The Supreme Court's conservative majority was very troubled last week about the risk of diplomatic friction between the United States and other countries when they decided to bar suits in U.S. courts against foreign corporations for violations of international law. Writing for a 5-4 majority in Jesner v. Arab Bank (April 17), Justice Anthony M. Kennedy stressed that the government of Jordan had warned it would regard it as an affront to its sovereignty if the Jordanian-based Arab Bank were hauled into U.S. courts for helping to finance the terrorist organization Hamas.
Kennedy noted concerns raised by a number of other countries about the recent discovery of the 225-year-old Alien Tort Statute as a vehicle for allowing human rights suits in U.S. courts against foreign individuals and companies for overseas human rights violations. In a forceful dissent, however, Justice Sonia Sotomayor noted that the State Department's legal advisor had signed briefs in this and one earlier case arguing against giving foreign corporations legal immunity for human rights violations.
Foreign policy concerns are usually not part of the Supreme Court's job description, as Kennedy himself acknowledged in his opinion even while considering them. Given the debate in Tuesday's decision, however, it was ironic that the justices breathed not a single word during arguments the next day over the diplomatic harm the United States is already suffering from President Trump's anti-Muslim travel ban.
The hour-long arguments in Trump v. Hawaii (April 18) left observers predicting a decision to uphold Trump's downsized version of the complete Muslim ban that he had promised in his campaign. The 18-page proclamation that Trump issued in mid-September stopped short of that goal, but imposed substantial limits on travel to the United States by individuals from seven countries, including five Muslim-majority nations in the Mideast and Africa.
Trump has vented anti-Muslim animus both as candidate and as president to the evident detriment of U.S. standing not only in the Muslim world but also in many of the United States' closest allies. A global poll by the Pew Research Center last summer after courts had ruled against Trump's earlier executive order found that 62 percent of those surveyed disapproved of the travel ban and only 32 percent approved.
The controversy over what opponents insist on calling the Muslim ban has contributed to a worldwide drop in public confidence in the U.S. president. Barack Obama left office in 2016 with 64 percent of respondents voicing confidence in him compared to 23 percent with no confidence. Six months into Trump's presidency, the results were flipped: 74 percent of respondents voiced no confidence in him and only 22 percent had confidence in him.
In Indonesia, the world's most populous Muslim majority country, confidence fell from 64 percent under Obama to 23 percent under Trump. The decline in the United States' closest ally, Britain, has been sharper: from 79 percent to 22 percent. The controversy over the travel ban is one of several factors cited in the British government's decision to deny Trump a full-blown state visit this summer.
Trump has been a diplomatic bull-in-the-china shop on a range of issues, of course: not just by imposing the Muslim travel ban, but also by pulling out of the trans-Pacific trade deal and the Paris climate change agreement. Those last two issues are outside the justices' concerns, but the travel ban touches directly on issues of equal treatment that fall within the Court's jurisdiction.
Defending Trump's order, Solicitor General Noel Francisco minimized its scope. "This is not a so-called Muslim ban," Francisco told the justices, since it excludes "the vast majority of the Muslim world." In challenging the ban as illegally discriminatory, Neal Katyal, a former acting U.S. solicitor general, rejected Francisco's point by noting that an employer would be guilty of racial discrimination by firing an employee because of race even if others of that race were still on the job.
No court has yet to uphold any of the three versions of Trump's travel ban. In the Hawaii case, the Ninth U.S. Circuit Court of Appeals ruled that the ban violated an immigration law provision that prohibits discrimination on the basis of nationality. In the separate case still awaiting Supreme Court review, the Fourth U.S. Circuit Court of Appeals found that the ban amounted to anti-Muslim discrimination in violation of the Constitution's religious liberty clause.
