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Obama and international law

Ken Anderson has been working up a head of a steam about the incipient hypocrisy of Democrats who are quietly adopting Bush administration positions, or moderate variants thereof, after having spent eight years calling these very positions idiotic & criminal & similar things—also known as the Orin postulate. I had thought Anderson premature in his outrage—so far, he's pointed mainly to NYT articles and the like which he thinks are setting the stage—but now erstwhile Obama supporters have begun to worry about the same thing, with respect to a range of issues, including torture, international law, and the war in Iraq. The evidence remains slim, but it is growing; it includes the machinations of Democratic senators, signals from the Obama administration about Iraq troop withdrawal, and—most of all—appointments of Clinton-era officials. Virtually everyone has forgotten that the Clinton administration took a pretty casual approach to international law and, while it did not torture people, had little compunction about rendering terrorist suspects to countries where they would likely be tortured. You might think that Clinton was less contemptuous of international law than Bush was (though this is less clear than it might seem), but this is at best a matter of degree, and a clean break, "change," does not seem to be in the cards.

Lawyerly talents will be harnessed to the rationalization process—what was illegal under Bush turns out not to be illegal under Obama because of some subtle variation in the structure of the project (which itself will be used to prove that the Obama administration takes the law more seriously—why else, after go to the trouble of rationalizing law-breaking?). Obama defenders will also seize on subtleties in timing and emphasis to inflate the differences between the two administrations. We already hear that Obama will support the Law of the Sea treaty while Bush did not (in fact, he did), or that Obama will take a climate treaty more seriously than Bush (maybe, but the Bush administration committed itself to greenhouse-gas reductions at Bali). It will be of great interest to see how the Obama administration approaches the International Criminal Court. Here, too, the Bush administration has been willing to work with the institution without signing America up. Will Obama go farther? This will be a key test. The ICC offers little material advantage to the United States unless you subscribe to "international rule of law" arguments that we will all be safer when international legal institutions are stronger. Obama could face a fight from the military and the security agencies, especially if the latter understand that harsh interrogation will continue to occur. Are the speculative gains worth these real political costs, or will Obama's advisors remember Clinton's gays-in-the-military debacle and decide that a better use of Obama's political capital lies elsewhere?

If so, Obama supporters have already prepared themselves with the "second-term" argument (for example, here, but more so in conversation). Obama has his hands full now and will accomplish his spectacularly progressive international law agenda in his second term when he needn't fear electoral sanctions—I mean, when he has built up overwhelming majorities of progressive Democrats in both houses. Maybe. But think about the last few two-term administrations. Bush II, Clinton, and Reagan were all far more ideologically ambitious in their first terms than in their second terms. The second term was, in each case, devoted to damage control and compromise, in large part necessitated by the ideological excesses of the first term. As for Obama, we will have to wait and see.

Michael B (mail):
Incipient?
12.5.2008 3:45pm
Portland (mail):

Incipient?



Exactly! That's the part that caught my eye, as well. The bottom line is frustrated right-wingers imagining something they think might happen, and then criticizing the Democrats in advance. Pretty thin gruel.
12.5.2008 4:09pm
alkali (mail):
OK doesn't know the half of it. Starting next week, we're all going to pretend to help some little old ladies across the street, and then trip them halfway across.
12.5.2008 4:59pm
Steve:
The bottom line is frustrated right-wingers imagining something they think might happen, and then criticizing the Democrats in advance.

But previously, the argument was based on mere speculation. Now, we're told in this post, it relies on actual signals!
12.5.2008 5:10pm
MCM (mail):
...adopting Bush administration positions, or moderate variants thereof...


This passage troubled me. I haven't read Mr. Anderson's post but it seems to belie his entire point.
12.5.2008 5:14pm
MCM (mail):
Also, does this mean we have officially abandoned the "Obama is a secret Al-Qaeda sleeper agent tasked to institute communism by having his Obama brownshirts confiscate guns and make people gay"?
12.5.2008 5:16pm
BGates:
The bottom line is frustrated right-wingers imagining something they think might happen, and then criticizing the Democrats in advance.
Like the way Bush locked up anyone who criticized his resumption of the draft to mobilize for the war he's going to start with Iran right after he cancels the election, despite the fact that rising seas have turned Tehran into an island?
12.5.2008 5:33pm
Thomas_Holsinger:
I agree with Judge Posner that it is unlikely that an Obama administration in its second term would be more ambitious than in the first term:
"But think about the last few two-term administrations. Bush II, Clinton, and Reagan were all far more ideologically ambitious in their first terms than in their second terms. The second term was, in each case, devoted to damage control and compromise, in large part necessitated by the ideological excesses of the first term. As for Obama, we will have to wait and see."
12.5.2008 5:35pm
Michael B (mail):
Portland,

