officials disadvantaging minorities did so intentionally.[5] In one case they would not even get to the evidence, writing that such discrimination by high public officials was “implausible.”[6]

Intelligent attorneys would stop short of explicit statements or admissions. Politicians and criminal conspirators often make agreements based on unstated understandings. Trump came much closer to the brink than an intelligent lawyer would have. But notice the absence of any explicit quid pro quo. There’s no “release the recordings, Mr. Putin, and we’ll deliver the EU.” There’s no “let us help you violate our laws to get information on the Democratic National Committee or candidate Clinton.” It wasn’t even in the form of requests that they do some illegal things in the U.S. Instead the evidence we know about was all encouragement – saying that would be great, we hope Putin does it, or we predict he will. Trump’s statements are not explicit. Lawyers recognize that circumstantial evidence is often the most reliable but this Court thinks big shots and major corporations should be protected from it. Here, the evidence we know about is ambiguous – does it indicate a joint endeavor or simply knowledge of Putin’s actions?

The strength of the evidence will depend in part on whether Congress is willing to ignore the Court. In other words, the U.S. Supreme Court had its favorites and its scapegoats even before Trump’s appointments made it worse. None of that makes Trump blameless but it does mean that there will be battles over the evidence if there is any attempt to impeach.

— This commentary was broadcast on WAMC Northeast Report, April 2, 2019.

[1] 18 U.S.C. § 1503, 1505 and https://www.law.cornell.edu/wex/obstruction_of_justice.

[2] Hass v. Henkel, 216 U.S. 462, 479-480 (1910).

[3] Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).

[4] See, e.g., Bush v. Vera, 517 U.S. 952 (1996); Shaw v. Hunt, 517 U.S. 899 (1996).

[5] See Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989); and see also League of United Latin American Citizens [LULAC] v. Perry, 548 U.S. 399, 517 (2006) (Scalia, J., concurring in the judgment in part and dissenting in part).

[6] Ashcroft v. Iqbal, 556 U.S. 662 (2009).


The Legacy of Barack Obama

January 3, 2017

Barack Obama has been one of our most decent and intelligent presidents. I’ll miss him. Instead of simplification and slogans, Obama explained the complexities of everything from medical treatment to foreign policy. Instead of shooting from the hip, he studied problems carefully and reached mature, intelligent decisions.

But what will stick?

Starting with foreign affairs, Obama got most of the boots off Muslim lands. When Obama took office in 2008 we had close to 200,000 soldiers in Iraq and Afghanistan. Now we have about 15,000 troops, combined, there and in Syria.

ISIS seems to have refocused on Europe but that’s still a problem for us. Europeans’ objectives are compatible with our own, so they are crucial allies, unlike the Russians. But Europe confronts many times more refugees than we do, with backlash and threats to democracy in several countries. American action in Syria added to the refugee flow, but much resulted from revolutions independent of us. More American militarization in the Arab world would inflame the refugee crisis and increase the terrorism directed at us.

Terrorists are fueled by militarization; nations are much more vulnerable to our military – that’s the difference between defeating Saddam Hussein, having him executed and trying to remain there. Trump may talk tough, but will he be fool enough to wade back into those trouble waters?

In Guantanamo, fewer than 60 prisoners remain of the nearly 800 who were imprisoned there.

Republicans dislike the Iran nuclear deal but so far they’ve nothing to show for their fears. Objections from the other signatories may prevent Trump from disavowing it. This may be the first real test of whether Trump has any grip on reality.

At home, Republicans have been yelling for years that they will tear Obamacare down the first chance they get. But their friends in the insurance industry will howl if they do, especially if Republicans leave features Americans like – a guarantee that you can get insurance, coverage for pre-existing conditions, tax credits for small businesses, etc. So it’s not clear what they’ll actually do. Obama took his health care plan from Mitt Romney’s Republican plan. I can think of improvements to the left of Obamacare, but not any that are more consistent with Republican free-market philosophy. Republicans are in a pickle.

Obama got a small stimulus soon after taking office. Terrified it might actually work, Republicans fought to keep it small. Obama’s stimulus worked, slowly, satisfying the cynicism of Congressional Republicans willing to hurt the country in order to make Obama look bad.

Dodd-Frank financial regulation still stands, reigning in a financial system that gambled with everyone else’s money and made a large number of us much worse off.

