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The Emergency State

A Conversation with Prof. David C. Unger


Wednesday, August 22, 2012

War is merely the continuation of politics by other means. – Carl von Clausewitz, 1832

How should nations behave? Are nations like people and do ethical rules apply to nations? When is war justified? How much authority should presidents have to wage war?

All these questions and more are addressed in David C. Unger’s new book, The Emergency State. Unger teaches American Foreign Policy at The Bologna Center of Johns Hopkins University School of Advanced International Studies and previously worked as a foreign policy editorial writer for The New York Times.

Tam Hunt

Between 1977 and 2012 he wrote over 3,000 editorials, so there’s a very good chance that if you are someone interested in U.S. foreign policy you will have read Unger’s words on many occasions. The New York Times is the “paper of record” for the United States and, as such, its editorials have a certain heft and influence. I was honored to interview David regarding his new book and various foreign policy issues that have concerned me for some time.

What inspired you to write your book, The Emergency State?

Before the 2008 election I was hearing a lot of intelligent, informed people talking as though all our post-9/11 departures from America’s constitutional norms – presidential war-making, Guantanamo, renditions, military commissions, national security letters, unwarranted National Security Agency monitoring of cell phones – only began under President Bush and Cheney. Having covered national security and civil liberties issues for The New York Times editorial page since 1977, I knew that the radicalism of the Bush years was not simply an abrupt change of course but built on a long-running, bipartisan pattern dating back at least to World War II.

What are the key points of your book?

The Emergency State describes how we got to that point: how 13 administrations, seven Democrat and six Republican, following the dictates of political expediency, incrementally built up a parallel set of emergency procedures outside our democratic constitutional structure of checks and balances that would have horrified the framers of our Constitution – Hamiltonians and Jeffersonians alike. Their greatest fear was a government of unreviewed powers embarking on an endless series of costly and domestic-liberty-destroying wars of choice.

That is the central theme of the book. Another key point is how exaggerated national security fears were used time and time again to silence congressional and constitutionalist objections. Most of the time, Congress was all too willing to go along. A third point is how the breakdown of our constitutional balance helped shape, not for the better, America’s responses to globalization over the past few decades, contributing to some of the most serious economic problems we face today – from an over-grown, under-regulated financial sector to our overdependence on imports of high-tech industrial goods we once knew how to make and sell profitably ourselves.

What is your personal background and what led you into writing about foreign policy for The New York Times?

I came to The New York Times straight out of graduate school at The University of Texas (Austin) where I completed a PhD in European labor and economic history. As an undergraduate at Cornell, I had the good fortune to study American foreign policy under a master teacher and scholar, Walter Lafeber. At Texas, I studied American economic history under W.W. Rostow, who had served in the Kennedy and Johnson administrations. And, of course, I was shaped by the world I lived in, from the Vietnam War, to Watergate, to the collapse of the Bretton Woods international monetary and economic order in the 1970s.

All that came before I started at The New York Times. Then, in a sense, my wider education began, with reporting trips to more than 20 countries on three continents, all more or less focused on U.S. foreign policy issues, and hundreds of interviews, on and off the record, with key policy-makers in New York and Washington.

You demonstrate, with oodles of evidence, that presidents from both sides of the aisle have almost always sought to expand their power vis a vis the other branches of government. The cost of this tendency has been numerous unjust and unnecessary wars of choice, with the Iraq war being the most stark recent example. Why have presidents almost uniformly sought to expand their power?

This is a trend that goes back to the very beginning of our constitutional system. The Constitution provides for the separation of powers but isn’t always very precise on exactly where the boundary lines fall. The president’s commander-in-chief power is a good example. The people who become American presidents are generally assertive types. That’s how they got there. And often it suits the convenience of the other branches to let presidents take the responsibility for actions that may not work out.

One thing that jumps out at you from the Constitution and the Federalist Papers is that the framers envisioned a much more powerful presidency in wartime than in peacetime. Maybe that’s why every president since 1945 has been so eager to style himself a “war president” although we have had no declared wars in this period. To my mind, if a president wants to exercise the enhanced constitutional powers of a war president, he or she needs to go through the process of having Congress formally declare war.

What should we do to remedy the “emergency state” mindset and accompanying expansion of presidential power?

The Constitution can only work if Congress and the courts more consistently rise to their constitutional responsibilities, which they will only do if voters demand it of them. I’ve seen this happen in my lifetime, during Vietnam and Watergate, and it could happen again. The recent Citizens United Supreme Court opinion has increased the power of money in our campaigns. But the voters still have the last word.