Oh please. The whole notion that the hypocrisy and bullshit on the left is merely "incipient," even limited to Obama specifically, is risible. If it were all a mild or "standard issue" type of political hypocrisy, that would be one thing, but given particularly fevered and zealous forms of BDS, JtPDS (Joe the Plumber Derangement Syndrome, together with the invasion of privacy against JTP that took place), etc., the "thin gruel" on evidence is your and similar forms of dismissiveness.

Too much is being assumed by a few on the right, yes. But too much is being dismissively sniffed at by left wingers as well. Further, when Obama apoints people like Samantha Power, when he elevates the U.N. ambassadorship to a cabinet position, etc., there is nothing wrong with attempting to plumb what the implications of such moves are.

The U.N. ambassadorship elevation is particularly unsound given the systemic, deeply rooted corruptions at the U.N., corruptions that run the gamut from several sexual scandals to the now long term scandalous misuse the UNHRC and UNRWA have been put to, foremostly as applied to Israel but in other regards as well. Too few media outlets report on thesse abuses (Anne Bayefsky and Claudia Rosett are a couple of exceptions), but the abuses and corruptions are in fact deep-seated and systemic within the U.N. Turning a blind eye to those abuses - whether willfully or naively out of ignorance - doesn't make it otherwise.

There is a stench, a rot, deeply seated within the U.N. Hence elevating the ambassadorship to a cabinet position has the effect of elevating the U.N. itself, at a time when it needs thoroughgoing reformation and in some cases needs to be supplanted entirely - the UNRWA is an example of the latter. Again, Israel's treatment at Durban and the planning of Durban II presently is a salient example, but that reflects one example only. Samantha Power's appointment is another tell-tale indicator, one bearing very close scrutiny, though it has largely flown under the radar.
12.5.2008 5:41pm
Elliot123 (mail):
Are those Clinton folks Obama has appointed the "ones the world has been waiting for?" What a rip-off. We've had them before.
12.5.2008 5:47pm
Garth:
"harsh interrogation" and by that, of course, you mean torture.

you should call it what it is.

by "erstwhile obama supporters" of course you mean, straw man.

as for the rest of this piece, it's more revealing of the author than informative.
12.5.2008 6:04pm
Michael B (mail):
As to the UN, Eye on the UN provides a timely, well edited review of many of the corruptions and abuses taking place in that forum.
12.5.2008 6:14pm
LM (mail):
Elliot123:

Are those Clinton folks Obama has appointed the "ones the world has been waiting for?" What a rip-off. We've had them before.

You mean he's spoiling your fun by not giving effect to all the deranged predictions of the far-left Jew-hating Sharia regime he'd usher in?

Why do bloggers and their comment thread acolytes find it so much harder than say, Henry Kissinger, to concede that their ideological opponents may deserve some credit or maybe even praise?

And all this from the folks who coined "Bush Derangement Syndrome."
12.5.2008 8:35pm
Constantin:
Elliot123:


Are those Clinton folks Obama has appointed the "ones the world has been waiting for?" What a rip-off. We've had them before.


You mean he's spoiling your fun by not giving effect to all the deranged predictions of the far-left Jew-hating Sharia regime he'd usher in?

Why do bloggers and their comment thread acolytes find it so much harder than say, Henry Kissinger, to concede that their ideological opponents may deserve some credit or maybe even praise?

And all this from the folks who coined "Bush Derangement Syndrome."


So, wait, Obama's still a liar, right? As long as you concede that. Nobody's making coins with Eric Posner's face on them.
12.5.2008 9:42pm
LM (mail):

So, wait, Obama's still a liar, right?

Come again?
12.5.2008 11:01pm
JBP:
With regards to the ICC, the suggestion that "the Bush Administration … has been willing to work with the institution without signing America up" is a very, ahem, generous view.

