Freedom or Safety – Chapter Three

May 10, 2015 § Leave a comment

Summary

Last Thursday the Second Circuit rendered a unanimous decision in ACLU v. Clapper.  They reversed the dismissal of ACLU’s suit challenging the NSA’s metadata surveilance program.  They ruled  the Patriot Act did not authorize it.  They discussed. but did not rule on. ACLU’s claims based on the First and Fourth Amendments to the Constitution.  They described the various defenses offered by the government in support of the Judge Pauley’s decision to dismiss the suit.  They disapproved of each of those defenses and came close to stating some of those claims were deliberately deceptive.

The panel consisted of Judges Sack, Lynch and a District Court Judge sitting by appointment.  Two were appointed by Obama; one by Clinton.

Judge Sack wrote a concurring opinion.  He included the following quote that neatly stated the nature of this legal argument.

Safety from external danger is the most powerful director of national
conduct. Even the ardent love of liberty will, after a time, give way to its
dictates. The violent destruction of life and property incident to war, the
continual effort and alarm attendant on a state of continual danger, will
compel nations the most attached to liberty to resort for repose and
security to institutions which have a tendency to destroy their civil and
political rights. To be more safe, they at length become willing to run the
risk of being less free.
The Federalist No. 8 (Alexander Hamilton).

Hamilton is not my favorite Founder but his warning is prescient.

Previous Essays

I have expressed my own ideas about the surveillance program in three posts on this blog:

Technology, the Law and the Constitution; The Surveillance Debate;  and A Second Thought About Surveillance.
The first one of these essays discussed the District Court’s decision in this case and compared it with another District Court decision, Klayman v. Obama, which ruled squarely opposite to  the ACLU  case .  Klayman was appealed and, on April 7, 2014, the Supreme Court declined to review it.  In this 2d Circuit decision, the Court adopts some, but not all, of Judge Leon’s reasoning in his Klayman decision.

As stated, I agree with Hamilton, but, ironically, his Federalist Party sponsored the Alien and Sedition Act , a broad-based threat to individual liberty that stained the first decades following the adoption of the Bill or Rights.   That history is a perfect example of how rhetorical promises are forgotten when they conflict with political ambitions.

I fear the consequences of arming the government with ways to snoop and then threaten to expose the private behavior of any  person in this country who becomes a political problem.  I do not trust our criminal justice system, even less our political system to observe appropriate limits on that kind of power.  The McCarthy decade;  the “drug wars” and the DEA ‘s methods; the “Global War on Terror”; the CIA’s record of deception and interference in the internal affairs of other countries – this is only a partial list of my reasons for distrusting our government with unbridled power.   The Patriot Act granted power to one of the most reckless Presidents in the history of the USA – a man who served as a compliant puppet of Dick Chaney and Donald Rumsfeld.  Secret access to the telephone habits of our entire population is  power with which no person or group of persons should be trusted.  I

It is true we live in perilous times, but we should not be so distracted by fears of foreign peril that we surrender ourselves to the discretion of politically powerful people in our government.  To do so is especially dangerous now, when our political system has been corrupted by legalized bribery – when the so-called “money primary” has become more important than the electoral process in the selection of our choices of rulers.

The Decision

For those of you who want to read the 2d Circuit opinion, here is a link:  Clapper   This link will require some manipulation.  It will take you to the 2d Circuit’s web page.  At the top you can click on “decisions; then use the drop-down arrow to pick the period of time.  The ACLU decision came down on May 7, 2015.  The opinion is a long one (about 100 pages).  I spent over four hours highlighting the essential parts, but I finally gave up.  There may be some way for WordPress (the program I use for this blog) to link to a highlighted Adobe copy of a court decision.  I’ve searched online and read the instructions.  I think it is a problem because this computer is a Mac and the instructions are for Widows – I’m not sure.  What I have finally concluded:  two college degrees and 50+ years of law practice have equipped me with less capability in the field of computer technology than the average 12-year-old and I don’t have a 12-year-old handy.  So, dear readers, you will have to skim through the opinion and find the interesting parts.

Here are some hints:  The Court describes the kind of information that can be gleaned from knowing the date, time, duration, location and phone number of a caller and receiver.  The way a clever analyst can use that kind of information is interesting.  The Court, in a footnote, cites an article from Science magazine that is part of that discussion.  Use Control-F to search for “Science”.

The background of the argument is interesting.  Do a word search for “Snowden” (BTW  don’t use the quotes)

You can skip most of the discussion of “preclusion” – it’s not very interesting and the Court rules that it doesn’t apply.

The Court’s demolition of the government’s claims that it needs everyone’s telephone records but it doesn’t actually “review” any except those “relevant” to a legitimate inquiry is interesting.  The Court reminds the government that the 4th Amendment prohibits unreasonable “search and seizure” of a citizen’s property and information.  I have not before seen a court use the distinction between “search” and “seizure” so effectively.

The judges who wrote the majority and concurring opinions are good writers.  The legalese is not there.  They write plain English, so it won’t be too bad to read their opinions.  Not as good as Holmes or Brandeis, but not bad.

I urge you to read the relatively short concurring opinion by Judge Sack.  He includes some interesting history of the “Pentagon Papers” episode.  He also gave me the quote from the Federalist with which I began this item.

Conclusion

This decision from the Second Circuit reverses the District  Court decision with which I disagreed.  Also, the Supreme Court’s denial of cert. in the appeal of the District Court decision with which I did agree, gives me some satisfaction that some of the damage done by he Patriot Act may be eventually undone.

[For non-lawyers:  “cert.” is short for certiorari, Latin for “to be more fully informed”.  When an appellate court wants to review a lower court decision to see if, in the appellate court’s opinion, it was correctly decided, the appellate court grants a “writ of certiorari” – a demand that the lower court send to the appellate court the entire record of its consideration of the case to “fully inform” the appellate court the bases for the lower court’s decision.   When the appellate court denies an application for certiorari, it leaves the lower court decision in tact and effective.]

During the next few days, the Congress will debate ways to amend the Patriot Act.  The analysis in the 2d Circuit’s decision should provide some resources to those who are seriously trying to restore some respect to the Constitution.  It will be messy.  Some in the GOP will vote against granting any power to Obama, regardless of any concern for, or understanding of, the merits of the argument.  Some Libertarians like Rand Paul and some Tea Partiers will be motivated by some flavor of general anti-government ideology.  And some, like Ron Wyden, will probably present my own reaction to the phone surveillance program.  The fact that Mitch McConnell wants to keep everything as is assures me that I am on the right side of this argument.

Bob

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The Perils of Easy Money

November 22, 2014 § 2 Comments

The House of Debt

I just finished reading a book recommended by my friend, Milton Lower.  The book is The House of Debt by Atif Mian, professor of economics and public policy at Princeton, and Amir Sufi, professor of finance at the University of Chicago.

This is a short, well written book about the  the housing collapse that precipitated the Great Recession of 2008.  The writers identify the causes and recommend some policy changes that would prevent such calamities.

Their approach is similar to Thomas Piketty’s:  They base their conclusions on carefully compiled and analyzed data.  They patiently consider and discredit causation theories other than theirs and cite data-based reasons for rejecting them.

What Caused the Housing Market to Crater?

The authors present and reject three  views about the causes of recessions.  The first, and most popular, is the “fundamentals” view:  That some disaster, radical political upheaval or other unexpected catastrophe caused it.  But  no such event occurred in 2007 to trigger the recession.   The second is that “animal spirits” cause it.  That is, buyers were guilty of “irrational exuberance”. They foolishly believed prices would endlessly rise.  When they realized their folly, they panicked and the recession followed.  Finally, some have argued that banks were to blame.  They stopped loaning money thus thwarting economic expansion and the recession followed.

