“Defenseless under the night; Our world in stupor lies….”-W.H. Auden
Even now, after some many staggering and irreversible leadership mistakes on Corona virus – grievous errors that could eventually cost the lives of very many Americans – President Donald J. Trump continues to hold undiminished US nuclear weapons authority. Though a great many American voices will respond angrily to any conjunction of these two discrete threats as manipulative or unfair, such responses would still ignore a core commonality. Incontestable and irremediable, this stubbornly shared connection on disease and war concerns Mr. Trump’s indifference to approaching complex problems analytically.
It also reveals his incapacity to feel even a scintilla of human empathy for other human beings.
What does all this really mean? In what specific policy directions should we Americans now be propelled? For the United States, at a bare minimum, it signifies that there will be a painfully heavy price to pay for Donald Trump’s multiple and compounding debilities. More precisely, looking ahead to certain more-or-less inevitable US nuclear crises with North Korea, China, and/or Russia, these bitter presidential limitations could portend fully existential harms to the United States. It follows that all citizens now ought to think more self-consciously about various key national problems of survival.
They will need to do this with decipherable logic, abundant clarity and more robust presidential commitments to science.
Just because we Americans are presently under an unprecedented pandemic disease assault does not mean that we are immunized from the more routinely catastrophic hazards of ordinary geopolitics. At the very same moment that President Trump should be building cooperative bridges with other countries more thoughtfully and conspicuously, he opts instead for relentlessly crude reassertions of belligerent nationalism. Even now, at an increasingly uncertain time of grave collective peril for the United States, Trump reserves his monosyllabic celebratory prose not for any promising forms of expanded international cooperation, but for sustaining gratuitous conflict throughout the shattered world system’s endlessly corrosive “state of nature.”
Though it makes absolutely no intellectual or ethical sense, Donald Trump reserves his self-praising applause for the self-immolating embers of “America First.”
This can’t end well. It can’t end well because this president abhors even the rudiments of historical education, classical literature and calculation-based or problem-solving learning. For him, it’s never about understanding, but only about “making a deal.” On creating peaceful relations with North Korea, it was never about reaching any substantive understandings, but rather “falling in love.” How could such a caricatural diplomatic stance ever have been taken seriously by anyone in the US Congress or executive branch of government?
But Americans needn’t ever share this misplaced abhorrence, Accordingly, if we the citizens have learned anything at all from the easily accessible history of world politics, a pattern of structural anarchy first formally put into place after the Peace of Westphalia in 1648, it is that a continuously unregulated system of win-at-all-costs thinking leads directly to war and other assorted civilizational breakdowns.
Always, history deserves pride of place. The unwinding global “state of nature” has never succeeded in the past, and shows absolutely no signs of offering any encouraging durability for the future. Taken together with an American president who has shown no willful regard for US Constitutional separations of authority (not even a tiny shred of such an indispensable regard), this past reveals a singularly ominous formula for upcoming synergy. What this means, in greater detail, is a unique and prospectively lethal intersection.
It means the simultaneous occurrence of worldwide disease pandemic with atomic war.
After recalling so much pain that we Americans have already witnessed and suffered under President Donald Trump, this newest expectation ought not to be dismissed too casually or gratuitously, as if it were merely some sort of unfounded or partisan citizen apprehension. Rather, it must finally be recognized that an inappropriate or irrational nuclear command decision by US President Donald Trump is entirely conceivable and perhaps even plausible. Though nothing conclusive can ever be said about the true mathematical probability of any such fearful scenario, there is still ample reason for concern.
To begin, we must promptly inquire: Might this unsteady and unseemly American president soon become subject to still more serious forms of personal dissemblance and/or psychological debility? Leaving aside Trump’s largely unprecedented and breathtaking venality, his open indifference to history and above all his continuing malfeasance and shameless dishonesty, should he still be allowed to decide whether we Americans should live or die? This is not a silly, exaggerated or contrived query by any means.
