It is highly fashionable to assume that the United States is in a period of rapid and irreversible decline. The evidence, after all, is ubiquitous and impossible to ignore. After a band of committed extremists were able to wage an attack on domestic soil that sent shock waves through the American psyche that can still be felt today, we lashed out against the Muslim world in ways that have been counterproductive to our long-term national security interests. The global financial crisis brought America to its knees. Beholden as we are to cutting-edge financial instruments and lifestyles we cannot afford, our fiscal sanity has long played second fiddle to decidedly decadent priorities. And, lest we forget, that nebulous thing called “American culture” is receiving a surprisingly cold reception these days in much of the world.

So, if we are incapable of efficiently protecting our own national security interests, if our economic system is in tatters, and if our cultural practices and values are degrading in the eyes of the rest of the world, isn’t the thesis of decline more fact than assumption?

The answer, as it happens, depends on what one means by decline. On the one hand, our relative standing to other players on the global stage appears to be changing at a brisk pace. The economic rise of China and India both provide sound reasons to think that America must do more to maintain its standing relative to its peers. In a comparative sense, then, we are in decline relative to the newfound growth of other members of the world community.

President Obama recently said during his trip to India that the relative decline of the United States provides a unique opportunity for Americans to become more competitive in response to growth in places like India and China. He is certainly right about that, but President Obama’s pep talk to an extent also overestimates the challenges that lie ahead. For example, China is a country with an underdeveloped countryside, an archaic and authoritarian political system geared mainly toward efficient production (in contrast to cutting edge innovation), and a modest military is unlikely to become powerful enough to surpass the United States anytime soon. This is not to suggest that China can be ignored, or that the tea leaves can glibly be read in the United States’ favor. In fact, it makes little sense to think of global peers like the United States and China “winning” or “losing” in some general, unqualified way. The United States will continue to have an edge in relation to military prowess, soft power, and cultural influence; China’s GDP will continue to grow at a brisk pace but its government will have to become more flexible if it is to cultivate the kinds of alliances that demark a truly world-class global power.¹

China provides just one example, but I think it is fair to say that the comparative decline of the United States in relation to its global peers is not necessarily the gravest cause for alarm. Of course, America must monitor the relative positions of its peers if it wants to remain a dynamic, innovative economic power. But, as I will argue below, there are more pressing issues of internal governance and policy that the U.S must contend with to retain its power and influence.

If there are reasons to think that relative decline is not the ugly specter some would have us believe, is there some other sense in which the United States is in decline? Yes, in the sense that the American political machine is seriously dysfunctional. Our federal system distributes power to a number of competing constituencies, which makes sensible, pragmatic action on issues like climate change very difficult. Our schools underperform to a shocking degree, producing graduates who have dismal math and science skills that will one day hamper our ability to compete in science and technology driven industries. (The mean student scores of Germany, Australia, the Netherlands, New Zealand, Sweden, Ireland, France, Poland, Iceland, Belgium and Japan are all higher than those of the United States.) We do spend an impressive amount of our GDP (2.7%) on research and development, but we also have high corporate tax rates that incentivize foreign investment along with corporate tax strategies that prominent companies such as Goldman Sachs and Google employ to radically reduce their tax exposure. (Last year Google’s tax exposure was 2.4%.)

Consider another malady we face – our nasty addiction to debt. While the U.S. government watches corporate tax revenues slip through its fingers like fine grains of sand, the Congressional Budget Office has estimated that total government debt will reach 100% by 2023. To appreciate the degree of America’s fiscal irresponsibility, consider what Robert Altman and Richard Haass recently argued in American Profligacy and American Power in Foreign Affairs:

The post-2020 fiscal outlook is downright apocalyptic, for two reasons. First, the aging of the U.S. population will drive sharp increases in health care costs (and at the same time, more Americans will be retired). Secondly, federal interest expense will rise exponentially, as the Treasury’s borrowing costs grow with the debt. The Congressional Budget Office projects that official federal debt (excluding government-sponsored enterprises) could hit 110 percent of GDP by 2025 and 180 percent by 2035. Adjusting these forecasts for the inevitably slower growth that would accompany such quickly rising debt levels means hitting those stratospheric ratios sooner.

Dear friends, a country that cannot address climate change, education, and fiscal policy effectively is dysfunctional. Making the right political, economic and social choices in relation to these key policy challenges is critical to maintaining our soft and hard power. We cannot achieve meaningful levels of economic growth without sound fiscal policy and a pragmatic approach to pressing problems like education and climate change. Nor can we ignore the fact that our own political choices are diluting our soft power at a time when international relations are still very much Hobbesian in character. Our allies and foes alike may cooperate openly and willingly at times (e.g., in relation to efforts to thwart terrorism), but remain difficult at others (e.g., in relation to economic policy). And so, while it would be quite nice if everyone’s strategic interests were in alignment, the truth is that we have to deal on a daily basis with skeptical (increasingly powerful) allies in contexts where geopolitical coordination is critical if we are to protect our own economic and political objectives. This cannot be done if our allies have reason to believe that we lack the legitimacy or standing to make sound policy recommendations.