The authors offer convincing evidence that the latter two ideas don’t fit the facts.  They cite ample statistical evidence that residential housing prices in some areas of the country sharply increased between 2000 and 2007.  That price inflation followed a dramatic relaxation of requirements for mortgage loans, which fueled the price inflation of houses.  That is, far from withholding loans, the banks eagerly offered money to borrowers, including many  who, until the requirements were lowered, could not qualify for mortgage loans.

So, it was not “animal spirits” that caused the recession.   It was lending money to people who lacked income to pay it back.  Then, when defaults occurred, foreclosures followed, foreclosed homes depressed housing prices in surrounding neighborhoods and the downward spiral led to a general collapse of housing prices, diminished consumer demand and, hence, the Great Recession.

How Did The Housing Collapse Cause the Recession?

When residential housing prices fell, some owners continued making mortgage payments on homes that were worth less than the debt balances secured by them.  Others walked away and tendered their homes for foreclosure.   In either case, the principal assets of a giant class of homeowners, equity in their homes,  were devalued and, in many cases, wiped out.

There were two classes of people involved in these transactions:  The homeowner borrowers and the investor lenders who deposited their money in banks, who made the loans secured by the mortgages.  The impact of the housing downturn was not equally distributed.  For most of the homeowners, their only assets, the equity in their homes,  were destroyed.  For the investor lenders, their losses were only a  fraction of their total wealth, which typically included stocks, bonds, investment real estate as well as their homes.  Their losses did little or nothing to affect their propensity to spend and to maintain their lifestyles.  The homeowners, by contrast, sustained close to total asset losses and they significantly cut back their spending.

The less wealthy homeowners’ propensity to spend was greater than that of the wealthier investors.  That is, they spent a greater percentage of their income than the more wealthy investors.  So, when the far more numerous homeowners lowered their rate of spending, the impact on the total demand for goods and services in the economy was significantly affected.   In other words, the downturn in the housing market sparked a general downturn in demand throughout the economy and the Great Recession resulted.

What Was The Reason for the Relaxation of  Credit Requirements?

This is the most interesting part of the book.

In 1990, the financial markets in Thailand, in the words of Mian andSufi, “went berserk”.  There was a frenzy of inflation and speculation.  The price of real estate escalated wildly.  Foreign investors flooded Thailand with Dollars and Thailand banks grabbed them like ravenous wolves.  In due course, the bubble burst.  The foreign investors began withdrawing their money from the Thai banks.

Because the foreign investments were made in Dollars, they demanded withdrawals in Dollars.  The Thai banks did not have enough Dollars to meet th0se demands.  To avoid a complete collapse, the central bank in Asia tried to respond by making Dollars available to the desperate Thai banks, but they lacked sufficient stores of Dollars.  So, they had to appeal to the IMF [International Monetary Fund] for help.

That help came with draconian requirements for painful austerity that plagued  for decades those Asiatic central banks and the economy which they supported

Having learned a bitter lesson about the importance of ample caches of Dollars, the banks in Asia began to flood American banks with purchases of U.S. treasuries.  Instead of responding to this influx of money by lowering the interest rate on treasuries, the U.S. central bank chose to use that flood of cash to funnel money into the home mortgage market.  To accomplish this goal, it allowed and encouraged banks and other lending agencies to create mortgage backed assets and to market them as derivative securities.

This proved to be so profitable for Wall Street dealers in these securities that they sought more and more mortgages from banks.  To satisfy the demand for mortgages, the banks lowered the requirements for obtaining mortgages.  This opened up a large market consisting of people whose incomes had theretofore been too low to qualify for home ownership.  This increased demand for homes, which resulted in increased home prices.  The Wall Street bankers designed a wide assortment of complex combinations of mortgages and  constantly pressured the banks to make more and more home loans to meet the demand for mortgages as fodder for the MBA’s.

The riskier mortgages made to low income borrowers were cleverly matched with safer groups of  mortgages so that rating agencies could stamp the resulting cluster with AAA ratings.  [I have described this widespread finagling in an earlier post entitled “The Bankenstein Fiends”]  So, a mix of different risky and, in some ways, fraudulent schemes, combined to blow up the bubble that, when it popped, threatened the entire financial system of the Western industrial world.  Crazy financial speculation 7,000 miles east of the United States thus triggered  a series of events that ended in the Great Recession.

Cui Bono?

Wall Street banks made gigantic profits from the creation and marketing of the MBA’s.  They not only made money selling them, they made money using market devices that enabled them to profit handsomely when the MBA’s were finally exposed as having been flagrantly misrepresented and mistakenly rated.  They made money by selling the MBA’s and, when the value of the MBA’s lost value, they made more money.

There is a well known principle of equity, developed centuries before the birth of our country by judges sitting on the wool sack in English courts of Equity:  No one may profit from his own wrong.  This simple rule, so fundamental to any system of justice, was not only ignored, it was denounced as unwise and un-American by the ex-Wall Street bankers who advised both President Bush and President Obama when, amid a crisis, judgments had to be made about how to avoid a collapse of the financial system.

When the Wall Street banks were facing collapse the federal government had a choice:  It could use taxpayer money to bail out the banks or it could take them over, wipe out the stockholders and enable the banks to continue performing their vital role in the domestic and the international financial system.  This latter choice would have allowed the government, acting through the banks, to relieve the homeowners facing financial disaster by allowing them to postpone mortgage payments, reduce the principals of the loans secured by the mortgages, or both.

Presidents Bush and Obama chose to bail out the banks and leave the homeowners to their fate.  Billions of dollars were handed over to the banks with no strings attached.  The bankers suffered no losses.  Instead of making changes in the mortgages to alleviate the homeowners’ financial problems, they used their blank check on the U.S. Treasury to fund record bonuses and watch their stock prices soar.

The net effect of these policy choices was a giant transfer of wealth from those at the low end of the wealth spectrum to those luxuriating at the very top.

The Solution

Here is a brief summary of the remedy proposed by the authors of this book:  They proposed a revision of the standard form of a residential mortgage.  The new mortgage would be a Shared Responsibility Mortgage or SRM.  It would provide downside protection for the mortgagor and corresponding benefit to the mortgagee.

If the value of the home decreased, the monthly payments would decrease proportionately.  The extent of the decrease would be calculated by the average price of homes in the immediate neighborhood surrounding the home.  The authors observe that extant agencies are already capable of monitoring those values in zip code areas.  Regardless of the size of the monthly payments, the amortization table based on the original price of the home when the loan was made would remain the same.  So, the effect would be the reduction of the amount being repaid.

The mortgagees would be protected by an entitlement to five percent of the sales price when the home is sold.  The timing of the sale would be left to the homeowner but, if the lender had a diversified group of home mortgages in its portfolio, the five percent entitlement would result in a steady stream of return on its overall investment.  The homeowner would sustain the five percent loss, but that would represent the value of the built-in insurance against loss of equity in case of a price drop.

The underlying thesis of the book is that housing bubbles cause general economic recessions because they result in losses of consumer demand that affects the entire economy.

For example, they point out that the tech bubble that popped in 2,000 caused many to lose money, but it did not cause a recession because the losers’ propensity to consume was not significantly affected.  But the housing bubble of 2008 threatened a general collapse of the financial system.

The authors make a point that is obvious, but one I had never fully appreciated:  The problem with debt, whether it’s mortgage debt or student college debt, is that, as presently designed, it is inflexible.  When the economy experiences turbulence, the borrowers have no way to survive because their debts are like anchors that sink them.

