Diplomatic Pressure and Human Rights: The Case of Assad in Syria

It is perhaps telling that the world was more or less content, as of 2011, to rely on diplomatic pressure in the idyllic hope that it is sufficient to remove a tyrant from power, even if a tyrant were unleasing the weapons of war, including chemical weapons, on his own people I have Bashar Assad of Syria.

In August 2011, the U.N. Security Council issued a statement condemning Assad’s offensive within Syria against his own people. The Arab League and the Gulf Cooperation Council also denounced Assad’s violence. Furthermore, Saudi Arabia, Kuwait and Bahrain withdrew their respective ambassadors. Meanwhile, the Obama administration praised the increased diplomatic pressure and urged that more was needed. Washington was looking to Turkey to use its influence. “Historically, concerted multilateral pressure and sanctions have the greatest impact on the Assad regime’s calculations,” Andrew Tabler of the Washington Institute for Near East Policy said. We “know that sanctions impact the regime, given its terrible economic situation and the regime’s worsening finances,” he added.[1] Yet an expert from the International Crisis Group admits that it may not matter to the very top.

I contend that even though a “calculations” approach in response to Assad may match his tactical-oriented or strategic approach to governance, the “tit-for-tat” level is grossly insufficient not only for removing a tyrant from power, but also in terms of dealing with human rights abuses. In other words, calculated effect is too wan for a domain such as human rights in which people are literally losing their lives.

LA Times (2011)

For example, relying on Saudi Arabia to pressure Assad because he has been going after Sunni tribes with ties to the kingdom naively assumes that the dictator would simply walk away from power simply from external pressure. Even in spite of opposition from the Arab League, Gadhafi was able to hold on to power at least as of August of 2011. Even bombing Tripoli and aiding the opposition had not achieved enough external pressure to remove the tyrant from power. Was Assad to simply walk away from solely diplomatic pressure?

If Gadhifi had lost the right to rule by international agreement, then to do anything less than remove him from power by force makes the international position look weak, if not impotent. For someone such as Barak Obama to say, “Gadahi must leave,” and then for the tyrant to remain makes Obama look foolish (and impotent).  That is to say, Obama ought not over-reach. More generally, if the international consensus is that a tyrant has lost the legitimacy to rule, the parties of that consensus are obliged to remove that tyrant unless an international mechanism is set up to do remove rulers who have been “ruled” illegitimate. In other words, governmental sovereignty is not an absolute, and the world ought not reply on diplomatic pressure to enforce transgressors. The duty arises out of the declaration and because the citizens being abused are not in a position to remove their dictator themselves.

1. Borzou Daragahi, "Arab Nations Add to Pressure on Syrian Regime," LA Times, August 9, 2011.

Gandhi as a Model for the Arab Spring

After two weeks in 2011 of mass protests in Egypt for representative democracy and the ouster of President Mubarak, the Egyptian government agreed to concessions including allowing freedom of the press, releasing of political prisoners arrested during the protests, and commencing a committee with the opposition to consider constitutional amendments. The "regime also pledged not to harass those participating in the anti-government protests."[1] Gandhi would have been proud, though the protesters left room for improvement on this score. Understanding how they could have done so can be of use to pro-democracy protesters not only in the Middle East, but also around the world.

To be sure, the Egyptian protesters could have done worse. Fortunately, they did not emulate the strategic orientation of the Obama administration. The Obama administration was "struggling to determine if a democratic revolution can succeed while President Hosni Mubarak remains in office."[2] The man whom Obama had sent to persuade Mubarak not to run for re-election eight month later, Frank Wisner, told a group of diplomats and security experts that “President Mubarak’s continued leadership is critical — it’s his opportunity to write his own legacy.”[3] Meanwhile the U.S. Secretary of State, Hillary Clinton, "gave a strategy overview that stood at odds with that assessment."[4] Earlier, she had "made the case at a gathering in Munich that the entire process would take time, and must be carefully managed."[5] Revolutions must be managed? This approach can be viewed as an oxymoron.