If the problem is dysfunction, what is the treatment? There is no single solution, no program or policy that Congress could implement tomorrow to address our inability to govern ourselves sensibly. Part of the reason for this is that dysfunction is a mere label, a word that stands for a web of related problems that currently plagues our political culture and institutions. With that caveat in mind, it is true that corruption and anti-pragmatism are at the root of the legislative challenges cited above as examples of “dysfunction.” This suggests that the (a) removal of corruption and the (b) adoption of a deep and abiding pragmatism would go some way to returning sanity to our great country. What it would take to achieve these two lofty goals is beyond the ken of this author. Yet suffice it to say that if political actors – regardless of political or institutional affiliation – attempted to solve social, political and economic problems pragmatically, instead of selling their loyalty to lobbyists and corporations, we might be able to look forward to a future in which America is admired once again as a true leader by its peers. But if we continue stubbornly on our current course, we will steadily become weaker. As a result, the United States will find it increasingly difficult to translate its extant economic and political power into desirable geopolitical outcomes.

¹This argument cannot be fully explored here, but it is inspired by the work of Anne-Marie Slaughter. She argues that the United States is unique in that its culture of innovation has helped create sophisticated global networks that nurture and sustain American influence and power. These nimble “norm-creating” networks do not depend on particular government institutions, but are instead created when certain practices or tools become so omnipresent that they begin to function as standards.

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I just made it through Hitch 22, Christopher Hitchen’s memoir.  For those of you unacquainted with Mr. Hitchens, he – and please, never call him “Chris” – is a journalist and political dissident of the first rank who deploys with unequalled deft the English language to challenge tyranny in all its varied guises and disguises.  Mr. Hitchens has engaged in spirited struggle against a wide array of ghouls and scoundrels, from Saddam Hussein (for inflicting terror on his own people) to the Ayatollah Khomeini (for issuing a fatwa on Salman Rushdie’s head) to our own Henry Kissinger (for a range of offenses too long to list).

While reading this brilliant memoir, a thought kept haunting me about the way we think about achieving foreign policy goals with military means and methods.  We tend to think of these goals as ones that can be achieved scientifically.  For example, if you want to dethrone an insipid dictator, you must simply determine what is necessary to remove him.  Regime change, then, is a scientific problem that can be addressed with the tools of an amateur’s logic:  identify the problem, formulate a strategy, and then execute that strategy carefully.  A reasonably clever schoolboy could work it out, we seem to believe.

The problem with this little tradition of ours is not just that the military is not an institution structured to win over the hearts and minds of those who live in a life world far from our own – though this is certainly true.  The real bugbear is that many foreign policy objectives are not well suited to being achieved through bloody military campaigns.  And it’s not that the military needs to change, far from it; we must stop expecting our soldiers to handle problems best addressed through other means.Consider, the following observations, using the ongoing conflict in Iraq as an illustrative (though certainly not singular) example of why bullets and bombs are, by themselves, poor instruments of foreign policy:

1. (formulating the problem) If one were to endeavor to describe the “simple” goal of ousting Saddam Hussein, isn’t the presence of a megalomaniacal dictator evidence of a crisis within a culture, and that, preliminarily, ousting dictator would create significant social, economic and political challenges that the American military is ill-equipped to handle? If such a crisis is acknowledged, then one must assume that it is a blunder of the first order to deploy military forces to remove a dictator with no clear sense of how to deal with the fallout of a successful military campaign
2. (strategy creation) Again, if the goal were not just to oust an insipid and ghoulish dictator, but to also revitalize a country socially and politically, why in the world would the military be charged with the primary responsibility of making that happen?  And, more to the point, which specific departments or agencies of the American government are now charged with figuring out how to help Iraq revitalize itself so that it may be transformed into the democratic or “democratic-friendly” haven we wish it to be? The shocking answer is that when the Iraq invasion was planned, these questions were never addressed.  This is a clear failure on the part of the Bush Administration given that it costs (a) at least $390,000 per year to deploy one American soldier in Iraq and (b) $900 billion of U.S. taxpayer dollars has been spent or allocated for spending in Iraq through 2010.
3. (strategy execution) Most thoughtful observers of what has happened in Iraq would concede, if grudgingly, that things have not gone as well as were expected.  But this tepid concession will not do.  The Iraq situation has gone badly because the non-military aims that are inherent in the goal of deposing Saddam – i.e., the aim of stabilizing the country – cannot be executed by the military.

This is not meant to detract from the talents and abilities of the sapient and dedicated top brass of the American military; these folks surely face daily burdens that civilians such as this author cannot possibly comprehend.  Nor do I mean to take away from the sacrifices that are made daily by American soldiers who have willingly placed their physical and emotional health in peril.

Yet it is beyond question that our military personnel are neither prepared nor able to properly undertake the counter insurgency efforts and the other essential tasks necessary to create stable, healthy political and social institutions in Iraq.

I do not want to leave the gentle reader with the impression that I loathe our intervention in Iraq, nor do I desire to suggest that Saddam should somehow still be sitting in the seat of power.  In all honesty, I think true humanitarians everywhere should rejoice in the fact that this craven fiend has been expired.  My principal point is that deposing a foreign dictator, even an execrable one such as Mr. Hussein, requires a comprehensive plan that will necessarily include components that cannot be executed by the military.  And it follows from this that we ought to stop thinking of the American military as a lissome tool for accomplishing all of our foreign policy objectives.  Though it may sound surprising, the military is just one arrow in our quiver.

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British Petroleum has finally figured out how to get under the skin of the American Commander in Chief. President Obama, clearly irritated by BP’s lackluster cleanup efforts, has suggested that the British oil giant place in escrow funds sufficient to compensate those American citizens affected by the spill. (BP has just agreed to put 20 billion into an escrow account.) As a political decision, this is both a necessary and shrewd move on Obama’s part. But the underlying geopolitical realities that this oil spill has brought to the surface cannot be understood unless one thinks a bit more carefully – and creatively – about what the BP debacle really is, and what President Obama’s initial failure to take charge really means.

