Core legal arguments to preserve, protect and defend the United States from the presidency of Donald J. Trump
Whatever the still-expanding bill of particulars, Donald Trump’s principles of governance remain crudely defiling in their entirety.Most worrisome, though ignored or merely under-emphasized in current oversight considerations, are prospectively existential harms. In essence, increasingly, this president could sometime wrongly propel the United States toward a catastrophic war. Whether suddenly and disjointedly, as the result of bolt-from-the-blue strategic misjudgment, or more gradually, and in harder to detect increments of provocation, Mr. Trump – by fiat – could unravel whole generations of US national security preparations. For recent examples, one need only consider: (1) belligerent North Korean nuclearization is accelerating; (2) retreating ISIS fighters in Syria are being recruited into newly-organized al Qaeda or related terror units; (3) Iran no longer feels itself bound by formal constraints that had earlier been operative as the core of a multilateral legal agreement (JCPOA); and (4) Russian President Vladimir Putin is embarked upon a major expansion of national nuclear warfare capabilities. All this is happening while the American president retreats unconcernedly to his manicured golf courses in Palm Beach and elsewhere. Even at its imaginable “best,” an ongoing Trump presidency could place a once justice-centered country on the same side as the world’s most conspicuously anti-democratic regimes. In very little time, such Trump-led United States regressions could effectively forfeit America’s most hallowed and well-reasoned legal foundations. These “peremptory” legal foundations lie embedded in Natural Law,[i] an immutable and dignifying set of rules that apply (by definition) (a) to absolutely all peoples; and (b) for absolutely all time.
When the celebrated Irish poet William Butler Yeats penned “The Second Coming,”[ii] he did not have United States Constitutional law issues in mind. Nonetheless, Yeats’ famously-crafted warnings about “passionate intensity” and “blood-dimmed tide” should now have a distinctly palpable resonance in American politics. How could they not?
To explain further, a proper inquiry must begin with US President Donald Trump and now urgently-needed remedies to his multiple and steadily-expanding derogations. Significantly, some of these prospective remedies lie latent but dormant in the American nation’s core legal principles. These principles, in turn, will need to be taken more seriously by everyone who might still value a justice-based United States.
How to proceed? There are several possible ingredients to a proper and suitably promising inquiry. Markedly less obvious than codified articles of the US Constitution, these ingredients begin with various critical concepts, including the scientific property known correctly as “synergy.”
In medicine. engineering and military planning, just to supply helpful examples, synergy denotes an outcome (whether foreseen or unforeseen) wherein the “whole” of any purposefully examined combination is measurably greater than the calculable sum of its “parts.”
Today, though generally ignored in ordinary political assessments, this term can be used to help predict and understand how certain personal traits of America’s incumbent president could combine in expressly ominous ways. Though more-or-less unexpected, such “force-multiplying” combinations could substantially degrade US foreign and national security policies, perhaps even to the point of an imminent nuclear war. Arguably, a plainly synergistic combination of presidential anti-intellectualism and historical illiteracy is already dragging the United States toward irretrievable decline.
The relevant reasons here are not indecipherable.
Unhidden, America’s current president inhabits his alleged convictions like a dizzying predator, like a bewildered worm in the fruit.
His faith, such as it is, serves only for justifications of personal and collective belligerence; that is, as a transparent pretext for ritualized Twitter convulsions.
There is more. Recall that this is an American president who “loves the poorly educated” and prefers the viscerally rhythmic chanting of “rally” crowds (the “base”) to absolutely any intellectual or scientific exertions.
In essence, Donald Trump is an American president who abjures any conceivably recognizable process of disciplined thought, and who does so with incomprehensible pride.
Always, rather than be persuaded to read or think seriously, Donald Trump prefers to erupt.
Why be surprised?
“Intellect rots the brain,” warned Third Reich Propaganda Minister Joseph Goebbels.
“I love the poorly educated,” bragged presidential candidate Donald Trump in 2016.
In principle, at least, certain plausible synergies between the personal traits of US President Donald Trump (i.e., intra-personal interactions) could produce devastating consequences. More precisely, these cumulative interactions could sometime portend an insufferable nadir of national declension, a literal or tangible point of “no return.”
How shall all this be fixed, at least those particular derelictions that have discernibly legal content? Among other things, capable legal scholarship is sorely required. But how exactly should such needed scholarship be launched most effectively? In its apparent and presumptively well-justified considerations of proper impeachment options, the US House of Representatives must first agree to rank order this country’s national security obligations where they rightfully belong.
This is a position ahead of any and all other possible authoritative considerations.
This reveals an obvious and not unreasonable citizen expectation.
No proposed hierarchy could imaginably be more important, especially when there are well-founded concerns for avoiding crises in extremis atomicum.
To proceed, the mainstream of any legitimate presidential removal preparations must focus continuously on the (1) codified and presumptively better-known “High Crimes and Misdemeanors” expectations of the US Constitution;and (2) various overlapping provisions of US statutory law. Certain other less readily recognizable legal obligations could also be needed. Once capably prepared with this strategic and jurisprudential background more clearly in mind, Members of Congress could best identify and evaluate permissible grounds for protecting an increasingly imperiled American democracy.
To preserve a nation moving ominously toward the precipice, it’s not really too much to ask.
Though lesser known, there exist several “peremptory”[i] principles of jurisprudence that could prove applicable to seriously conceived impeachment motions. These relatively esoteric but still valid principles concern the Higher Law underpinnings of the United States. Such basic expectations represent vital national security principles that together could help protect Americans from presidentially-inflicted further harms.
Again, recalling the expanding nuclear weapons context of world politics, such harms could at some point display patently existential qualities.
Here, pertinent issues are primarily legal in both nature and form. In relevant jurisprudential terms, we must begin at the beginning. Remembering the celebrated jurist A.P. d’ Entrevesclassic text on Natural Law (Oxford University Press, 1951): “The Natural Law (Higher Law) is absolutely binding, and overrules all other laws.” From the standpoint of a still-to-be considered impeachment strategy, this recollection could point the way to much more usefully broad bases for any US presidential removal.
Soon, a critical and overarching question should be brought to the floor at the US House of Representatives. How can such a peremptory or “jus cogens” declaration be effectively operationalized in any prospective presidential impeachment action? The comprehensive essay that follows represents a jurisprudentially-informed response to this most rudimentary and already indispensable query.
“In the beginning….” For the United States, the principle of a Higher Law has always been more than just “any principle.” It is unmistakably one of the most enduring and canonic principles in the country’s acknowledged legal foundation.[ii] Revealed, inter alia, in both the Declaration of Independence and in the Constitution,[iii] it rests solidly and incontrovertibly upon the willing acceptance of right and justice for their own sake.
For the United States, considerations of right and justice have never been narrowly instrumental. On the contrary, they have always remained unwavering and meaningfully determinative.
Such foundational principles, as famed 18th century jurist William Blackstone once declared,[iv] represent nothing less than “the eternal, immutable laws of good and evil, to which the creator himself in all his dispensations conforms; and which he has enabled human reason to discover so far as they are necessary for the conduct of human actions.”[v]
Plainly, Thomas Jefferson was a learned US president, even at a time when laborious study was vastly more complicated and difficult than it is today. When Jefferson – without benefit of electric light, air conditioning, central heating, computers or even a manual typewriter – set to work on the Declaration, he drew productively upon Aristotle, Cicero, Grotius, Vattel, Pufendorf, Burlamaqui, and most prominently – John Locke (Second Treatise of Government).[vi] Asserting the right of revolution whenever government becomes destructive of “certain unalienable rights,”[vii] the Declaration of Independence posits a discernible natural order in the world, one whose irreducible laws are external to human will and remain eternally discoverable through staunchly determined applications of human reason.[viii]
Although, by the eighteenth century, God had been “withdrawn” from any immediate philosophical contact with humankind , and had been transformed into the Final Cause or Prime Mover of the universe, “nature” still remained available as a convenient and capable substitute.[ix]
There is much more. Reflecting the unique influence of Isaac Newton, whose Principia was first published in 1686, all of creation could now be taken as a recognizable expression of divine will.[x] Reciprocally, however, the only true way to ever truly “know” this original will of God was to first discover the underlying and eternal Law of Nature.
In essence, Locke and Jefferson had deified nature and “denatured” God.[xi]
But what exactly was this purported “Law of Nature,” a basic law that is accepted in the Declaration and Constitution as a continuously binding set of obligatory norms, and which could still pertain to a present-day American president? Above all, Jefferson learned from Locke, such law was a necessary source of Reason: Still more exactly, according to Locke’s Second Treatise:
The state of nature has a law to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions….