A recent trend that greatly worries me, and many other observers, is the increasing robotization of warfare, with unmanned aerial drones like the Reaper and the Predator (even the names are creepy) taking us further and further into an era of what I call video-game warfare. The downsides are many: increased willingness to use these weapons because the human cost to us (if not to our enemies) is so low; increased complacency by the public because our boys aren’t at risk; the fact that these technologies will surely get into the hands of our enemies before too long and be used on us and our allies; and many more downsides. Do you see the trend toward robotization of warfare as more of the same long-term “emergency state” trend and, if so, how do we protect against this trend?

The technology of warfare is always evolving, and before robot drones, the issue was pre-targeted launch-on-warning nuclear missiles (which fortunately were never fired), and before that piloted bombers dropping death and destruction from high above and often out of sight. There was plenty of that in World War II, even before Hiroshima and Nagasaki.

Personally, I cannot be against any technology that reduces the risk of American casualties. The real problem is waging war without a full sense of national responsibility. We don’t tax ourselves to pay for them. We don’t vote in Congress to declare them. We don’t conscript out sons and daughters to fight them. War is serious business and should always be a last resort. We made it too easy, long before drones, through the emergency state presidency, undeclared wars, the all-volunteer military, and tax cuts in wartime. In other words, before the robotization of combat came the lobotomization of political accountability.

President Obama has dramatically expanded the drone programs, without officially acknowledging even their existence in many cases, and their use is most prevalent in our ongoing struggles in Pakistan’s remote border regions. The Obama and Bush administrations have long argued that even though the Pakistani public overwhelmingly disapproves of the drone bombings, that the Pakistani government and military approves of their use behind the scenes. This claim was always fishy to me because it couldn’t be falsified, and it was belied unequivocally earlier this year when Pakistan’s parliament passed resolutions denying the United States permission to conduct drone strikes in Pakistan. And yet the strikes continue and the Obama administration somehow still claims that these strikes are legal. Do they have a legal leg to stand on? And if not, is this simply cynical Orwellian propaganda from the Obama administration?

All this takes place in a shadow realm where there is no clear international law and that would be the case even if Pakistan’s military and military intelligence leaders clearly and openly assented to it. It is distinguishable from aggression, which is a crime under international law. And it is certainly not peacekeeping under the legitimate authority of the United Nations Security Council. What we do have is U.S. law, constitutional and statute, governing war powers and the use of military force. And in my opinion, we are not acting in conformity with our own legal requirements. I think that is our responsibility to ourselves and to the world: to follow our own constitution and the rule of law.

Is this area of international law really that shadowy? Certainly many things in international law are murky, but the United Nations Charter only allows military action when a nation is attacked or there is a threat of imminent attack (Article 51’s right of self-defense), or when military action is approval by the UN Security Council (Article 42). So it seems that U.S. drone attacks in Pakistan, against the Pakistanis’ consent, is a clear violation of the foundation of international law, the UN Charter (which the United States and its allies created after World War II primarily in order to prevent aggression between countries). What do I have wrong here?

International law is a civilizing influence in the world. But I think it is a mistake to treat it as a seamless extension of national law. It is generally clear how national laws are to be enforced. But in the international arena, where there is no clear sovereign, there is no universally enforceable law. A veto-free majority of the Security Council is about as close as we get, which means, to put it crudely, enforceable international law is whatever the Permanent 5 (P-5) say it is. With the United States one of the P-5, it can stretch Article 51 pretty far, for example claiming that the targets of its drone attacks are preparing to attack the United States. Also, while Pakistan may complain, it hasn’t gone so far as to formally charge aggression.

That is why I call it shadowy. But I think U.S. law – the Constitution and the War Powers Act, for example, provide a much firmer legal basis for objecting to the way this drone war is now being directed.

More generally, how do you see international law evolving in the coming years, and how should it evolve? I’ve argued previously that the United States should use the remaining years of “unipolarity” to push for a far more robust system of international law, due to the rise of China (economic power) and Russia (hydrocarbons power) in coming decades. Do you think we could or should create a system of international law that can function independently of, or at least alongside, whatever hegemon happens to exist at any given time?

I hope to see more international law, not less. But I think it will have to be built up by consensus among still-sovereign states. Among the best international law we have today is the widespread recognition by national legal systems of crimes of universal jurisdiction –aggression, torture, genocide, systematic rape – which allowed a Pinochet, for example, to be charged by Spain and detained in the UK. Then there are agreed rules of international governance of resources, etc., like the Law of the Sea, the Antarctica Treaty, etc.