On the surface, the oil spill in the Gulf is an ecological disaster. On this understanding of what the spill is, the main problem is that gigantic plumes of oil – a precious natural resource – are quickly and relentlessly destroying the environment. As BP’s rogue oil eagerly escapes its underwater prison, our wetlands and diverse wildlife expire ahead-of-schedule and unnecessarily. The theory, then, is one of environmental catastrophe, and the dramatis personae are as vanilla as the theory: Barack Obama, beleaguered American President keen to end the crisis; Tony Hayward, the incompetent CEO of BP who makes for an easy target for the world’s politicians, pundits and public intellectuals; the American public, at once enraged and confused; and the shareholders of BP, hiding in the shadows, hoping that the cost of this crisis will not fall on their backs.

A better theory – more powerful and descriptively accurate – is available. This is no mere ecological disaster, but is, correctly understood, an attack on our political, economic, and cultural infrastructure caused by no single individual or institution but enabled by many. It is now well known that a number of indicators pointed toward the possibility of a spill of this magnitude. And yet BP and the relevant U.S. regulators did nothing.

In retrospect, Obama’s failure to properly reform the Minerals Management Service (MMS) is clearly a colossal error. The MMS, the institution that has for ages allowed the oil industry to self-regulate without meaningful oversight, specifically gave BP the authority to drill in the Gulf in April 2009 without doing a comprehensive environmental review of the potential dangers. The MMS thought it would be sufficient to encourage BP to “exercise caution while drilling due to the indications of shallow gas.” Translation: We know this project could go terribly wrong, but go ahead anyway; Americans simply must be able to enjoy their treasured Escalades.

Yet be careful how you conceptualize the BP debacle. This is not a case where an administration has simply failed to prevent an unforeseeable ecological disaster. Nor is this a case where one actor – Barack Obama or Tony Hayward or anyone else – should be exclusively identified as the critical point of failure. That said, it is true that the Obama Administration failed to properly protect U.S. interests and the American people. However, if we want to move forward, we must view ecological dangers of this order of magnitude as threats to our political, economic and cultural infrastructure. For what does it matter whether a terrorist organization or a multi-national company visits vast harm upon us? In either case our country could be maimed or crippled. Moreover, if we think of an oil spill merely as a regrettable “environmental” problem, we will be too eager to (1) punish a small subset of the guilty parties and (2) adopt stop-gap regulations that aren’t effective in the long run. This simply won’t do. We must instead come to terms with the strategic, economic and moral importance of moving to cleaner, safer sources of energy.

This way of conceptualizing the BP spill has some surprising implications. Consider just three:

First, if President Obama fails going forward to take real, substantial steps to prevent off-shore drilling disasters like this one in the future, he will in effect be failing to protect the United States from a grave political, economic and cultural threat. It would be quite similar to a sitting President failing to protect our economic and political institutions from terrorist attacks.

Second, the real strategic interests of the United States must be given pride of place when energy policy is created and enforced; we must temper our short-term concerns with finding new sources of oil and instead give primacy to clean energy solutions that work.

Third, we must really commit ourselves to clean energy in a way that makes a range of policy blunders – e.g., not forcing BP to do a comprehensive environmental impact and safety study before drilling in the Gulf – beyond the realm of the possible.

The BP spill is no ordinary ecological disaster. It’s an attack on our real, long-term interests as a liberal democracy that values meaningful self-government, human welfare, and responsible energy consumption. The sooner we realize this, the sooner we will be able to move in the right direction.

No related posts.

Ordinary Americans are, by and large, pragmatists about legal matters.  They tend to favor legal outcomes that deftly balance competing considerations.  Outcomes that achieve this balance do not do a disservice to broad swaths of people but instead aim to enhance or at the minimum preserve meaningful social policies.  Pragmatism about law, in other words, is really a product of thinking clearly about what the law is for:  the law serves the American people, not the other way around.

Unfortunately, the currently constituted Supreme Court, led by that fearless foe of pragmatism, John G. Roberts, does not care that most Americans loathe the notion that judges ought to carry out their duties without the interests of the citizenry in mind.  Constitutional law, as Roberts himself is keen to emphasize, has nothing to do with sound public policy and should not be tempered by any moral or social concerns, however relevant they may seem to the electorate.  Constitutional law is a free-floating, self-sustaining set of rules that answers to no one, not even the American public.

Think about how dangerous Roberts’ anti-pragmatism and deep hostility toward common sense really is.  Consider a case recently handed down by the Roberts’ Court, Citizens United, which addressed whether campaign finance laws that restrict corporations’ ability to support political candidates are constitutionally valid.  In Citizens United, the Court, led by Roberts, held that “government may not suppress political speech on the basis of the speaker’s corporate identity.  No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations.”

First, note the dirty jurisprudential move being made here:  Justice Kennedy’s majority opinion has placed nonprofits and for-profit companies on the same footing, as if it were plausible to think that nonprofits and for-profit companies care about campaign finance in the same way and for the same reason.  They do not, as nonprofits have less money to give and ordinarily benefit from stronger campaign finance laws because such regulations ensure that large corporations find it harder to buy political favors.

Second, think about how the issue has been framed.  The Roberts Court has insisted, rather comically, that this is about “free speech,” rather than the government’s legitimate interest in ensuring that political contests have an acceptable legitimacy quotient.  This is a bold step by the Court, and one that belies the common view that political contests are influenced to an unreasonable extent by who the largest, best-heeled corporations want to serve in our government’s highest and most important political offices.