Francisco defended the travel ban by insisting that the countries affected had been found by an interagency review to fall short in their vetting procedures for travelers to the United States. Chief Justice John G. Roberts Jr. was one of several conservatives who seemed ready to accept the review as washing away the taint from Trump's anti-Muslim rhetoric. The conservatives also appeared ready to give the president a wide berth on immigration issues even in the face of congressional actions to the contrary and even without any justification of its claimed national security concerns.
The Court bases its decision on law, of course, not on public opinion, but it takes pains at time to stay within some broad range of public opinion. A recent poll conducted for Muslim Advocates found that only 36 percent of Americans approve of the travel ban compared to 44 percent who disapprove. Demonstrators on the day of arguments carried placards declaring immigrants and refugees to be welcome in the United States. But the Court that proudly promises equal justice under law seems headed in an opposite direction.
Sunday, April 29, 2018
Sunday, April 22, 2018
At Supreme Court, Originalism's Illusory Promise Exposed
"The life of the law has not been logic," the great Supreme Court justice Oliver Wendell Holmes Jr. once proclaimed, "it has been experience." Holmes' embrace of legal realism in a series of lectures before his judicial career challenged the legal formalists of the era who saw law as nothing more than "syllogisms" or "the axioms and corollaries of a book of mathematics.".
The formalists of the 19th century stunted the development of the law by preventing workers or others from joining together to protect their interests or recover for the often deadly injuries of the industrial era. Today, a new generation of legal formalists are defying Holmes' practical wisdom by looking not to experience or even to logic, but to what they believe can be discerned as the "original meaning" of the Framers who wrote the U.S. Constitution some 225 years ago.
Originalists promise in part that originalism can yield definite answers to hard legal issues and thus force judges to decide cases solely on the basis of law instead of their personal views. But the promise is an illusion, as seen in the dueling opinions of the two originalist justices Clarence Thomas and Neil Gorsuch in the Supreme Court's closely divided decision last week [April 17] in an important immigration law case.
Thomas and Gorsuch clashed on the question of whether the Due Process Clause authorizes courts to strike down laws as unconstitutional on account of vagueness. The two justices came out on opposite sides of the 5-4 decision in Sessions v. Dimaya, with Gorsuch joining the four liberal justices in ruling in favor of the immigrant in the case. Thomas joined with three other conservatives in the main dissent and wrote a separate, history-based dissent for himself alone.
Thomas and Gorsuch disagreed about the significance of old court decisions dealing with vague laws from 18th century England and 18th and 19th century America. The debate was worthy of an advanced seminar in legal history, but for Filipino immigrant James Dimaya the stakes were anything but academic.
Dimaya, who immigrated legally to the United States at age 13 in 1992, was facing deportation because of two burglary convictions a decade ago in his adopted home in the San Francisco Bay area. The government moved to deport him under a provision in immigration law that mandates removal for anyone convicted of a "crime of violence." The provision defines that term as a "felony . . . that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense."
Three years ago, the Supreme Court ruled a similarly phrased provision in the federal Armed Career Criminal Act (ACCA) as unconstitutional under the so-called void-for-vagueness doctrine. Thomas agreed with the result in Johnson v. United States (2015), but in a separate opinion he called the void-for-vagueness doctrine inconsistent with the original meaning of the Bill of Rights' Due Process Clause..
In the new case, Gorsuch noted that none of the other justices had responded to Thomas's view and took on the task himself. Reviewing the cases, Gorsuch concluded that void for vagueness "serves as a faithful expression of ancient due process and separation of powers principles . . . ." Thomas reiterated his "doubts about whether the vagueness doctrine can be squared with the original meaning of the Due Process Clause."
Paradoxically, Thomas and Gorsuch both favorably cited a 19th century decision by Supreme Court Justice Bushrod Washington as evidence for their opposing views. Presiding as circuit justice in a Pennsylvania case, Washington found a federal law prohibiting seamen from making a "revolt" too vague to allow the government's case to go to the jury.