When Mubarak resigned after eighteen days of protests, the Obama administration tried to catch up from its public position that Mubarak could another seven months until the regularly-scheduled elections would be held. "It is hardly the first time the Obama administration has seemed uncertain on its feet during the Egyptian crisis. . . . The mixed messages have been confusing and at times embarrassing — a reflection of a policy that, by necessity, has been made up on the fly. 'This is what happens when you get caught by surprise,' said one American official, who would not speak on the record. 'We’ve had endless strategy sessions for the past two years on Mideast peace, on containing Iran. And how many of them factored in the possibility that Egypt,' and presumably whatever dominoes follow it, 'moves from stability to turmoil? None.'"[6]  However, it could be that the reason was less being caught by surprise and more being too technocratically- or bureaucratically-minded. "Administration officials insist their responses have been more reaction to fast-moving events than any fundamental change in objective."[7]  In other words, Barak Obama and his advisors might have been too occupied with strategy to act on the basis of principled, big-picture, leadership. Obama, it turned out, was no Gandhi during the Arab Spring.

As an alternative to Obama's timid and incremental approach, Gandhi's approach is a better example for the courageous and non-violent Egyptian protesters in early 2011. Indeed, they were generally in Gandhi’s camp already; they only needed to more completely apply his strategy of active non-cooperation. This occurred to me during the twelfth day of protests, when the film, Gandhi was being fortuitously aired on the Turner Classic Movie channel on television. It occurred to me that rather than having responding in violence to the pro-government violence, the protesters could have taken the higher moral ground by not cooperating. The non-activity and normative message alone could have won the day even over the government’s raw force. This is the incredible thing about moral power--it can affect even governmental power and the related force of the sword, or rock. This is something the protesters in Arab Spring could have taken more to heart.

Gandhi proffered a new way to fight. "We will fight against their anger--not provoke it," Gandhi says in the movie. Non-violent non-cooperation is indeed fighting. As in all fighting, there is pain.  Only rather than inflicting physical pain, Gandhi took others' anger and though his pain the others would feel pain. "Through our pain, they will see their injustice. This will call them pain." It prompts them to as questions about themselves--uncomfortable questions with even more unpleasant answers. This new way of fighting is not in the interest of governments. If their opponents do not turn to violence, governments such as the Egyptian will be inclined to actually tempt the non-violent protesters to violence because it is a government's currency. Ironically, governments are on firmer ground when their opponents turn violent because government is fundamentally a means of legitimately ordering societal violence. In dealing with non-violent civil disobedience, governments are not in control; rather, the protesters are acting at their choosing to provoke a reaction that will make the injustice transparent to all. This locus of control gives the non-violent the upper hand. Rather than joining government on its axis, non-violent civil disobedience fights not to punish for weaknesses that we all possess, but to change minds and hearts. It is thus active rather than passive.

In terms of character, particular traits are necessary for one to remain non-violent even when tempted to strike back. According to Gandhi, turning the other cheek is not just figurative; it requires courage to take the anger of those having the power of government. Relatedly, firmness is also required. It is to defy "not with violence that would provoke anger," but, rather, "with firmness that will open their eyes." In contrast, an eye for an eye "only makes the world blind." Gandhi looked back at history to find that even as tyrants might for a time seem invincible, they have all fallen in the end. He felt that noncooperation with evil is a duty. A sense of this duty is also required.  Strategizers, such as those in the Obama administration, would be like seeds on rock in terms of Gandhi's approach. That is to say, Gandhi preached and engaged in principled leadership rather than in what was most comfortable for him at the moment. His approach also called upon self-respect. One must willingly take others' blows without either hitting back or retreating, and this involves keeping one's head held high with a sense that what one is doing is the alternative worthy of self-respect. Such respect is worth something to the protester, for pain is indeed involved in making injustice visible.

In terms of Egypt, the protesters could have recalled Gandhi's strategy of a general strike throughout British India, with Indians at prayer rather than work such that the entire country just stopped. Gandhi’s strategy is morally superior and more effective than answering government troops with rocks. A people willingly stopped of their own accord cannot be governed because there is no activity to stop. A government cannot cope with such a strategy of non-violent non-cooperation.  Hence it is no coincidence that in Egypt the pro-government forces on the street lured the protesters into engaging in violence. The protesters might have looked to Gandhi rather than take the bait. Even though tyrants might seem invincible for a time, one can have faith that the apparently-mighty in terms of worldly power will eventually face their own downfall. When their injustice has been suffered in a way that exposes it, that downfall can be facilitated. Ironically, returning violence for the violence of the state actually extends the current regime's tenure as providing order in the context of violence is a government's foremost rationale to exist.