Obama nominated Sonia Sotomayor and Elena Kagan to the Supreme Court. One has become the conscience of the Court, the other quieter and more conciliatory. Together, they’ve made a the Court much more fair. The future depends on how long Ginsburg lives and how long Trump is in office. The difference Ginsburg, Breyer, Sotomayor and Kagan made could disappear in a heartbeat.

So, there’s a lot to celebrate in what Obama did or tried to accomplish. But I have real fears of what could be done in the effort to discredit him instead of making things better for the people of America.

— This commentary was broadcast on WAMC Northeast Report, January 3, 2017.


Foreign Roots of the Tragedy in Florida

June 14, 2016

The tragedy in Florida is linked to issues abroad. One candidate sometimes suggests we could solve our problems by isolationism, keeping our troops home, and sometimes by wiping out our adversaries with overwhelming force. His adversary has won over American military leadership with a fairly hard-nosed approach to international politics meshed with the belief that part of America’s international strength comes from our ideological appeal and social justice. What’s going to work?

The Middle East has been getting more violent. And the U.S. has been struggling to figure out how to handle it. George H.W. Bush was careful not to unravel power relations there when he rolled Iraq back from Kuwait. George W. Bush was less cautious, eliminating the Iraqi power structure without a plan to replace it. Since then we’ve been fighting multiple wars in multiple countries. Wars with guerilla tactics like these are costly. Al Qaeda and ISIL or DAESH have learned to motivate individuals or small groups outside of traceable networks. Military forces work poorly against that kind of enemy. We may be a superpower against some obstacles, but not all. The history of warfare has been a multi-millennium cycle of upstarts defeating the super powers of prior ages with new tactics.

What if we disengaged from the Middle East? I doubt Americans have the stomach for it. Israel, our so-called “ally,” continually breaks its promises to America, so the Israeli mouse drives both American Middle Eastern policy and its consequences. America cannot be an honest broker in the Middle East while backing a government of heedless buckaroos who learn nothing from the failures and constant irritation of seven decades of war, eviction of Palestinians and indiscriminate retaliation. Still less can we be an honest broker by engaging in the same tactics that make refugees of millions and radicalize too many. Who are we to criticize the Israelis when our policies have been more and more like theirs? We too pay the price. Our removal of Premier Mossadegh and replacement with the former Shah of Iran contributed to the Revolution of 1979 and subsequent demonization of America. U.S. military moves created chaos in the Sunni world, pushed Turkey toward autocracy, and helped destabilize Europe with a flow of refugees not seen since the World Wars.

Pulling out would leave a power vacuum that those we despise and sometimes fear would fill. If Russia or China were fool enough to move in, the throw weight of Islamic extremism would refocus on them. The short-run consequences, however, could be

Our policies toward the Middle East need to be rethought in light of new realities. Power relations in the Middle East have been drastically reshaped in the last fifteen years. And Saudi Arabia has been playing a double game, supporting radical Islam in return for denying the clerics the keys to governmental power, creating a Hobson’s choice for us. Obama has tried to avoid both disengagement and warfare, but his efforts to reshape thinking about the Middle East have, not surprisingly, run into a barrier of incomprehension. The U.S. should not be driven by the unreliable machinations of paranoid premiers, two-bit dictators and fractured armies in a region of declining importance to the U.S.

America accomplished a great deal in the past as a model of a fair and decent state. Foreign policy isn’t merely a contest of muscle and fire power. Its complexity requires a lot of patience. It took half of century to wait out the Soviet Union. Much as some Republicans want to credit Reagan’s grand gestures, that victory was hatched under Truman and pursued by eight presidents of both parties, without any know-it-all buckaroos upending decades of careful policy. Can we do it again? We’re going to find out.

— This commentary was broadcast on WAMC Northeast Report, June 14, 2016.

 


Suckers for Trump

May 31, 2016

Let me begin by reminding you of Trump’s claims,[1] and end with some questions.

“I’m totally pro-choice” he declared and then took it back: “I’m pro-life” and told MSNBC that “there has to be some form of punishment” for a woman who has an abortion, later modified that only the doctor should be responsible. Plus he supported Planned Parenthood, and defunding them.

Remember the poor woman in Providence whose house was taken under eminent domain? “Eminent domain is wonderful” he told Fox News, and within a month told another outlet, “I don’t like eminent domain.”

He told CNN “I’m an environmentalist,” but tweeted “Global warming is a total, and very expensive, hoax!”