The authors contend that recessions can be avoided if our most common debts are redesigned so that borrowers can continue to consume without sustaining crippling losses of their assets.  When consumer demand is maintained, businesses will not be forced to lay off employees.  In other words, redesigned debt documents will serve as an efficient method of distributing economic stimulus.  Instead of waiting until the economy is in recession and millions of workers have lost their jobs, the authors propose measures to avoid the job losses by maintaining consumer demand.

The authors also propose rewriting the documentation for student debt to make its repayment dependent on the job market at the time of graduation and thereafter.  They offer persuasive arguments that all pervasive debt should be designed to adjust in response to prevailing economic conditions.  They call it “equity financing”.

Conclusion

I have not done justice to this book.  I can only offer a taste and a suggestion that you read it.  It is packed with interesting statistics and historical examples.  It also is an example of some very sharp and disciplined analysis presented in an easily readable form.  These guys are probably wonderful teachers.  They are masters at making dense economic data interesting and understandable.  If I were Thomas Piketty, I would incorporate their proposals into my remedy for wealth inequality.

 

 

 

 

 

A Sunday Afternoon Comment

November 9, 2014 § 5 Comments

On October 20th I woke up and discovered that my eyesight had malfunctioned and, as a result, everything I looked at was a double image, one atop the other.  When this problem persisted and my effort to ignore it proved to be too taxing, I finally went to a neighborhood hospital center.  After a CTscan, an MRI, an EKG and a thorough series of blood tests,  the message from this premier medical center was: ” Good news!  You don’t have diabetes; you didn’t have a stroke; one of your cranial nerves has malfunctioned; we don’t know why, but it will probably correct itself and your eyes will return to default condition sometime in a few weeks.  Put a patch on one eye and you’ll be fine.  And, if that doesn’t happen, we’ll fit you with a pair of glasses with an embedded prism that will correct the problem.”

So, now I have a clue about how pirates feel, except I don’t have a peg-leg and a parrot.

This mishap has curtailed my reading and my attention to this blog.  But, I do have one comment on last Tuesday’s “Republican Sweep” and the “Top to Bottom Assessment” that the Democratic Party has now launched.

I find myself agreeing with Bruce Bartlett, a conservative writer and former adviser to HW Bush and Ronnie Reagan.  He recently wrote an article in American Conservative magazine entitled, “Obama Is A Republican”.   He supported Obama in 2008, because he was furious at GW Bush because of GW’s fiscal policies.  In his article, he cites chapter and verse to explain his contention that Obama forgot his Saul Alinsky roots and governed like a moderate Republican.  Here is a link:  Bartlett

I commend the article to you.  Bartlett is a right-wing true believer in some economic policy fairy dust, but he has produced a thoughtful reminder of some of Obama’s policies.

I mention this article now because I think it offers a clue about why the Democratic Party voters did not vote last Tuesday.  Maybe it was because they were no longer convinced that Barack Obama’s policies promised the kind of relief and change they needed.  Their wage levels were dwindling.  The jobs they lost were not being replaced with work that enabled them to support a family.  They needed policies that targeted the excessive greed of the rentier class.  They were looking for Elizabeth Warren and what they were offered was a now-fully-disclosed Barack Obama and the future prospect of Hillary Clinton.  They didn’t perceive Obama as an enemy.  What they perceived was indifference, not in his rhetoric, but in his actions.

I don’t think those voters were thrilled by speeches about women’s reproductive rights and gay marriage.  There were three groups of potential supporters for Democratic Party candidates:  Chicanos who want legalization and a path to citizenship; young people who want relief from oppressive debt and prospects for decent jobs; and working class wage earners who wante decently paid jobs.  I didn’t see or hear many campaign speeches talking about those issues.

I hope the post election assessment convinces the Democrats to forget about “reaching across the aisle” and foreswearing “class warfare” and “populism”.  We live in divided country.  There are two sides.  When the Republican side talks about “compromise” and “getting things done”, they mean “agree with us”.  The voters are not sophisticated.  They do not understand how the nuts and bolts of government work.  But they do understand discussions of their fears and their desperation.  If we want to preserve our democracy, we better begin to offer some solutions even if the solutions don’t please the tiny fraction of our population that furnishes most of the money that corrupts our politics.

I have zero confidence that my proposal will even be discussed at the high-level strategy sessions that are probably now occurring.  The hallmark of political expertise in America is recognition that political policies that displease those who furnish the money in political campaigns are “tilting at windmills’ style notions and Sancho Panza is not a viable political mentor.

I have mentioned Dan Carlin before in posts on this blog.  He has a channel called “Common Sense”, in which he discusses various current issues.  In a recent one, he discussed what he perceives as a real threat to our democracy:  Pent up rage and frustration in response to government’s indifference to the economic problems facing working class Americans.  If you would like to hear his reasoning on this subject, here is a link:  Common Sense

This link takes you to the home page of his blog.  Scroll down and click on “The Specter of Dissent”.

Word Games

August 21, 2013 § 2 Comments

I’ve been thinking about the use and misuse of words.

According to press reports I’ve read, there is a federal law that appropriates foreign aid for Egypt.  There is another federal law that prohibits granting foreign aid to a government that results from a coup.  A few weeks ago, the Egyptian army ousted the democratically elected government of Egypt, placed the democratically elected President in jail and assumed authority for governing the country.   Most reports of this event acknowledged the obvious:  This was a military coup.

President Obama declined to label it a coup.  Although he canceled joint war games to begin next month, he did not cancel scheduled grants of foreign aid to Egypt.

Then the Egyptian army slaughtered people during a public demonstration.  In response, President Obama announced that he was considering suspending foreigh aid to Egypt.

So, to recap the bidding:  First, in obvious violation of the anti-coup law, Obama claimed it was not a coup.  Second, after having chosen to ignore the fact that it was a coup, still contending it was not a coup, he is considering suspending foreign aid to Egypt, raising the obvious question:  “By what authority could you withhold foreign aid to Egypt if there was no coup?”

I know this is an inconsequential observation.  Nobody apparently cares whether the President pays attention either to federal laws or the English language.  I just think it is interesting and, to me, somewhat disturbing, because redefining words can have serious consequences.  Remember the John Yoo memo that redefined “torture”?   That had serious consequences:  hundreds, perhaps thousands of people were tortured and those responsible were not held legally responsible for their crimes.  Also, our government is based on a written contract, the Constitution.  Its words are all  that stand between us and government based on fear and military might.

The second reason for these musings is the present trial of Doctor Hassan, the Ft. Hood psychiatrist who gunned down several of his fellow soldiers as well as one civilian who tried to stop the slaughter.  Email exchanges between him and Anwar al-Awlaki, a Muslim preacher in Yemen, show that Hassan  accepted the Bush and Obama administrations’ designation of the conflict that followed the bombing of September 11,2001, as a “Global War on Terror”.   He reasoned that the “war” was being waged against Islam and that, as a Muslim, he had conflicting loyalties:  He was in the US Army and, hence, owed allegiance to the United States but, because the “war” broke out during his period of service, he was like a soldier from South Carolina serving when the Civil War broke out.  After thinking about the matter for some time, he concluded that his religion required that he take action against the enemy soldiers with whom he was serving.  So, he shot them.

During his trial, he chose to represent himself and has made no semblance of a defense.  This, from his point of view, seems logical.  He is in an enemy court, presided over by enemy soldiers.  What sense would it make for him to argue with them?  I assume that he expects to be executed and probably understood that before he fired the first shot.