In essence, today, at this nadir of widespread governmental indifference to law, a deeply flawed American president now serves with wholly insufficient nuclear command constraints.
There is more. This bold assertion is by no means controversial. Any presidential order to use nuclear weapons carries an inherent expectation to be followed. Certain identifiable figures along the operational chain of command could sometime choose to disobey such an order, but – at least initially – any such disobedience could be deemed unlawful prima facie.
Indeed, there are many informed reasons why such an argument could be properly challenged, inter alia, on the basis of original US Constitutional authority, but in these resurrected “Know Nothing” times, such authority is waning by the hour.
To wit, can anyone still seriously maintain that this president’s Attorney General or Republican leadership surrogates in the Congress would ever dispute Donald Trump’s right to do whatever he pleases in weighty matters of war and peace, including even the use of nuclear weapons?
And there is still more. Some derivative questions now also arise. Should this particular incumbent or any future US president ever be granted such extraordinary decisional authority over uncountable lives, a grant that plainly could never have been foreseen by the Founding Fathers? Could such a steeply lopsided allocation of nuclear authority fairly and propitiously represent what was originally intended by America’s Constitutional”separation of powers?” Can anyone reasonably believe that such unhindered existential power could conceivably have been favored by the “Fathers”? Even by definition, there is only one possible answer.
Significantly, even for the vast legions of Trump supporters who never read a single book, the correct answers are obvious, uncomplicated and altogether irrefutable.
At a minimum, we can readily extrapolate from both Articles I and II of the Constitution that the Founders displayed an almost palpable concern about expanding Presidential power long before nuclear weapons. This plausibly presumptive concern predates even any imagination of such apocalyptic possibilities. So, in order to progress sequentially, we must ask: What next?
Both as scholar and policy-centered nuclear strategist, I have been involved with these critical security issues for the past fifty years, for interests in both Washington and Jerusalem. On 14 March 1976, in response to my direct query concerning American nuclear weapons launching authority, I received a letter from General (USA/ret.) Maxwell Taylor, a former Chairman of the US Joint Chiefs of Staff. The principal focus of this letter (attached hereto) concerned assorted nuclear risks of US presidential irrationality. Most noteworthy, in this handwritten communication, was the straightforward warning contained in General Taylor’s closing paragraph.
Ideally, Taylor wisely cautioned me, presidential irrationality – an inherently grave problem – should be dealt with during an election process, and not in the throes of any subsequent decisional crisis.
“….the best protection is not to elect one…”
By definition, of course, regarding our current presidential nuclear security problem, it’s too late to follow General Taylor’s now-prophetic advice. We must inquire, therefore, with a more decidedly narrow but still aptly undeflected focus: “What is the actual US governing situation regarding this most vital security issue?” Always, of course, there are assorted structural protections built into any presidential order to use nuclear weapons, including substantial and multiple redundancies. These ought never to be disregarded.
Nonetheless, virtually all these reassuring and reinforcing safeguards could become operative only at the lower or sub-presidential nuclear command levels. Expressly, these pertinent safeguards do not apply to the Commander-in-Chief, that is, to the democratically elected President of the United States. What about him (or, in the future, her)?
Inter alia, there seemingly exist no permissible legal grounds to disobey a presidential order to use nuclear weapons. In principle, perhaps, certain senior individuals in the designated military chain of command could still sometime choose to invoke variously selected “Nuremberg Obligations,” but any such last-minute invocation would almost certainly yield to certain more recognizable (and manipulable) considerations of U.S. domestic law.
Now, already approaching the proverbial eleventh hour, reasonable scenarios of nuclear war safeguards must be carefully postulated and closely examined. Should an American president choosing to operate within a bewildering chaos of his own making sometime issue an irrational or seemingly irrational nuclear command, the only way for the Secretary of Defense, the Chairman of the Joint Chiefs, the National Security Adviser and several possible others to effectively obstruct this wrongful order could be “illegal” on its face. Under the very best of circumstances, certain informal safeguards might manage to work for a time, but too blithely accepting the unrealistic assumption of a “best case scenario” is hardly a durably sensible path to protracted US nuclear security.