Third, the U.S. Congress has since 1890 been quite aware that Americans deeply feel that corporations should not be granted the same speech privileges that individuals clearly have under the Constitution, and have passed a bevy of laws (Tillman Act of 1907, Taft-Hartley Act of 1947, Bipartisan Campaign Reform Act of 2002) to reduce the impact of corporate money on political contests.  Citizens United, of course, washes away this entire tradition in one fell swoop.  Under this decision:

1. the 62-year old Taft-Hartley restrictions on corporate expenditures are no longer valid;

1. the Tillman Act of 1907’s ban on direct corporate contributions to political candidates is no longer enforceable; and

1. at least 24 state laws relating to campaign finance have been summarily invalidated.

For constitutional litigators and constitutional scholars alike, the Roberts Court ruling is a clear fail, as the Supreme Court has been making distinctions based on the identity of a speaking for ages when adjudicating First Amendment concerns.  The Court has in the past regulated the speech of (i) students, (ii) virulent racists, (iii) members of the Armed Forces, (iv) government employees, and (v) those who would threaten the President with bodily harm.

But the deeper problem is that the Roberts Court is unremittingly hostile to the responsibility it has to serve the American public as it interprets the Constitution.  It has done so by adopting an indefensible conception of “speech” that the American public clearly rejects.  One can only hope that Congress is willing to challenge decisions like Citizen United, decisions that are deeply anti-pragmatist and chafe against the healthy, realistic conception of speech embedded in our Constitution and political traditions.

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Few issues could be more contentious than the question of how the United States should “deal,” in the broadest sense of that word, with terrorism. If the U.S. takes a purely ad hoc approach to squashing terrorist cells, it is likely that untold numbers of American citizens will expire at the hands of these committed extremists. On the other hand, if the U.S. opts to take a preventative approach, obliterating suspected terrorists before they actually act against its citizens or interests, many believe international law will ineluctably be breached. The puzzle, then, is this: Complete security comes at the cost of breaching international law, yet complying fully with international law will require the unnecessary loss of human lives.

Abraham Sofaer, the George P. Shultz Fellow in Foreign Policy and National Security Affairs at Stanford’s Hoover Institution, argues in The Best Defense (Foreign Affairs, January/February 2010) that the key to unraveling this puzzle is approaching it from a fresh vantage point. According to Sofaer, modern terrorism poses a stiff challenge to the existing architecture of international law. Because existing rules only permit states to take military action against “armed attacks” – that is, attacks from state actors – countries besieged by terrorists feel as though their hands are tied. Since terrorists are often not aligned with particular states, taking military action against them, especially without the approval of the United Nations, would appear to violate the UN Charter. Lives or the law, what is to take priority?

On Sofaer’s view, this strict interpretation of the Charter is deeply problematic because preventative actions are sometimes necessary from the perspective of the state facing a credible threat of terrorism in the future. And, what’s more, states have been acting on this central, unwritten truth for quite some time. Hostage rescue operations, targeted killings, direct targeted attacks on terrorists and their infrastructure, and preventative cyber attacks are all examples of actions that states have taken to protect their real (and perceived) security interests. Of course, this does not mean that all such measures were technically legal or accepted as reasonable by members of the UN. But since some of these actions elicited support – whether explicitly or tacitly – from the international community, there is a sense in which some forms of preventative action are already recognized as legitimate responses to certain kinds of serious threats and violations of international peace and security. Legitimacy, then, should be the measure of preventive action; legality alone does not serve us well. In Sofaer’s own words:

“Unlike traditional legal arguments, which purport to rely on established rules to vindicate or condemn state behavior, arguments based on legitimacy claim on to guide complicated decision-making by subjecting that process to a survey of the full range of relevant international opinion.”

The basic idea seems promising. In those cases where preventive action is necessary to protect a state’s interests, that state’s government must consider whether preventive action will be accepted by the world community. This, in turn, requires a state to carefully evaluate its own reasons for taking preventive steps. If it turns out that its conduct is defensible (after considering all of the relevant factors), then it may go ahead and attempt to prevent the feared future conduct. Sofaer even suggests that the United Nations should consider adopting (1) a reporting protocol to encourage states to report their preventive action to the Security Council to “justify [their] conduct” after the fact and (2) a scheme to compensate innocent victims for botched military actions undertaken for preventive purposes.

There is one glaring omission: Sofaer’s proposal does not directly address what happens when a state acts on the basis of a credible future terrorist threat but then adopts preventive measures that (i) are clearly ill suited to the task or (ii) provide a pretext for advancing otherwise illegal economic or political projects in foreign lands. There is always a distinction, as the old saw goes, between ends and means. How Sofaer missed this problem is beyond the ken of this author, as much of the world regards the U.S. invasion of Iraq as a war prosecuted on the basis of patent falsehoods deliberately designed to “fool” Americans and the rest of the world. What could be a clearer example of pretextual prevention? And so, before we begin reconceiving the UN Charter and the legal framework we use for evaluating preventive action, we ought to first think about what really needs to be done (assuming it is possible) to ensure that countries with fulsome military resources and a capacity to abuse their power – countries like the United States – find no refuge in a new (and admittedly promising) approach to evaluating and justifying preventive action.

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Most of what I have written on this blog has focused, in one way or another, on the relationship between civil liberties and the war on terror. Over the last few weeks, however, I have been turning my mind to the financial crisis – trying to understand its causes, get a sense of how long we will feel its effects, and so on – and I cannot get past how many people believe that bankers are in a very real sense holding the government and the country hostage. And as more and more Americans lose their livelihoods and homes, it is easy to see why wealthy bankers would end up in the crosshairs of our country’s most talented public intellectuals and social critics. But I think something genuinely new is afoot, something much more interesting and important than populist rage at income inequality.