Commenting on the two opinions, Evan Bernick, a lecturer at Georgetown Law School and a fellow with the school's originalist Center on the Constitution, sees "not a lot of difference" between Thomas and Gorsuch. Thomas, he explains, would apply vagueness doctrine "on a retail basis" — one case at a time — while Gorsuch would strike down a vague law in its entirety as serving the original purpose of the Due Process Clause.
Eric Segall, a law professor at Georgia State University and a sometime critic of originalism, sees the difference between the two justices as an example of the difference between an "old" originalism that emphasized judicial deference and a "new" originalism better disposed to so-called "judicial engagement." The shift, in Segall's view, shows that originalism has become "a political symbol" more than a legal methodology. "Once you say no deference," he explains, "given the indeterminacy of history, originalism will not be able to limit judicial choices."
Bernick and other originalists, such as Case Western Reserve law professor Jonathan Adler, reject the criticism. "No method of interpretation is entirely determinate," Adler replies. Originalism constrains the range of outcomes in constitutional cases, he argues, "but it does not reduce every single case to a single permissible outcome." Bernick similarly views originalism as "marginally more discretion-reducing" than other methods of constitutional interpretation.
Originalists achieved their biggest victory to date in the Second Amendment gun-rights decision in Heller (2008), written by the godfather of originalism, the late justice Antonin Scalia. Writing for the four dissenters, Justice John Paul Stevens argued just as strongly as Scalia that original meaning pointed the other way. "History is always going to be unclear," Segall contends. With Gorsuch proudly identifying himself as a "committed originalist," legal history may figure prominently in future cases too, but Court watchers should not expect history to provide definite answers.
The formalists of the 19th century stunted the development of the law by preventing workers or others from joining together to protect their interests or recover for the often deadly injuries of the industrial era. Today, a new generation of legal formalists are defying Holmes' practical wisdom by looking not to experience or even to logic, but to what they believe can be discerned as the "original meaning" of the Framers who wrote the U.S. Constitution some 225 years ago.
Originalists promise in part that originalism can yield definite answers to hard legal issues and thus force judges to decide cases solely on the basis of law instead of their personal views. But the promise is an illusion, as seen in the dueling opinions of the two originalist justices Clarence Thomas and Neil Gorsuch in the Supreme Court's closely divided decision last week [April 17] in an important immigration law case.
Thomas and Gorsuch clashed on the question of whether the Due Process Clause authorizes courts to strike down laws as unconstitutional on account of vagueness. The two justices came out on opposite sides of the 5-4 decision in Sessions v. Dimaya, with Gorsuch joining the four liberal justices in ruling in favor of the immigrant in the case. Thomas joined with three other conservatives in the main dissent and wrote a separate, history-based dissent for himself alone.
Thomas and Gorsuch disagreed about the significance of old court decisions dealing with vague laws from 18th century England and 18th and 19th century America. The debate was worthy of an advanced seminar in legal history, but for Filipino immigrant James Dimaya the stakes were anything but academic.
Dimaya, who immigrated legally to the United States at age 13 in 1992, was facing deportation because of two burglary convictions a decade ago in his adopted home in the San Francisco Bay area. The government moved to deport him under a provision in immigration law that mandates removal for anyone convicted of a "crime of violence." The provision defines that term as a "felony . . . that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense."
Three years ago, the Supreme Court ruled a similarly phrased provision in the federal Armed Career Criminal Act (ACCA) as unconstitutional under the so-called void-for-vagueness doctrine. Thomas agreed with the result in Johnson v. United States (2015), but in a separate opinion he called the void-for-vagueness doctrine inconsistent with the original meaning of the Bill of Rights' Due Process Clause..
In the new case, Gorsuch noted that none of the other justices had responded to Thomas's view and took on the task himself. Reviewing the cases, Gorsuch concluded that void for vagueness "serves as a faithful expression of ancient due process and separation of powers principles . . . ." Thomas reiterated his "doubts about whether the vagueness doctrine can be squared with the original meaning of the Due Process Clause."
