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Syrian Lesson in American Foreign Affairs

Michael Goodyear

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On December 19, 2018, President Trump ordered the withdrawal of all American forces from Syria. While a total withdrawal has still not been achieved, this move entails consequences for the United States’ allies and a shift in the balance of power in the country. It also provides a valuable lesson for countries around the world in American foreign policy. While the foreign policy ramifications of leaving local allies in the lurch will stain the U.S.’ reputation, the Trump Administration is constrained by the domestic foreign affairs legal framework. Domestic law binds countries, and it is a necessary factor to consider in diplomacy. If countries are to predict how the United States military might act in the future, it is vital to understand these domestic legal constraints.

Status Quo in Syria

U.S. forces entered Syria back in September 2014 under the pretext of stopping the burgeoning pseudo-terrorist Islamic State in Iraq and Syria (ISIS). At its height in 2015, ISIS, from its capital at Raqqa, controlled nearly half of Syria and a significant part of northern Iraq, including the regional capital of Mosul.

Since mid-2015, a coalition of forces gradually pushed back ISIS so that the terrorist network lost all of its major cities in 2017. While a few pockets of resistance fighters remain, and a shadow state exists online that still commands terrorist attacks around the world, ISIS as a territorial entity is all but dead. Iranian President Hassan Rouhani and Russian President Vladimir Putin both declared victory over ISIS in November 2017. Along with his announcement of a Syrian withdrawal, President Trump also told the press that ISIS was defeated.

The Law Binds

It is the fall of ISIS that legally prevents the American military from remaining in Syria. Among other considerations, the Trump Administration no doubt looked at its own domestic authorization to remain in Syria. Under the 1973 War Powers Resolution, the President’s power to enter into hostilities is limited and involves a number of Congressional reporting requirements as well as time limits on how long U.S. forces can remain committed abroad. The War Powers Resolution is a powerful constraint on the United States’ ability to engage in military action abroad.

Congress passed the War Powers Resolution in 1973 following a series of unpopular American military operations. The United States was wrapping up its long, costly, and ultimately futile involvement in the Vietnam War that year, following strong public opposition to the war. At the same time, the United States had also engaged in military operations in Cambodia just a few years before. The War Powers Resolution was largely a response to the perceived abuse of power by the Johnson and Nixon Administrations. Despite President Richard Nixon’s veto of the War Powers Resolution, the U.S. Congress overturned Nixon’s veto and passed the law, which has remained a core part of how the United States legally wages war.

One exception to the War Powers Resolution is if Congress has provided authorization to act. The 2001 Authorization for Use of Military Force (AUMF) allowed the United States to fight anyone who was a part of or substantially supported the groups that carried out the 9/11 terrorist attacks, namely Al-Qaeda and the Taliban. As an offshoot of Al-Qaeda, ISIS fell under the scope of the AUMF. However, by 2018, with the declared victory over ISIS, this justification was gone.

The Obama Administration Office of Legal Counsel (OLC) developed a legal framework in 2011 for engaging in foreign military operations without Congressional approval if this engagement was for an American “national interest” and the operation did not constitute war, meaning an operation that was limited in nature, scope, and duration. Supporting allies was upheld as a national interest in a 2014 OLC opinion in which the Obama Administration justified U.S. activities against ISIS to support the United States’ ally, Iraq. However, the perceived risk of rising to the level of war then was low. Today, any further military support for the Kurdish Syrian Democratic Forces in Syria would risk a wider war in the region, potentially with serious military powerhouses Russia, Iran, and Turkey. While supporting an ally might be in Washington’s national interests, a wider war in the region would certainly not be.

Even if the Trump Administration felt that it could justify further operations in Syria under the 2011 OLC framework, it would still be subject to the War Powers Resolution limitations, including a 60-day limit on the campaign. The Obama Administration legal advisor for the State Department, Harold Koh, developed a framework which posited that if an operation is limited and has a low risk to armed forces and of escalating, it does not qualify as hostilities and is therefore not subject to the War Powers Resolution restrictions. Considering the complicated situation in Syria and the involvement of numerous powerful foreign nations, it would be hard for U.S. leadership to argue that remaining in Syria in 2019 would not rise to the level of hostilities and the potential for a greater war.

Due to these risks, the Trump Administration could not use the 2011 OLC or Koh frameworks to authorize U.S. forces remaining in Syria. Legal scholars and the media have previously criticized U.S. involvement in Syria for infringing the War Powers Resolution, but this approach has not really been used to analyze the announced withdrawal. Unable to use the Obama era exceptions and without specific Congressional authorization, the War Powers Resolution prevents the Trump Administration from engaging in military operations in Syria by requiring justifications to Congress and capping any further operations at 60 days. Although U.S. foreign affairs law is murky, the Trump Administration, by admitting that ISIS is defeated, is left without legal authorization to maintain an operation in Syria.