I fully agree that the United States should be using the present period to push for a more robust system covering areas like nuclear non-proliferation (where the current treaty is conceptually flawed and hard to enforce) and curbing climate change (where the United States has not so far been much of a good actor).

I certainly agree that the American public will be the ultimate arbiter of how much power the United States projects abroad, due to the weakness of international law and the United States’ permanent veto at the UN Security Council. That said, I’m constantly dismayed at how little the U.S. public seems to care about foreign policy, let alone issues like civilian casualties caused by our “adventures” abroad, or the rule of law in foreign affairs. How do we induce Americans to care more?

It is dismaying, but I think the point is maybe a bit overdone. After all, one big reason the Democrats won back Congress in 2006 was the public’s strong rejection of G. W. Bush’s policies in Iraq. And that was without a draft or a war tax. If we insisted on more constitutional ways of war making, as I propose at the end of the book, the public would likely feel an even greater stake. Just looking at the post-World War II period, American public opinion demanded and got an end to the wars in Korea and Vietnam (and maybe Iraq as well although it is harder to be conclusive about that on present evidence).

A perennial debate in the United States concerns the appropriate paradigm for combating terrorism. We have since 9/11 pursued a “war strategy,” under both the Bush and Obama administrations, in which we use force very broadly, now in numerous countries, under either overt wars or covert wars, to attempt to kill or capture terrorist enemies of the US. An alternative view is a law enforcement paradigm, under which we use law enforcement tools in our country and in other countries to find suspected enemies, detain them, and try them as criminals. Personally, I find the latter paradigm far more compelling, because the war strategy is like using a sledgehammer on a small nail. It’s messy and unpredictable. Where do you fall in this debate?

The war paradigm has been pretty self-defeating, especially when it was defined against a tactic, “terrorism,” that has existed and will probably will exist throughout human history. Americans like wars that can end in a clear victory, and this one cannot. A war against Al Qaeda is more rational. But, of course, not every act of mass terrorism will always be directly attributable to Al Qaeda. Bin Laden has been dead for more than a year. Formal Al Qaeda has been reduced to a handful of gangsters scattered across South Central Asia. But the threat of catastrophic terrorism is probably as great or greater today than it was a decade ago. Also, calling it a war helps terrorist leaders portray themselves as warriors, instead of the mass murderers they are. We shouldn’t pay them such backhanded compliments.

So what that mostly leaves is law enforcement, though I also think the selective (and constitutional) use of military force can also have a useful role in the struggle against these crimes against innocent humanity. Calling them crimes in that context does not sound wimpy to me, and, more importantly, is likely to be more effective in what should be the main goal, which is taking more terrorists out of circulation than you put into circulation by waging the wrong wars in the wrong ways.

The United Nations gets a lot of flack from conservatives in the United States who see it as an infringement on U.S. sovereignty, among other problems. The fact remains, however, that the UN is easily our most robust international forum for discussions of international problems and for multilateral action to resolve these problems. The Security Council has on many occasions approved peacekeeping forces, or more aggressive actions like the U.S. invasion of Afghanistan, so it can take action when a consensus exists.

That said, the veto power of the Permanent 5 (United States, China, Russia, France, and Great Britain) is a major problem in many areas, such as (depending on one’s point of view) the Russian and Chinese vetoes regarding Syria or (again depending on one’s point of view) the many U.S. vetoes of resolutions dealing with the Israeli/Palestinian conflict. Should the UN be strengthened in order to help create a world that doesn’t require a hegemon? If so, how can it be strengthened? Expanding the permanent members to countries like Japan or Brazil, both of which have long sought this position?

The UN has often disappointed internationalists throughout its long history – from the Cold War paralysis of the Security Council throughout the failure in Bosnia. But more recently, it has endured two major hits from which it has not yet recovered. One was the Bush-Blair end-run of the Security Council on Iraq. Wars have been waged without reference to the Security Council before, e.g., Vietnam. But Iraq was waged in defiance of the Security Council. Then came the choice (and now second term) of Ban Ki Moon. Ban is not an evil man, as Kurt Waldheim might have been. But he is a weak leader, put there by a Bush administration that had bristled at Kofi Annan’s forthrightness on international law, and a China that wanted no back-talk on human rights. And both have gotten pretty much what they bargained for.

I do not dismiss everything the UN still manages to do. But it now functions more as a relief agency than a force for strengthening international peace and security. It won’t be easy to get back to where we were even 15 years ago. Russia’s and China’s habitual choices of putting the national sovereignty of their friends ahead of more internationalist goals, like conflict-resolution and non-proliferation, do not help either. I’m not saying that if the United States hadn’t thwarted the UN on Iraq, Russia and China wouldn’t now be bad actors on Syria. They might be acting the same way. But if there is any hope of leading this organization of sovereign states with big-power vetoes back down the path toward constructive collective action everyone is going to have to behave better, Washington included.

