Monthly Archives: August 2013

Normativity and Nerve Gas

Dearly beloved, avenge not yourselves, but rather give place unto wrath; for it is written, Vengeance is mine, I will repay, saith the Lord. — Rom. 12:19

If President Obama decides to order a military strike against the Syrian government in the coming days, his decision will be an extraordinary departure from the U.S. foreign policy of the last twelve years, a reversal, even. Instead of a policy that has protecting U.S. citizens and U.S. interests from Islamist terrorists as its only goal and that does not acknowledge international norms or international law, the administration would be adopting a worldview in which U.S. power is the only competent guardian of certain universal, abstract principles — and must, therefore, be employed in their defense.

Thus, the invasion of Iraq just over a decade ago and the current situation are only superficially similar. In Iraq, the Bush administration’s goal was to make the world safe for democracy by effecting regime change through military force. The intellectual justification for the war preceded the administration’s claims about Saddam Hussein’s nuclear program. Because of their overarching interest in protecting the U.S. strategy, the administration was willing to overlook, you might say, certain factual inaccuracies in its case for war. Now, by contrast, the Obama administration appears to be pursuing a “limited, narrow” assault against Bashar al-Assad as a punitive measure. Such an assault, far from effecting regime change, would in fact be a confirmation of Assad’s legitimacy as a member of the international community, as an actor whose behavior the international community might reasonably expect to influence in the future through some quasi-codified system of punishment and reward. Furthermore, while Hussein’s nuclear program did not exist, Assad’s chemical program is well documented, and today’s declassified intelligence report is quite convincing. The writers explain that U.S. analysts relied heavily on “open source reporting” in their assessment. That is, like everybody else, they looked on the Internet and came to the same conclusion as everyone else the world who is not either duplicitous or a complete idiot. Their explanation:

Three hospitals in the Damascus area received approximately 3,600 patients displaying symptoms consistent with nerve agent exposure in less than three hours on the morning of August 21, according to a highly credible international humanitarian organization. The reported symptoms, and the epidemiological pattern of events – characterized by the massive influx of  patients in a short period of time, the origin of the patients, and the contamination of medical and first aid workers – were consistent with mass exposure to a nerve agent. We also received reports from international and Syrian medical personnel on the ground.

We have identified one hundred videos attributed to the attack, many of which show large numbers of bodies exhibiting physical signs consistent with, but not unique to, nerve agent exposure. The reported symptoms of victims included unconsciousness, foaming from the nose and mouth, constricted pupils, rapid heartbeat, and difficulty breathing. Several of the videos show what appear to be numerous fatalities with no visible injuries, which is consistent with death from chemical weapons, and inconsistent with death from small-arms, high-explosive munitions or blister agents. At least 12 locations are portrayed in the publicly available videos,and a sampling of those videos confirmed that some were shot at the general times and locations described in the footage.

We assess the Syrian opposition does not have the capability to fabricate all of the videos, physical symptoms verified by medical personnel and NGOs, and other information associated with this chemical attack.

Like his predecessor, Obama is contemplating a military action in the Middle East, but one of an entirely different nature, conducted for very different reasons, and supported by abundant, compelling evidence rather than propaganda. Having claimed wrongly that an Arab autocrat’s arsenal posed a danger to the world once before, Washington is now in the unenviable position of the boy who cried “Wolf!”

I believe that this new set of assumptions supporting the current administration’s justifications for a potential strike in Syria are an improvement, in a way. That isn’t to take away from the fact that a strike in Syria would be hypocritical, incoherent, and ill advised.

Earlier today, Secretary of State John Kerry explained why the administration believes a response is necessary:

It matters to our security and the security of our allies. It matters to Israel. It matters to our close friends Jordan, Turkey and Lebanon, all of whom live just a stiff breeze away from Damascus. It matters to all of them where the Syrian chemical weapons are — and if unchecked they can cause even greater death and destruction to those friends.

And it matters deeply to the credibility and the future interests of the United States of America and our allies. It matters because a lot of other countries, whose policy has challenged these international norms, are watching. They are watching. They want to see whether the United States and our friends mean what we say.

“International norm” is a phrase that was never heard in Washington until last week. Now every senior official who gives a press conference uses it at least twice. The administration is careful to site a norm, not a law, because it is a phrase that exactly captures the administration’s view of the situation. Chemical weapons are illegal, but Syria is not a party to the relevant convention, and the administration doesn’t really believe in international law, anyway, as evidenced by the fact that Obama is considering using military force in Syria without the consent of the United Nations. Instead, the administration is simply appealing to the tacit consensus among countries and people everywhere that chemical weapons should never be used.

Of course, a nation that habitually flouts international norms cannot coherently defend a military action using this argument. If the administration is serious about maintaining norms against unconventional weapons, then it ought to revise its position on the use of drones. Discouraging countries from using nerve gas is an important goal, but countries also should not unilaterally use force in foreign territory. Strengthening the first norm by weakening the second through yet another exception is difficult to justify. If anything might have saved those 1,429 people whom Assad drowned in nerve gas last week, it would have been a U.S. posture over the last twelve years that made clear to the world that we do not tolerate inhumanity. Instead, we practiced it ourselves, at Guantánamo and at black sites around the world.

