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Fragmentation or Unity: A Core US Foreign Policy Choice

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“In a dark time, the eye begins to see.”-Theodore Roethke (American poet)

In essence, Donald Trump’s ideas about “America First” represent a retrograde vote for expanding global fragmentation. Whatever decisional uncertainties we may have concerning any specifically preferred course of US foreign policy direction, one thing is certain. Prima facie, these crude ideas can augur only disunity and an endless future of belligerent nationalism and catastrophic war.

Accordingly, pertinent US national policy imperatives should not be difficult to decipher. Now, instead of “America First,” this country’s rational posture should firmly reject any stubborn adherence to long-failed ideological orientations. Though generally difficult to understand, what at first may seem pragmatic in foreign policy decision making is only a prescription for despair. To wit, any nation that seeks to maximize its own well-being at the intentional expense of others –  a zero-sum view – will actually be acting against its own security interests.

It’s about interpenetrations. In world politics, everything is interrelated.  Among other things, no single country’s meaningful success can typically be achieved at the sacrificial expense of other countries. Moreover, no such presumptive success is sustainable if the world’s myriad “others” must thereby expect a more violent and explosive future.

Everything is interrelated, as system.

Now, certain absolutely ore questions must give direction to relevant strategic dialectic.  More precisely, we must inquire, what should we realistically expect from Donald Trump’s conspicuous contempt for sensible notions of widening global unity?  

Here, history is instructive.

Here, on earth, the basic story has never really been any different.

Here, the tribe, in one form or another, has long undermined all indispensable opportunities for authentic world order.

Persistently undermined.

It is this latest expression of a corrosive national tribalism that is currently being championed by “America First.” Ironically, when all cumulative policy impacts are taken into careful account, America First is revealed as virulently anti-patriotic. Starkly. What else could reasonably be concluded about a national policy that injures one’s own country and various others at the very same time?[1]

Plainly, America First represents an expression and posture that is dangerously misconceived and prospectively lethal. Unchallenged, it will reveal an atavistic mantra that would further harden the hearts of even our most recalcitrant enemies. In brief, what is required now is the literal opposite of an incessantly belligerent nationalism. What is needed, at the core, is a substantially broadened acknowledgment of human interconnectedness.

Says the French Jesuit philosopher Pierre Teilhard de Chardin in his masterwork, The Phenomenon of Man: “No element can move and grow except with and by all the others with itself.”

 From the 1648 Peace of Westphalia to the present fragmenting moment, world politics has been shaped by a continuously shifting balance of power, and by certain relentless correlates of war, terror, and genocide. Ideally, hope should still exist, but now it must sing more softly, unobtrusively, and in a decisively prudent undertone. So, what now?

 Finally, merely to survive on this imperiled planet, all of us, together, must seek to rediscover an individual life, one that is consciously detached from any ritualistically patterned conformance, cheap entertainments, shallow optimism, or disingenuously contrived expressions of American tribal happiness. At a minimum, such survival will demand a prompt retreat from what US President Donald Trump has termed “America First.” In this regard, Trump’s so-called rallies are just the symptom of a much deeper pathology, a know-nothing populism more closely reflecting the philosophy of Joseph Goebbels (“Intellect rots the brain”) than the pro-education credo of Thomas Jefferson.

It was Donald Trump, after all, who said unashamedly during the 2016 campaign: “I love the poorly educated.” This is the very same president who once exclaimed confidently that the moon “is part of Mars,” and who openly lamented that Denmark would not consider selling Greenland.

As Jefferson and the Founding Fathers had earlier understood, there is a respectable place for a proper erudition. Learning from history, Americans may yet learn something from “America First” that is still useful and redemptive. They may learn, even during this national declension Time of Trump, a time for authentic tribulation, that a commonly felt agony is more important than astrophysics; that a ubiquitous mortality is more consequential than any transient financial “success;” and that shared human tears may reveal much more deeply consequential meanings than “everyone for himself” tax reductions or porously unsuitable border walls.