Under the worst of circumstances, which ought not to be wished away by fiat, some or all of the designated and authoritative decision-makers could also be laid low by “biological” or disease-based adversaries, by a two-pronged assault on US security structures with wholly unpredictable outcomes. What then?
At a minimum, We the people ought to inquire promptly about identifying more suitably predictable and promising institutional impediments. These barriers could better shield us from a prospectively debilitated or otherwise compromised US president. “The worst,” says Swiss playwright Friedrich Durrenmatt instructively, “does sometimes happen.”
The US is already navigating in “uncharted waters.” While President John F. Kennedy did engage in personal nuclear brinkmanship with the Soviet Union back in October 1962, he had then calculated his own odds of a consequent nuclear war as “between one out of three and even.” This seemingly precise calculation, corroborated both by JFK biographer Theodore Sorensen and by my own later private conversations with former JCS Chair Admiral Arleigh Burke (my lecture colleague and roommate at the Naval Academy’s Foreign Affairs Conference of 1977) suggests that President Kennedy was (1) technically irrational in imposing his Cuban “quarantine;” or (2) wittingly acting out certain untested principles of “pretended irrationality.”
Significantly, in markedly stark contrast to the present moment, JFK was operating with tangibly serious and intellectually capable strategic/legal advisors. He did not choose Adlai Stevenson to represent the United States at the United Nations because he was “glamorous” (a standard of selection openly and generally favored by current US President Donald J. Trump).
Going forward, the most urgent threat of a mistaken or irrational U.S. presidential order to use nuclear weapons flows not from any “bolt-from-the-blue” nuclear attack – whether Russian, North Korean, Chinese – or American – but from a sequentially uncontrollable escalatory process. Back in 1962, Soviet premier Nikita Khrushchev “blinked” early on in the “game,” thereby preventing any mutual and irrecoverable nuclear harms. Now, however, any seat-of-the-pants escalatory initiatives undertaken by President Trump could reveal stunningly unstable decision-making consequences.
At that late point, the once potentially lethal effects of a nuclear war would no longer be hypothetical. They would have become a “glowing” fait accompli. Literally.
None of this is just another political or partisan “witch hunt.” Immediately, especially while a disease pandemic remains existentially threatening by itself, Donald Trump should be made to understand the unprecedented risks of being locked into a stubborn or refractory escalatory dynamic with another country, one from which there could sometime appear no recognizable range of choice except a presumptively abject American capitulation or a nuclear war. Although this US president might sometime be sincerely well advised to seek “escalation dominance” in certain selected crisis negotiations with identifiable adversaries, he would still urgently need to avoid any catastrophic miscalculations.
Moreover, this is not even to factor in the corresponding and potentially intersecting problems of hacking intrusions, accidents or Covid-19 mental/intellectual impairments.
For the immediate future, this key imperative concerning miscalculation avoidance would seemingly apply most directly to certain one-upmanship scenarios with North Korea’s Kim Jung Un, an always impossible-to-predict process wherein both countries could ultimately emerge with fully unsatisfactory outcomes. Here, a good deal would depend upon more-or-less foreseeable “synergies” between Washington and Pyongyang, and on various difficult-to- control penetrations of cyber-conflict or cyber-war. Americans might sometime even have to acknowledge the out-of-control interference of certain cyber-mercenaries, unprincipled third parties working only for personal or corporate financial compensations.
Whether we like it or not, and at one time or another, nuclear strategy is a challenging “game” that US President Donald Trump will, despite intrinsic intellectual deficits, have to play. Prima facie, this will not be a contest for amateurs, that is, for those who would expressly prefer “attitude, not preparation.” To best ensure that this too-easily-distracted president’s strategic moves would remain determinedly rational, thoughtful and cumulatively cost-effective, therefore, it will first be necessary to enhance the formal decisional authority of his most senior military and defense subordinates. As indispensable corollary, any such enhancement would be at the discernible expense of pertinent presidential authority.