He once “support[ed] the ban on assault weapons and … a slightly longer waiting period to purchase a gun.” but “I don’t support it anymore.” Now he says he’s “the strongest person running in favor of the Second Amendment.”

In 2000 he said “We must have universal health care” but his campaign website read “It is not enough to simply repeal this terrible legislation,” and says he’d substitute “free market principles” on health care.

On taxes, in 2015 he described his tax plan as “a big tax reduction, including for the upper income.” On May 5 he told CNBC “I am not necessarily a huge fan of” cutting taxes for billionaires.

It’s not clear who Trump likes as people. First he refused to denounce the Ku Klux Klan and other white nationalists supporting him. Under fire he reversed course but many white supremacists, including David Duke, continue to support Trump. He’s blown hot and cold on refugees: “on a humanitarian basis, he said, “you have to” take in Syrian refugees. But now he wouldn’t. “I love Hispanics!” he tweeted on Cinco de Mayo, pictured with a taco bowl. Except of course that he wants to build a wall and send them all back to Mexico.

Donald thinks military policy is a cinch, “It would take an hour and a half to learn everything there is to learn about missiles. … I think I know most of it anyway.” He waffles on whether he would trust the Russians or not. He liked NATO, the North Atlantic Treaty Organization, which unites Europe and the U.S. militarily. “I see NATO as a good thing” he said recently but six days later decided “NATO is obsolete.”

The Middle East befuddles him. He supported invading Iraq. and crowed that “It looks like a tremendous success” but four days after that said, “The war’s a mess.”

He supported fighting in Libya: “Qadhafi in Libya is killing thousands of people, nobody knows how bad it is, and we’re sitting around, we have soldiers, all over the Middle East, and we’re not bringing ‘em in to stop this horrible carnage. … We should go in, we should stop this guy, which would be very easy and very quick.” But he said later, “I never discussed that subject.… We would be so much better off if Qadhafi were in charge right now.”

What are we supposed to make of Trump’s contradictions and about-faces? Does the adjective he uses endlessly to describe Hillary fit Trump better? Does he know what he’s talking about? I’m more interested in how we decide what he’s for? He’s inviting people to buy their own dreams. Whatever you’re for, he wants you to think he is too. Selling people their own dreams is a great sales tactic. It’s natural to believe others think like us. But if we guess wrong, who wants to be Donald’s sucker?

— This commentary was broadcast on WAMC Northeast Report, May 31, 2016.

[1] Clips collected on http://www.politico.com/magazine/story/2016/05/donald-trump-2016-contradictions-213869;  Michael P. Lynch, Truth, “Politics and the Power of Contradiction,” New York Times, May 8, 2016, at SR2, available as Michael P. Lynch, Trump, Truth, and the Power of Contradiction, http://www.nytimes.com/2016/05/08/opinion/sunday/trump-truth-and-the-power-of-contradiction.html?_r=0; “A Trump Sampler: His Changing Views,” New York Times, May 8, 2016, on page SR2, available at http://www.nytimes.com/interactive/2016/05/08/sunday-review/a-trump-sampler-his-changing-views.html.


War in the Middle East

November 17, 2015

The terrorists’ explanation for ISIS’ involvement in the Paris attacks, is that it was in revenge for the French participation in the war in Syria. Another explanation is that the attack was a recruiting tool – they’re stalemated in Syria and they use victory and the dream of an Islamic state as a recruiting tool, so they pulled off an attack that would be heard around the world, to say to young Muslims, come help promote the dream. Actually the two explanations are not inconsistent – they can both be true in the minds of different people, and sometimes even in the minds of the same people. But the two theories point in different directions. The revenge theory suggests that it would be better to stay out. The recruitment theory points to the value of simply defeating them. Recruits need something attractive to attach themselves to and losers aren’t very attractive.

Some Americans want to solve the problem by more fighting. History should make us skeptical. Our record isn’t very good in what are called asymmetrical wars, for some of the same reasons Americans were able to beat the British – warriors who are not in uniform and practice sneak attacks are very hard to beat.

And wars have unintended consequences. The Russian war on Afghanistan created the terrorist armies who later turned their arms against this country. Terrorists attacked the U.S. before we fought in Iraq and Afghanistan. Nevertheless, foreign wars increase the recruitment of terrorists. In Iraq and Afghanistan we fought the wrong wars, in the wrong places, against the wrong enemies. We destabilized the region in ways that left much bigger problems for us. Syria is the latest maelstrom.

