This year has been rife with “law and security strategy” activity. Israel launched Operation Cast Lead, infiltrating Gaza in an assault that later prompted the controversial Goldstone Report. Pakistan struck “Sharia law for peace” deals with the Taliban to stave off social unrest in Pakistani territory. The UN General Assembly debated the fate of the legal principle, “responsibility to protect.” The International Criminal Court issued an arrest warrant for Sudanese President al-Bashir. Albania and Croatia joined NATO. North Korea announced its second nuclear test, prompting UN Security Council condemnation. A constitutional crisis in Honduras led the Honduran Supreme Court to issue an arrest warrant for President Zelaya, prompting a political crisis. The Lisbon Treaty entered into force in Europe, altering the constitution of the European Union. The list goes on and on. However, many of the more significant “law and security strategy” issues in 2009 relate to the world’s sole (and possibly declining) superpower, which brings me to my next subject.
PERSON OF THE YEAR:
I offer you the expected answer: Barack Obama. But not for the expected reason. I choose Barack Obama not because he has reaffirmed the U.S.’s commitment to international law – for this is not necessarily so. I choose Barack Obama because he has proven himself to be an adept practitioner of “lawfare,” that being the use or misuse of law to achieve strategic objectives. As Jack Goldsmith wrote in his May 2009 article, “The Cheney Fallacy”:
Many people think Cheney is scare-mongering and owes President Obama his support or at least his silence. But there is a different problem with Cheney’s criticisms: his premise that the Obama administration has reversed Bush-era policies is largely wrong. The truth is closer to the opposite: The new administration has copied most of the Bush program, has expanded some of it, and has narrowed only a bit. Almost all of the Obama changes have been at the level of packaging, argumentation, symbol, and rhetoric.
In fact, the Obama administration owes Cheney and others on the right their gratitude. Charges about putting the nation at risk only enhance the false perception that the Obama administration is choosing law over security. This phenomenon was in full force in the debate over the KSM trial. Right-wing critics chastised Obama for putting the country at risk. The editors of the National Review, for example, played right into Obama’s hands, writing:
The Obama Left delusionally argues that running these risks will make us safer. The international community will see how enlightened we are, the fable goes. The hostility of America’s enemies will melt away. They’ll lay down their bombs and stop attacking us. As observed by former attorney general Michael Mukasey — who presided over terrorism cases as a federal judge — “We did just that after the first World Trade Center bombing, after the plot to blow up airliners over the Pacific, and after the embassy bombings in Kenya and Tanzania. In return, we got the 9/11 attacks and the murder of nearly 3,000 innocents.”
Such arguments shifted attention away the fact that, as the Justice Department’s protocol suggests, the Obama administration has merely given itself the opportunity to forum shop, using civilian courts only in instances of certain conviction, thus propagandistically demonstrating to the world the U.S.’s commitment to the law. This phenomenon has already become a defining factor of the Obama presidency.
MOST UNEXPECTED EVENT:
Once again I offer you an expected answer: the Iranian non-revolution. But once again, not for an expected reason. Let me take you back to January 2009. On January 10, the New York Times reported on “new American efforts to subtly sabotage Iran’s nuclear infrastructure, a major covert program that Mr. Bush is about to hand off to President-elect Barack Obama.” Hours after the publication of this report, the Iranian government announced the arrest and trial of four people for “seeking to topple [the government] with the backing of the US State Department and the CIA”. The suspects were found guilty of attempting to instigate a “Velvet Revolution,” and the Iranian government released a statement claiming:
Under the Bush administration renegades and fifth elements in Iran have kept close contact with US intelligence agents. Under the cover of governmental and non-governmental institutions, with the support of the US State Department and Congress they have been working toward achieving their objectives…
These objectives, according to the statement, included the “toppl[ing] of the Iranian government.” Did Bush’s covert operation have a regime-toppling element? Was this part of the $400 million “long-running effort to destabilize the country’s ruling regime,” reported by the Washington Post in 2008? It’s difficult to determine, since, as the New York Times admitted of its report, “Several details of the covert effort have been omitted from this account, at the request of senior United States intelligence and administration officials, to avoid harming continuing operations.” Also, the Times apparently found contradictory assessments:
[One American official] cautioned, “none of these are game-changers,” meaning that the efforts would not necessarily cripple the Iranian program. Others in the administration strongly disagree.
Still, it’s reasonable to theorize that some foreign intervention threat drove the Iranian regime to election fraud, which then prompted public backlash, possibly supported by outside elements. The Iranian situation may have actually presaged the Afghanistan election fiasco that followed later in the year, as it seems likely that the threat of U.S. intervention in the Afghan political system drove Karzai to election fraud.
WHAT TO WATCH FOR IN 2010:
One of the most significant stories in 2010 might be the review of the Nuclear Non-Proliferation Treaty (NPT). Some of Obama’s moves in 2009 have clearly been preparation for this event. For example, his call for global nuclear disarmament in his Prague speech, and his presiding over the UN Security Council session passing Resolution 1887, will allow him to assert that the U.S. has lived up to its obligation under NPT’s Article VI “to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a Treaty on general and complete disarmament under strict and effective international control.”
Copenhagen is still up in the air, as is START, and 2010 will see their continued unfolding. Some countries will undoubtedly have constitutional crises, though it is difficult or impossible to predict which ones. The implementation of the U.S.-Iraqi Status of Forces Agreement will continue. The debate over the relevance of international law will endure unresolved. The concept of sovereignty will hold strong amidst assaults of international jurisdiction. The nation-state system will truck along as it has for centuries. The strong will do as they may and the weak will suffer what they must, as the Athenians said to the Melians. Though justice will endure as a significant factor in international affairs, for as the Melians responded to the Athenians:
As we think, at any rate, it is expedient – we speak as we are obliged, since you enjoin us to let right alone and talk only of interest – that you should not destroy what is our common protection, the privilege of being allowed in danger to invoke what is fair and right, and even to profit by arguments not strictly valid if they can be got to pass current. And you are as much interested in this as any, as your fall would be a signal for the heaviest vengeance and an example for the world to meditate upon.