At a minimum, the Secretary of Defense, Chairman of the Joint Chiefs of Staff, the National Security Advisor, and one or two others in appropriate nuclear command positions should prepare in advance to assume certain more broadly collaborative and secure judgments in extremis atomicum.
Still, even such a proposed widening of pertinent authority could not be “guaranteed.” In the end, following General Maxwell Taylor’s earlier letter sent to me in 1976, the best protection is still “not to elect” a president who is unfit for such unmatched leadership responsibility. Beyond any reasonable doubt (an evidentiary judicial standard that also fits well in this particular extra-judicial context), we are discussing here an incomparable leadership responsibility.
There is something else. From the standpoint of correctly defining all relevant dangers, it is important to bear in mind that “irrational” does not necessarily mean “crazy” or “mad.” More specifically, any prospectively fateful expressions of US presidential irrationality could take very different and variously subtle forms. These forms, which could remain indecipherable or merely latent for a long time, include (a) a disorderly or inconsistent value system; (b) computational errors in calculation; (c) an incapacity to communicate correctly or efficiently; (d) random or haphazard influences in the making or transmittal of strategic decisions; and (e) internal dissonance generated by some structure or other of collective decision-making (i.e., assemblies of authoritative individuals who lack identical value systems and/or whose organizational arrangements impact their willing capacity to act as a unitary national decision maker).
From the singularly critical standpoint of US nuclear weapon control issues (problematic issues likely to be worsened by the continuous American strategic postures of both “First Use” and “Launch on Warning” and by the potentially devastating consequences of still-spreading Covid-19 harms), legitimate reasons to worry about the Trump presidency do not hinge on any exclusive expectations of “craziness.” Rather, looking over the above list of five representative decisional traits, there is already good cause not just for worry (which per se could never represent a rational or purposeful US reaction), but for manifestly non-partisan objectivity and for a very consistent prudence. It won’t be easy, and it won’t necessarily succeed longer-term or indefinitely by electing a different president.
But, for the immediate moment, US national security and even US literal survival require the prompt and law-based restraint of an irremediably-flawed American president. It follows also that the security benefits of any such needed controls would have corresponding security benefits for the world as a whole. In principle, at least, the full importance of this corollary or “spillover” benefit could sometime prove authentically overwhelming.
The country must take heed. If we Americans continue to abide such a blatantly law-violating and science-averse president, we would be risking nothing less than a viable national future. To recall the poet Auden, we would then have condemned ourselves to remaining “defenseless,” and in an irreversible “stupor.” This is not a condemnation the Founding Fathers of the United States could ever have foreseen – or excused.
 Thomas Hobbes, the 17th- century English philosopher, argues that the “state of nations” is the only true “state of nature,” that is, the only such “state” that exists in the world: In Chapter XIII of Leviathan (“Of the Natural Condition of Mankind, as concerning their Felicity, and Misery”), Hobbes says famously: “But though there had never been any time, wherein particular men were in a condition of war, one against the other, yet in all times, kings and persons of sovereign authority, because of their independence, 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.”
 Consider here the timeless insight of French Jesuit philosopher Pierre Teilhard de Chardin in The Phenomenon of Man: “The egocentric ideal of a future reserved for those who have managed to attain egoistically the extremity of `everyone-for-himself’ is false and against nature.”
 On the plausible consequences of a nuclear war by this author, excluding any now pertinent synergies with a disease pandemic, see: Louis René Beres, Apocalypse: Nuclear Catastrophe in World Politics (Chicago: University of Chicago Press, 1980); Louis René Beres, Mimicking Sisyphus: America’s Countervailing Nuclear Strategy (Lexington, Mass., Lexington Books, 1983); Louis René Beres, Reason and Realpolitik: U.S. Foreign Policy and World Order (Lexington, Mass., Lexington Books, 1984); Louis René Beres, Security or Armageddon: Israel’s Nuclear Strategy (Lexington, Mass., Lexington Books, 1986); and Louis René Beres, Surviving Amid Chaos: Israel’s Nuclear Strategy (Rowman & Littlefield, 2016; 2nd ed., 2018).