In The Decline of the West, first published during World War I, Oswald Spengler asked: “Can a desperate faith in knowledge free us from the nightmare of the grand questions?” This remains a vital query, one that will assuredly never be raised in our universities, on Wall Street, or absolutely anywhere in the Trump White House. Still, we may learn something productive about these “grand questions” by more closely studying American responsibilities in world politics.

Then we might finally understand that the most suffocating insecurities of life on earth can never be undone by further militarizing global economics, building larger missiles, abrogating international treaties, or replacing one abundantly sordid foreign regime or movement with another.

In the end, even in American politics and foreign policy decision-making, truth is exculpatory. In what amounts to a uniquely promising paradox, therefore, “America First” can express a blatant lie that may nonetheless help us see the truth. This peremptory truth is not really dense or unfathomable. Americans require, after all, and above all else, a substantially wider consciousness of unity and relatedness between individual human beings and between nation-states.

“In a dark time,” we may learn from the poet Roethke, “the eye begins to see.”[2]


[1] From the standpoint of classical political and legal philosophy, such a national policy would be the diametric opposite of the statement by Emmerich de Vattel in The Law of Nations (1758): “The first general law which is to be found in the very end of the society of Nations is that each Nation should contribute as far as it can to the happiness and advancement of other Nations.”

[2] Collected Poems, 1966.

LOUIS RENÉ BERES (Ph.D., Princeton, 1971) is Emeritus Professor of International Law at Purdue. His twelfth and most recent book is Surviving Amid Chaos: Israel's Nuclear Strategy (2016) (2nd ed., 2018) https://paw.princeton.edu/new-books/surviving-amid-chaos-israel%E2%80%99s-nuclear-strategy Some of his principal strategic writings have appeared in Harvard National Security Journal (Harvard Law School); International Security (Harvard University); Yale Global Online (Yale University); Oxford University Press (Oxford University); Oxford Yearbook of International Law (Oxford University Press); Parameters: Journal of the US Army War College (Pentagon); Special Warfare (Pentagon); Modern War Institute (Pentagon); The War Room (Pentagon); World Politics (Princeton); INSS (The Institute for National Security Studies)(Tel Aviv); Israel Defense (Tel Aviv); BESA Perspectives (Israel); International Journal of Intelligence and Counterintelligence; The Atlantic; The New York Times and the Bulletin of the Atomic Scientists.

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Americas

Biden’s Dilemma: Caught Between Israel and Iran

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Official White House Photo by Adam Schultz

By all indication, the latest sabotage at Iran’s uranium enrichment facility in Natanz aimed at more than just disabling thousands of Iran’s centrifuges and thus cause another setback for Iran’s nuclear program, it was also meant as an indirect diplomatic sabotage vis-a-vis the on-going nuclear talks in Vienna; the latter had shown real signs of progress before the April 10th incident at the Natanz facility, blamed on Israel by the Iranian officials, who have vowed to get revenge — an attack on an Israeli cargo ship off the coast of Oman as well as an attack on an Israeli post in Iraq’s Kurdistan may indeed be the acts of Iranian retaliation.

But, from Iran’s vantage, the biggest response was the decision to upgrade the enrichment level from 20% to 60% percent, thus bringing Iran closer to the weapons grade enrichment, bound to raise the ire of Tel Aviv, which is intent on dispossessing Iran of nuclear weapons capability.  Iran’s Supreme Leader, Ayatollah Khamenei, has followed suit by stating that Iran will not be dragged into a “protracted negotiation” with the US and that US’ removal of sanctions needs to be the first step in a future US return to the 2015 nuclear deal, known as the Joint Comprehensive Plan of Action (JCPOA).  In turn, this raises the question of how will the Biden administration respond, and adjust to, the latest developments?

On the one hand, the Iranian setback in Natanz, widely interpreted inside Iran as a major “embarrassment,” as it is the second time in 9 months that Israel has successfully inflicted serious damage on the facility, weakens Iran’s hand at the table in Vienna, no matter how the Iran negotiators seek to spin the issue.  With Iran’s vulnerability to “nuclear sabotage” irrefutably established, Tehran’s ability to utilize its nuclear chips in the bargaining with US has been diminished, perhaps for the duration of the current year, thus leading some conservative politicians to urge the government to withdraw from the Vienna talks. 