In transgressing the law of nature, the offender declares himself to live by another rule than that of reason and common equity, which is that measure God has set to the actions of men….
A criminal, who having renounced reason, the common rule and measure God hath given to mankind, hath, by the unjust violence and slaughter he hath committed on one, declared war against all mankind.[xii]
As reason is the only sure guide to what God has given to humankind, it must inevitably become the only reliable foundation of true law. This Lockean and Jeffersonian idea of a transcendent or Higher Law is made manifest not only in the Declaration of Independence, but also in the Constitution.[xiii] Inter alia, the Ninth Amendment, in stipulating that “the enumeration of certain rights in this Constitution shall not prejudice other rights not so enumerated,”[xiv] reflects codified belief in a perpetual law that is justly superior to any expressed will of human governance.
This vital conviction runs continuously from ancient times, especially traditional Jewish Law,[xv] up to the present intellectually detached “Trumpian moment.” The evident roots of such a prospectively lethal detachment lie in a broadly cast indifference to anything based upon Reason and a more person-specific indifference to history. What ought we ever really expect from a president who unambiguously prefers “attitude” to “preparation?”
There is still more. The Fragments of Heraclitus attest to the venerable antiquity of a Higher Law: “For all human laws are nourished by one, which is divine. For it governs as far as it will, and is sufficient for all, and more than enough.”[xvi] Such Heraclitean dicta, offered somewhere around 500 B.C.E., entered easily into later Stoic philosophy and already described a universal and expectedly rational body of human law. Hard as it may be to imagine amid American politics in 2019, this intellectual corpus was familiar to many of the Founding Fathers.
Those people actually read books, serious books.
In 442 B.C.E., Sophocles clarified the idea of true law as an act of discovery, thus challenging the superiority of human rule-making in Antigone.[xvii] Already exploring the inevitable conflicts between claims of the state and those of individual conscience, this classic challenge has since been taken to represent the supremacy of a proper Higher Law overall man-made law – now an incontestable supremacy. Later, in the nineteenth century, American Transcendentalist philosopher Henry David Thoreau, noting that men live with “too passive a regard for the moral laws,”[xviii] cited directly to Antigone as a stirring example of “civil disobedience.” Still later, in these United States, the derivative legal and ethical conclusions of Antigone were learned and conceptually embraced by Martin Luther King.
The authority of Natural Law has a well-defined history in American society and politics. Ipso facto, it is not “merely” a pompous invention of certain interested philosophers and university professors. Or in more lay-person parlance, Natural Law already “has legs.”
But back to the philosophers. Building upon Plato’s theory of Ideas,[xix] which sought to elevate “nature” from the distressingly transient sphere of contingent facts to the “higher” realm of immutable archetypes or Forms,[xx] Aristotle advanced in Ethics the derivative concept of “natural justice.”[xxi] Quoting the Antigone, he argued (in a juridical posture of perpetual significance) “an unjust law is not a law.”[xxii] This irreducible position stands in markedly stark contrast to the more instrumental opinion of the Sophists – i.e., that justice is never more than an expression of supremacy, that it is only what Thrasymachus cynically calls, in Plato’s Republic, “the interest of the stronger.”[xxiii]
Were he actually made aware of such scholarly origins and underpinnings, US President Donald Trump would assuredly judge himself to be among the contemporary “Sophists.” This clarifying acknowledgment, to be sure, would be uttered openly by Mr. Trump, and even with an unmitigated pride.
Still more precisely apropos of President Donald Trump’s jurisprudentialy disjointed presidency, this perniciously crude brand of Realpolitik has become the openly acknowledged philosophic foundation of U.S. foreign policy. Left unmodified by timeless principles of a Higher Law, the deleterious consequences for America and for the wider world are not difficult to decipher.[xxiv]
Prospectively, they include very tangible US declensions into catastrophic war, potentially perhaps a nuclear war. Notable, in this regard, is the ongoing expansion of what might best be termed “Cold War II” with Russia; simultaneously, the undiminished nuclearization of North Korea and the ongoing recombination of ISIS Jihadist terrorists under the banner of al Qaeda. Significantly, along all of these cited dimensions of decline, the sitting American president is very plainly complicit.
Yet again, history can be instructive. The Stoics, whose legal philosophies arose on the threshold of the Greek and Roman worlds, regarded Nature itself as humankind’s supreme legislator.[xxv] Applying Platonic and Aristotelian thought to a then-hopefully emerging cosmopolis, they had defined this nascent order as one wherein humankind, by means of its seemingly established capacity to reason, can commune directly with the gods.[xxvi] As this definition required further expansion of Plato’s and Aristotle’s developing notions of universalism, the Stoics consciously articulated a further division between lex aeterna, ius natural and ius humanum.[xxvii]
Lex aeterna is the law of reason of the cosmos, the logos which rules the universe. As an emanation of cosmic reason, human reason, it is assumed, rules the lives of men. It follows that natural law partakes of eternal law, though it has a more limited range of application. Unlike the more elitist conception of Plato (and, to a certain extent, even Aristotle), the Stoic idea of an innate “right reason” presumed no meaningful divisions between peoples.[xxviii]
Instead, in linking all persons with the cosmic order, it established the essential foundations of an authentic and immutable universality.
Cicero, in De Republica, had defined the state as a “coming together of a considerable number of men who are united by a common agreement about law and rights and by the desire to participate in mutual advantages.”[xxix] This definition shed a useful light on the problems surrounding positivist jurisprudence, a legal philosophy that values any state’s edicts as intrinsically just and therefore obligatory.[xxx] In a suitably famous passage of De Republica, one well known to Jefferson and other Founders, Cicero sets forth the still classic articulation of Natural Law:
True law is right reason, harmonious with nature, diffused among all, constant, eternal; a law which calls to duty by its commands and restrains from evil by its prohibitions….It is a sacred obligation not to attempt to legislate in contradiction to this law; nor may it be derogated from nor abrogated. Indeed, by neither the Senate nor the people can we be released from this law; nor does it require any but oneself to be its expositor or interpreter. Nor is it one law at Rome and another at Athens; one now and another at a late time; but one eternal and unchangeable law binding all nations through all time….[xxxi]
It goes without saying that US President Donald Trump has literally no acquaintance with any such still-binding or “peremptory” ideas.
But what is to be done when positive law (which now includes US Constitutional and statutory law) is at variance with “true law”? The Romans had a remedy in all such challenging matters. They simply incorporated into their various statutes a contingency clause that man-made law could never abrogate those obligations that are inherently right or presumptively even sacred.[xxxii] On several occasions, Cicero and others actually and meaningfully invoked this clause, or jus, against one particular statute or another.[xxxiii] In this way, the written law of the moment, never more than an artifact of the extant civic community, remained correctly subject to “right reason.”
Later, St. Augustine reaffirmed that temporal law must always conform to the unchangeable eternal law,[xxxiv] which he had earlier defined as “the reason or will of God (ratio divina vel voluntas Dei).”[xxxv] Aquinas continued this tradition of denying the status of law to prescriptions that are inherently unjust (lex iniusta non est lex).[xxxvi] “Human law,” he wrote in the Summae,[xxxvii] “has the quality of law only insofar as it proceeds according to right reason; and in this respect it is clear that it derives from the eternal law. Insofar as it deviates from reason it is called an unjust law, and has the quality not of law, but of violence.”[xxxviii]
The concept of a Higher Law, later to figure so importantly in the legal development of the United States of America, was widely integrated into medieval jurisprudential thought.[xxxix] In John of Salisbury’s Policraticus, “There are certain precepts of the law which have perpetual necessity, having the force of law among all nations and which absolutely cannot be broken.”[xl] Recognizing the idea that all political authority must be intrinsically limited, John noted that the prince “may not lawfully have any will of his own apart from that which the law or equity enjoins, or the calculation of the common interest requires.”[xli]
“….or the calculation of the common interest requires.” Viewed against the backdrop of the current US president – now, correctly analogous to the medieval “prince” discussed by John of Salisbury – such “perpetual law” must of necessity prohibit any presidential placement of personal interest over the discernibly “common interest” of the United States. Natural Law, inter alia, still exists to frustrate political injustice, a vital function that could soon become material to any authoritative launch of impeachment proceedings against Donald Trump.
In the seventeenth and eighteenth centuries, Natural Law doctrine was reaffirmed and secularized by Grotius,[xlii] the “father” of all modern international law. Reviving the Ciceronian idea of Natural Law and its underlying optimism about human nature, Grotius is credited with liberating this idea from any once-remaining dependence on ecclesiastical or Papal interpretation.[xliii] Building upon the prior speculations of the Dominican Francisco de Vitoria, who had proclaimed a natural community of humankind and the universal validity of human rights,[xliv] Grotius fashioned a conceptual “bridge” from the Christian Commonwealth of the Middle Ages to a brand new interstate society.[xlv]
In this connection, he strengthened the idea of a universally valid Natural Law, one transcending in obligation all human law, including the cumulative positive law of any single sovereign state.[xlvi] This is an idea, of course, that lies at the conceptual heart of US law, but it also entirely alien to the understanding or vision of current US President Trump.