Lesson for Foreign Affairs

While the American withdrawal from Syria is a catastrophe for American allies in the country, it is a teachable moment. The image of the ever-interfering American military is a powerful one across the globe. However, the War Powers Resolution is a serious constraint on swift, unilateral military action by the president.

Ultimately, understanding the War Powers Resolution and the workarounds created by the Obama Administration would provide a powerful tool for predicting if, where, and how the American military might act. While formal alliances would count as a national interest, the risk of escalation and harm to American troops must be low for the president to act unilaterally. This is how the United States could bomb Libya, which was not entangled with foreign powers, but now needs to withdraw from Syria. It might have even been in the strategic interests of major foreign players in Syria, namely Turkey, Russia, and Iran, to combine forces to crush ISIS, removing the casus belli for the American presence there.

This set of constrains is not new, but it is a consideration that is overlooked time and again in evaluating how the United States may act in the foreign affairs arena. It is a valuable lesson from the American withdrawal in Syria.

Michael Goodyear is a J.D. Candidate at the University of Michigan Law School. He has an A.B. in History and Near Eastern Languages and Civilizations from the University of Chicago. He has been published in a variety of academic and general-interest publications, including Le Monde diplomatique, Balkanist, and the Michigan Journal of International Law.

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Americas

In Praise of the Lioness of Law: Ruth Bader Ginsburg and her Jurisprudence

Punsara Amarasinghe

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image credit: Wikipedia

The death of the US Supreme Court Judge Ruth Bader Ginsburg has created an abyss in the court for the liberal voice where justice Ginsburg was seen as the linchpin of the liberal block of the Supreme Court at a time when that block was shrinking. Especially late judge had vociferously advocated for women ‘rights, environmental issues and often came up with unique dissents in delivering her judgements which were propelled by her jurisprudence which embodied the solemn ideal in American legal system “Equal Protection under the Law “. She was on a quest to defend the delicate balance between honoring the timelessness of American Constitution and recognizing the depth of its enduring principles in new centuries and under new circumstances.

She grew up in an era where men held the helm in every aspect of social life and especially the legal profession was utterly dominated by men. Recalling her legal studies at Harvard law school in the 50’s judge Ginsburg had stated later how she was once asked by the Dean of Harvard law school to justify her position as a law student that otherwise would have gone to a man. Yet she had the spunk to overcome all the obstacles stood on her way and excelled as a scholar becoming the first female member of the Harvard Law Review.

In tracing her legal career that it becomes a salient fact, Judge Ginsburg marked her name in American legal history even decades before she joined the bench. While at the American Civil Liberties Union in the early seventies she made an upheaval in American in legal system in famous Supreme Court Case Reed Vs Reed. In Reed Vs Reed the brief drafted by Ginsburg provided an astute analysis on the 14th Amendment to the US Constitution, the Equal Protection Clause. Ginsburg’s brief changed the aged long practice existed in the State of Idaho on favoring men over women in estate battles by paving the path for a discourse on gender equality rights in the USA.

Judge Ginsburg’s appointment to the Supreme Court in 1994 during Clinton administration marked the dawn of new jurisprudential chapter in the US Supreme Court. Two terms later, in the United States v. Virginia (VMI), Justice Ginsburg applied her lucid perspective to a sharply disputed constitutional claim. The United States challenged Virginia’s practice of admitting only men to its prestigious military college, the Virginia Military Institute. Writing for six Justices, Ginsburg held this policy unconstitutional under the Equal Protection Clause. In reaching this result, Ginsburg adroitly cut away potentially confounding issues about women’s participation in the military or the advantages of single-sex education.

Her robust activism in securing gender equality often attracted the admirations of the feminist scholars and activists, but it should be noted that her contribution was not only confined to the protection of gender equality. She was a robust critique of racial dissemination which still pervades in American society and she frequently pointed out how racial discrimination has marred the constitutional protections guaranteed to every citizen. Especially in the case of Gratz Vs Bollitnger, she stressed on the commitment that the state ought to fulfil by eliminating the racial biases existing employment and education. Moreover, disabled citizens. In Olmstead v. Zimring, she held that “unjustified institutional isolation of persons with disabilities is a form of discrimination” violating the Americans with Disabilities Act.45 She elaborated a two-fold concept of discrimination, noting that unneeded institutionalization both “perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life”.

In remembering the mortal departure of this prudent judge that one cannot forget her keenness in incorporating international law into her judgements regardless of the disinclination shown by conservative judges like Antony Scalia. Going beyond the mere textualism approach to the law, Ginsburg’s jurisprudence was much more akin to using international law to make substantive decisions. For instance, in her concurring verdict in Grutter Vs Bollinger, Justice Ginsburg relied upon international human rights law, and in particular upon two United Nations conventions, to support her conclusions.