If I were representing him I would argue that he is a victim of the US government’s decision to treat the 2001 bombing as an act of war instead of a crime.  We are the ones who began the GWOT, not the criminals who flew airplanes into the NY buildings and the Pentagon.  Because we decided to call it a war, the enemy forces are entitled to treat it as a war.  In a war, enemy soldiers are fair game wherever they can be found.  In WWII, we bombed troop trains and  sank naval vessels carrying enemy troops  where ever we could find them.  War gave us the right to kill  enemy soldiers on the battlefield and off the battlefield.  So, when Hassan killed soldiers in Ft. Hood, it was an act of war, not a crime.  He should be put in a prison camp pending the end of hostilities, just like the Guantanamo prisoners.

Now, before you conclude that I’ve lost my remaining marbles, I hasten to assure you that I will shed no tears when they hang Hassan.   I think he is a murderer.  I also think, however, that there is no “Global War on Terror”; that the whole concept is a willful misuse of the  English language that has caused, and continues to cause needless and lawless killing.

I remember well the law school class in criminal law presided over by Professor Stumberg, one of the best teachers I ever knew.  He taught with hypothets and merciless questioning of students.   One morning, he posed a hypothet:  “Suppose a long-time professor of English History here at UT became delusional and convinced that he was Napoleon.  One morning, as he strolled toward the Tower, he encountered another professor whom he identified as the Duke of Wellington; drew a pistol and shot him.    Would it be murder or self defense?  ” [Before you leap toward “not guilty by reason of insanity”, consider whether, even granting the  delusional reasoning, it justified the homicide.  Like a lot of Stumberg’s hypothets,this one had wheels inside of wheels.]

That would be the basis of my argument in defense of Hassan.  I don’t think it would work, but if I had to defend him, I would try to pin the killing on Bush instead of him.

The Prism of Work

June 3, 2013 § 4 Comments

Summary

In the following essay I will describe a carefully reasoned dissent from my two “Lynch Law” efforts.  I will also try to explain the way my thinking about the issues differs in some fundamental ways from the dissenter’s.  I will attempt to do this without discounting the dissents’ reasoning.

The Dissent

In response to my posts entitled “Lynch Law” and “Lynch Law Two”, I have received two thoughtful dissents from a reader who shares my political beliefs but rejects my reasons for criticizing President Obama’s terrorism speech.   The dissenter made three cogent and well reasoned arguments:

First:  He wrote that the Authorization for Use of Military Force (AUMF) is a fact; that regardless of whether it was wise, appropriate or necessary, Congress adopted it by an overwhelming vote (unanimous in the Senate; one dissenting vote in the house)  hence Obama, the President, should not be faulted for using the authority it granted to the presidency.

Second:  He wrote that it is a fact that there are terrorists and terrorist networks in the world that threaten to harm the United States.

Third:  He wrote that, based on the obvious intent of its framers, the AUMF should be interpreted to authorize the President to locate and either kill or capture any terrorist in any part of the world outside the United States if the target poses a threat to the United States.

Here are the words of the AUMF:  “That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

To the dissenter, the plain meaning and intention of this sentence can be expressed as follows:”That the President is authorized to use all necessary and appropriate force . . .  in order to prevent any future acts of international terrorism against the United States . . . .”

I contend the past tense verbs used in the AUMF to describe its targets limit the scope of its authorization for use of force.  He responded that, on the contrary, they were comparable to the recitation of Japan’s transgressions in the 1941 declaration of war against that nation.  As he correctly observed, the fact that the transgressions  occurred before the declaration did not limit the scope of our war against Japan.  To illustrate this point, the dissent posed a hypothet.  He stated that if, when the war was closing in on the Japanese homeland, the island of Honshu had changed its name, became no longer a part of “Japan” and opted to fight on after Japan surrendered,, we plainly would have paid no attention to the name change and would have proceeded to make war on the inhabitants of that island without further Congressional authorization .

Finally, he observed, again correctly, that some very good lawyers advising Obama disagreed with my analysis and they could not fairly be lumped in with John Yoo as lawyers whose reasoning was based on ideology.

Some Comments on the Dissent

It is hard to argue with the dissent’s contention that when Congress adopted the AUMF, it intended to authorize a broad military attack on any foreign organization, country or individual that posed another threat of a 9-11 type attack on the United States.  The AUMF was adopted just seventeen days after the stunning attack of September 11, 2001.  Emotions were running high.  Anger and fear were palpable and Bush, the NeoCons and talk radio demagogues were in full cry.

Any analysis based on “legislative intent” is almost always a fiction because each voter in the body had his or her own, essentially unknowable, intention when he or she voted.  Having said this, however, it is true that, as President Bush proceeded to interpret AUMF as a license to torture prisoners, intercept emails and phone calls, use dragnet arrests to jail large numbers of Muslims and establish “black sites” all over the world where prisoners were held incommunicado regardless of  the Geneva Convention or any other law of war, Congress,  generally remained silent.  And that silence can be fairly interpreted as assent to his actions.

It is also true, however, that as reports began to surface of Bush’s wild-west carnival of horrors,, some members of Congress began withdrawing their support.   By 2005, there was some support in Congress for his impeachment.  So, the “intent” of Congress was an evolving phenomenon.  In my first “Lynch Law” post, I linked to a Huffington Post video of the stunned reaction of some Senators when Pentagon representatives, testifying before a Senate committee, declared their understanding of the AUMF’s breadth of authority.  Senator McCain, who rarely sees a war he doesn’t want to wage, said he did not think Congress intended such an unfettered grant of authority.  Here again is that link:  Huffington

So far as concerns the dissenter’s creative hypothet about the name change of the island of Honshu, I am not as sure as he is that if that had occurred and a new nation was thereby actually created, further Congressional action would mot have been required.   A somewhat similar occurrence happened when Nixon began military operations in Cambodia during the Vietnam war.  He tried unsuccessfully to keep his expansion of that war secret but, of course, bombs, helicopters and armed troops are too obtrusive to be invisible to reporters.  He didn’t bother to ask Congress for approval because his disdain for the niceties of constitutional government is legendary.  That may be an inapposite example, since the Vietnam war itself was probably illegal since it was based on a false report and not on a formal declaration of war by Congress.

This issue, the identity of those against whom the AUMF authorized deadly force, is at the heart of my disagreement with the dissent.  If the authorized targets of the AUMF are subject to discretionary selection by the President, then we have a Commander in Chief with access to a world-class military machine, unrestrained  concerning its use other than his judgment and presumed devotion to our form of government and a requirement that he use it only to protect us from terrorist attacks.  There is a vast difference between a President with constitutionally limited powers and a protector charged only with the task of keeping citizens safe.  See Orwell, “1984”.

I regard the result of the dissent’s reasoning, especially on the third issue, as troubling  In the remainder of this essay I will try to explain why.

A Lawyer’s Way of Interpreting Contract Language

Statutory interpretation and contract interpretation are based on generally similar legal principles.   In the case of federal statutes, the debates preceding the enactment of a law afford clues to the intentions of the framers not available with respect to most private contracts.  Still, the same principles apply to both.  The objective is to give effect to the intention of the parties who draft the language, provided they have expressed that intent in a form that can be determined without ignoring the words used to express it.

That is, the “four corners” rule applies.  The writing must be interpreted based on the writing within the “four corners” of its documentary record.  The drafters will not be allowed to walk away from the drafting and, next day,  proclaim that some of them “really did not mean what the words state.”  Contracts and statutes are written because they are intended to be “time binding” events.  That is, they fix in time the agreement of the parties.  That agreement, of course (and contrary to the foolishness of Justice Scalia’s “original intent” obsession) can be couched in deliberately ambiguous language, leaving room for later application to changing circumstances.  Our Constitution is worded  that way.  “Interstate commerce”, was not intended to apply only to the 1789 forms of commerce.  “Searches”, as used in the 4th Amendment was not intended to apply only to the technology available to searchers in the 1700’s.  Oliver Wendell Holmes wrote that a “word is the skin of a living thought” and the operable word is “living”.