Not taking the bait is  precisely where self-discipline and moral courage become so crucial in Gandhi's approach. Resisting "an eye for an eye" was on the mind of Hussein Ramadan, a political activist and organizer who helped lead the protests in Bahrain the week after Mubarak had fallen in Egypt. “The people are angry, but we will control our anger, we will not burn a single tire or throw a single rock. We will not go home until we succeed. They want us to be violent. We will not.”[8] The "they" here refers to the government.

When a people spurs its own government's instigations to be violent, the legitimacy of that government is compromised and the people gain the upper hand, even if this is not apparent at the time.  When soldiers working for the British beat unarmed protesters at the Salt Works in India, any moral right that the British had had to maintain order in India was lost. Of course, changes in government policy can lag, but in the end a government that has lost its moral basis to government must fall.  It is like a romantic relationship that ends. At one point before it actually ends, one of the two people in it has the sense that the relationship will end because of something intrinsic to it. Even so, the other person may be stunned when it does end—not having had the same sense. One could also use the analogy of jets. Once one has run out of fuel, it must inevitably fall back to earth. So too, a government that has lost its moral legitimacy on account of illegitimate violence exacted on its citizens must fall, sooner or later. If such a government takes its time in succumbing to this natural law, citizens can simply sit and do nothing.

In other words, active non-violent non-cooperation can be viewed simply as waiting for nature to do its work on the human organization that still takes itself as immortal. Protesters resisting the temptation to return violence know and have faith in this natural law, so they are not so desperate to hit back. It is the comparative lack of desperation that gives the protesters the upper hand in being able to provoke a government to overstep.  Unlike such protesters, government officials typically attach urgency to protests and thus feel compelled to act under the assumption: "before things get out of hand." Ironically, it is such a mentality that causes things to get out of hand. The lack of order is in the government rather than the protesters who foreswear violence.

1. David E. Sanger, “As Mubarak Digs In, U.S. Policy in Egypt Is Complicated,” The New York Times, February 5, 2011; Msnbc.com, “Mubarak Still in Power as Government, Opposition Talk.”
2. Ibid.

3. Ibid.

4. Ibid.

5. Ibid.

6. Ibid.

7. Ibid.
8.Michael Slackman, “Bahrain Takes the Stage with a Raucous Protest,” The New York Times, February 15, 2011.

The E.U.'s Membership in the U.N.'s General Assembly: An Oxymoron or Reality Catching Up?

On May 3, 2011, the United Nations’ General Assembly passed Resolution 65/276 by a vote of 120 to 0 (with two abstentions—countries subject to E.U. sanction). The resolution makes the European Union a non-voting member of the General Assembly. As such, the E.U. can “be inscribed on the list of speakers among representatives of major groups and be invited to participate in the Assembly’s general debate, in accordance with the order of precedence and the level of representation.” The E.U. is also “able to present oral proposals and amendments, which, however, would be put to a vote only at the request of [a voting member].” Hence, the E.U. membership is without the right to vote, co-sponsor resolutions or decisions, and put forward candidates. In other words, the E.U. has been granted a sort of “quasi” status commensurate with the world’s notion of the E.U. as a “regional organization”—whatever that means.  I contend that this misunderstanding of what the E.U. is has led to the resolution giving the union a quasi-status in the General Assembly even as another such union, the U.S., enjoys not only voting membership in the General Assembly, but also a veto on the Security Council. In short, the world is confused on the E.U. and the resolution bespeaks this condition.

The complete essay is at Essays on Two Federal Empires, available at Amazon.

Prudent & Measured Calculation Over Principled Leadership: U.S. President Obama on Democracy Protesters in the Middle East

Despite several days of overwhelming popular grass-roots protest in Egypt, on January 30, 2011, the U.S. Secretary of State, Hillary Clinton, stopped short of urging the Egyptian president, Hosni Mubarak, to resign.  According to The New York Times, she spoke of "a process that must include a government dialogue with the protesters and “free, fair, and credible” elections, scheduled for September." In the face of overwhelming protests going on in Egypt, the top U.S. diplomat was urging a dialogue in January through the following September. Specifically, she declared, “We have been very clear that we want to see a transition to democracy. . . . And we want to see the kind of steps taken to bring that about. We want to see an orderly transition.” 