Indeed, the demise of Ruth Ginsburg is a major blow for the liberalists in the USA, especially in an era where liberalist values are at stake under the fervent rise of populist waves propounded by Donald Trump. Especially late judge had been one of the harsh critics of Trump even before ascendency to the Oval office. The void created by the demise of judge Ginsburg might change the role the US Supreme Court if the successor to her position would take a more conservative approach and it will fortify the conservative bloc in the US Supreme Court. Trump has already placed Justices Neil Gorsuch and Brett Kavanaugh and the third pick would more deeply entrench the conservative views in the US Supreme Court, which would inevitably undermine the progressive policies taken during Obama’s administration towards issues such as the environment. The political storm appeared after the death of the late judge has already created a tense situation in US politics as president Trump is determined to appoint a judge to fill before the presidential election in November.

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The Politics of (In)security in Mexico: Between Narcissism and Political Failure

Lisdey Espinoza Pedraza

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Image credit: Wikimedia

Security cannot be that easily separated from the political realm. The need for security is the prime reason why people come together to collectively form a state. Providing security is, therefore, one of the most basic functions of the state as a political and collective entity.

Last Friday, the Mexican president, Andrés Manuel López Obrador (AMLO) laughed during his daily morning press briefings over a national newspaper headline about 45 massacres during his presidency. This attitude summarises in a macabre way his approach to insecurity: it is not his top priority. This is not the first time that AMLO has showed some serious and deeply disturbing lack of empathy for victims of crimes. Before taking office, he knew that insecurity was one of Mexico’s biggest challenges, and he has come to realise that curbing it down will not be as simple as he predicted during his presidential campaign.

Since the start of the War on Drugs in 2006, Mexico has sunk into a deep and ever-growing spiral of violence and vigilantism as a result of the erosion of the capacity of the state to provide safety to citizens. Vigilantism is when citizens decide to take the law into their own hands in order to fill the vacuum left by the state, or to pursue their own very particular interests. Guerrero, Michoacán, Morelos, Tabasco, Tamaulipas and Veracruz have over 50 vigilante organisations that pose substantial danger to the power of the state.

Vigilantism is not the only factor exacerbating the security crisis in Mexico: since 2006, young people have also started to join drug cartels and other criminal organisations. There are important sectors of the population who feel that the state has failed to represent them. They also feel betrayed because the state has not been able to provide them with the necessary means to better themselves. These frustrations make them vulnerable to the indoctrination of organised crime gangs who promise to give them some sort of ideological direction and solution to their problems.

As a result, it is not enough to carry out a kingpin arrest strategy and to preach on the moral duties we have as citizens as well as on human dignity. People need to be given enough means to find alternative livelihoods that are attractive enough to take them out of organised crime, Mexico can draw some important lessons from Sierra Leone who successfully demobilised and resettled ex-combatants after the armed conflict. Vigilantism, recruitment by organised crime, and insecurity have also flourished because of a lack of deterrence. The judicial system is weak and highly ineffective. A large proportion of the population does not trust the police, or the institutions in charge of the rule of law.

A long-term strategy requires linking security with politics. It needs to address not only the consequences but also the roots of unemployment and deep inequality. However, doing so requires decisive actions to root out widespread and vicious corruption. Corruption allows concentration of wealth and also prevents people from being held accountable. This perpetuates the circle of insecurity. Mexico has been slowly moving towards a borderline failed state. The current government is starting to lose legitimacy and the fragility of the state is further perpetuated by the undemocratic, and predatory governance of the current administration.

Creating a safer Mexico requires a strong, coherent, and stable leadership, AMLO’s administration is far from it. His popularity has consistently fallen as a result of his ineffective policies to tackle the pandemic, worsening insecurity, and the economic crisis. Mexico has reached over 72,000 Covid-19 deaths; during his initial 20 months as incumbent president, there has been 53,628 murders, among them 1800 children or teenagers, and 5888 women (11 women killed per day) This criminality rate is double than what it was during the same period in the presidency of Felipe Calderón (2006-2012); and 55% higher than with the last president, Enrique Peña Nieto (2012-2018). Mexico is also experiencing its worst economic recession in 90 years.

Insecurity remains as the issue of most concern among Mexicans, seeing the president laughing about it, can only fill citizens with yet more despair and lack of trusts in the government and its institutions. AMLO’s catastrophic performance is not surprising, though. Much of his failures and shortcomings can be explained by both ideology and a narcissistic personality. Having someone with both of those traits ruling a country under normal, peaceful times is already dangerous enough, add an economic crisis and a pandemic to the mix and the result is utter chaos.