One reason lawyers [I am not comfortable with the word “attorney”.  It is based on the French word attourne,  one to turn to.  French words seem to me generally effete and pretentious.   I think of myself as a lawyer (Middle English originally “lawyere”)]  have a well-deserved reputation for being trouble-makers is that, when they analyze the language of a contract or any other kind of agreement, they try to imagine how it would permit one party or the other to use its language in the worst, unfair and disagreeable manner at the expense and inconvenience of the other party.  Then they add or subtract whatever language is required to preclude such an event or interpretation.  They regard that as appropriate, regardless of how reasonable and agreeable the parties are when the contract is drafted.

That is the way I analyze the language of the AUMF.  I seek an interpretation of its language that would appropriately restrain the discretion of Ted Cruz, not Barack Obama.  So I choose an interpretation called the  “plain meaning” rule.   The dissent chooses to interpret it according to the “intent of the framers” rule.

Both approaches are accepted by courts in appropriate situations.  There are limits to each approach.  For example, drafters of a contract are not allowed to use words in some sense other than their common meaning unless they specify the intended meaning.  This does not prevent use of “terms of art” if, in the context of the contract, the meaning of such terms are discernible and are generally understood in the industry or environment in which the contract is drafted.  It does, however, preclude one of the parties from contending, for example,  that the phrase “bay horse” was intended and understood by the parties to mean “roan horse” when the contract was drafted.  If that were permitted, the contract would depend on verbal testimony and would prevent courts from being able to enforce the written language of the contract, thus vitiating the time binding  purpose of written agreements.

As I read it, the identity of those affected by the AUMF is plainly stated in words used in their ordinary sense.  To illustrate this point suppose, instead of “the terrorist attacks of September 11, 2001”, the AUMF stated “the attack on the United States consulate in Benghazi on September 11, 2012″.   Wouldn’t the targets be limited to those persons, nations or organizations” that were actually involved in that attack?  Would a reasonable interpretation of that statement assume that it would justify a drone attack on someone in Somalia or Pakistan?  I don’t think so.

This narrow interpretation would not conflict or dilute the meaning of the concluding phrase, “. . . in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”  One standard purpose of apprehending and punishing wrongdoers is to make example of them to discourage others from attempting other crimes.  That purpose is served without waging a wide ranging assault on all similar but different  wrongdoers.

Because the U.S. Department of Justice and Pentagon and White House lawyers disagree with me, I cannot deny that there are differing ways to interpret the language.  What I do argue is that, given the consequences of the broad interpretation of the AUMF, there are strong policy reasons for interpreting it narrowly rather than broadly.

Interpreting it as broadly as the dissent and the just stated government lawyer do, results in a state of martial law throughout the world outside the boundaries of the United States.  It results in a state of war on a boundless battlefield.  The law of war cannot apply to that state of war because there is no way objectively to identify enemy combatants.  The distinction between enemy soldiers and civilians is rendered impossible.  If one is accused of being an enemy, that is sufficient to impose the death penalty.   Analogies to wars between uniformed armies cannot be applied.  In other words, neither the law of war nor constitutional law applies.  The President becomes the ultimate and sole “decider”.

President Obama’s speech on  terrorism was becomingly uneasy with this unlimited authority.  He disclosed that he is considering various ways of structuring self-imposed limits on his war making authority.  At the same time, and in the same speech, however, he claimed the right to make the decisions about such limits and how they would be administered.  That claim converts his speech into a discussion of executive policy.

Policies, unlike laws and constitutional restrictions, can be changed from one administration to another.  Presidential authority can be limited in only two ways:  By a formal declaration that the authority is no longer claimed, in this case by either the President or the Congress, or by the judgment of a court of appropriate jurisdiction.   Obama’s speech will serve as President Ted Cruz’s justification for his use of the AUMF powers because it satisfies neither of those ways.

The Political Dilemma

I recognize that my arguments, if credited by President Obama, would confront him with a dilemma fraught with  peril.  If he goes before the American public and declares that the AUMF did not authorize the actions he has taken based on it, he will be confessing to wrongdoing that could have dire consequences for him, for his political party and for the standing and reputation of the United States in the world.  I know that will not happen, nor, given its consequences, should it happen.  I think that instead, the President should draft a modification of the AUMF that abjures the power to make war on terrorists, terrorist organizations or anyone else.  It should authorize the President to use American intelligence forces and law enforcement agencies, domestic as well as international, to identify criminals who participate in planning or executing harmful acts directed against the United States.

He should explain to the public and the world that the United States is a nation of laws based on a Constitution.  That we will defend ourselves against criminal acts and assist and cooperate with other nations seeking to defend themselves from such acts.  He should state that his judgment on this matter is based on his personal experience with conducting these efforts as acts of war and that he has discovered that a state of war without identifiable, specific classes of enemies and without identifiable national boundaries is inconsistent with the laws of war as well as the system of laws and constitutional protections that are cherished by Americans.  He should state that, rather than craft a new system of courts to deal with these criminals, he is confident that the American judicial and criminal justice system is adequate to deal with the kind of criminal behavior the new congressional authorization will target.

This switch from a “war on terror” to pursuing criminals who seek to harm the United States would require that, before a person could be branded a “terrorist” subject to capture or death by whatever means are reasonably necessary, a federal grand jury would have to indict him or her and, based on that indictment, a warrant would have to be obtained from a federal magistrate or judge.

Grand jury proceedings are secret, so compromising information sources would not be required.  Federal law is entirely adequate to deal with criminal acts before they are actually completed.  Almost all federal crimes are accompanied by related criminal laws that make conspiracy to commit the crime a separate and indictable offense.  This indictment and warrant process would, however, add the judgment of a grand jury and a judge or magistrate to the process of authorizing government killing.  It is a process based on a very long history;  a history that is littered with the results of government killing without such safeguards; a history that caused the designers of our country’s government to include this process as part of our law.

Do I think this will happen?  Probably not.  But I am sure if it did happen it would insure Obama’s place in history along with Abraham Lincoln as a President who took the risk necessary to preserve a vital and noble feature of this country:  Its patriotic proud respect for its Constitution,  justice and the rule of law.  He would become a revered icon of our “land of the free and home of the brave”.   Not a bad legacy and poetically symmetrical:  From Lincoln, who freed the slaves, to a black president who, in an act of humility, affirmed this nation’s tenacious devotion to its Constitution as a protector of freedom.

A Solution to the “Hiding in Caves” Problem

In Obama’s  speech, he said that his drone “death from above” capability was necessary when the threatening terrorists were hiding in caves located in countries that would not or could not gain access to them.  If Obama took my advice I would have to offer a solution to that problem.

A solution is already part of our legal tradition.  In 1958, when the State of Alabama refused to comply with the Supreme Court’s Brown v. Board of Education decision, Congress enacted a statute, called the Force Act, authorizing Eisenhower to send the National Guard to Little Rock to protect black students who sought public education in a previously all white school.  Congressional action was necessary because the 1878 Posse Comitatus Act, as part of the the settlement of the Samuel J. Tilden v. Rutherford B. Hayes presidential election contest, prohibited federal troops from enforcing state laws, thereby ending Reconstruction in the South and putting the Republican Hayes in the White House.   The 1958 statute did not repeal the Posse Comitatus Act.  It merely granted specific authority to solve a specific problem.

This kind of Congressional authority could be sought if law enforcement authority proves incapable of dealing with a specific terrorism problem.  In most cases, secrecy would not be necessary.  If part of the information submitted to justify the authority sought needed to be secret, that could be accomplished in committee hearings  conducted behind closed doors.  That circumstance would be unlikely in most instances.  The recent example of Anwar Awlaki’s drone killing did not result from secrecy.  His name on a “hit list” had been mentioned in press reports for months before he was finally killed.