Unlike Machiavelli and Hobbes,[xlvii] Grotius did not consciously reduce law to any presumed will of a prince or a separate state.[xlviii] Rather, while recognizing such will as a properly constitutive element within the much wider international legal order, he also understood that the binding quality of human edicts must always be derived from a more overriding totality of “natural” imperatives.[xlix] Accordingly, he proceeded to reject raison d’etat as a just cause for war,[l] a purposeful rejection that may sometime no longer resonate in US President Donald Trump’s personal ideas of governance.
This brings us directly to the conveyance of Natural Law ideas into American political theory, a transmittal that was preeminently the work of Locke’s Second Treatise on Civil Government (1690).[li] The specified American “duty” to revolt whenever governments commit “a long train of abuses and usurpations”[lii] flows largely from Locke’s seminal notion that civil authority can never extend beyond the securing of humankind’s natural rights.[liii] Regarding any prospective excursions into US presidential impeachment, the motto that Jefferson chose for his own seal was, “Rebellion to Tyrants Is Obedience to God.”[liv]
As for the right to pursue happiness, which Jefferson drew largely from Burlamaqui’s incorporation into natural law,[lv] it had nothing to do with today’s shallow presidential celebrations of raw commerce and exaggerated materialism. Not at all.
Nor could this right have any bearing on any soon-to-be contemplated US presidential impeachment proceedings. Though happiness was viewed by Jefferson (in plausible deference to Pufendorf and Locke) as a welcome condition to be achieved as the direct result of humankind’s overriding commitment to reason,[lvi] never specified were any corresponding or corollary presidential obligations.
Above all, the Declaration of Independence implemented a fundamental social contract that sets limits on the power of any government.[lvii] Its most central purpose, therefore, was to better articulate a set of universally valid constraints upon absolutely all secular political authority. Moreover, as justice, which is necessarily based on natural law, binds all human society, the rights described by the Declaration of Independence could never be reserved only to Americans.
Instead, by ready and verifiable deduction, they must extend to all human societies, and can never be rendered subject to abrogation by positive law. Today, this general applicability of an imperative to “do justice” is routinely ignored by an American president who is utterly disinterested in human rights, especially on those matters regarding immigration to the United States and the granting of refugee or asylum status. Notably, such matters of international law are ipso facto binding upon the United States, both by virtue of the ubiquitous and universal natural law, but also in consequence of the US Constitution (especially Art. VI, the “Supremacy Clause”) and various leading US Supreme Court decisions (especially the Pacquete Habana, 1900).
The compelling theory of a Higher Law, which should have a designated useful place in any forthcoming impeachment proceedings that would indict President Trump regarding his very evident disregard for worldwide human rights, is based on clarity, self-evidence, and coherence. Its legal validity, it follows, can never be shaken by any presumed presidential imperatives of geopolitics or “America First,.” As noted by the Swiss scholar Emmerich de Vattel in the 1758 edition of The Law of Nations (a work in which several American fathers of independence had discovered important and usable maxims of political liberty): “No agreement can bind, or even authorize, a man to violate the natural law.”[lviii]
Prudently, Vattel had cautioned that only a strict obedience to higher legal obligations can produce a virtuous and thereby safe and prosperous state: “One would have to be very ignorant of political affairs not to perceive how much more capable a virtuous Nation is of forming a happy, peaceful, flourishing and secure state, respected by its neighbors and formidable to its enemies.”[lix] Going forward with any U.S. House of Representatives impeachment proceeding, Vattel’s earlier wisdom could sometime have its proper and utilitarian place. At a minimum, it could stand as an unchallengeable corrective to the manifestly unjust imperatives of “America First.”
In the end, as duly informed Trump impeachment advocates will need to understand, Higher Law expectations of the American political tradition can never be self-enforcing. Instead, defied again and again by transient political elites, they can only be sustained where individual citizens first prepare to act (as does Antigone before Creon[lx] ) according to conscience. “Why has every man a conscience,”[lxi] asks Thoreau in his foundational American essay on Civil Disobedience.
I think that we should be men first,
and subjects afterwards. It is not desirable to cultivate a respect for the law, so much as for the right. The only obligation which I have a right to assume is to do at any time what I think right. It is truly enough said that a corporation has no conscience; but a corporation of conscientious men is a corporation with a conscience.[lxii]
Where are such “conscientious men” (and of course women) to be found? Certainly not, says Thoreau insightfully, among the “commonly esteemed good citizens.”[lxiii] These mass men and women serve the state “not as men mainly, but as machines, with their bodies.”[lxiv]
Placing themselves “on a level with wood and earth and stones,”[lxv] these creations of the “mass” (the Danish philosopher Soren Kierkegaard would prefer the term “crowd”) are incapable of making any essential moral or legal distinctions. This incapacity is easily enough recognized today, where so many of our fellow citizens remain unwilling to acknowledge the brutally stark differences between prima facie presidential wrongdoing and legally correct presidential behavior.
Could the United States still create the conditions for a conscientious “corporation” though the enhanced education of an informed citizenry? From Rousseau to the present, this has been the preferred path of virtually all democratic theory. Rousseau believed that law and liberty could best exist in a city-state of properly educated voters like Geneva:
He stipulates in Book III of the Social Contract:
First, a very small state where the people can be readily got together and where each citizen can with ease know all the rest; secondly, great simplicity of manners, to prevent business from multiplying and raising thorny problems; next, a large measure of equality in rank and fortune, without which equality of rights and authority cannot long subsist; lastly, little or no luxury – for luxury either comes of riches or makes them necessary.
But the contemporary United States is not at all like Geneva, and Rousseau’s idea that (even under very specified conditions) a majority can be trusted with what is really best for “The People” is too-often mistaken. Now, the dangers of the “general will” have been made manifest not only in the exploits of Robespierre and Napoleon, but also in the stunningly inauspicious selection of US President Donald Trump and his generally anti-historical/anti-intellectual followers.
Whether this selection shall lead to proper and pragmatic efforts at presidential removal is still unclear.
There is more. Rousseau’s deification of The People actually points toward the very opposite of our own Higher Law tradition. The Genevan made “The People” sovereign; for us, ultimately, sovereignty must somehow come to reside in The Citizen. Earlier, as Thoreau had understood, apathy, complacency, passivity and moral cowardice are the inevitable qualities found in the “mass” of men and women. True hope, therefore, can lie only in those residually still-thoughtful individuals whose primary allegiance is directed toward properly overriding and universal laws; that is, not in the presumptive “good citizen,” but rather in the indispensable “wise minority.”
It is time to finally inquire: What is the real task of this body of enlightened persons, one which could in fact represent a true and distinct majority in formation? Thoreau speaks truthfully of civil disobedience, one still possible act of “counter-friction.” Now, confronted with an American president who could bring unparalleled harms to the United States, suddenly or in unanticipated increments – as we have seen, such harms could soon include even the onset of a catastrophic nuclear war[lxvi] – Thoreau would urge, as he once did about still-earlier policy deformations (see Civil Disobedience),: “Let your life be a counter-friction to stop the machine. What I have to do is to see, at any rate, that I do not lend myself to the wrong which I condemn.”
To this point, most visibly at partisan political levels, Thoreau’s earlier wisdom has fallen on variously deaf Congressional ears.
This essay has been exploring certain jurisprudential remedies to the grievously injurious Trump Presidency, most obviously “ordinary” impeachment proceedings rooted in the US Constitution. Should this particular remedy be selected (structurally, there could likely be no other proper legal remedies, as the Supreme Court has already clarified that presidential impeachment is necessarily a non-justiciable matter[lxvii]), those Members of Congress directly involved with drafting and refining the Articles of Impeachment should also avail themselves of related Higher Law arguments. This augmented path is suggested because: (1) the Constitution of the United States is indisputably and perpetually constructed upon core principles of Natural Law; and (2) these antecedent and overriding legal principles are ultimately binding upon absolutely all citizens and all government officials.
Earlier, on March 19, 2018, Watergate figure John Dean said to Anderson Cooper on CNN: “Trump is Nixon on steroids and stilts.” While merely the subjective opinion of one person, this was a revealing metaphor. Unambiguously, US President Donald Trump represents a uniquely serious threat to US. national security.[lxviii] Although, for some Americans, any such allegation could seem logically or institutionally implausible – after all, a US president is presumptively always preserving, protecting and defending our national security – the urgently plain facts concerning major Trump transgressions are both manifest and compelling.