AMLO embodies the prototypical narcissist: he has a grandiose self-image; an inflated ego; a constant need for admiration; and intolerance to criticism. He, like many other narcissists, thinks about himself too much and too often, making him incapable of considering the wellbeing of other and unable to pursue the public interest. He has a scapegoat ready to blame for his failures and mistakes: previous administrations, conservatives, neoliberalism, academics, writers, intellectuals, reporters, scientists, you name it, the list is long and keeps getting longer.

AMLO keeps contradicting himself and he does not realise it. He has been claiming for months that the pandemic is under control: it is not. He declares Mexico is ready to face the pandemic and we have enough tests and medical equipment: we do not. He says Mexico is on its way to economic recovery: it is not. He states corruption is a thing of the past: it is not. He says Mexico is now safer than ever before: it is not. When told the opposite he shrugs criticism off and laughs, the behaviour of a typical narcissist.

AMLO, alike narcissists, due to his inability to face criticism, has never cared about surrounding himself by the best and brightest. He chose a bunch of flunkies as members of his cabinet who try to please and not humiliate their leader. A further trait of narcissistic personalities is that they love conflict and division as this keeps them under control. The more destabilisation and antagonism, the better. AMLO since the start of his presidency has been setting states against states for resources and for pandemic responses, instead of coordinating a national response. He is also vindictive: playing favourites with those governors who follow him and punishing those that oppose him.

Deep down, narcissistic leaders are weak. AMLO is genuinely afraid to lead. He simply cannot bring himself to make decisions that are solely his. This is why he has relied on public referendums and consultations to cancel projects or advance legislation. He will not take any responsibility if something goes wrong: It was not him who decided, it was the people, blame them. He inherited a broken system that cannot be fixed during his term, blame the previous administrations, not him.

AMLO is a prime example of a textbook narcissist, unfortunately he is not the only one: Donald Trump, Boris Johnson, Recep Erdogan, Rodrigo Duterte are only a few more examples of what seems to be a normalised behaviour in contemporary politics. Every aspect of AMLO’s and other leaders presidencies have been heavily marked by their psychopathology. Narcissism, however, does not allow proper and realistic self-assessment, self-criticism, and self-appreciation therefore such leaders will simply ignore the red flags in their administration and have no clue how despicably and disgracefully they will be remembered.

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Minor Successes And The Coronavirus Disaster: Is Trump A Dead Duck?

Dr. Arshad M. Khan

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That reminder from the Bible, ‘He who is without sin, let him cast the first stone’ may give us pause — but not journalists who by all appearances assume exemption.  And the stones certainly bruise.

Evidence for the bruises lies in the latest poll numbers.  Overall, Joe Biden leads Donald Trump 50 to 43 percent, a margin that has continued to increase since January.  It is also considerably wider than the few points lead Hillary Clinton had over Trump four years ago.  It gets worse for Trump. 

In the industrial states of Michigan and Pennsylvania, which Trump in 2016 won by razor thin margins, he is losing by over 4 percent.  Also key to his victory was Wisconsin where, despite his success in getting dairy products into Canada, he is behind by a substantial 7 percent.  Key states Ohio and Florida are also going for the Democrats.

Trump was not doing so badly until the coronavirus struck and during the course of his news conferences he displayed an uncaring persona larded with incompetence.  Dr. Anthony Fauci, the man he fired for correcting Trumpian exaggerations became a hero and Trump the bully.

If that bullying nature won him small rewards with allies, he hit an impasse with China and Iran … while bringing the two closer to each other.  Then there is the border wall, a sore point for our southern neighbor Mexico.  President Lopez Obrador made sure the subject never came up at the July meeting with Trump,   Thus Mexico is not paying for it so far and will not be in the foreseeable future.

The United Arab Emirates, a conglomeration of what used to be the Trucial States under British hegemony. have agreed to formalize its already fairly close relations with Israel.  In return, Israel has postponed plans to annex the West Bank.  Whether or not it is in Israel’s long term interest to do so is a debatable question because it provides much more powerful ammunition to its critics who already accuse it of becoming an apartheid regime.  However, it had become Prime Minister Netanyahu’s sop to the right wing who will have to wait.  Of course, the reality is that Israel is already the de facto ruler.

If Mr. Trump was crowing about the agreement signed on September 15, although it is akin to someone signing an agreement with Puerto Rico while the United States remains aloof.  As a postscript, the little island of Bahrain also signed a peace deal with Israel.  Bahrain has had its own problems in that a Sunni sheikh rules a Shia populace.  When the Shia had had enough, Saudi and UAE troops were used to end the rebellion.  Bahrain is thus indebted to the UAE.

How many among voters will know the real value of these historic (according to Trump) deals particularly when he starts twittering his accomplishments as the election nears?

There things stand.  As they say, there is nothing worse than peaking too early.  Bettors are still favoring Trump with their money.  The longer anyone has been in politics the more there is to mine, and for an opponent to use to his/her advantage.  Time it seems is on Trump’s side.  

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