The point is that the checks and balances system of our government would be restored and unlimited presidential authority would be avoided.

At the present time, we are embroiled in a national debate over limiting the discretion of the IRS and the subpoena power of the Justice Department versus the privacy of news reporters.  I suggest that carefully limiting the war powers of the President is far more important than either of these matters.

The Prism of Work

I entitled this piece “The Prism of Work” because, when faced with reasoned dissent from a man who generally shares my beliefs and opposes those whom I oppose, I had to ask myself, “What has happened to you?  How did you arrive at this point, attacking a President whom you stoutly supported and respected;  motivated to write several pages of diatribes that sound like Rand Paul’s denunciation of ‘big government’?  Have you, at last, slipped your moorings and become a candidate for the Tea Party?”

You will not be surprised to learn that I reject that characterization, but that doesn’t mean that I haven’t had to question why, in this context, I feel so strongly suspicious of government power.

The answer is that much of the work I did for more than fifty years consisted of arguing against discretionary authority.  My work for labor unions often consisted in opposing management decisions to fire, demote or otherwise discipline some employee.  The tension was usually between contractual protection of seniority versus the “management rights” discretion of company supervision to manage the workforce.  In fact, in law school I wrote and defended a research paper in a labor law seminar which argued that the concept of “management rights” was no longer appropriate because enterprise ownership was no longer held by the craftsmen who performed the work, but by the corporate financiers who furnished the capital.  I contended that allowing money managers to manage production processes was inappropriate and illogical.  I did not persuade my professor or any of the other members of the seminar, but I persuaded myself.

In addition to these arguments based on private contracts, I spent several years representing public school teachers, students and professors in government supported colleges and universities.  My opponents in those cases were school superintendents, college and university department heads, athletic directors and governing boards.  I was always trying to impose due process or First Amendment limits on managers who claimed the right to make subjective, discretionary decisions.

I think that record left me with enhanced sensitivity and pervasive hostility toward unfettered authority.  My experience was that, in the absence of accountability based on some objective limits, people with authority were often prone to defensive hostility toward any challenge to their decisions from those whom they supervised and managed.  They feared public exposure of their choices and actions.  They were uncomfortable at the prospect of being judged by any independent arbiter.

So, given this work record, the notion of a runaway Commander in Chief of the U.S. military establishment rang just about every alarm bell in my brain.

George Lakoff, a professor of linguistics has written extensively about the way that “framing” issues determines the way our brains process them.  He has also offered evidence that, over time, presenting an issue framed in a specific way causes changes in the way we react to similar issues.   I have written about this and Lakoff’s book, The Political Mind  in a previous post entitled Recent Thoughts.  I think this is pertinent to my reaction of the issues raised in this essay.  Over and over, as part of my work, I framed issues for judges, juries and arbitrators that equated legal limits on government and management discretion with “truth, justice and the American Way”, just like Superman taught us.

Thorstein Veblen anticipated some of the brain research done by Lakoff and others in his 1904 book, The Theory o f Business Enterprise.   Veblen wrote before the invention of MRI’s and brain scans, but he was a keen observer of human behavior.  He wrote about the “discipline of the machine”.  According to Veblen, those who worked with machines developed  reasoning and thinking habits and frameworks different from those who worked with money and the various ways it could be accumulated and strategically  used in a market based economic system.

Here is his description of this difference:

“Leaving aside the archaic vocations of war, politics, fashion and religion, the employments in which men are engaged may be distinguished as pecuniary or business employments on the one hand, and industrial or mechanical employments on the other hand.”

Veblen described the two separate “employments” as follows:

“. . . one class of men has taken over the work of purchase and sale and husbanding a store of accumulated values . . . [while another class of men has]  given their attention to the mechanical processes involved in this production for a market . . . .”

He contrasted the thought processes of the “pecuniary” class with the “production for market” class as follows:

“The end of . . . [the pecuniary class’s] reasoning is the interpretation of new facts in terms of accredited precedents, rather than a revision of the knowledge drawn from past experience in the matter-of-fact light of new phenomena.  The endeavor is to make facts conform to the law, not make the law or general rule conform to facts.  The bent so given favours the acceptance of the general, abstract, custom-made rule as something real with a reality superior to the reality of impersonal, non-conventional facts.”

I became aware of Veblen as a nineteen year old sophomore  at UT, under the tutelage of Clarence Ayres.  I never became a Veblen scholar but I was a dabbler in his writing.  I thought of this concept of his when I was examining the origin of my hostility toward Obama’s war powers and the AUMF.  I know Veblen was writing about economic functions, not legal arguments.  In fact, so far as my reading goes, Veblen never had anything complementary to say about lawyers.  He regarded them as no more than retainers in the service of the above mentioned “pecuniary class”, the object of much of his biting and occasionally hilarious critical commentary.

I know it may seem a stretch to drag Veblen into this essay but, to me, he adds a dimension, a new variable to Lakoff’s analysis.  Lakoff uses modern technology and the science of linguistics to demonstrate that our thinking is molded by what we hear and see.  Veblen adds that it is also affected by what we do.

All this personal information is not offered to bolster the value of what I have argued.  It is added to describe the prism through which I view the world.  Whether  you regard that prism as a disability or a benefit depends on whether your reaction to Obama’s speech about terrorism is like mine or like the entirely defensible one expressed by the dissent.

Bob

Around the World With Zbigniew

June 6, 2012 § Leave a comment

Executive Summary 

This is an essay based on a book, “Strategic Vision” by Zbigniew Brzezinski.  The book describes what the author regards as America’s strengths and weaknesses.  It warns of the  consequences that will ensue if America does not right itself and recover from its presently disfunctional condition and becomes incapable of acting as a world leader and agent for stability and peace.

Professor Brzezinski

Before my attention was diverted by Jonathan Heidt, I read and then re-read parts of Zbigniew Brzezinski’s latest book, “Strategic Vision”.  The experience was entirely different from reading Heidt’s book.  Heidt proceeds step by step, building a complex and many-faceted argument.  He doesn’t fully disclose what he thinks about the subject of the book until the last few dozen pages.   His intent is more beguiling than Brzezinski’s:  He wants nothing less than changing the way the reader thinks.  Reading Brzezinski’s book is more like attending a series of lectures on world politics and tactics, complete with colored maps, graphs,  really interesting sidebar comments and a bulleted outline.

Brzezinski is not subtle.  His intent is to warn and to predict dire consequences of failing to heed the warning.   l found his book fascinating and somewhat frightening, although he is, to use an over-used phrase, “cautiously optimistic.”

The Early Years

He first describes a series of instances when events and conditions launched the United States as world leader.  The first occurred in the 18th and part of the 19th centuries, when the combination of free land on the American frontier and democratic government based on its Constitution beckoned immigrants from all over the world to the “New World”.   The idealization was so intense that, as Brzezinski remarks, “It . . . helped to obscure, and even justify, what otherwise should have been profoundly troubling:  the progressive eviction and then extinction of the Indians (with the Indian Removal Act, passed by Congress in 1830, representing the first formalized case of ethnic cleansing), and the persistence of slavery followed by prolonged social repression and segregation of black Americans.” (39)

During this period, the image of America in Europe was generally more favorable than in Mexico and South America, where American territorial and economic  expansion was accomplished by forcibly annexing a large portion of Mexico and by claiming hegemony over South America through the Monroe Doctrine.  Brzezinski mentions these events because he sees them as historically  embedded sources of resentment, potentially ripe for resurrection if the U.S. becomes weak and vulnerable, unable to act as a world leader.