The basic criticism of the bankers is easy enough to sketch. If you have had the pleasure of reading Matt Taibbi, who writes for Rolling Stone, or have casually glimpsed at any of the major economic blogs, outrage literally jumps off the page. The critics usually ascribe to four claims about modern investment banks. These powerful institutions:

(1)     knew that the financial instruments they were creating manipulated the underlying default risks away (i.e., the risks created by subprime mortgages that formed the bases of the complex products the bankers sold);

(2)      implemented very sophisticated hedging strategies to avoid taking huge hits on those risks;

(3)     orchestrated and then relied on the federal government’s bail out funds as a form of premium-free insurance. This led to a situation where profits were privatized and risks were socialized, as many critics have pointed out; and then

(4)     without changing or modifying their internal operations, incentive schemes, approach to suspect financial instruments, or oversight procedures, gave truly shocking compensation packages to their most valued employees.

This is a far cry from populist rage or unsupported leftist rhetoric. The first two claims, taken together, comprise something akin to a theory of fraud: the bankers knew understood the risks underlying the sophisticated financial instruments they peddled so clearly that they employed shrewd hedges to avoid the inevitable collapse of the subprime mortgage market.

The fourth observation – relating to the huge disparity between earnings on Main Street and those that continue to prevail on Wall Street – may appear to be ordinary populist anger, moored deep in the human heart’s tendency to covet what it doesn’t possess. But look closer, because it isn’t. The substantive complaint is that the compensation packages at banks like Goldman Sachs create an insipid, irresistible moral hazard: by throwing gobs of money at these bankers, the U.S. government has sent a signal that their pre-crash behavior is no cause for concern, and in fact is something to be celebrated. The market failed, but the bankers deserve handsome compensation for doing their jobs. The crash, dear friends, wasn’t their fault.

Perhaps the most interesting indicator of today’s Zeitgeist is the third claim, which relates to the cozy relationship that has developed between Washington and Wall Street. Matt Taibbi has famously called Goldman Sachs the “great vampire squid,” an entity that is interested in one thing only: money. Taibbi’s way of speaking about Goldman is raw (some might say shrill), but he does get one thing absolutely right: Americans do not like the idea that a small cadre of powerful bankers could conscript the U.S. government into adopting policies that do not reflect the real interests of the electorate.

The electorate is increasingly hostile to the fiscal policies that Washington has adopted to address the crisis. No mere populism or candy-store Marxism lurks beneath the ire that ordinary people feel today; this hostility is predicated upon serious thinking about how Washington has responded to the financial downturn. I would even venture to say that if the Obama Administration keeps coddling Wall Street, bowing before the every wish and caprice of the banking class, he could find himself facing a diverse group of citizens (Republicans, Democrats, and Independents) with the political clout necessary to torpedo his chances at a second term. But more importantly, Obama should remember that a strong economy – one with healthy job growth and meaningful access to credit – provides the essential foundation for effective government. A desperate and disaffected population, after all, is itself a national security risk.

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Take the Torture Victims Protection Act (“TVPA”), for instance. The TVPA was enacted by Congress to provide ordinary people with the right to sue government officials who commit or authorize others to commit torture where those officials have acted “under the color of” foreign law in doing so. Under the TVPA, an official acts “under the color of” foreign law by undertaking acts under the actual or apparent authority of that foreign nation’s legal system. What does that mean exactly? Well, according to the Supreme Court in Brentwood Academy (531 U.S. 288 (2001)), in the context of civil rights suits it is the court’s responsibility to determine, by taking all the relevant facts into account without using “rigid criteria,” whether an official’s conduct was made possible or facilitated by a foreign legal regime. An U.S. official need not have legal authority or hold office of any kind in a foreign legal system; all that is required is that the U.S. official’s actions or commands are carried out or enabled by a foreign legal regime.

The TVPA provides civil damages for those who can meet this flexible legal standard, and while it would be better if people were never tortured in the first place, the damages available under this law in theory ensure that torture does not go unpunished.

Unfortunately, when faced with difficult, critically important cases, courts have been unwilling to apply the TVPA in a legally defensible and responsible fashion. The Second Circuit Court of Appeals recently held that Maher Arar – a Canadian engineer that has never been charged with a terrorism-related crime – could not rely on the TVPA to sue U.S. government officials for their participation in a decision to ship him off to Syria to be interrogated and tortured. The Second Circuit’s majority opinion reads like a fine piece of sophistry, as thin, morally repugnant arguments are legion. Here’s the basic reason the court rejected Arar’s plea:

“The defendants are alleged to have acted under color of federal, not Syrian, law, and to have acted in accordance with alleged federal policies and in pursuit of the aims of the federal government in the international context. At most, it is alleged that the defendants encouraged or solicited certain conduct by foreign officials.”

The first problem is that this is not an adequate description of Arar’s key complaint against the U.S. government. Arar’s claim is that if U.S. officials conspired with Syrian officials to torture him, in doing so U.S. officials would be engaging in torture with the necessary aid of Syrian law and political institutions. Hence, they would have been acting, in an important sense, “under the color of” Syrian law. After all, the U.S. government sent Arar to Syria precisely because Syrian law provided the wide latitude to deploy ghastly measures against detainees unavailable under the laws of the United States. This is what Arar is claiming, and it is a legal blunder of the highest order to misrepresent his core grievance to make dismissing it easier.