On February 1, 2011, The New York Times reported that Barak Obama had sent a message to Mubarak urging the Egyptian president not run for reelection the following September. According to officials, it "was not a blunt demand for Mr. Mubarak to step aside now, but firm counsel that he should make way for a reform process that would culminate in free and fair elections in September to elect a new Egyptian leader." According to The New York Times, Obama was engaging in a diplomatic balancing act by "resisting calls for Mr. Mubarak to step down, even [while calling] for an 'orderly transition' to a more politically open Egypt." It was  not clear whether the Obama administration favored Mubarak turning over the reins to a transitional government.

On February 5, 2011, The New York Times reported that U.S. Secretary of State Hillary Clinton "said that Mr. Mubarak’s immediate resignation might complicate, rather than clear, Egypt’s path to democracy, given the requirements of Egypt’s Constitution." Not coincidentally, Israeli officials, who had long viewed Mubarak as a stabilizing influence in a dangerous region, "made clear to the administration that they support evolution rather than revolution in Egypt." Accordingly, U.S. Vice President Joseph Biden urged Vice President Suleiman on February 8th to take specific steps toward democracy.

As it turned out, the American-urged baby steps toward overturning a dictator friendly to the U.S. paled in comparison to events taking place in Egypt. Ironically, the Egyptian military took the moral high ground and effectively pushed Mubarak aside and then even prosecuted his sons for abuse of power. Actions speak louder than words, and in this case even the words coming from the Obama administration were languid and self-compromising. This is ironic, given Barak Obama’s 2008 campaign pledge to enact real change. One would have expected principled leadership rather than status quo from the breath of fresh air in the White House.

So it is perhaps no surprise that on April 22, 2011, when, according to MSNBC, “(s)ome 27 protesters [and perhaps 44 more] were killed when Syrian security forces fired live bullets and tear gas at tens of thousands of people shouting for freedom and democracy,” the American administration did not react by leading an international coalition into Syria to protect the protesters against their own ruler. Fox News was reporting at least 49 killed, and yet, a few days later--as the Sryian government was sending tanks into Dara'a with at least 25 killed--the White House was considering a freeze on assets and a ban on business dealings.

While the administration's spokesman said that the "brutal violence used by the government of Syria against its people is completely deplorable" and "unacceptable," the policies being considered say otherwise, especially given the American response against similar brutality by Qaddafi. The administration was not even out in front on this issue at the U.N. Security Council. According to The Wall Street Journal on April 26th,  "British Foreign Secretary William Hague said Britain was working with other members of the United Nations Security Council 'to send a strong signal to the Syrian authorities that the eyes of the international community are on Syria.'" The Security Council soon dead-locked.  Sen. McCain was quoted as telling Al-Jazeera, "I don't see a military intervention as a solution (in Syria). I just don't see the scenerio, so I don't support such a thing." He went on to say that the world should offer its "moral support" to the protesters. Meanwhile, the U.S. requested that the U.N.'s Human Rights Council look into the matter. This route falls seriously short of the Security Council's "all necessary means" No-Fly-Zone over Libya.

Obama had worked through the U.N. Security Council in order to impose a No-Fly-Zone over Libya. However, even then, it was a month-long diplomatic approach rather than a case of principled leadership protecting the protesters while they were still unarmed. By the time of the Council's resolution, the impact of the Libyan turmoil on oil markets was clear to the administration. In contrast, the Syrian ruler, who had killed 400 protesters by April 26th, was useful to the U.S. strategically with respect to a peace-agreement on Israel so a mere hand-slapping would suffice.

Therefore, in spite of a Syrian protester at the time saying, “Our regime is the most brutal and scary in the Middle East. It has no values and can easily kill its own people,” the Obama administration was considering merely financial sanctions as the American military was sending predator drones into Libya and bombing Qaddafi's compound. Coming after five weeks of protests, the bloody turn by the Sryian ruler in violation of his obligation to protect his citizens was significant enough to end his sovereign right to rule, yet the world had neither the will for principled leadership nor a mechanism for international intervention beyond putting Syria on notice at the U.N. and referring the matter to the International Criminal Court for possible, eventual prosecution.