World War I

After participating in achieving victory in WWI,  America led the negotiations that followed and, for the first time, was recognized as a world power, espousing a doctrine of self-determination and re-alignment of European powers.  It is interesting to me that Brzezinski does not criticize these negotiations as did Walter Lippmann, who participated in them.  Their significance to Brzezinski is that they served to establish America’s reputation, at least in Europe, as a world power.

World War II and its Aftermath

America survived WWII as the only major industrialized power whose homeland had not been damaged by the war.  Brzezinski, however, marks the aftermath of that war as the beginning of the decline of Western power because, with the tacit support and approval of FDR, the empires of Britain, France and Holland were gradually dismantled and the westward expansion of the USSR began a period of nuclear confrontation between the US and the USSR.

The Cold War

Brzezinski regards the US victory in the Cold War as one of the high points in US world power.  He notes the spectacle of America’s leaders basking in the glow of self-congratulation, with G.W. Bush declaring, “Our nation is chosen by God and commissioned by history to a model for the world.” (44)  He then, however, recounts how this fleeting flirtation with “American exceptionalism” was followed closely by what he believes were strategic and tactical blunders of significant magnitude.  “After 9/11, the vaguely defined ‘war on terror’ and its expansion in 2003 into a unilateral war of choice against Iraq precipitated a wide-spread delegitimation of US foreign policy even among its friends.  The financial crisis of 2008-2009 then shook confidence in the United States’ capacity to sustain its economic leadership over the long haul while simultaneously posing basic questions about the social justice and business ethics of the American system.” (45)

Six Threats to America’s Future

Brzezinski lists six liabilities that threaten our future:

First, our national debt.

Second, our greed-driven out-of-control financial system that poses a continuing threat to the world’s economic health, coupled with the inability or disinclination of Congress effectively to control it.

Third, the gross inequality of wealth distribution.  1% controls 38% of total wealth, while the bottom 50% control 2.5 %.  Income inequality in the US, measured by the Gini coefficient (an accepted measure)  is highest among the world’s major economies. (49)

Fourth, our decaying infrastructure.

Fifth, the ignorance of Americans about the rest of the world.  Brzezinski writes that, except for the diminishing number of readers of “perhaps five newspapers”, the news about other countries is limited to sensational scraps of information, more designed to entertain or to frighten than to inform, provided by cable news and other forms of “news”.  He cites a 2006 survey that showed that 88% of young American adults could not find Afghanistan on a map; 63% could not locate Iraq.  He opines that this level of ignorance makes the general population gullible to “demagogically stimulated fear”.  (52)

Sixth, the grid-locked political system dominated by talk shows and vitriolic political discourse.  This prevents effective government policies to address the foregoing other five issues.

Six American Strengths

Brzezinski matches these weaknesses with a list of six American strengths.

First, America has the largest economy in the world.  Its 2010 GDP of over $14 trillion was about 25% of the total world GDP.  The second largest was China with a GDP of almost $6 trillion.  Current forecasts predict that, given their rates of growth, China and perhaps India will surpass the US GDP around 2030, but on a per capita basis, the US will continue to far surpass either of those economies.  This makes the US a powerful attractor of world talent with great economic clout in world markets.

Second, America ranks high in terms of a competitive culture and a system of higher education that attracts talent throughout the world.  According to a ranking of world universities, eight of the top ten are in the US; seventeen of the top twenty.  In other words, America has an abundance of human capital.

Third, America has a large population (318 million) and it is not aging at the rate of other industrial countries.   Also, while it is diverse, it is not fractured along religious or ethnic lines as are some other countries.   America’s proven ability to attract immigration and to assimilate immigrants into its national culture is one of its strengths.

Fourth, America has a proven capacity for reactive mobilization.   This was demonstrated after Pearl Harbor; it was demonstrated during the technological achievement of a moon landing in the 60’s.  Brzezinski has no doubt that, if called upon, the fraying infrastructure could be swiftly refurbished with American know-how and mobilized effort.

Fifth, America is not presently threatened by either of its neighbors.  The two oceans that surround the American continent afford it valuable maritime opportunity for trade and protect it from invasion by a land army from abroad.

Sixth, while there are serious current problems, as noted earlier, America is still identified with a set of values, individual liberty, democratic government and economic  opportunity that are unique and still widely recognized and admired in the world.

The Bush Fiasco

Brzezinski describes in painful detail the stupid and reckless policies of Bush and his neocon advisers.  Bush properly initiated military action in Afghanistan but, instead of limiting the mission to destroying Al Qaeda, he declared that we would establish American style democracy there, a  goal that Brzezinski regards as totally unrealistic and its declaration an indication of a level of stupidity he finds stunning.  Bush directed the invasion of Iraq based on unsubstantiated claims that we were threatened by WMD’s that never existed, although Secretary of State Rice chose to publicly scare people with references to “mushroom clouds”.   Instead of focusing on Al Qaeda, Bush declared a “war on terror” that committed us to unlimited war forever.

Brzezinski is particularly critical of Bush’s decision in the Spring of 2002, to endorse Israeli Prime Minister Sharon’s policy of “crushing the PLO in the Palestinian West Bank”.  Brzezinski contends that this policy precluded any chance of a negotiated peace between Israel and Palestine and argues that Bush and his advisers well knew that and did not want peace.  After discussing these problems, Brzezinski concludes as follows:

“The ominous lessons implicit in the foregoing are pertinent for America’s near-term future.  In addition to the unfinished business of Afghanistan, and even still of Iraq, America continues to confront in the vast, unstable, heavily populated region east of Suez and west of Xinjiang three potentially larger geopolitical dilemmas:  the rise of Islamic fundamentalism in nuclear-armed Pakistan, the possibility of a direct conflict with Iran, and the probability  that a US failure to promote an equitable Israeli-Palestinian peace accord will generate more intense popular hostility against America in the politically awakening Middle East.” (71)

The Consequences of American Weakness

If America becomes weak and unable to serve as a world force for peace and stability, Brzezinski believes serious and dangerous consequences will result.  First, he does not believe that China will be either capable or inclined to fill the vacuum left by America’s weakness.   He cites historical evidence as well as current pronouncements by Chinese agents that China usually a pursues a foreign policy like Arkansas used to play football.  They would some times punt on first down, choosing to rely on the opponents’ fumbles and interceptions as a way of winning.  [my simile, not his]  China wants to develop domestic strength and forge alliances that are favorable for trade and commerce, but has little interest in building an empire, much less intervening in the conflicts between other nations.

Brzezinski identifies various alliances that involve China:  China, Japan and South Korea; China, India and Pakistan.  China is surrounded by potentially troublesome neighbors.  Japan stands between China and the Pacific ocean’s maritime opportunities.  Russia stands between China and Europe.  India stands between China and the Indian Ocean’s access to the Middle East.  It is in China’s interest to maintain working relationships with these nations, not to invite their enmity by pursuing aggressive imperial policies.

Brzezinski is less optimistic about Russia.   If America is perceived to be weak, he thinks the Russians may decide to re-assemble the USSR empire.   For example, he thinks Georgia, Belarus and Ukraine could become enticing targets . He clearly has limited confidence that  wisdom or restraint will characterize Russian foreign policy.  He fears that the still smoldering resentment of the Cold War’s outcome will motivate Russia to take full advantage of a weakened US.

He thinks that, without the threat of US intervention, North Korea would threaten South Korea, which would then face a choice of seeking protection from either China or Japan.  He suspects that, without support from the US, Japan would hesitate to respond and, if China intervened, dangerous war could break out.