 This is because (1) any statement of authentic probability must be based upon the determinable frequency of pertinent past events and because, in this present case (2) there are no pertinent past events.
 Comparing the two presidents from the standpoint of total personal corruption, Watergate figure John Dean succinctly concluded: “Trump is like Richard Nixon on stilts and steroids.”
 On the other hand, it was President Donald Trump who once claimed that heroic American military forces had taken early control of all US airports during the eighteenth century Revolutionary War.
 During the 2016 campaign, lest anyone forget, candidate Donald Trump declared: “I love the poorly educated.” Quite purposefully, perhaps, this declamation echoed Third Reich Propaganda Minister Joseph Goebbels’ 1934 remark at the Nuremberg party Rally: “Intellect rots the brain.”
 One of this author’s earliest books was (Louis René Beres) Apocalypse: Nuclear Catastrophe in World Politics (The University of Chicago Press, 1980).
 Recalling philosopher Karl Jaspers: “The rational is not thinkable without its other, the non-rational, and it never appears in reality without it.” (See Reason and Anti-Reason in our Time, 1952).
 See Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal; 2 August 1950.
 At the same time, of course, because the Constitution is the properly conspicuous bedrock of US domestic law, and because that document stipulates that only Congress can declare war, designated military chain of command decision-makers could argue credibly that their anticipated interference with Presidential nuclear commands would be domestic law-enforcing rather than domestic law-violating. In reality, however, one could hardly expect such principled or informed positions from the president’s fully obedient cronies (hardly self-thinking partners) in the US Congress.
 This was Donald Trump’s explicit hierarchy of preferences concerning the earlier Singapore Summit with North Korea.
 This assumes, of course, that these chain-of-command subordinates (all appointed by President Donald J. Trump) will themselves be equal to their extraordinary responsibilities.
 The overarching issue here is inadvertent or accidental nuclear war. While an accidental nuclear war would also be inadvertent, there are forms of inadvertent nuclear war that would not necessarily be caused by mechanical, electrical or computer accident. These forms of unintentional nuclear conflict would be the unexpected result of misjudgment or miscalculation, whether created as a singular error by one or both sides to a particular (two-party) nuclear crisis escalation or by certain unforeseen “synergies” arising between any such singular miscalculations.
 Observed Sigmund Freud, in a lesser-known work on Woodrow Wilson: “Fools, visionaries, sufferers from delusions, neurotics and lunatics have played great roles at all times in the history of mankind, and not merely when the accident of birth had bequeathed them sovereignty. Usually, they have wreaked havoc.”
 In this connection, law refers to both international and domestic law. Moreover, these normative regulations are interpenetrating and mutually reinforcing.. Recalling words used by the U.S. Supreme Court in The Paquete Habana, “International law is part of our law, and must be ascertained by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations.” See The Paquete Habana, 175 U.S. 677, 678-79 (1900). See also: The Lola, 175 U.S. 677 (1900); Tel-Oren v. Libyan Arab Republic, 726 F. 2d 774, 781, 788 (D.C. Cir. 1984)(per curiam)(Edwards, J. concurring)(dismissing the action, but making several references to domestic jurisdiction over extraterritorial offenses), cert. denied, 470 U.S. 1003 (1985)(“concept of extraordinary judicial jurisdiction over acts in violation of significant international standards…embodied in the principle of `universal violations of international law.'”).
Biden’s Dilemma: Caught Between Israel and Iran
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.
Roads and Rails for the U.S.
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.
Congress and the Biden administration should end FBI immunity overseas
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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