Getty Images (in MSNBC.com article) 

With regard to the American position, the problem involved prioritizing self-interested calculation over principled leadership.  The American society had embraced the bureaucratic age such that leadership had generally been replaced by incremental strategic management--even in the Oval Office. Sadly,  being "professional" had replaced being "principled," such that the highest officials in the U.S. Government privileged the expertise of immediate tactical advantage over the principles that were innately felt by the Egyptian protesters (and presumably by ordinary Americans as well).  The American "leaders" had forgotten that in trying to have it both ways, they would be apt to end up stagnate, confused, and not well respected.  Were the officials bold in putting principle above immediate tactical advantage, I submit that the tenor of the U.S. government would better reflect the values of the American people. In the context of the Egyptian and Syrian protests, as in that of the preceding Iranian protests, people the world over were crying out--yearning--for principled leadership rather than professional bureaucrats in the U.S. Government.

It is in human nature to value and respect leaders who have the courage of conviction to say, "This might piss off some powerful people whom I could otherwise use, but this is what we as Americans believe in." Simply stated, the belief is that a government is no longer legitimate if it loses the consent of a significant number of citizens, especially if they are willing to put everything on the line to "just say no" with their lives. In the face of such courage, the attempt by American officials to "managerialize" leadership into self-maximizing strategy answers the protesters’ principled leadership with "tactic as leadership." Generally speaking, too many managers (in business as well as government) want to use the nomenclature of leadership without actually leading. There is indeed an expertise in principled leadership, and I suspect an instinct for it, which the typical manager (whether in business or government) does not have. I contend that principled leadership is more valuable than technical expertise in the upper echelons of organizations. "Prudent" and "incremental" were not the words that came to my mind in watching the popular protests in Egypt and Syria in 2011. It was far easier for me to agree with the protesters in the Middle East than with my own government. Sometimes principled and courageous action is more human (and humane) than is prudent bureaucratic calculation.

Sources:

Mark Landler, "Clinton Calls for 'Orderly Transition' in Egypt," The New York Times, January 30, 2011.

Mark Landler et al, "Diplomatic Scramble as Ally is Pushed to the Exit," The New York Times, February 1, 2011.

Mark Lander and Helene Cooper, "Allies Press U.S. to Go Slow on Egypt," The New York Times, February 8, 2011.

“Syrian Protesters Call for Democracy, Security Forces Answer with Deadly Fire,” MSNBC.com, April 22, 2011.
"US Weighs Syria Sanctions amid Worsening Violence", MSNBC.com, April 25, 2011.
Nour Malas, "Nations Pursue U.N. Censure of Syria," The Wall Street Journal, April 26, 2011.
"McCain: No Military Solution to Syria Crisis," MSNBC.com, April 27, 2011.

On the Cruelty of Gadhafi's Libyan Troops from a Nietzschean Perspective

Gadhafi, or any tyrant who violates the human rights of citizens, can be reckoned as weak rather than strong from a Nietzschean standpoint. Such an analysis could embolden (i.e. awaken) protesters around the world who remain under the subterfuge of a ruler's enforcement of his or her assumed dominance.

USA Today reports that “(t)roops loyal to Moammar Gadhafi may be torturing and executing rebel prisoners.”[1] This is according to human rights workers and physicians near the front lines. Such treatment would constitute war crimes under the Geneva Convention. Physicians said the bullet wounds on one man's body weren't meant to kill, but to torture. "When you put a gun to his head, that's execution," said Mohammed Hussain, the head of intensive care at a hospital near the front lines. "When you shoot him here and here and here, that's something else. That's torture. They want him to feel the pain."[2] This last remark struck me as particularly revealing.

What sort of mentality derives a feeling of pleasure from perceiving another person in pain? To what extent is it the other person feeling the pain that is pleasurable to the person watching? Alternatively, the inflicting of the pain could be pleasurable. The inflicting pleasure for the inflictor might involve the pleasure of having power, as in having control of another person against the other person’s will. Such a will to power is a principal motivator, according to Nietzsche. He avers that human beings are primarily motivated to feel the pleasure that comes with exercising power. Yet such pleasure is in the exercise of one’s strength rather than in cruelty itself.  It is the weak, who, in being driven to dominate beyond their innate strength, delight in cruelty as a means to enforce their domination. In other words, the weak who have an irresistible urge to dominate have to instill (or inflict) their dominance because they are not strong and thus naturally to be respected as powers.