Paradoxically, Thomas and Gorsuch both favorably cited a 19th century decision by Supreme Court Justice Bushrod Washington as evidence for their opposing views. Presiding as circuit justice in a Pennsylvania case, Washington found a federal law prohibiting seamen from making a "revolt" too vague to allow the government's case to go to the jury.
Commenting on the two opinions, Evan Bernick, a lecturer at Georgetown Law School and a fellow with the school's originalist Center on the Constitution, sees "not a lot of difference" between Thomas and Gorsuch. Thomas, he explains, would apply vagueness doctrine "on a retail basis" — one case at a time — while Gorsuch would strike down a vague law in its entirety as serving the original purpose of the Due Process Clause.
Eric Segall, a law professor at Georgia State University and a sometime critic of originalism, sees the difference between the two justices as an example of the difference between an "old" originalism that emphasized judicial deference and a "new" originalism better disposed to so-called "judicial engagement." The shift, in Segall's view, shows that originalism has become "a political symbol" more than a legal methodology. "Once you say no deference," he explains, "given the indeterminacy of history, originalism will not be able to limit judicial choices."
Bernick and other originalists, such as Case Western Reserve law professor Jonathan Adler, reject the criticism. "No method of interpretation is entirely determinate," Adler replies. Originalism constrains the range of outcomes in constitutional cases, he argues, "but it does not reduce every single case to a single permissible outcome." Bernick similarly views originalism as "marginally more discretion-reducing" than other methods of constitutional interpretation.
Originalists achieved their biggest victory to date in the Second Amendment gun-rights decision in Heller (2008), written by the godfather of originalism, the late justice Antonin Scalia. Writing for the four dissenters, Justice John Paul Stevens argued just as strongly as Scalia that original meaning pointed the other way. "History is always going to be unclear," Segall contends. With Gorsuch proudly identifying himself as a "committed originalist," legal history may figure prominently in future cases too, but Court watchers should not expect history to provide definite answers.
Saturday, April 14, 2018
Trump Worse Than Nixon for Rule of Law?
President Richard Nixon's decision to fire Watergate prosecutor Archibald Cox came like a bolt out of the blue on what was otherwise a slow-news, football weekend in October 1973. In the pre-cable news era, all three major television networks interrupted their programming to report that Cox had been fired by the previously unknown solicitor general, Robert Bork, after Attorney General Elliott Richardson and his deputy William Ruckelshaus had resigned rather than carry out Nixon's justice-obstructing order.
Recalling the episode now 45 years later, Nick Ackerman, one of Cox's assistants, recalled on MSNBC that he left the office that night with several investigative files to safeguard them from possible disappearance or destruction. The precaution proved to be unnecessary. The reaction to the "Saturday Night Massacre" was so instantaneous and so intense that Nixon was forced to acquiesce in the appointment of a new Watergate prosecutor, Leon Jaworski.
With rampant speculation that President Trump is now on the verge of removing special counsel Robert Mueller from the Russiagate investigation, Nixon is now being recalled, whatever his other faults, aa a believer of sorts in the rule of law. By comparison, Trump appears in this recollection to be a greater threat to the rule of law: a president who might pull out all stops — legal or not, constitutional or not — to thwart the investigation into the Trump campaign's interactions with election-meddling Russian agents.
Nixon likely had legal authority to remove Cox, his independence at the time unprotected by statute or Justice Department regulation. Richardson and Ruckelshaus refused Nixon's order on the ground that each had promised the Senate in their confirmation hearings to safeguard Cox's position. Today, by contrast, Mueller is protected from removal by a Justice Department regulation that allows Mueller to be removed only "by the personal action of the Attorney General" for "misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause."
With Attorney General Jeff Sessions recused from the Russia investigation, the removal power lies instead with the deputy attorney general, Rod Rosenstein, who has publicly defended Mueller's conduct in office up till now. Trump's supporters and surrogates envision indirect steps to oust Mueller — for example, by firing Rosenstein and relying on Solicitor General Noel Francisco to be as compliant to the president's wishes as Bork was 45 years ago. As another alternative, Trump could order Sessions or Rosenstein to rescind the regulation or perhaps use his supposed unitary executive power to nullify the regulation himself.