But there is another, more vexing, problem. The Second Circuit’s analysis grants U.S. officials a free pass anytime they do not directly oversee the torture of U.S. citizens or other nationals on foreign soil. If U.S. officials were merely “encouraging or soliciting” torture, they would walk. And they could conceivably enjoy this “freedom to torture” even if they were present while Syrian officials removed fingernails or poured scalding water over the visage of a helpless subject. Remember, under the Second Circuit’s view, U.S. officials enjoy unqualified immunity unless they were in sole control of the torture; the gravity or depravity of the torture matters not one tiny bit. So, if a U.S. official was merely there, or only encouraged her Syrian counterparts to slice open some defenseless human being, well, sorry folks, the TVPA would be of no use at all.

I am not the only one disgusted by the Second Circuit’s abysmal legal reasoning. Consider the sharp words of rebuke in Judge Calabresi’s dissent:

“In its utter subservience to the executive branch, its distortion of the Bivens doctrine, its unrealistic pleading standards, its misunderstanding of the TVPA and of § 1983, as well as in its persistent choice of broad dicta where narrow analysis would have sufficed, the majority opinion goes seriously astray. It does so, moreover, with the result that a person – whom we must assume (a) was totally innocent and (b) was made to suffer excruciatingly (c) through the misguided deeds of individuals acting under color of federal law – is effectively left without a U.S. remedy.”

This is a damning indictment of the majority’s view. In light of how viciously the Second Circuit has gutted the TVPA, perhaps the statute itself should be recast, given a more appropriate description? From now on, we shall call it the Torture Client Protection Act, because that’s exactly what it is. And who is the client? Oh, well, that’s technically the United States of America. Yes, dear friends, we are the protected client, the party that may procure torture without ever being called to account for it.

No related posts.

Let’s address, with measured haste, the obvious: Obama has taken a hypocritical position on the release of these photographs. He campaigned under the much lauded and little understood banner of “change,” a vague yet noble set of aspirations that is clearly at odds with the stance he has taken on releasing these records of human abuse. “But has our President changed his mind for a good reason?,” you earnestly ask. Well, Obama has apparently accepted the Pentagon’s view that releasing these photos would put American troops in unnecessary danger and serve as an effective recruiting tool for Muslim extremists.

So there it is, the Obama Administration’s view in a nutshell: We can’t talk have a long, hard look at these photos because that would mean “unnecessary danger” for our beloved troops.

Really? Is anyone fooled by this cynical subterfuge, this attempt to whitewash unconstitutional acts of torture by appealing to an otherwise legitimate and healthy concern for the welfare of the American military? Even if it were true – and I do not for a minute believe it is – that releasing these photos would cause new and distinct harms to befall our troops abroad, allowing the public to view, consider, and comment on these photos would still be necessary to protect and sustain the culture of free speech that our Constitution mandates. (And just what would these new and distinct harms be? Are we really willing to accept the notion that terrorists will devise new methods of taking American lives if and when these ghastly photos are made public?)

The United States is a constitutional democracy, a country that operates under the rule of law set out in the Constitution in general and in the First Amendment in particular. Mr. Obama is well acquainted with the principle of free speech, and as a former professor of constitutional law he no doubt appreciates that the First Amendment ensures that Americans may speak their minds about virtually anything. Since the debate about the treatment of suspected terrorists in U.S. custody is far from over, and given that these photos are of critical importance to understanding just how far off the rails some American soldiers went in the wake of September 11th, it is highly unusual that Mr. Obama would support a law that explicitly sanctions this desperate and irresponsible species of censorship. And that is why Jameel Jaffer, National Security Project Director for the ACLU, does not go far enough when he condemns the proposed statute:

“Congress should not give the government the authority to hide evidence of its own misconduct, and if it does grant that authority, the Secretary of Defense should not invoke it.”

Neither Congress nor the Secretary of Defense is empowered to make or enforce a law that is itself contrary to the Constitution. And so, any law purporting to grant the Secretary of Defense the authority to violate the First Amendment would be no law at all.

Let us be clear about what the Obama Administration is doing. It is manipulating a legitimate fear – the fear that more American lives will be snuffed out by terrorists – to pass a censorship statute breaching the spirit and letter of our Constitution. To be sure, no one wants to provide extremists with further reason to hate America or its central values. But make no mistake, there is little that America could now do to lower itself in the eyes of its enemies in the extremist Muslim world, little that would further embolden these folks to seek the blood and lives of our young servicemen. They are already committed to inflicting mass carnage, at whatever cost and by whatever means. Their resolute commitment is pre-rational, immune to reason and reflection, and so it is nonsensical to think that it could be somehow exacerbated at this point in history by additional evidence of American misconduct. In their eyes, the United States went too far long, long ago.

And so, while certain to embarrass the United States, the release of photos capturing detainee abuse is necessary so that we may, as a community of free and equal citizens, reflect on how we sunk this low in the first place. Releasing these photos would have the further benefit of showing the world that we practice, in an evenhanded and fair way, the politics of criticism and rebuke that we so eagerly deploy against other members of the world community when they commit grave misdeeds. This is something that Mr. Obama, a man with a powerful mind and an army of astute advisers, already knows. It’s high time he stopped pretending otherwise.

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The current shield law making the rounds in Congress is called the Free Flow of Information Act (FFIA).  According to FFIA advocates, the bill is essential because it will enable journalists to collect information of essential importance to the public without laboring under the fear that they will one day have to disclose their sources.  The thought is simple and appealing:  When journalists are able to protect the confidentiality of their sources, the public benefits from the increased access to accurate information that journalists would otherwise be unable to obtain.  In this way, shield laws like FFIA are consistent with the free-speech values that undergird our Constitution.