As long as “We the People” remain willing to take the US Constitution seriously – and not just as a musty old document to be invoked for adornment, ceremony and ostentation, or as selective justification for unregulated gun ownership – there can be no legitimate legal reasons for the US House of Representatives to resist Articles of Impeachment.
To fashion such prospectively important Articles, careful attention ought to be paid not only to applicable statutory and Constitutional expectations, but also to the everlasting Higher Law traditions of the United States. While less explicit and thereby much harder to identify an operationalize, these core traditions and pertinent legal norms are in no way inferior to what had previously been codified. Accordingly, they should never be minimized or intentionally disregarded.
Basic and immutable elements of the Western Higher Law tradition should figure importantly in any still-upcoming effort to protect the United States from a catastrophic American presidency. Such jurisprudence-based efforts at protection are not only justifiable, but indispensable. As Roman statesman Cicero had already understood more than 2000 years ago, “The safety of the people shall be the highest law.”
In the current United States, the “safety of the people” can no longer automatically be trusted to the president. As corollary, the “enemy of the people” here is not a free press, but rather an aberrant government that would openly side with the enemies of democracy. This authentic “enemy of the people” is now an aspiring demagogue who cheers historical illiteracy and popular deception, a president who freely offers: “I love the poorly educated.”
The significant hazards we now face as a nation ought never to be viewed singly, in contrived isolation, one from the other. It is only in their cumulative impact that we can ever accurately foresee the most ominous harms. It is, moreover, in various plausible synergies that these unique hazards could sometime become unendurable to the American nation.
It follows from all this that the Natural Law background of the American Constitution could figure importantly in rescuing the United States from an expansively law-violating American president.
Significantly, the Constitution does
not precisely spell-out the content of any such crimes, and it is entirely
reasonable to maintain that certain US presidential violations of Natural Law could be just as representative
of “High Crimes and Misdemeanors” as anything discoverable in
[i] According to Article 53 of the Vienna Convention on the Law of Treaties: “…a peremptory norm of general international law is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” See: Vienna Convention on the Law of Treaties, Done at Vienna, May 23, 1969. Entered into force, Jan. 27, 1980. U.N. Doc. A/CONF. 39/27 at 289 (1969), 1155 U.N.T.S. 331, reprinted in 8 I.L.M. 679 (1969).
[ii] See Edward S. Corwin, THE “HIGHER LAW” BACKGROUND OF AMERICAN CONSTITUTIONAL LAW (1955); Alexander P. D’Entreves, NATURAL LAW: AN INTRODUCTION TO LEGAL PHILOSOPHY (1951).
[iii] See: U.S. Constitution, Art. IX. According to Clinton Rossiter, there exists a “deep-seated conviction” among Americans “that the Constitution is an expression of the Higher Law, that it is, in fact, imperfect man’s most perfect rendering” of eternal law. See Rossiter, preface to Corwin, supra, at vi.
[iv] Blackstone’s Commentaries, of course, provided the core foundations for America’s current legal system. It is unlikely, of course, that even a tiny handful of US representatives or senators are remotely aware of this juridical primacy.
[v] Blackstone’s COMMENTARIES expressly recognize that all law “results from those principles of natural justice, in which all the learned of every nation agree….” See William Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND, adapted by Robert Malcolm Kerr (Boston; Beacon Press, 1962), Book IV, “Of Public Wrongs,” p. 62 (Chapter V., “Of Offenses Against the Law of Nations.”)
[vi] See John Locke, TWO TREATISES OF GOVERNMENT 123 (T.I. Cook, ed., 1947).
[vii] See THE DECLARATION OF INDEPENDENCE
[viii] See Julius Stone, THE PROVINCE AND FUNCTION OF LAW (Cambridge MA: Harvard University Press, 1950), Chapter VIII, “Natural Law.”
[ix] Here, in the Deist view, Nature had “replaced” God as the source for lawful behavior.
[x] Newton says famously in his Principia: “This most beautiful system of the sun, planets, and comets could only proceed from the counsel and dominion of an intelligent and powerful Being.” Cited by Abraham Kaplan, IN PURSUIT OF WISDOM: THE SCOPE OF PHILOSOPHY (Beverly Hills CA: Glencoe Press, 1977), p. 550.
[xi] See Stone, supra, Ch. VIII.
[xii] See Locke, supra, 123.
[xiii] See The Bill of Rights, as detailed in the following discussion.
[xiv] See U.S. Constitution, Ninth Amendment.
[xv] The most fundamental principle of ancient Hebrew law, of course, is that the revealed will of God is the only proper source of Jewish justice. In the Talmudic position, “Whatever a competent scholar will yet derive from the Law, that was already given to Moses on Mount Sinai.” (See Jerusalem Megillah IV, 74d.)
[xvi] See Sec. 81, Fragment No. DK 22B114 of THE PRESOCRATICS 75 (Philip Wheelwright ed., Bobbs-Merrill 1960). The authoritative text for the fragments of Heraclitus is Hermann Diels & Walther Kranz, DIE FRAGMENTE DER VORSOKRATIKER (6th ed., Weidmann 1966).
[xvii] A century before Demosthenes, Antigone’s appeal against Creon’s order to the “unwritten and steadfast customs of the Gods” had evidenced the inferiority of human rule-making to a Higher Law. Here, in the drama by Sophocles, Creon represents the Greek tyrant who disturbs the ancient harmony of the city state. Aristotle, in his RHETORIC, quotes from Sophocles’ ANTIGONE when he argues that “an unjust law is not a law.” See RHETORIC 1, 15, 1375, a 27 et seq.
[xviii] See Henry David Thoreau, ON THE DUTY OF CIVIL DISOBEDIENCE, in WALDEN, OR LIFE IN THE WOODS AND ON THE DUTY OF CIVIL DISOBEDIENCE (Signet 1960).
[xix] Plato’s theory, offered in the fourth century B.C.E, seeks to explain politics as an unstable realm of sense and matter, an arena formed and sustained by half-truths and distorted perceptions. In contrast to the stable realm of immaterial Forms, from which all genuine knowledge must be derived, the political realm is dominated by the uncertainties of the sensible world. At the basis of this political theory is a physical-mental analogy that establishes a correlation between the head, the heart and the abdomen, and the virtues of intelligence, courage and moderation.
[xxi] See Corwin, supra, at 7.
[xxiii] “Right is the interest of the stronger,” says Thrasymachus in Bk. I, Sec. 338 of Plato, THE REPUBLIC (B. Jowett tr., 1875). “Justice is a contract neither to do nor to suffer wrong,” says Glaucon, id., Bk. II, Sec. 359. See also, Philus in Bk III, Sec. 5 of Cicero, DE REPUBLICA.
[xxiv] In this connection, however, noted Sigmund Freud: “Wars will only be prevented with certainty if mankind unites in setting up a central authority to which the right of giving judgment upon all shall be handed over. There are clearly two separate requirements involved in this: the creation of a supreme agency and its endowment with the necessary power. One without the other would be useless.” (See: Sigmund Freud, Collected Papers, cited in Louis René Beres, The Management of World Power: A Theoretical Analysis, University of Denver, Monograph Series in World Affairs, Vol. 10 (1973-73), p, 27.)
[xxv] See Corwin, supra, at 9: “The Stoics…thought of Nature or the Universe as a living organism, of which the material world was the body, and of which the Deity or the Universal Reason was the pervading, animating and governing soul; and natural law was the rule of conduct laid down by this Universal Reason for the direction of mankind.” Salmond, JURISPRUDENCE 27 (7th ed., 1924), cited in Corwin, supra, at 9.
[xxvii] These terms are defined and discussed below.
[xxviii] See Corwin, supra, at 9.
[xxix] Spoken by Scipio in Bk. I of DE REPUBLICA; cited in Alexander P. D’Entreves, THE NOTION OF THE STATE 24 (1967).
[xxx] See Stone, THE PROVINCE AND FUNCTION OF LAW, supra, 224-230. Stone calls positive law “…the law actually enforced by organized society in a particular place at a particular time.” (p. 225) Understood in terms of natural law, positive law is merely a necessary evil, tolerable and valid only to the extent that it coincides with natural law. In this theory, says Julius Stone, “Not only does natural law provide the criterion for judgment whether positive law is just. It goes further and provides the criterion for deciding whether positive law is valid law at all.” (Id., at 226)
[xxxi] See Cicero, I DE LEGIBUS, cited in Corwin, supra, at 10; D’Entreves, supra., at 20 – 21. Similarly, in his DE OFFICIIS, Cicero wrote: “There is in fact a true law namely right reason, which is in accordance with nature, applies to all men and is unchangeable and eternal….It will not lay down one rule at Rome and another at Athens, nor will it be one rule today and another tomorrow. But there will be one law eternal and unchangeable binding at all times and upon all peoples.” (cited by Stone, supra, at 216.) See also DE LEGIBUS, Bk. i, c, vii; cited by Stone, supra, at 216.