Therefore, the troops loyal to Gadhafi were displaying their condition of weakness rather than their strength by devoting time and energy to being cruel.  With the strong, damage is incidental to the charge rather than intended; the strong relish their experience of strength in conquering and therefore they are not interested in cruelty.  That is to say, harm is a byproduct of the vanquishing by the strong, as the latter conquer out of their overflowing confidence of strength. This can perhaps be thought of in terms of stepping outside in the cold after building up a sweat from exercise—the excess heat radiates outward from one’s body such that one does not even feel the cold air. What is the cold to me?  Similarly, what are the parasites to me who fall by the wayside as I take the village?  Any intent to be cruel to a parasite would be a waste or diversion from the strong vanquisher’s self-confident feeling of power that naturally issues out in his or her strength. Only weakness with a relentless instinct to dominate would be oriented to cruelty as a means, for the feeling of pleasure of strength is not available or realizable.

For example, "Col. Gadhafi's militias are brutal," said Mustafa El Gheriany, media liaison for the Transitional National Committee according to USA Today. "They did that probably on purpose to scare our young men, to show them that they are not taking prisoners.”[3] This motivation would be an alternative to simply wanting to inflict pain or to see another person feel it. Even so, the use of cruelty as a means is ultimately to impose one’s dominance, which means that the person’s strength is not sufficient. In other words, the person using cruelty to send a message has an urge to feel more pleasure from power than his or her weakness can proffer in itself.

Essentially then, human rights advocates point to the tactics whereby the weak who suffer from a hypertrophic drive to dominate seek to enforce, or take, beyond their native pith. This investigation can lead to the following questions. Why is it that certain persons of weak constitutions seek to dominate nonetheless, rather than simply to be content with whatever pleasure naturally issues from the power in the strength they do have? Furthermore, is dictatorship as a form of government a weak form in that autocrats do not simply lead, but are almost invariably oriented to efforts to enforce their dominance by intentionally inflicting pain on protesters?  It would be ironic were unarmed protesters in the streets stronger than the rulers whose dominance is being questioned or repudiated.  Indeed, such repudiation strikes at the core of the effort of the weak to dominate; hence such violence as was evinced by Gadhafi should be no surprise.

To the weak who are driven to dominate, the refusal of others to acknowledge the imposition or enforcement of their claim must be utterly intolerable. “How dare they!” the weak dominator is apt to exclaim even though the strong naturally rebuff the pretentions of the weak.  In fact, Nietzsche thought it remarkable that the weak are able to hoodwink the strong into taking the autocratic enforcement mechanisms seriously.  In the case of the mass protests, enough fortitude among enough unarmed protesters could simply overflow the boundaries invented by the tyrants. Were the people itself mobilized, the autocrat might realize that were the entire populous killed, he would have no one to dominate!  There would be no feeling of pleasure in exercising power over a dead city. The strength in the people as a whole lies in simply being able to say no, yet this strength is typically hid from the strong by the weak who benefit from the subterfuge.

1. Greg Campbell, “Libyan Doctors Suspect Brutal War Crimes,” USA Today, April 12, 2011, p. 6A.
2. Ibid.
3. Ibid.

On Nietzsche applied to business, see: On the Arrogance of False Entitlement: A Nietzschean Critique of Business Ethics and Management, available at Amazon. 

The U.S. War Powers Act: The Case of Obama's Decision on Ameican Involvement in Libya

The New York Times describes the War Powers Act of 1973 as follows: “(P)assed in the aftermath of the Vietnam War, [the act] puts limits on the ability of the President to send American troops into combat areas without Congressional approval. Under the act, the President can only send combat troops into battle or into areas where 'imminent' hostilities are likely, for 60 days without either a declaration of war by Congress or a specific Congressional mandate. The President can extend the time the troops are in the combat area for 30 extra days, without Congressional approval, for a total of 90 days.”[1] While the law is beneficial in that it enables the President to act in his capacity as commander in chief when time does not permit a preceding Congressional declaration or more specific resolution (e.g., the U.S. being attacked), the act is not limited to such cases. Therefore, the President can put off Congressional approval even when he could obtain it before sending the troops into battle.  Regardless of the exigency of the military action, Congressional approval is required within 90 days, and this applies even if the President is acting on behalf of the U.S. as a member of the United Nations to enforce a Security Council resolution.