There are some significant problems with the current version of FFIA.  One issue is that the law only protects “professional” journalists, that is, journalists who regularly gather news to share with the public for commercial gain.  In an era of instantaneous dissemination of information over the Internet by bloggers and other part-time pundits, it’s hard to see why the privilege should be limited to journalists who are getting paid to collect news.  If what we care about is getting the most up-to-date, accurate information, why should it matter whether a blogger or a CNN reporter has delivered the news to us?  Moreover, even if a meaningful distinction can be made between commercial and non-commercial journalists, in practice granting the privilege exclusively to commercial journalists is likely to spur costly, unnecessary disputes about who is or isn’t a bona fide journalist.

Another issue is that the law, even if carefully crafted, is unlikely to address a key problem for journalists:  their uncertainty about when they will be subject to a federal subpoena to provide information needed for a criminal or civil case.  The privilege that FFIA grants to journalists is qualified one, which is just a fancy way of saying that in many cases the privilege will not apply because the information sought from a particular journalist is critical in a criminal case or essential in a civil case.  Some journalists are probably not too bothered by this, but it tends to undermine the general rationale for having a shield law in the first place.  After all, if journalists do not know before collecting news whether they will be hauled before a court or tribunal, then it is unclear how beneficial FFIA will be.  Pause on this point for just a moment:  FFIA gives courts wide latitude to determine whether a journalist should be subpoenaed to testify because the courts themselves are able under FFIA to determine the importance of the information sought from a particular journalist.  This fact alone suggests that in high-stakes cases FFIA might not, in practice, provide the specific kind of protection that journalists would ideally want.

Exacerbating this second problem is the public interest balancing test appearing in the current draft bill.  This balancing test requires a court or tribunal to determine whether compelled disclosure is more important than the public interest in gathering or disseminating news or information.  While I have nothing against balancing tests in general, this one is patently absurd:  Compelling disclosure in a particular instance cannot be meaningfully weighed against the general value placed on gathering or disseminating information.  This is so not because information has already at this point been collected and disseminated by the journalist, though that is true enough.  FFIA’s balancing test is absurd because the determination of disclosure in a particular instance requires – or should require – a judgment about whether the intrusion into the journalist’s professional life and reputation is justified by the importance of the information sought.

Yet the most significant problem with FFIA in its current guise is the way it treats compelled disclosure of sources in the context of national security.  FFIA provides that where disclosure of a journalist’s source is sought:

A court must make a determination that the disclosure is “necessary to prevent, or to identify any perpetrator of, an act of terrorism against the United States or its allies or other significant and specified harm to national security with the objective to prevent such harm.”

There are three concerns worth raising here, two easy ones and a third that is quite difficult.  First, the last requirement – that the court make a determination to compel disclosure “with the objective to prevent” an act of terrorism – is unnecessary and could lead to protracted legal disputes about whether a federal court or tribunal did in fact have an intention to prevent harm prior to ordering disclosure.   Second, if courts must be convinced that disclosing a source is strictly necessary to identify terrorists or prevent future terrorist acts, they may err on the side of not compelling a journalist to divulge a source in contexts when disclosure could have a significant positive impact on our national security interests.  In a nutshell, necessity is probably not the right standard here.

The third and most difficult problem is that FFIA nowhere indicates or prescribes how a court, tribunal or federal entity should form its opinion that disclosure of a source would serve our national security interests.  To get a handle on why this is a thorny issue, imagine that the original provision in FFIA were rewritten as follows:

When compelling disclosure of a journalist’s source or information that could reasonably be expected to lead to that source, a court must make a determination that disclosure would benefit, enhance, or contribute to efforts of the United States to protect its national security interests.

This modified language, preferable as it is to what currently appears in FFIA, does not provide courts and tribunals with any guidance whatsoever as to what would, in fact, contribute to our national security efforts.  This is hardly a surprise, as courts are in the business of applying the law, not protecting national security.  Of course, in practice the government entity in charge of prosecuting a given case will provide assistance to the court so that it can grasp the national security interests at stake.  And, provided that the government does its job properly, FFIA could be a step in the right direction.  But if FFIA is enacted, journalists will be leery of the cozy relationship that will inevitably develop between federal courts and the U.S. government.  And reasonably so, I might add, as the U.S. government will be laboring under a constant temptation to overstate the necessity and urgency of learning the identity of sources that may, or may not, have some kind of link with terrorism.

At the end of the day, we need something a little different than FFIA.  We need a shield law covering everyone, bloggers and professional journalists alike, that recognizes the need for a flexible compelled disclosure standard in the context of national security.

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Take a moment, dear friends, to consider Judge Milan Smith’s sentiments about the practice of detaining Americans as “material witnesses” to terrorist activities without formally charging them with a crime:

“We find this to be repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history.”

Those words were taken from in al-Kidd v. Ashcroft, a decision by a Ninth Circuit panel holding that John Ashcroft may be sued for his participation in detaining suspected terrorists or terrorist affiliates under the federal material witness statute. In particular, the court held that:

1. (absolute immunity) Ashcroft is not entitled to absolute immunity from suit as representative of the United States government because in allegedly detaining al-Kidd, Ashcroft was engaging in investigative conduct, not purely “prosecutorial” conduct of the type for which officials receive absolute immunity from third-party liability.

2. (rights violations) Ashcroft may be sued for allegedly violating al-Kidd’s Fourth Amendment rights against unlawful detention and statutory rights afforded al-Kidd under the federal material witness statute because it is possible that Ashcroft did play a critical role in al-Kidd’s detention.

However, Ashcroft cannot be sued on the theory that he played a role in determining the allegedly harsh conditions of al-Kidd’s confinement under the high-bar for such allegations set out in the Supreme Court’s Iqbal decision (which I have criticized at some length here).