On the other hand, it is by no means clear that the Biden administration favors Israel’s spoiler role, which might lead to an escalation of tensions in the region to the detriment of Biden’s determination to re-embrace the JCPOA as part and parcel of an Iran “re-thinking” policy at odds with his predecessor’s maximum pressure strategy.  Chances are that, much like the Obama administration, the Biden administration will need to defy Israel’s will on Iran and push ahead for a new understanding with Tehran at a time Israel’s hawkish Prime Minister, Benjamin Netanyahu and, to a lesser extent the Saudi rulers, are wary of Biden’s resurrection of Obama’s (perceived) conciliatory approach toward Iran.  The big question is if President Biden is willing to act independently of Israel’s hawkish recipe for Iran and make meaningful concessions, above all in the area of post-2015 sanctions on Iran, in order to achieve its key demand of bringing Iran in compliance with its JCPOA obligations?  Lest we forget, Obama’s defiance of Israel on the JCPOA caused a major rift benefiting the Republican Party opponents of the deal, such as Donald Trump, and so far there is little evidence that Biden is unmindful of that prior experience.  In turn, this may explain the timing of US Defense Secretary Austin’s Israel visit coinciding with the Natanz sabotage, which may not have been coincidental as Israel most likely had informed Washington of the coming attack on Natanz beforehand.  

Naturally, Tehran is irritated at Austin’s presence in Israel at that particular time and his expression of “ironclad support” for Israel instead of raising any criticism of nuclear terrorism against Iran, just as China and Russia have done.  In fact, none of the Western governments, as well as the EU, partaking in the Vienna talks, have bothered to condemn the attack on Natanz, thus adding salt to Iran’s injury.  Instead, the German foreign minister, Heiko Maas, dispensed with any criticism of Israel and confined himself to questioning Iran’s post-attack decision to increase the enrichment level, which he called “irresponsible.”  But, is it really responsible for the US and European powers to refrain from condemning an act of sabotage with respect to a facility that, under the terms of JCPOA, is recognized to be the hub of Iran’s nuclear fuel cycle? Germany, France, and England, as well as the European Union, ought to act in unison denouncing the acts of nuclear sabotage in Iran, irrespective of Israel’s prerogative.  Their failure to do so simply adds another layer of distrust between Iran and these powers, to the detriment of any prospect for tangible progress in the Vienna talks.

As for Biden’s foreign team, which has reported of its “serious proposal” on the table, it must recognize that unless there is some pressure applied on Israel to stop its spoiler role, US’s national interests maybe harmed and even sacrificed by a hawkish Middle East ally that behaves according to its own calculation of risks to its interests.  In a word, an Obamaian rift with Israel may indeed be both inescapable and inevitable for the Biden administration.

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Roads and Rails for the U.S.

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For those who expect the newly announced $2 trillion Biden infrastructure program to be a goodbye to potholes and hello to smooth-as-glass expressways, a disappointment is in store.  The largest expenditure by far ($400 billion) is on home/community care, impacting the elderly or disabled.  The $115 billion apportioned to roads and bridges is #4 on the list. 

The American Society of Civil Engineers (ASCE) keeps tabs on our infrastructure and their latest report (2020) gave it an overall grade of C-.  Although bridges worsened, this is a modest improvement on the previous report (2017) when the overall grade was D+.  If $115 billion in spending sounds adequate, one has to remember it costs $27 billion annually for upkeep.

Astounding it might be the backlog in spending for roads and bridges runs at $12 billion annually.  Go back 20 years and we have a quarter trillion shortfall.  Add all the other areas of infrastructure and the ASCE comes up with a $5 trillion total.  It is the gap between what we have been spending and what we need to.  Also one has to bear in mind that neglect worsens condition and increases repair costs. 

One notable example of maintenance is the Forth rail bridge in Scotland.  A crisscross of beams forming three superstructures linked together, it was a sensation when opened in 1890 and now is a UN World Heritage Site.  Spanning 1.5 miles, its upkeep requires a regular coat of paint.  And that it gets.  Rumor has it that when the unobtrusive painters reach the end of their task, it is time to start painting again the end where they began — a permanent job to be sure though new paints might have diminished such prospects.