The problem with the idea of international normativity is that it depends on some concept of universal human right. Our belief in a certain dignity that inheres in each of us and that must not be violated under any circumstances is the only reason that we condemn some practice in itself, at all times and in all places. We tend not to believe that any person’s suffering is beyond our concern. Yet this administration and the previous one have demonstrated that they do not share this belief. In invoking an international norm, the administration is appealing to a concept that it does not take seriously. (Consider Matthew Yglesias’s very difficult question: if our reason for attacking Syria is that we believe in averting human suffering, why don’t we just eradicate malaria instead?)

One could respond that a worldview that rejects universal human rights is not only more pragmatic, but ultimately more humane, and that idealism is often counterproductive. Realpolitik, even if it means that some will suffer unjustly, is arguably a better way to protect the freedoms of U.S. citizens as well as the dignity of others around the world.

I disagree, but I do hope that Obama will practice a degree of realpolitik in the current crisis and eschew a military strike in Syria. Even if the administration’s purpose is simply to prevent the future use of chemical weapons, an attack on Assad could cause the opposite. As the intelligence assessment made clear, the weapons were not used for their psychological effect, but for tactical purposes in a desperate effort to attack a secure rebel position. If Assad feels like U.S. cruise missiles are an existential threat to his regime, he could become even more desperate. Besides, it is impossible to know how his allies in the region would respond. A catastrophe in which the entire region — Iraq, Lebanon, even parts of Turkey — devolves into sectarian chaos is not impossible. Gas is a terrible thing, but a person can die slowly and miserably from a bullet wound as well.

The administration should either abandon the defense of international norms as naïvely idealistic, or it should take those norms seriously, avoid a military intervention, and revise some of its other policies as well. The only indefensible option is what appears to be the administration’s current strategy. It is both unlikely to succeed and intellectually inconsistent.

A Belated Response to the President’s Remarks on Surveillance

I’ve been on vacation, so these thoughts about President Obama’s August 9 speech on digital surveillance are somewhat late. I do think the proposals he advocated are the best among the available options for reform, especially the idea of appointing an adversary to the state to argue cases before the Foreign Intelligence Surveillance Court. Yes, had he suggested ending one or two of the comprehensive surveillance programs, then corks would have been popping, but simply due to the inertia of the security apparatus, those programs would most likely just restart in the next few years anyway. Once it stumbled across those weeds sprouting again in the garden, Congress would spare them the trowel and retroactively authorize them, just as it has done in the past. The most important thing is to establish some kind of procedure that will protect democracy from surveillance in the long term, one that will guard effectively against the worst abuses and will prevent unelected officials from making major decisions about the structure of our society in secret without any meaningful check on their authority. A court that meets in secret but has a diverse bench and hears both sides of every case seems to me like a reasonable and workable compromise.

All the same, that the Obama administration has not recognized the importance of this task casts doubt on the depth of their commitment to constitutional government and at the very least represents an embarrassing failure of imagination. Obama himself shares those faults, as his remarks made clear, nor does it seem that anyone in the White House has understood the seriousness of the problem.

The closest Obama came to admitting his government’s mistakes might have been when he said, “It’s not enough for me, as president, to have confidence in these programs. The American people need to have confidence in them as well.” That’s true. Moreover, the fact that the executive undertook several massive programs to collect and, in some cases, store records of its citizens’ personal communications more or less on its own initiative without their informed consent or that of very many members of Congress shows that the rule of law has lost some of its force. Because of the nature of bureaucracies, which is to grow like weeds as long as they remain hidden under the bushes, that authority is likely to continue eroding. Obama should acknowledge failing the spirit if not the letter of his oath to uphold the Constitution.

Likewise, Obama tried to assure reporters that the programs are not being abused:

If you look at the reports, even the disclosures that Mr. Snowden’s put forward, all the stories that have been written, what you’re not reading about is the government actually abusing these programs and, you know, listening in on people’s phone calls or inappropriately reading people’s emails. What you’re hearing about is the prospect that these could be abused. Now part of the reason they’re not abused is because they’re — these checks are in place, and those abuses would be against the law and would be against the orders of the FISC.

That is untrue, first of all. The National Security Agency frequently goes beyond its authority, according to an internal review, though it would be difficult to prove that it is doing so intentionally. Yet beyond specific abuses, any one of which is probably harmless, this statement reveals how poorly Obama understands the issue. The court cannot possibly be a meaningful check, since there is no possibility of appeal from its decisions, all of its members are appointed by the same man, and only one party is permitted to appear before it. The law only has legitimacy to the extent that members of Congress are permitted to understand how it is being implemented. Let’s assume that the agency had never once abused either the spirit or the letter of its authority. Even so, the conditions in which these programs are being conducted amount to an abrogation of normal constitutional processes. That is the abuse, and in itself it is a very serious one.

My point here is that in this country, the constitution and the rule of law are not simply means to an end. We have always insisted on protecting them for their own sakes. Even if the government does succeed in guarding citizens’ liberties, if it does so only as a consequence of the benevolence of the magistrates and not because of legal constraints, there is real cause for concern. Constitutional government cannot depend on the people’s confidence in the wisdom of any one particular leader, even if that confidence is well founded. Likewise, particular agents of the government cannot be responsible for deciding the limits of their own authority, without the checks and balances imposed by the other branches, even if those agents do so judiciously for a while. The ultimate result would be autocracy. The debate over surveillance has given all of us a chance to think carefully about what the rule of law really means and to what extent we can tolerate deviations from it, but it is an opportunity the current administration has ignored.