While it may be accurate to suggest that the administration is no longer actively hostile to the Court, as evidenced by the current Nethercutt policy and the reduced emphasis on Article 98 agreements or the U.S. decision not to block a Darfur referral, this represents a significant withdrawal from some of the more extreme Bolton-era nonsense.

Even assuming that the Obama administration maintains what you describe as the status quo on U.S. Rome Treaty policy, cooperation without official participation, there's a difference between Obama coming into office with that view and the Bush administration eventually coming around to it after a radically different policy.
12.5.2008 11:46pm
Malvolio:
When I read about his Treasury appointments, I said, "If I had known he was going to do that I would have voted for him. Ditto for all his other climb-downs : Iraq, taxes, and so on. Right after the election I was predicting disaster, but I'm very optimistic about him now.
12.5.2008 11:47pm
James Gibson (mail):
I'm going to change the subject slightly. To me the issue is not that Obama maybe adjusting some of his campaign stands, but that other's are not only allowing it but openly supporting it.

If you look at the writing of Michael Dorf for Silveria Vs Lockyer, and his work to convince Justice Reinhart of the validity of the gun control movements arguments, you get the impression that he was essentially pushing the idea of a strong professional army. It goes with the Bellisiles argument that the founding fathers only intended a small but highly trained (elite) Army supported by an equally highly trained (select) militia. This philosophy is still being pushed today as seen in the Heller Briefs filed in support of the City.

But in 2003, after the US invaded Iraq he ran a blog comment calling for the restart of the draft. Not to increase the size of the Army, but to degrade the forces which were now in the control of a Republican administration. To him having such elite forces, men incapable of disobeying orders, under the control of one person was now unacceptable.

I suspect that within the next year Dorf will have shifted back in this view, supporting again a highly trained military as long as it is under the control of the "right person." And no matter how Obama uses it, Dorf will give his support. I'm sure others will soon say the same regarding Naomi Wolfe and other representatives of the Liberal left.

In closing, remember Biden's comment that within six months Barrack will be tested. Remember the other half of the statement, regarding the need of the people present to use their influence to support Obama in front of the American people, even if they were not sure what Obama was doing was the right thing. It has just begun for the people who supported Barrack to put their own reputations on the line by supporting him as he adjusts his policies.

By the way, Code Pink was on Fox news this evening. The spokeswoman wouldn't say they felt betrayed by Obama, but they are not happy with the appointments. And I am sure they are equally concerned with the changes in tone by other leading Democrats.
12.6.2008 3:18am
Richard Aubrey (mail):
It is comforting to know that Obama was lying about his idea of "change". It is comforting, for example, not to see Ayers in the cabinet, although if he were, we could more easily keep an eye on him.
It is comforting to know that dems have to dump their lefties after the election, and that their lefties never learn.
The point is not Obama's likely course, but the hypocrisy of those who howled about Bush's course who will be just dan and finedy with the same thing under O.
Having said this, two things occur to me. O might just get really radical and do the things he hinted to his lefties he might just do, and that going back to the Clinton way of doing things is only comforting if the alternative was O's presumed way of doing things.
12.6.2008 10:23am
JosephSlater (mail):
Obama was not lying. The people who attempted to misrepresent him as some bizarre combo of radical-Marxist-Islamist-terrorist-crazy-naive-leftist were lying.

And for the umpteenth time, "change" meant "change from the Bush administration," not "we won't use any Democrats who have experience." Perhaps you all are forgetting how popular Clinton was when he left office.

These attempts to attack Obama no matter what he does are transparent and boring. Why don't you just write a macro that does this? If Obama appoints a Dem with experience (or a Republican), the auto-response is "hey, that's not CHANGE!"; and if it's a Dem. without experience (ii) "oh look, the inexperienced one-term Senator has nobody with experience on his team. And he's probably a radical leftist!"

I know the Bush Administration was full of incompetent, often inexperienced, toadying yes-men. The Obama administration won't be like that. That's a good thing.
12.6.2008 10:43am
Crunchy Frog:
"You fucked up. You trusted us." - Otter
12.6.2008 10:53am
lucklucky (mail):
I remember Clinton attacked and bombed Serbia a country that wasn't specially hostile to USA...
12.6.2008 2:23pm
Richard Aubrey (mail):
luck.
Yeah, but he's a dem, so it's all good.
12.6.2008 4:10pm

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