As for expanding the permanent membership of the Security Council, I am all for it. Japan, Brazil, and India are all plausible candidates (although each has regional rivals that might be aggrieved). The current P-5 composition reflects the world of 1945, not of 2012 and it has a big legitimacy deficit. But the bigger problem is the UN’s shattered morale and legitimacy post-Iraq.

A counter-critique from those on the left is that international law, including the UN, is all about “might makes right” and not really about the rule of law at all. You seem to suggest that you agree with this view above when you state that international law really consists of what the Permanent 5 says it is. Isn’t it time we transcended “might makes right” and truly pushed for the rule of law? And if so, what kind of sacrifices might strong countries like the United States and China have to make in order to instate a more enlightened system of international law?

We live in a might-makes-right world populated by might-makes-right democracies and might-makes-right dictatorships sometimes acting through a might-makes-right United Nations – an organization deliberately designed by FDR to be more realist about power than the failed League of Nations. The Security Council veto is based on FDR’s postwar vision of the Four Policemen.

It would be nice if it were otherwise but you and I or some larger “we” transcending might-makes-right and pushing for the rule of law won’t make it so – unless and until that larger we becomes a political majority in the United States and elsewhere. I am for starting here. I am not a conservative fetishist on the national sovereignty issue. I think intelligent internationalism can multiply, not dilute, American influence and effectiveness. But I do believe that national sovereignties are the building blocs of the world we live in and a primary source of democratic legitimacy for national and international law.

Along similar lines, I wanted to ask you about terms such as “rogue state.” What is your preferred definition of rogue state and how does your preferred definition distinguish between hegemonic powers like the United States, or the United Kingdom before it, acting in their own interest, often in contravention to established norms and treaties, from nations that are more traditionally described as rogue states? Should terms like “rogue state” be consigned to the trash bin because of their inevitable hypocritical nature, given our current system of international relations?

I think “rogue state” is a very unhelpful term analytically and points to unhelpful ways of looking at the world. The term is usually used to label states some aspects of whose behavior offends the value or interests of big powers, and small enough to push around. North Korea, India, Pakistan and Israel are all outside the Nuclear Non-Proliferation Treaty. But only North Korea gets called a rogue state - and it only gets called a rogue state by the United States; not by China or Russia. This is foreign policy by epithet, not-norm setting or international rule of law. As we have seen, it feeds popular support in the United States for unilateral solutions and impatience with the UN and coalition-building.

Energy is my main area of expertise so I can’t help but ask you at least one question about energy issues and foreign policy. Much has been written and said about the need for energy independence and the harm that fossil fuels are wreaking on our environment in various ways. The pretty obvious conclusion is that we should get off fossil fuels domestically and internationally, and yet our global hydrocarbon consumption is generally rising year in and year out. Global oil production has pretty much plateaued in the last eight years, despite record high prices, suggesting we are at or near a peak in global oil production. Do you see the United States engaging, in the coming years and decades, in resource wars with increased frequency, or do you have a different vision of the future when it comes to energy?

It is hard to see anything other than the resource wars you predict given the political process and public opinion we have seen in the United States over the past few decades. Drill baby drill, American exceptionalism, and faith in technological fixes always seem to trump changing our habits and promoting international cooperation. This is very depressing because we are talking about the world our children and grandchildren will grow up in, and instead of doing what we can to make it better we seem determined to make it much worse.

Toward the end of The Emergency State, you write: “After nearly a century of looking at the world primarily through the lens of Wilsonian liberal internationalism, we now find ourselves trapped in a national security dead end. We consume our political and military energies in the addictive pursuit of chronic crisis management, leaving our own, and the planet’s, most serious challenges largely unaddressed.” I generally agree with this prognosis, but I do see many rays of hope, not least of which is the generally upward trend of technology and increased human creativity. That said, what do you see as the most promising trends in terms of foreign policy and U.S. politics?

Technology can work for good or ill, as witness the spread of genetically modified agriculture. The key question, as ever, is who gets to decide how it will be applied. So I place my hopes on reviving American democracy because so many people in America really do want to do the right thing in the world. The problem comes when people allow their hopes to get hijacked by politicians looking for campaign contributions from all the wrong places.

I greatly enjoyed your book and the chance to have this dialogue. Is there anything else you’d like to add?

I think we’ve covered a lot. I really appreciate your thoughtful and interesting questions and hope we get the chance to chat again.

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