So I’m convinced Obama had the right instinct to get out and try to stay out of the Middle East, especially by not putting boots on the ground. If fighting us is a recruitment ticket, staying away should be a good idea.

But the larger question is whether there is a way to minimize our participation while defeating ISIS and al Qaeda? Unfortunately, the answer doesn’t depend on us. The Iraqis and the Syrians are deeply divided. And war doesn’t seem to be uniting people in either country. The contending forces seem to fear each other as much or more than they do ISIS.

If it’s going to take a major war effort to defeat ISIS, I doubt this country has a taste for it. The economic costs would be huge. What economists call opportunity costs, the value of what we could have done with the same resources, would be even larger. The lesson seems to be, if they can’t fight their own war, we shouldn’t be trying to fight it for them.

Then again, there’s the army of refugees. Immigrants have been offered citizenship in the past in exchange for joining in war efforts. Can the able bodied among the refugees be turned into a credible and united fighting force? Are enough of them willing? And against whom would they turn their weapons? Would they be a mirror of those already fighting or would they be the only people from the area who could fight for broader and more ecumenical objectives? The humanitarian in me says they’ve already been through enough. The utilitarian in me wants the most effective way to end the problem with the least damage in both the short and long term. The skeptic in me thinks it’s another bad idea.

So I think we have four options – withdrawal, a big war, a deal among the major powers in the region, including Iran, or arming the refugees while trying to stay away. But it’s a heck of a set of bad choices. Thanks George.

— Steve Gottlieb is Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Unfit for Democracy: The Roberts Court and the Breakdown of American Politics. He has served on the Board of the New York Civil Liberties Union, and in the US Peace Corps in Iran. This commentary was broadcast on WAMC Northeast Report, November 17, 2015.


Good soldiers know how to play chess

October 20, 2015

I’d like to start by stating my pride in WAMC and admiration of you, the listeners and members, who not only raised funds to keep the station on the air but also raised funds during the pledge break for the food bank, to help refugees and to retire pollution from the environment. That’s a lot to be proud of.

Turning to the Middle East, Russia wants to beef up Assad in Syria. And Putin seems to have confronted us with a fait accompli as it conducts bombing raids. No one wants war with Russia. So what to do?

Lots of people have their eyes focused on the Middle East, on Syria and its immediate neighbors. I think that reveals inexperience. Foreign affairs is a chess game. Chess was invented to train the mind for combat.

Now I’m no champion chess player. Oh I like to brag that I once beat someone who beat Bobby Fisher, which is true, but my friend hadn’t played in years and I have no idea how old Fisher was when my friend beat him. But just the same I do understand some things about chess. And one of them is that if the other guy attacks one of my pieces where it’s hard to defend, I can look for ways to take advantage of the position somewhere else on the board. Sometimes that forces my opponent to release his grip while dealing with my counter threat, or provide me with a counter-balancing advantage. Chess is often described as a game of position, but rarely is it all about one square or even one piece.

So I’m wondering what candidates you might have for places to put pressure on Russia? Ukraine anyone? Or posting troops in Poland? And how about recalculating the effects of Putin’s moves? The EU has been falling apart but a resurgent Russian bear may help put the EU back together. Arab anger has been directed against home grown Sunni regimes and against the U.S., but a resurgent Russian bear may put them in a war with ISIS and could inflame Muslims within Russia. Conservatives want America to be a player in world politics. But being a player is hardly a purpose. I’m more focused on the consequences.

People who only keep their eyes on one spot may be experts on that spot, or just naïve. But real foreign policy is global. Russia is not invincible. Putin is not a magician. The games he has been playing have answers. Keep cool.

But don’t look for lots of loud talk back. Real warriors don’t scream their intentions. Intentions become known after the fact. That’s what I expect from Obama or any president who is competent in foreign policy and not a big gasbag. As Teddy Roosevelt once said, we need to speak softly and carry a big stick. But it’s also important to remember that big sticks aren’t best wielded in frontal attacks – Picket’s charge lost at Gettysburg. Grant, by contrast, was happy to lay siege at Vicksburg and Richmond, and the soldiers under Sherman rarely fired a shot through a long campaign across Tennessee and then Georgia – except when Jefferson Davis replaced one of his best generals and his replacement immediately attacked the portion of Sherman’s Army he had left behind at Chattanooga. The Confederate Army was then promply defeated by that half of Sherman’s Army.

Good soldiers know how to play chess.

— This commentary was broadcast on WAMC Northeast Report, October 20, 2015.


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