In the Middle East, he predicts that any evidence of American weakness would lead to rapid and dramatic reactions.  Here is his description of that reaction:  “Just thirty-five years ago, the United States benefited from strong relationships with the four most important countries in the Middle East: Iran, Saudi Arabia, Egypt, and Turkey.  As a result, American interests in the region were secure.  Today, American influence with each of these four states is largely reduced.  America and Iran are locked in a hostile relationship; Saudi Arabia is critical of America’s evolving regional policy; Turkey is disappointed by the lack of American understanding for its regional ambitions; and Egypt’s rising skepticism regarding its relationship with Israel is setting it at odds with America’s priorities.  In brief, the US position in the Middle East is manifestly deteriorating.  An American decline would end it.”

Brzezinski’s analysis preceded the recent election in Egypt.  The few reports I have read indicate that a kind of  tension continues between the military, the Muslim Brotherhood, groups still supportive of the deposed Mubarak regime  and groups of Egyptians who favor tolerance and democracy, rather than any form of Muslim fundamentalism.  The two winners of the recent election were a representative of the Muslim Brotherhood and Mubarak’s former Prime Minister.  This result has outraged a significant part of Egypt’s population and large demonstrations have resumed in Tahrir Square.   The ultimate outcome is in doubt but,  regardless of the outcome, Brzezinski’s fears seem justified:  That perceived American weakness would increase the likelihood of instability and disorder and possibly a war that would involve the U.S..

Mexico Rising

Some of the most interesting speculations in the book regard Mexico.  Brzezinski believes that if the US becomes too weak to act as a world power, Mexico may decide to undo the loss of its territory in the 19th century, in the same way that Russia still cherishes a dream of rebuilding its empire.  He does not think the impetus for this kind of development would come from Mexico.  He expects that, as the US declines economically, the anti-immigrant forces will gather strength and they will focus on Mexico and on Mexican immigrants in the US.  If this leads to excessive measures and hostility, pressure will build in Mexico for some kind of response,  and those leading that effort will naturally use the events of the 1800’s and early 1900’s , when Vera Cruz was shelled, Mexico City invaded and Mexican territory was annexed to stoke the fires.  Brzezinski believes that scenario is, if not likely, at least a possibility.

The Commons

Brzezinski identifies the oceans, outer space and cyberspace is an area occupied in common by all nations.   In each, however, he states that the U.S. plays a vital role.  If, because of domestic economic problems or because its government continues to be disfunctional, the U.S. can no longer fill this role, he has little confidence that either of the other major powers, China, Russia, Brazil or India can or will do so.

One result would be, according to Brzezinski, that nuclear proliferation would resume.  The nuclear umbrella offered by the U.S. to other nations, as an inducement for their willingness to do without nuclear weapons would no longer be trusted.  The risk of nuclear war would correspondingly be increased.

He also  thinks competition for access to water and other resources would be more likely to result in dangerous conflicts if the U.S. role as a mediator and conciliator disappears.

Conflict With Iran  

Brzezinski believes that a U.S. war with Iran is both unwise and unnecessary.  He argues that it would destroy the moderate forces in Iran and fuse the population into unified hostility toward the U.S. and other Western nations who join in the conflict.  He argues that the U.S. should resist Israel’s demands for military action and, instead, contain Iran the same way the USSR was contained during the Cold War.

One can only hope that this analysis is faulty, because, in a nationally televised speech to a Jewish organization, President Obama specifically disclaimed any intention to contain Iran.  His statement was roundly applauded by the audience and it left little “wiggle room” for anything short of war if Iran comes closed to obtaining a nuclear weapon.

Shifting Power Centers 

Brzezinski’s world view projects a progressive shift of power from West to East.  He does not believe the U.S. and the EU can prevent it, but he argues that the U.S.  can maintain its status as a world power by accommodating its policies to the shift.  He thinks Russia and Turkey are a couple of the keys to this accommodation.

He sees Turkey as a bridge between Russia and the Western European industrial complex.  He thinks the U.S. should encourage the integration of Turkey into that complex as a way of facilitating the focus of Russian policy on becoming more involved in it.

While,  as stated earlier, Brzezinski expects Russia to be a potential trouble maker if the U.S. becomes too weak to oppose its expansionist dreams, he also believes that if Russia can be induced to regard itself as part of Europe and to allow changes in its culture and government environment that become more like Western European democracies, that will strengthen the western economy and serve the interests of the United States.

Brzezinski’s core strategy for the next quarter century is to build a stronger Western economy and let that serve as a balance to, and a limit on the power shift toward the eastern economic strength of China, India, Japan, Korea and Southeast Asia.

Brzezinski writes:  “. . . to respond effectively in both the western and eastern parts of Eurasia, America must adopt a dual role.  It must be the promoter and guarantor of greater and broader unity in the West, and it must the balancer and conciliator between the major powers in the East.  Both roles are essential and each is needed to reinforce the other.  But to have the credibility and the capacity to pursue both successfully , America needs to show the world that it has the will to renovate itself at home.” (185)  He believes that  Europe’s gradual embrace of Turkey and “a truly democratizing Russia” will be essential.

He also believes that preserving and strengthening the European Union will be essential to accomplishing these goals.  If he is correct, the current threats to the long term viability of the EU take on added significance.  He warns that if European unity fails, Russia will probably try to exploit its energy resources to make alliances with Germany or Italy or both.  Britain and France would respond by becoming closer and both would seek closer ties to the U.S. as a defense against Russia.  The net effect will be to weaken Europe and the West as a counterbalance to the China and India in the East.  This would encourage Russia to try to absorb Ukraine and try to rebuild the Soviet empire.

In the east, Brzezinski writes that the U.S. should pursue the “balance of power” policies that Britain followed with respect to European powers in the nineteenth and early twentieth centuries.  He writes that the U.S. should never allow itself to be drawn into a military effort in the East, but it should ally itself with Japan, its closest ally there, while maintaining a cordial relationship with India as well as commercial arrangements with China.

So far as concerns India, Brzezinski warns that formal alliances with India will be perceived by the Muslim world as supporting India’s ongoing conflict with Pakistan and, thus escalate the already troublesome hostility of that population, engendered by the ill advised invasion of Iraq and U.S. strong support of Israel.  He thinks our relationship should be “cordial”, but not so close that it would imply any promise of support against either China or Pakistan.

Final Thoughts 

This is a book packed with information and written by a man with an impressive grasp of both current and historical world politics.  There is ample evidence that Brzezinski is a Cold Warrior who never really demobilized.  He recognizes that integrating Russia into the Western community of industrial nations is (his word) essential to a strong response to what he views as the inevitable shift of  power to China, India and other eastern industrial nations.  At the same time, he views Russia as a country governed by the same kind of communist elites that waged the Cold War.  He observes that the ashes of Nikolai Lenin and Joseph Stalin are located in honored crypts in the Kremlin.  He asks a pertinent question:   What would we conclude if Hitler’s tomb was an honored feature of Berlin’s tourist attractions?  Or if Mussolini’s death site was similarly featured in Rome?

He is suspicious of Russia and expects that a weak America will awaken a dormant  urge to make trouble.   He is hopeful that cultural changes inside Russia, combined with helpful encouragement from Turkey, will cause democracy to finally triumph in Russia, but I definitely get the impression that is, to him, a long shot.

Also, while he is not (as Jimmy Carter, whom he served as an adviser, has been called) an anti-Semite, he plainly sees protection of Israel through the prism of America’s interest in maintaining a successful and strong presence in the Middle East.  He counsels strongly against war with Iran and views the aggressive policies of Sharon as having been a mistake.

For me, this was an interesting and informative book.  It did not leave me with warm fuzzy hopes for the future of my children and grandchildren.


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