3. (qualified immunity) Even though Ashcroft is entitled to qualified immunity as a representative to the United States government, al-Kidd may bring an action against him because at the time Ashcroft allegedly decided to use the material witness statute to detain al-Kidd, it was legally certain that doing so would be unlawful.

The media has lauded Ninth Circuit’s decision as an affirmation of Constitutional principles we all hold dear, including due process and the rule of law. However, the circumstances surrounding al-Kidd’s incarceration warrant taking a closer look at whether the court got it right.

At the time al-Kidd was apprehended, the US government believed that al-Kidd had been in contact with suspected terrorist Sami Omar Al-Hussayen. Al-Hussayen had at that point been charged with fraud, and when al-Kidd decided to travel to Saudi Arabia on an academic scholarship, US officials felt that he could very well be traveling to Saudi Arabia to evade capture or investigation in the United States. The decision was then made to use a federal material witness statute (18 USC § 3144) to detain al-Kidd. Where a person may have information relevant to a criminal proceeding, this statute allows that individual to be detained if and only if:

a. it would be “impracticable” to obtain testimony of that individual without detaining him or her; and

b. the evidence or testimony sought about or against a third-party from the individual cannot be secured through an ordinary deposition and detaining that person is required to avoid a “failure of justice.”

So, before we even delve into the Ninth Circuit’s analysis, consider carefully what the US authorities were trying to do with the material witness statute:

The objective of using the material witness statute was to ensure that al-Kidd could be prevented from leaving the United Sates. Having been linked to a suspected terrorist, there was a national security rationale for wanting to keep a close watch on al-Kidd. He was not – like some Gitmo detainees and some poor souls (e.g., Maher Arar) that have been subject to extraordinary rendition – utterly unconnected with terrorists or terrorist organizations.

The court’s approach to the al-Kidd case leaves much to be desired. The court did get the absolute immunity issue right, holding that no government official, even one in Ashcroft’s position, should have the unchecked power to detain individuals purely to investigate whether they might be involved in some kind of criminal activity or terrorist conspiracy.

But it is unclear how the Fourth Amendment should apply to al-Kidd’s case. Whether or not al-Kidd’s detention is characterized as a true instance of preventive detention (there are respectable arguments on both sides), the Fourth Amendment’s protections have never been interpreted in a case where the government’s intended purpose for detaining an individual is to protect national security. The Ninth Circuit, of course, does not think this matters at all. Where an individual is being detained simply because the government wants to investigate the person for potential links to terrorist groups, this offends the Fourth Amendment. But why? Well, the Fourth Amendment requires probable cause in the context of criminal law, yet “probable cause” by definition does not exist when someone is merely being investigated for potential links to criminal activities or criminal organizations. In the Ninth Circuit’s own words:

“All seizures of criminal suspects require probable cause of criminal activity. To use a material witness statute pretextually, in order to investigate or preemptively detain suspects without probable cause, is to violate the Fourth Amendment.”

There are two significant problems with the Ninth Circuit’s view. The first flaw is conceptual. Even if one accepts the view about probable cause articulated above, it is of course possible that the government relied on the material witness statute to investigate al-Kidd’s criminal activities while detaining him to ensure that his testimony could be secured against Al-Hussayen. Securing al-Kidd’s testimony and investigating his links to terrorism are not mutually exclusive purposes; in fact, in this context they are complementary. Thus, the notion that al-Kidd’s detention was a mere pretext is highly misleading for two reasons. First, it is absurd to think that the US government would – or should – forfeit an opportunity to interrogate al-Kidd to make it appear as though the exclusive reason he was detained was to effectively capture his testimony against Al-Hussayen. Second, it is reasonable to assume that al-Kidd, like any material witness in a terrorist case, would do everything in his power to evade capture to ensure that future terrorist acts could be successfully undertaken. This, of course, undermines the claim that Ashcroft used the statute in a purely pretextual way.

The second problem is jurisprudential. Nowhere does the Ninth Circuit confront the key issue in the case, which is: What are the implications of the fact that Ashcroft employed the material witness statute in an attempt to protect national security? It seems lost on the court that al-Kidd’s complaint expressly refers to national security as a critical factor behind the United States government’s decision to detain him. The court instead relies on a number of Fourth Amendment cases from domestic criminal law to reach the conclusion that al-Kidd was detained without probable cause. But why assume that probable cause in a case like al-Kidd’s should be identical to the sort of probable cause we require the government to possess in ordinary criminal law cases? After all, trying to protect our nation from terrorists is not exactly the same thing as searching for joints and other contraband in the glove compartments of automobiles – which is precisely the sort of scenario that a great deal of domestic Fourth Amendment jurisprudence addresses.

There is a still deeper problem with this case. Under the Ninth Circuit’s reasoning, the Fourth Amendment requirement of probable cause was not satisfied and thus Ashcroft is not entitled to qualified immunity. The doctrine of qualified immunity provides immunity to government defendants for actions done in their official capacity unless their conduct was clearly illegal at the time they engaged in it. Prior to al-Kidd v. Ashcroft, there was no case law addressing whether the federal material witness statute could be used pretextually to detain, interrogate, and quarantine individuals that the US government believed to be connected to terrorist organizations. And so it is extremely hard to see how Ashcroft could have known that he was illegally detaining al-Kidd.

I am no fan of the notion, touted by many neo-conservatives, that our government should be able to sidestep the Constitution when it comes to protecting the integrity and security of America. But in the context of national security, courts must begin to think more carefully about how the Fourth Amendment and other constitutional protections apply.

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