[xxxii] See Corwin, supra, at 12.
[xxxiii] Id, at 13.
[xxxiv] See D’Entreves, supra, 36 – 37. In early Christendom, Augustine offered a system of thought that identified the locus of all global problems in the human potentiality for evil. Combining a philosophy of Neo-Platonism with a view of the universe as a struggle between good and evil, he attributed the trials of humankind to the taint of original sin. This view, transformed into a secular political philosophy, is now reflected by exponents of the school of realism or realpolitik. Augustine, writing at the beginning of the fifth century C.E., sets out, in the CITY OF GOD, to describe human history as a contest of two societies, the intrinsically debased City of Man and the eternally peaceful City of God. In this contest, the state, the product of humankind’s most base tendencies, is devoid of justice and destructive of salvation. A mirror image of human wickedness, the state is little more than a “large gang of robbers.” In an oft-quoted passage, Augustine recalls the answer offered by a pirate who had been captured by Alexander the Great. When asked by Alexander what right he had to infest the seas, the pirate replied: “The same right that you have to infest the world. But because I do it in a small boat I am called a robber, while because you do it with a large fleet you are called an emperor.”
[xxxv] See Julius Stone, HUMAN LAW AND HUMAN JUSTICE (Stanford CA: Stanford University Press, 1965), p. 44. For Augustine, this reason or will of God “commands us to preserve the natural order and prohibits us to disturb it.” (See Contra Faustum, XXII, 27; cited by Stone, HUMAN LAW AND HUMAN JUSTICE, supra, p. 44.
[xxxvi] Thomas Aquinas recalls Augustine as follows: “St. Augustine says: `There is no law unless it be just.’ So the validity of law depends upon its justice. But in human affairs a thing is said to be just when it accords aright with the rule of reason: and as we have already seen, the first rule of reason is the Natural Law. Thus all humanly enacted laws are in accord with reason to the extent that they derive from the Natural law. And if a human law is at variance in any particular with the Natural law, it is no longer legal, but rather a corruption of law.” See SUMMA THEOLOGICA, 1a 2ae, 95, 2; cited by D’Entreves, supra, pp. 42 – 43.
[xxxvii] See D’Entreves, supra, at 42 – 43.
[xxxviii] The importance of reason to legal judgment was prefigured in ancient Israel, which accommodated reason within its system of revealed law. Jewish theory of law, insofar as it displays the marks of natural law, offers a transcending order revealed by the divine word as interpreted by human reason. In the striking words of Ecclesiasticus 32.23, 37.16, 13-14: “Let reason go before every enterprise and counsel before any action…And let the counsel of thine own heart stand…For a man’s mind is sometimes wont to tell him more than seven watchmen that sit above in an high tower….”
[xxxix] See Stone, THE PROVINCE AND FUNCTION OF LAW, supra, Chapter VIII.
[xl] See Corwin, supra, at 17 – 18.
[xli] Id., at 19.
[xlii] See Stone, HUMAN LAW AND HUMAN JUSTICE, supra, pp. 64 – 68.
[xliv] See Stone, HUMAN LAW AND HUMAN JUSTICE, supra, pp. 61 – 63.
[xlv] Id, pp. 65 – 68.
[xlvii] The sixteenth-century Florentine philosopher, Niccolo Machiavelli, joined Aristotle’s foundations for a scientific study of politics with assumptions of realpolitik to reach certain conclusions about politics. His most important conclusion underscores the dilemma of practicing goodness in an essentially evil world: “A man who wishes to make a profession of goodness in everything must necessarily come to grief among so many who are not good.” (See THE PRINCE, Chapter XV). Recognizing this tragic state of affairs, Machiavelli proceeds to advance the arguments for expediency that have become synonymous with his name. With the placing of the idea of force at the center of his political theory, the author of THE PRINCE stands in sharp contrast to the Platonic and early Christian concepts of the “good.” Rejecting both Plato’s argument that there is a knowable objective “good” that leads to virtue, and Augustine’s otherworldly idea of absolute goodness, Machiavelli constructs his political theory on the assumption that “all men are potential criminals, and always ready to realize their evil intentions whenever they are free to do so.” In his instructions to the statesman on how to rule in a world dominated by force, he advises “to learn how not to be good.” The seventeenth-century materialist and social philosopher, Thomas Hobbes, elaborated a complex system of thought in which man was reduced to a state of nature and then reconstructed. Seeking a science of human nature that would have the rigor of physics, Hobbes looked to introspection as the source of genuine understanding: “Whosoever looketh into himself and considereth what he doth when he does think, opine, reason, hope, fear, etc., and upon what grounds, he shall thereby read and know, what are the thoughts and passions of all other men, upon the like occasions.” (See Introduction to LEVIATHAN). The results of such an analysis of one’s own thought processes led Hobbes to his celebrated theory of the social contract: the natural egoism of man produces a “war of all against all” in the absence of civil government and must be tempered by absolute monarchy. Moreover, the condition of nature, which is also called a condition of war marked by “continual fear, and danger of violent death,” has always been the characteristic condition of international relations and international law: “But though there had never been any time, wherein particular men were in a condition of war one against another; yet, in all times, kings, and persons of sovereign-authority, because of their independency, are in continual jealousies, and in the state and posture of gladiators; having their weapons pointing, and their eyes fixed on one another; that is, their forts, garrisons, and guns upon the frontiers of their kingdoms, and continual spies upon their neighbors, which is a posture of war.” (See LEVIATHAN, Chapter XIII).
[xlviii] This is because the principal Grotian effort was to “translate” natural law from pure philosophical speculation into a pragmatic legal ordering. See Stone, HUMAN LAW AND HUMAN JUSTICE, supra, p. 65.
[l] The Swiss scholar, Emmerich de Vattel, notes – in his 1758 classic THE LAW OF NATIONS: “No agreement can bind, or even authorize a man to violate the natural law.” See Albert de LaPradelle, Introduction to Emmerich de Vattel, LE DROIT DES GENS (THE LAW OF NATIONS)(Charles G. Fenwick, tr., 1916).
[li] See Corwin, supra, at 61.
[liv] See Thomas Jefferson, IV WORKS 362 (New York, P.L. Ford, ed., 1892-99).
[lv] J.J. Burlamaqui, author of PRINCIPES DU DROIT DE LA NATURE ET DES GENS (1774) was a Swiss scholar who held a Chair at the University of Geneva. His work has been described by J. Stone and others as “rational utilitarianism.” See Stone, HUMAN LAW AND HUMAN JUSTICE, supra, p. 71.
[lvi] See Corwin, supra, p. 81.
[lviii] See Vattel, THE LAW OF NATIONS (Washington D.C.: Carnegie Institution, 1916), C.G. Fenwick tr., p. 4.
[lx] See Sophocles, ANTIGONE, supra.
[lxi] See H D Thoreau, ON THE DUTY OF CIVIL DISOBEDIENCE (New York: New American Library, 1959).
[lxvi] “The obligation of subjects to the sovereign,” says Thomas Hobbes in Chapter XXI of LEVIATHAN, “is understood to last as long, and no longer, than the power lasteth by which he is able to protect them.”
[lxvii] See Nixon v. United States, 506 U.S. 224 (1993).
[lxviii] Warned John Brennan, former Director of Central Intelligence: “When the full extent of your venality, moral turpitude, and political corruption becomes known, you will take your rightful place as a disgraced demagogue in the dustbin of history. You may scapegoat Andy McCabe, but you will not destroy America…America will triumph over you.” (Tweet, March 17, 2018).
[i] Under international law, the idea of a Higher Law – drawn originally from the ancient Greeks and ancient Hebrews – is contained inter alia within the principle of jus cogens or “peremptory” norms.
[ii] Turning and turning in the widening gyre;
The falcon cannot hear the falconer;
Things fall apart; the centre cannot hold;
Mere anarchy is loosed upon the world.
The blood-dimmed tide is loosed, and everywhere
The ceremony of innocence is drowned;
The best lack all conviction, while the worst
Are full of passionate intensity.
Air Balloon and U.S.-China Relations
The story of the Chinese Automatic Drifting Balloon (ADB) violating the U.S. airspace in late January–early February 2023 will be a symbolic marker for a new phase of deterioration in the US-China relations.