The speculation about Mueller's possible removal intensified after the Mueller-approved FBI raid on the New York City offices of Trump's personal attorney, Michael Cohenr, on Monday (Aprl 9), and intensified further after NBC News' report on Thursday (April 12) that Mueller's office was said to be ready to report four findings regarding Trump and obstruction of justice.
Trump was widely reported to be beyond boiling-mad after news of the raid on Cohen's office broke on Monday morning. He interrupted a meeting of his national security advisors for an extended tirade against Mueller, for his "witch hunt," and Sessions for his "big mistake" to recuse himself from overseeing the Russia investigation. Trump said that FBI agents had "broken into" Cohen's office; that was his description of the lawful execution of a no-knock search warrant signed by a federal magistrate judge in New York.
Trump surrogates later described the raid as "Gestapo-like," but Cohen himself said FBI agents acted professionally throughout. The raid, actually carried out by the U.S. attorney's office for the southern district of New York, apparently sought information about Cohen's possible involvement in paying "hush money" to porn star Stormy Daniels or other women to quash accusations of Trump's sexual infidelities in the run-up to the November election. Rep. Chris Collins, a New York Republican who was the first in Congress to endorse Trump, was among those who described the raid as going beyond Mueller's authority. In fact, the letter appointing Mueller gives him authority to take on other matters discovered in the course of the Russia investigation.
The week ended with NBC's potentially explosive report that Mueller was prepared to give Congress a bill of particulars about Trump's possible obstruction of justice. The report was described as including four findings regarding Trump's firing of FBI director James Comey, his role in crafting the misleading June 2016 statement concerning the Trump Tower meeting with Russian reprsentatives; the White House's discussion of possibly pardoning witnesses in the Russiagate investigation, and his attempt to pressure Sessions into withdrawing his recusal from the case.
With the accusatory report possibly imminent, Harvard law professor Noah Feldman imagined the hyper-mercurial Trump ready to do almost anything to raise the drawbridges around the White House. "What if Donald Trump tries to fire Robert Mueller — and fails?" Feldman asked in a column forBloomberg. The result, he went on to warn, "could be a constitutional crisis" with neither of them willing to back down and the courts unwilling to intervene for a definitive resolution..
Nixon "allowed the Constitution to prevail," MSNBC's Lawrence O'Donnell recalled on his program last week. "Donald Trump is no Richard Nixon," he went on, in an oddly unfavorable comparison. The political landscape is also different from 1973: Nixon had few defenders on the Cox firing. But Trump's base, and his Fox News chorus, likely would cheer him on in his defiance. The rule of law could wind up lying seriously wounded at his feet.
Recalling the episode now 45 years later, Nick Ackerman, one of Cox's assistants, recalled on MSNBC that he left the office that night with several investigative files to safeguard them from possible disappearance or destruction. The precaution proved to be unnecessary. The reaction to the "Saturday Night Massacre" was so instantaneous and so intense that Nixon was forced to acquiesce in the appointment of a new Watergate prosecutor, Leon Jaworski.
With rampant speculation that President Trump is now on the verge of removing special counsel Robert Mueller from the Russiagate investigation, Nixon is now being recalled, whatever his other faults, aa a believer of sorts in the rule of law. By comparison, Trump appears in this recollection to be a greater threat to the rule of law: a president who might pull out all stops — legal or not, constitutional or not — to thwart the investigation into the Trump campaign's interactions with election-meddling Russian agents.
Nixon likely had legal authority to remove Cox, his independence at the time unprotected by statute or Justice Department regulation. Richardson and Ruckelshaus refused Nixon's order on the ground that each had promised the Senate in their confirmation hearings to safeguard Cox's position. Today, by contrast, Mueller is protected from removal by a Justice Department regulation that allows Mueller to be removed only "by the personal action of the Attorney General" for "misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause."