Biden also proposes $80 billion for railways.  Anyone who has travelled or lived in Europe knows the stark contrast between railroads there and in the U.S.  European high-speed rail networks are growing from the established TGV in France to the new Spanish trains.  Run by RENFE, the national railway, Alta Velocidad Española (AVE) trains run at speeds up to 310 km/h (193 mph)  — a speed that amounts to a convenient overnight trip between Los Angeles and Chicago.

The hugely expensive new tracks needed can be considered a long-term investment in our children’s future.  But it will take courage to contest the well-heeled lobbies of the airplane manufacturers, the airlines and big oil.

If Spain can have high-speed rail and if China already has some 24,000 miles of such track, surely the US too can opt for a system that is convenient for its lack of airport hassle and the hour wasted each way in the journey to or from the city center.  Rail travel not only avoids both but is significantly less polluting.  

Particularly bad, airplane pollution high above (26 to 43 thousand feet) results in greater ozone formation in the troposphere.  In fact airplanes are the principal human cause of ozone formation.

Imagine a comfortable train with space to walk around, a dining car serving freshly cooked food, a lounge car and other conveniences, including a bed for overnight travel; all for a significantly less environmental cost.  When we begin to ask why we in the US do not have the public services taken for granted in other developed countries, perhaps then the politicians might take note.

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Congress and the Biden administration should end FBI immunity overseas

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Image source: U.S. Embassy in Uzbekistan

The FBI notably has an extended international presence running 63 offices in select countries overseas. The offices are called “legats” and are situated at the US Embassy in the host country. One of the major reasons for FBI’s international presence is fighting international terrorism.

The FBI legat personnel at the US embassies are fully accredited diplomats enjoying full diplomatic immunity but that poses several questions that are worth asking, such as: how is it possible for law enforcement to be diplomats and is that a good idea, legally speaking?

Police work should not enjoy diplomatic immunity because that opens the door to abuse. Does the FBI’s immunity overseas mean that the FBI attaches can do no wrong in the host country? How do we tackle potential rights infringements and instances of abuse of power by the FBI towards locals in the host country? The DOJ Inspector General and the State Department Inspector General would not accept complaints by foreigners directed at the FBI, so what recourse then could a local citizen have vis-a-vis the FBI legat if local courts are not an option and the Inspector Generals would not look into those cases?

This presents a real legal lacuna and a glitch in US diplomatic immunity that should not exist and should be addressed by Congress and the new Biden administration.

While FBI offices overseas conduct some far from controversial activities, such as training and educational exchanges with local law enforcement, which generally no one would object to, the real question as usual is about surveillance: who calls the shots and who assumes responsibility for potentially abusive surveillance of locals that may infringe upon their rights. It’s an issue that most people in countries with FBI presence around the world are not aware of. The FBI could be running “counter-terrorism” surveillance on you in your own country instead of the local police. And that’s not nothing.

When we hear “cooperation in the area of counter-terrorism”, as recent decades show, there is a great likelihood that the US government is abusing powers and rights, without batting an eyelash. That exposes local citizens around the world to unlawful surveillance without legal recourse. Most people are not even aware that the FBI holds local offices. Why would the FBI be operating instead of the local law enforcement on another country’s territory? That’s not a good look on the whole for the US government.

The legal lacuna is by design. This brings us to the nuts and bolts of the FBI legats’ diplomatic immunity.

Diplomatic immunity is governed by the Vienna Convention on Diplomatic Relations of 1961, under Chapter III on privileges and immunities. The US is also a state party to the Convention, along with most states around the world. While there could be some variations and disagreements on bilateral basis (including on weather for example one state could be hosted and represented through the embassy of another state in a third state), on the whole there is a universal consensus that the Vienna Convention sets the rules establishing diplomatic immunities and privileges.

Under the Vienna Convention, only top diplomats are given the highest degree of immunity from the law. This means they cannot be handcuffed, arrested, detained, or prosecuted by law enforcement officials of the country in which they’re stationed. Diplomatic immunities and privileges also include things like diplomatic “bags” (with very peculiar cases of what that could entail) and notably, protection and diplomatic immunity for the family of diplomats.