The relations were rapidly eroding throughout 2022 and early 2023. In some aspects, U.S.-China relations in 2022 evoked obvious associations with U.S.-Russian relations in 2021. While trying to engage in cooperation with Beijing on certain issues (particularly on Ukraine), Washington simultaneously kept imposing increasingly painful sanctions against the country.
Among important steps recently taken in this direction, there have been restrictions on supplies of advanced microchips and equipment for their production to China, effective since October 2022, as well as the pressure exerted on Japan and the Netherlands (key manufacturers of equipment for the microelectronics industry) to join these restrictions. Licenses to supply virtually any components and equipment to China’s Huawei have been terminated, and a significant number of sanctions were imposed on smaller Chinese companies and individuals.
Most of the Chinese measures have been defensive and involved steps to ensure the security of production chains and the national economy. In the meantime, Beijing is also discussing measures to limit certain items of Chinese exports, with potential thermonuclear consequences. Semi-finished products, raw materials and equipment for the production of solar panels can be affected—given China’s monopoly on a number of products, this could be a shock for the renewable energy industry in the West.
The visit of U.S. House Speaker Nancy Pelosi to Taiwan in early August 2022 played a disastrous role in the military and political situation in East Asia. That trip, despite repeated warnings from Beijing, triggered a period of rapid increase in Chinese military activity around Taiwan, which still continues.
Chinese activities include numerous live-fire exercises in the waters around the island, large groups of combat aircraft and drones flying along the island’s perimeter, and systematic violations of the median line in the Taiwan Strait by PRC ships and aircraft. For its part, the U.S. is increasing military aid to Taiwan, although it is becoming increasingly difficult to do so against the backdrop of ongoing hostilities in Ukraine.
The November 2022 meeting of Xi Jinping and Joseph Biden in Bali was similar in content to the Geneva summit of Biden and Vladimir Putin in June 2021. We saw similar attempts to achieve at least partial stabilization of relations, establishing rules of the game, unblocking channels for political communication by creating joint working groups, and the same predictable failure. So far, we can only hope that the final outcome of these efforts will not be so disastrous as the one between Moscow and Washington.
The U.S. Secretary of State Anthony Blinken’s visit was canceled due to the balloon incident, while it was supposed to restore the ruined channels of dialogue. The U.S.-Chinese relation is still lagging far behind the U.S.-Russian relationship in matters of mutual alerting, preventing dangerous incidents, and maintaining emergency channels of communication, where relevant experience has continuously been accumulated since the 1960s. Given the rapid progress of China’s transformation into a new nuclear superpower, conservation of this situation could be dangerous.
Nothing more was expected from Blinken’s visit – no U-turn in relations, no strategic deals, including those concerning Beijing’s positions on the Ukrainian issue. Now, the visit has been postponed indefinitely and the dialogue has been suspended amid the rapidly deteriorating security situation in the Pacific.
The circumstances of the very incident with the Chinese ADB over the United States allow us to take a fresh look at the behavior of China’s leadership in the heating confrontation with the United States. According to U.S. military statements, the ADB shot down on February 4, 2023 was the fourth Chinese apparatus to violate U.S. airspace. The previous three ADBs that visited the U.S. during Donald Trump’s tenure were not detected by U.S. airspace controls in time, and the Americans became aware of their existence belatedly via intelligence channels.
If this is true, China is deliberately and systematically doing what the USSR never afforded during the entire Cold War—flying reconnaissance aircraft directly over U.S. territory. For its part, the U.S. used ADBs on a large scale for flights over the USSR and the PRC in the 1950s and 1980s, and the explanation of their purpose was exactly the same as that used by the Chinese now: border violations due to navigation error or malfunction, meteorological research, observations of airstreams, etc.
China’s contemporary political culture attaches great importance to careful observance of the principle of reciprocity, avoiding situations that could be interpreted as Beijing’s recognition of its unequal position vis-à-vis any major power. This is partly due to the severe historical trauma of the “century of humiliation” in 1840–1945, a time of foreign domination over China.
The current use of the ADB over the United States is by no means a retaliation against historical grievances. Rather, it is a response to some U.S. actions within its “freedom of navigation patrols” in the South China Sea, where U.S. ships and aircraft deliberately violate 12-mile territorial water zones around a number of Chinese-controlled islands. The Americans justify their behavior by saying that these Chinese islands are artificial and do not create rights to territorial waters.
Surely, China believes that the Americans are violating the integrity of its national territorial. From China’s perspective, the U.S., as a power external to the region, should not interfere in any of its territorial disputes with the countries of Southeast Asia. Besides, the high activity of U.S. reconnaissance aircraft along China’s borders—and sometimes over disputed water bodies—has long been a matter of Chinese concern.
From China’s perspective, the use of ADB over U.S. territory may well look like an appropriate response to the U.S. actions. Chinese leaders may have seen this action as a necessary step to confirm China’s status as a great power equal to the United States, even if only a limited number of people knew about these operations for the time being.
The political motivation behind the use of the ADB can also be discerned in the Chinese response to the incident. In a normal situation, if the balloon lost control and inadvertently entered (or risked entering) U.S. airspace, the owner would have contacted the Americans, provided the necessary data and information, and tried to avoid a fallout.
China, for its part, responded to the incident only twelve hours after Pentagon’s statement to that effect. There was a dry statement from the PRC about the loss of control of the weather balloon due to force majeure, for which “regret” was expressed.
Shortly thereafter, China declared that it would not tolerate “hype and speculation” about the balloon and accused the United States of indiscriminate and excessive use of force after it was shot down, threatening some “consequences.”
Under the circumstances, it is difficult to assess this as anything other than China’s deliberate humiliation of the United States as well as demonstration of its own strength and confidence. The Chinese consciously chose this course of action in the run-up to Blinken’s visit—now, as the conflict in Ukraine is escalating, the U.S. is more interested in dialogue than the PRC.
The Americans had to choose between continuing the dialogue in a poorer bargaining position after the humiliation they had endured and abandoning the dialogue altogether. The reaction of American public opinion predetermined the choice for the latter. However, this decision was apparently not easy to make.
The visit has not been canceled, but postponed, and the U.S. will probably look for opportunities to carry out negotiations in the not-too-distant future while saving face. Alongside with Blinken’s visit, there were plans for an even more important visit to China, to be paid by U.S. Treasury Secretary Janet Yellen. On February 9, 2023, Yellen announced that she was still planning a trip to China, although it was not yet possible to give a date.
The incident has shown that the Americans are not overly prepared for a tough confrontation with a comparable superpower as soon as it stops playing at giveaway with them. As it turned out, the few previous Chinese ADBs had not been detected at all, and the last one was shot down only after it had crossed the entire U.S. territory, flying over, among other things, an intercontinental ballistic missile base.
There is nothing surprising or particularly embarrassing about it: the ADB is an extremely difficult aerial target because of its low radar visibility, extremely low speed, and a very high flight altitude. The Soviet Union has been practicing its tactics against ADB for decades. The ability to counter such targets was taken into account in the design of some Soviet air defense interceptors. These include, for example, the MiG-31 still in service in Russia, which has the highest maximum flight altitude among modern fighters and is equipped to fight balloons with a GSh-23-6 cannon.
In the United States, reconnaissance ADBs did not show up during the Cold War, simply because the Soviet Union lacked the necessary technical capabilities in the early decades of the confrontation, and the late-Soviet gerontocracy was later afraid to respond in kind to violations of its airspace. Now, the Americans faced a more active opponent and have yet to learn many new skills.
The traditional U.S. propensity to make up for real-world failures with media victories was not very convincing either. Covering the incident, U.S. propaganda followed two lines. They claimed that, first, the Chinese balloon could not have caused any serious damage to the U.S. compared to China’s existing reconnaissance satellites, and second, that the vehicle was not shot down so as not to pose a threat to civilians on the ground.
The second claim is patently absurd: a significant part of the Chinese ADB route passed over deserted or sparsely populated areas, where the risk of harm to civilians was equal to zero. As for the former, the ADB surely remains a valuable reconnaissance tool that can significantly supplement satellite data. For its part, the U.S. has made extensive use of balloons in the operations against Iraq and Afghanistan.
The reconnaissance satellite operates at altitudes of hundreds of kilometers above the ground, while the balloon does so in the altitude range of 20–30 km. This gives it additional capabilities to conduct electronic reconnaissance and detailed ground surveys. The ADB is capable of monitoring atmospheric chemistry and making other measurements useful for the reconnaissance of nuclear-weapons-related targets. Finally, the balloon is capable of remaining over the same territory for long periods of time, tracking the situation there dynamically, and its flight time over an area is not predictable, unlike that of satellites.