President Obama, on behalf of the U.S., decided that the U.S. military would take part in the international coalition enforcing the Security Council’s resolution allowing members to use all means necessary to protect Libyan civilians from Qaddafi’s government, which had turned on its people. The President did not need to obtain a Congressional declaration or resolution before he did so, even though he could have done so by asking Congress’ House and Senate to convene to debate and vote on the question. Although some thought hearings would have been necessary, that would have been excessive, as the judgment required was beyond simply requiring more information. In any case, a closed briefing for both chambers could have been held before the debates and votes. The President knew of the Security Council’s debate and vote beforehand, so he could have notified Congressional leaders in enough time for them to prepare to convene a day or two afterward. “We should have been called into session yesterday or the day before,” Rep. Nadler said at the time the American involvement in the international enforcement action commenced.[2] Even though the President did not have to take this route, I contend that he would have been on firmer ground democratically had he done so. Had either of the Congressional chambers voted down a resolution authorizing American involvement, I believe the President would have acted illegally in involving the U.S. military in enforcing the U.N. resolution. The U.N. itself cannot activate any military of any of the members.

Because in a republic the legislative representatives should have a role in the decision up front if doing so is possible, the President should have done so in the Libyan case because there was time for it. “I think [the President] has a duty and an obligation to come to Congress,” Rep. Jason Chaffetz (R-Utah.) told The Huffington Post.[3] He continued, “I see no clear and present danger to the United States of America. I just don't. We're in a bit of the fog at the moment as to what the president is trying to ultimately do.” Chaffetz was saying, in effect, that the War Powers Act should only be applied when there is not time for a President to get Congressional approval up front.

Other members of Congress challenged the War Powers Act itself. “In the absence of a credible, direct threat to the United States and its allies or to our valuable national interests, what excuse is there for not seeking congressional approval of military action?” asked Rep. Jerry Nadler (D-N.Y.) in a separate interview. “I think it is wrong and a usurpation of power and the fact that prior presidents have done it is not an excuse.”[4] The usurpation language challenges the constitutionality of the Act. Similarly, Rep. Ron Paul (R-Tex.) was circulating a resolution "[e]xpressing the sense of Congress that the President is required to obtain in advance specific statutory authorization for the use of United States Armed Forces in response to civil unrest in Libya."[5] The measure was supported by Reps. Michael Honda (D-Calif.) and John Conyers (D-Mich.), among others. This resolution directly challenged the War Powers Act, presumably because they thought the President could have obtained Congressional approval before acting.

As it stands, the War Powers Act gives a President 90 days to get Congressional approval. To limit the Act to cases where there is no time to get Congressional approval would ensnare application of the law to judicial interpretation: Was there really a window for Congressional approval? Yet to give the President 90 days regardless of whether he could obtain such approval at the outset enables him to take cover under the letter of the law even when he violates its spirit. The members of Congress who criticized the President for not obtaining Congressional approval before sending troops over the Libya were essentially accusing the President of having done precisely that. Had the President secured Congressional approval beforehand, his hand as commander in chief would have been strengthened because a majority of the American people and states would have been behind him. Had Congress refused, he should not have proceeded with the action; doing so anyway, while expedient, would not have been in line with our republic. So going to Congress first would have been a win-win for the President from a democratic standpoint, although not from that of wanting to take part in the international effort. Sometimes it takes self-discipline for a President to put the republic form above even what he wants to do in a particular case.

1. "How the War Powers Act Works," The New York Times, March 29, 1984.
3. Sam Stein and Amanda Terkel, "Obama's Libya Policy Makes Strange Bedfellows of Congressional Critics," The Huffington Post, March 21, 2011. 
4. Ibid.
5. Ibid.
2. Ibid.

South Sudan as a Sovereign State: Governmental Change in Slow Motion

Announced in Sudan’s capital, Khartoum, on February 7, 2011, voters in the oil-producing south overwhelming chose to secede from the Arab north. According to the New York Times, 98.83 percent of the more than 3.8 million registered voters in the south chose to separate from the north. The referendum had been agreed to as part of the peace agreement in 2005, after two long and brutal civil wars between the Arab Muslim north and the mostly animist and Christian south. “Today we received these results and we accept and welcome these results because they represent the will of the southern people,”[1] President Bashir said in a statement on state television, according to Reuters. In Washington, the White House released a statement by President Obama congratulating the people of south Sudan and announcing “the intention of the United States to formally recognize southern Sudan as a sovereign, independent state in July 2011.”[2]  Actual independence would be declared on July 9, when the peace agreement that set the stage for the vote expired. In the meantime, issues regarding citizenship, oil-revenue rights and the contested and volatile region of Abyei would be settled.