It is a universal consensus that not everyone who works at an Embassy has or should have diplomatic immunity.  Immunity is saved for diplomats whose role has to be protected from the local jurisdiction of the country for a reason. Not all embassy staff should enjoy diplomatic immunity. Granting law enforcement such as the FBI full legal immunity for their actions is bad news.

Only the top officials at an embassy are diplomats with an actual full immunity — and that’s for a reason.

It makes sense why a diplomat negotiating an agreement should not be subjected to local courts’ jurisdiction. But the same doesn’t go for a law enforcement official who acts as a law enforcement official by, for example, requesting unlawful surveillance on a local citizen, in his law enforcement capacity, while thinking of himself as a diplomat and being recognized as such by the law.

Law enforcement personnel are not diplomats. Dealing with extraterritorial jurisdiction cases or international cases is not the same thing as the need for diplomatic immunity. If that was the case, everyone at the export division at the Department if Commerce would have diplomatic immunity for protection from foreign courts, just in case. Some inherent risk in dealing with international cases does not merit diplomatic immunity – otherwise, this would lead to absurdities such as any government official of any country being granted diplomatic immunity for anything internationally related.

The bar for diplomatic immunity is very high and that’s by design based on an international consensus resting upon international law. Simply dealing with international cases does not make a policeman at a foreign embassy a diplomat. If that was the case every policeman investigating an international case would have to become a diplomat, just in case, for protection from the jurisdiction of the involved country in order to avoid legal push-back. That’s clearly unnecessary and legally illogical. Being a staff member at an embassy in a foreign country does not in and of itself necessitate diplomatic immunity, as many embassy staff do not enjoy diplomatic protection. It is neither legally justified nor necessary for the FBI abroad to enjoy diplomatic immunity; this could only open up the function to potential abuse. The FBI’s arbitrary surveillance on locals can have a very real potential for violating the rights of local people.  This is a difference in comparison to actual diplomats. Diplomats do not investigate or run surveillance on locals; they can’t threaten or abuse the rights of local citizens directly, the way that law enforcement can. Lack of legal recourse is a really bad look for the Biden administration and for the US government.

The rationale for diplomatic immunity is that it should not be permitted to arrest top diplomats, who by definition have to be good at representing their own country’s interests in relation to the host state, for being too good at their job once the host state is unhappy with a push back, for example. The Ambassador should not be exposed to or threatened by the risk of an arrest and trial for being in contradiction with the interests of the host state under some local law on treason, for example, because Ambassadors could be running against the interests of the host state, by definition. And that’s contained within the rules of diplomatic relations. It’s contained in the nature of diplomatic work that such contradictions may arise, as each side represents their own country’s interests. Diplomats should not be punished for doing their job. The same doesn’t apply to the FBI legats. Issuing surveillance on local citizens is not the same as representing the US in negotiations. The FBI legats’ functions don’t merit diplomatic immunity and their actions have to be open to challenge in the host country’s jurisdiction.

The FBI immunity legal lacunae is in some ways reminiscent of similar historic parallels, such as the George W. Bush executive order  that US military contractors in Iraq would enjoy full legal immunity from Iraqi courts’ jurisdiction, when they shouldn’t have. At the time, Iraq was a war-torn country without a functioning government, legal system or police forces. But the same principle of unreasonable legal immunity that runs counter international laws is seen even today, across European Union countries hosting legally immune FBI attaches.

Congress and the Biden administration should end FBI immunity overseas. It can be argued that for any local rights infringements, it is the local law enforcement cooperating with the US Embassy that should be held accountable – but that would ignore that the actual request for unlawful surveillance on locals could be coming from the FBI at the Embassy. The crime has to be tackled at the source of request. 

When I reached out to the US Embassy in Bulgaria they did not respond to a request to clarify the justification for the FBI diplomatic immunity in EU countries.

To prevent abuse, Congress and the Biden Administration should remove the diplomatic immunity of the FBI serving overseas.

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