Was the incident with the balloon an intentional attempt to disrupt Blinken’s visit from the very beginning? Hardly. If the Chinese had flown around the U.S. three times in the Trump presidency with their ADBs and got away with it, it would make sense to continue this successful practice. When the “balloon case” became public, the Chinese might have chosen an escalatory course of action based on their view of the situation. It is likely that Beijing concluded that it would not lose with any possible U.S. reaction to the incident, and this is probably true.
From our partner RIAC
Can Lula walk the tightrope between Washington and Beijing?
As Brazil’s New President Luiz Inácio Lula da Silva (popularly known as Lula) prepares to visit China later this month, maintaining neutrality would be difficult as the winds of change enwrap Beijing.
Brazil is Back
President Lula’s coming to power has marked a decisive shift in Brazilian foreign policy. With the Pink Tide resurging in South America, the new President has clearly spelled out his foreign policy aims: restoring Brazil’s neutrality and importance in international affairs at par with both the West and East after nearly 4 years of impasse under his predecessor Jair Bolsonaro, who had adopted a Sinophobic, pro-Trump foreign policy.
Brasilia’s 39th President, who previously presided over the office between 2003-2010, will have a lot to talk about as he visits his nation’s largest trading partner that imported $89.4 billion in 2022 mostly in soy and iron ore which added a surplus of $28.7 billion to Brazil’s coffers. Boosting the economic partnership with China will be a priority for Lula, who intends to integrate South America into a closely held economic unit. Another important item on the agenda includes the appointment of former President Dilma Rousseff as the new BRICS Bank president.
Lula and the West
Lula had rattled swords with Washington on several occasions during his previous tenure such as alleging the United States for reducing South America to its “backyard” by intervening in its internal politics as well as by opposing the Iraq War. Even though he recognises the importance of maintaining good relations with the superpower up North; several of Lula’s moves including sending a delegation to Maduro-led Venezuela, refusing to sign a UN Human Rights resolution condemning human rights violations in Nicaragua, allowing Iranian warships to dock at Rio de Janeiro, maintaining an ambiguous approach on the Russia-Ukraine War and refusing to send arms to Kyiv, dubbing the ‘Balloongate’ incident a bilateral issue between the US and China and defining the Taiwan issue as Beijing’s internal matter, have deeply irked the West.
While tensions remain, Lula’s focus on combating climate change and call for saving the Amazon have earned a thumbs up from the Biden administration as the former’s election to power comes as a breath of fresh air after his staunch “Trump of the Tropics” predecessor adopted a not-so-friendly approach towards Biden’s entry in the White House. Lula understands Washington’s support is required and hence it was a top spot on his foreign visits list. Lula and Biden held talks amidst a cordial ambience and vowed to reboot bilateral ties by promising to protect democracy and combating climate change.
Winds of Change in Beijing
However, winds of change in the East have dispersed the clouds of ambiguity and China now stands more vocal, more critical and more confident in dealing with the United States.
The recent session of the National People’s Congress, which won Xi Jinping a never-seen-before third term as the President, saw him voicing his criticism against “Washington-led attempts” to “contain, encircle and suppress” China which pose ” serious challenges to its development” (“以美国为首的西方国家对我实施了全方位的遏制、围堵、打压，给我国发展带来前所未有的严峻挑战。”). Sino-US relations have been in the trough since President Trump’s tenure with the recent point of clash being the ‘Balloon incident’ which made Anthony Blinken call off his visit to Beijing.
Xi recently unveiled his new 24 Character Foreign Policy which, Dr. Hemant Adlakha believes, marks “China’s new foreign policy mantra in the ‘New Era’ ” acting as its “ideological map to attain national rejuvenation by 2049”. The characters “沉着冷静；保持定力；稳中求进；积极作为；团结一致；敢于斗争 ” which translate as “Be calm; Keep determined; Seek progress and stability; Be proactive and go for achievements; Unite under the Communist Party; Dare to fight” are set to replace Deng Xiaoping’s 24 Character Strategy focussed on never seeking leadership and assuming a low profile.
China’s confidence is further boosted by its successful attempt to broker peace between Saudi Arabia and Iran, who have been staunch rivals for the past many years. With the handshake that brought the Sunni Arab Kingdom and the Shiite Persian theocracy together, Beijing has garnered accolades from nations across the region and is all set to play a greater international role by not just pulling American allies such as Riyadh to its side but also through actively putting forth its plans to end wars with Xi all set to pay Putin a visit over the Russia-Ukraine War before he meets Lula at Beijing. Lula too eagerly anticipates what Beijing has to say as he told German Chancellor Olaf Scholz “it is time for China to get its hands dirty”.
Neutrality no more?
If the state of Sino-US relations does not improve, things would get hard for many leaders like Lula who seek to balance between the two superpowers. Lula knows neutrality is his best bet but money matters– as his former Foreign Minister Celso Amorim noted “Our surplus with China—and I’m talking just about our surplus—is bigger than all of our exports to the United States. It is impossible not to have good relations with China.” Isolating China, with which Brazil has had a long strategic partnership since the 1990s, at the expense of moving closer to the US might come hard on the purse and exacerbate the many economic challenges he faces. Nor can Washington be isolated– not just because of the economic necessities but also in the face of challenges from far-right forces that both Lula and Biden face.
Lula realises the risks of placing all his eggs in one basket but would he be left with the choice to divide them equally into both? The issue is bound to get stickier but if he successfully manages to escape the quagmire of the unfolding great power rivalry, Lula will set a precedent for not just South America but nations across the globe. The only viable solution would be to strengthen regional alliances in Latin America and boost partnerships with developing nations like India while using the collective strength to push Beijing and Washington to come together.
The Malvinas feud as a Global Constant
As an event gets bigger, it’s more likely that interesting things will happen behind the scenes, that is, in unplanned activities.
The seventh meeting of G20 foreign ministers in India in 2023 confirms this. Bilateral meetings between Qing-Jaishankar, the Blinken-Lavrov dispute, and the meeting between Santiago Cafiero and James Cleverly, during which the former notified the latter of the end of the Foradori-Duncan agreement.
On March 2, 2023, by rescinding the Foradori-Duncan agreement, the Argentine government de facto reopened one of the most important territorial disputes in the Western Hemisphere, perhaps the most important, and did so in the most theatrical way possible: at the G20, the main North-South dialogue platform.
What was the purpose of the Foradori-Duncan agreement?
The idea behind the agreement was for the Argentine government to renounce its claims and any serious discussion regarding the territorial dispute over the sovereignty of the Malvinas (Falklands) Islands and the adjacent territories in the South Atlantic. Instead, the Argentine government would adopt a position of claiming “light sovereignty” in order to obtain benefits, mainly economic ones, through joint exploitation of the natural resources of the islands and adjacent territories in the South Atlantic with the United Kingdom (UK), as well as through British investments in the country.
In practice, this agreement implied the Argentine government’s resignation to discuss sovereign rights over the Falkland Islands and their adjacent territories in the South Atlantic. It can be inferred that this was a disguised surrender clause by the government of Mauricio Macri to continue with Argentina’s sovereign claim over the Malvinas Islands.
The purpose of the Foradori-Duncan agreement was in line with the foreign policy stance of the Macri administration (2015-2019), which had a marked pro-Western (and more Atlanticist) position than previous governments (Kirchnerism 2003-2015).
This geopolitical code (if we can speak of the existence of a “Macrista geopolitical code” coming from the geopolitical code of the traditional Argentine ruling class) consisted of a series of agreements (tacit and official) of Argentine resignation and subordination to traditional Western powers (of which the Foradori-Duncan agreement was one of its greatest exponents) which aimed –in theory– to obtain greater economic benefits and a renewal of the country’s public image in the supposed “international community.”
These types of foreign policy positions would be a constant of the Macri government. Even the Argentine scholar Juan Gabriel Tokatlian has conceptualized such a stance as “Concessive Peripheral Unilateralism” to define the foreign policy of the Macri government .
In practice, these ideas and plans, were shown to be totally ineffective and unproductive. Argentina practically did not receive economic benefits from such positions, nor did its public image have a significant and positive international projection. And the Foradori-Duncan agreement is the most scandalous example of this reality.
Why did the Argentine government of Alberto Fernández decide to end such an agreement?
The first explanation is the internal conformation and political identity of the government of Alberto Fernández, which logically demanded a change in the previous government’s (Macri) stance on the Malvinas agreements, his predecessor and opponent. But this inference raises another question: Why were such measures not taken before? The answers to this question are only conjectures.