Analysis:

The referendum is in line with the political principle that popular sovereignty (i.e., of the people) transcends the authority of governments. That is to say, people have the right to establish government (rather than vice versa). In this case, the southern Sudanese decided to form a new and separate state. The result of the vote, being almost unanimous, proffers an excellent snapshot of a will of the people.  Typically, this term is abused, such as when a candidate wins reelection by a margin of fifteen or twenty percentage points.  Receiving 65% of the vote does not represent the will of the people; rather, it is the will of a majority of the people. There is a difference. In the case of south Sudan, we can say with confidence that it was the people's will to separate. That is to say, the people spoke with one voice. How rare it is for there to be a will of the people; hence we treat the view of a bare majority as such--essentially over-generalizing.  Politicians typically do the same with mandates.

What is unclear from the referendum is how the people feel about waiting until July for actual independence.  To be sure, there are outstanding issues that need to be worked out, but is it really necessary for independence to wait for everything to be worked out; President Bashir has already announced that his government would recognize the independence of the south. The acceptance of July by the Obama administration is similar to that administration's decision at the time not to push President Mubarak of Egypt to step down before September when elections would be held even had there not been mass protests.  In short, government officials seem to be oriented to time in slow motion.

The Obama administration's announcement that it would recognize south Sudan as a sovereign and independent state might not seem fitting, as the new state would presumably be a new state in the African Union (AU).  However, that union, unlike the EU and US, is a confederation akin to an alliance wherein the states continue to hold all of the governmental sovereignty. In contrast to confederations such as the AU, modern federations divide governmental sovereignty between two systems of government--that of the federation and that of the state governments.  That the AU had not intervened in the internal discord in the Ivory Coast, Egypt and Sudan suggests that that union is simply a league of friendship, merely able to mediate if invited, as in Zimbabwe during the crisis between the President and prime minister. The feckless condition of the AU can also be seen in the fact that it took so long for south Sudan to even vote on independence in spite of the fact that it was the will of the people in south Sudan. Was it really necessary, for example, to wait until 2011 when the peace treaty was signed in 2005? A union with teeth might have been able to expedite things. Unlike the states of the EU and US, the typical state in the AU is run by a dictator rather than being a republic in fact as well as name. The American Founding Fathers believed that a federal system could only have republics as members; dictators would guard their power too much and thus be too inclined to break off. Unlike a dictator, government officials in a republic are used to sharing power, so ceding some sovereignty to an empire-scale federation is not so hard. However, it can be in the political or economic interest of even a Leviathan dictator to transfer some governmental sovereignty to a federal union. Specifically, a dictator may be expected to benefit from the economic and political gains that come from a united political front and a common market. Twenty percent of 100 is more than 100% of 10. A federation of non-republic states is thus possible.

In terms of south Sudan, the cost of a weak AU was having to suffer a snail's pace on the road to independence. To be sure, such a pace was in the interest of Sudan's government. However, issues are only intractable if they are seen as such, and the people in the south could have voted on a date as well as on whether to secede. The dissolution of the Soviet Union attests to how quickly polities can change.Just as it was not clear in Febrauary, 2011 that President Mubarak had to stay in office in Egypt for seven months in order for there to be order, it should not have been presumed that south Sudan had to wait until July. Even if top government officials are typically old people, governments need not move in slow motion. The dragged-out pace evinced by south Sudan's independence even after the overwhelming 99% voting to secede suggests that governmental time is not our time and that we, the people, can move the old clocks an hour ahead in keeping with the increasing daylight. Whereas the progress of the twentieth century was largely technoligical, in the twenty-first century the human race may reach a threshold of perception wherein the dogmatic or arbitrary nature of governments is finally seen for what it is, and exercise greater popular sovereignty to make our governments more responsive. As of 2011, a critical mass of perception had not yet occurred; hence it could not yet be said that the human race itself had reached a new sense of its power over its governments.

1. Josh Kron, "Sudan Leader to Accept Secession of South," The New York Times, February 7, 2011.