Since the end of the Malvinas War (1982) until today, except for the years of the Menem governments (1989-1999), Argentina’s bilateral relationship with Great Britain has always been marked by a strong “Malvinense”  component on the agenda of their interaction, which has often led to high-pitched disputes between both parties. The “agenda” of the Malvinas cause was a constant trend of the Kirchnerist governments (2003-2015), such claims were made, denouncing British illegal occupation of the Falkland Islands on numerous occasions in various international forums, bilateral meetings, and multilateral forums.
But as mentioned earlier, the Macri government would have a diametrically opposed position to its Kirchnerist predecessors regarding the Malvinas question. However, the reality of the country and its foreign policy changed again when Argentina “presented” a new government in 2019, with Alberto Fernández as the head of the presidency.
The government of A. Fernández has an eclectic political character , as a result of a coalition between several political sectors, so the foreign policy of his government also reflects the heterogeneous internal conformation of the government coalition sectors.
In such conformation, sectors such as Kirchnerism, as well as more orthodox Peronist sectors, are present, both of which have traditionally had a more “Post-Western” stance, aiming to “rewrite the Argentine geopolitical code” and the vectors of Argentine foreign policy, projecting an alternative foreign policy, in first place towards their own region: South America, Ibero-America, the Caribbean, and in more modern times, especially towards the Global South, the BRICS, and Asia. In such guidelines, the action of rescinding the Foradori-Duncan agreement was logical. But logic also makes us wonder, why were such measures not taken before? Such questions enter the realm of speculation.
Another analysis could be given in an electoral key reading, this year 2023, presidential elections will be held in Argentina, and Alberto Fernández has expressed on several occasions through words and gestures , that he is willing and interested in being re-elected as the head of the Argentine executive branch.
Facing a public image tarnished by the covid-19 pandemic, and mainly a negative macroeconomic situation, the electoral nature of this foreign policy measure cannot be ruled out: the Malvinas cause is a cause that mobilizes emotions in Argentine society and remains a deep wound to national pride, and is a valid rhetorical and practical tool to antagonize the Argentine opposition (liberals and conservatives), which has never had (and perhaps never will have) a firm geopolitical stance nor interest in the Malvinas question.
Also, the reading of tensions within the coalition of the current Argentine government can’t be ruled out, in this last aspect, this measure could be read as a gesture of balance from the “Albertismo” towards Kirchnerism, a sector of the government in which many leaders believe that the sector identified with the president has geopolitically leaned too much towards Washington and the West since the 2022 debt agreement with the IMF and the war in Ukraine.
Argentina informed the British of its decision during the G20 foreign ministers’ summit, which was dominated by the BRICS. Is it a coincidence that such a measure was taken at one of the most representative events of the Global South?
it clearly cannot be considered a coincidence.
The symbolic weight of such an action, in such a context, must be clearly considered. The G20 has a dual character as the main forum in which traditional (Western) powers dialogue but also reflects their tensions and antagonisms with emerging powers and peoples, including those of the so-called Global South.
With tensions between former metropolis countries and former colonies that make up the G20, and which are now emerging in material capabilities, a post-colonial and decolonial reading cannot be ruled out, and therefore a strong message from Argentina to the world’s emerging powers and the Global South.
Did China have any influence on the finalization of the pact?
No, there is no such “Chinese hand” that has driven such a measure by the Argentine government. These are paranoid arguments with a stubborn anti-Chinese bias that also ignores Argentina’s own reality. To put it plainly, if we use common sense, the decision was not elaborated nor driven from Beijing.
As mentioned earlier, the issue of the Malvinas is a deeply rooted national cause in Argentine society, and a constant in the foreign policy of Kirchnerism, which today is part of the coalition that compose the current Argentine government, which with such measures such as revoking the Foradori-Duncan agreement seeks to “retake the ownership of the Malvinas and South Atlantic issue in its agenda,” marking a clear differentiated stance from the current political opposition (Juntos por el Cambio) that made such a pact in the previous presidential term.
The decision was not elaborated nor driven by Beijing, and in any case, recent and clear positions of support for Argentina’s sovereign claim in the Malvinas Islands by powers such as China  and Russia  were considered within the decision-making process to take such measures. Therefore, the positions of Beijing and Moscow influenced, but did not condition or generate, Buenos Aires’ decision.
The future of the Malvinas Question
It’s very difficult to envision a future scenario for such a specific and complex issue, especially in the long term. But a prospective scenario can be envisioned in the short term, which is basically and probably that the situation will not change significantly under current conditions. Unless the world is altered by seismic events.
It’s highly unlikely that we will see a dialoguing UK government in the short and medium term that is willing to negotiate the sovereignty of the Falkland Islands. And it is similarly unlikely to see a future Argentine government, especially if it has the characteristics of a Peronist, Kirchnerist, or progressive government, openly giving up its claims to the sovereignty of the Falkland Islands.
Such a proposition would surely change if there were a liberal-oriented government in Argentina, such as Mauricio Macri’s.
The problem with the current Argentine government, as well as future ones, regarding the Malvinas dispute, is that the country does not have, and will not have in the short and medium term, the set of soft and hard capabilities (economic, diplomatic, military, ideological influence) to press and force the UK hard enough to revise its traditional stance on the occupation of the islands. At least until the current balance of power and the position of emerging powers, such as China, would consolidate even further in the world order.
But in any case, such changes and opportunities will depend on the international context and the agency of third parties, which are independent variables for the positions that future Argentine governments may take.
Most experts in international relations and geopolitics agree that the territorial dispute over the Falkland-Malvinas Islands between Britain and Argentina will not have an easy or predictable resolution in the short term.
Some experts point out that the strategic geographical position of the Malvinas Islands and the presence of significant natural resources in the area, such as fishing and hydrocarbons, make the dispute even more complicated.
Moreover, many experts believe that Britain’s position has been strengthened in recent years thanks to the exploitation of the area’s natural resources and the lack of a clear strategy on the part of Argentina to resolve the dispute.
A hypothetical Chinese presence in the region, through the southern Argentine city of Ushuaia, through the construction of a logistics hub, has added an intervening element that makes it even more complex to envision a prospective scenario .
However, some experts believe that the issue of the territorial dispute over the Falkland Islands, Argentina’s position is legitimate, which has won it great support and sympathy among peoples and emerging powers, most of them with a colonial past .
 Tokatlian, J. G. (2018, 2 de febrero). Relaciones con EEUU: ¿nueva etapa? (Relations with the US: a new phase?) Clarín.
 Porto, J. M. (26/03/2022). Despite diplomatic ups and downs, the Malvinas claim became a state policy. Telam. https://www.telam.com.ar/notas/202203/587606-diplomacia-soberania-argentina-islas-malvinas.html
 In its composition as a coalition, including important elements of what might be called “Centre-Right” sectors that have Western – especially Washington – affinities.
 Its relevant to remember that on 22 February Alberto Fernandez led a public act in situ celebrating 119 years of Argentine presence in Antarctica. “Alberto Fernández visits Antarctica“. Sputnik. (23/02/2023). https://sputniknews.lat/20230223/alberto-fernandez-visita-la-antartida-1136141105.html
 Joint Statement between the Argentine Republic and the People’s Republic of China on Deepening the Argentina-China Comprehensive Strategic Partnership. (06/02/2023). https://cancilleria.gob.ar/es/actualidad/noticias/declaracion-conjunta-entre-la-republica-argentina-y-la-republica-popular-china
China’s support for the Malvinas deepens a relationship with many agreements. Telam. (03/07/2021). https://www.telam.com.ar/notas/202107/560027-apoyo-china-malvinas-cada-vez-mas-explicito-profundiza-relacion-muchos-acuerdos.html
 United Russia leader Medvedev celebrates Argentina’s termination of Foradori-Duncan agreement. Sputnik. (2023, March 6). https://sputniknews.lat/20230306/el-lider-de-rusia-unida-celebra-que-argentina-haya-terminado-el-acuerdo-foradori-duncan-1136503626.html
Putin defended Argentina’s sovereignty over Malvinas and took aim at Boris Johnson and Margaret Thatcher. Política Argentina. (2022, May 30). https://www.politicargentina.com/notas/202206/44954-putin-defendio-la-soberania-argentina-sobre-malvinas-y-le-tiro-a-boris-johnson-con-margaret-thatcher.html
 The details of the Ushuaia Logistics Hub to supply Antarctica. El Cronista. (24/12/2021).
An Antarctic logistics hub: official plan opens the door to strategic partners. El Cronista. (11/10/2021).
 The Group of 77+China gave strong backing to Argentina’s position on the Malvinas Islands question. Telam. (2022, November 12). https://www.telam.com.ar/notas/202011/534875-el-g77china-dio-un-fuerte-respaldo-a-la-posicion-argentina-en-la-cuestion-malvinas.html
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