With Attorney General Jeff Sessions recused from the Russia investigation, the removal power lies instead with the deputy attorney general, Rod Rosenstein, who has publicly defended Mueller's conduct in office up till now. Trump's supporters and surrogates envision indirect steps to oust Mueller — for example, by firing Rosenstein and relying on Solicitor General Noel Francisco to be as compliant to the president's wishes as Bork was 45 years ago. As another alternative, Trump could order Sessions or Rosenstein to rescind the regulation or perhaps use his supposed unitary executive power to nullify the regulation himself.
The speculation about Mueller's possible removal intensified after the Mueller-approved FBI raid on the New York City offices of Trump's personal attorney, Michael Cohenr, on Monday (Aprl 9), and intensified further after NBC News' report on Thursday (April 12) that Mueller's office was said to be ready to report four findings regarding Trump and obstruction of justice.
Trump was widely reported to be beyond boiling-mad after news of the raid on Cohen's office broke on Monday morning. He interrupted a meeting of his national security advisors for an extended tirade against Mueller, for his "witch hunt," and Sessions for his "big mistake" to recuse himself from overseeing the Russia investigation. Trump said that FBI agents had "broken into" Cohen's office; that was his description of the lawful execution of a no-knock search warrant signed by a federal magistrate judge in New York.
Trump surrogates later described the raid as "Gestapo-like," but Cohen himself said FBI agents acted professionally throughout. The raid, actually carried out by the U.S. attorney's office for the southern district of New York, apparently sought information about Cohen's possible involvement in paying "hush money" to porn star Stormy Daniels or other women to quash accusations of Trump's sexual infidelities in the run-up to the November election. Rep. Chris Collins, a New York Republican who was the first in Congress to endorse Trump, was among those who described the raid as going beyond Mueller's authority. In fact, the letter appointing Mueller gives him authority to take on other matters discovered in the course of the Russia investigation.
The week ended with NBC's potentially explosive report that Mueller was prepared to give Congress a bill of particulars about Trump's possible obstruction of justice. The report was described as including four findings regarding Trump's firing of FBI director James Comey, his role in crafting the misleading June 2016 statement concerning the Trump Tower meeting with Russian reprsentatives; the White House's discussion of possibly pardoning witnesses in the Russiagate investigation, and his attempt to pressure Sessions into withdrawing his recusal from the case.
With the accusatory report possibly imminent, Harvard law professor Noah Feldman imagined the hyper-mercurial Trump ready to do almost anything to raise the drawbridges around the White House. "What if Donald Trump tries to fire Robert Mueller — and fails?" Feldman asked in a column forBloomberg. The result, he went on to warn, "could be a constitutional crisis" with neither of them willing to back down and the courts unwilling to intervene for a definitive resolution..
Nixon "allowed the Constitution to prevail," MSNBC's Lawrence O'Donnell recalled on his program last week. "Donald Trump is no Richard Nixon," he went on, in an oddly unfavorable comparison. The political landscape is also different from 1973: Nixon had few defenders on the Cox firing. But Trump's base, and his Fox News chorus, likely would cheer him on in his defiance. The rule of law could wind up lying seriously wounded at his feet.
Sunday, April 8, 2018
Trump's Not-So-Great Retreats on Foreign Policy
President Trump used his first overseas trip in May 2017 with its initial stop in Riyadh, Saudi Arabia, to signal a sharp break from the Obama administration policies aimed at using U.S. influence to promote human rights in the Arab world. Trump evidently relished the lavish ceremony his Saudi hosts put on for him and reciprocated by sidestepping any mention of such issues as the kingdom's repressive policies on political dissent. "We are not here to lecture," Trump declared. "We are not here to tell people how to live . . . "
Trump also gave a shoot-out to the other major U.S. ally in the region by predicting improved relations with Bahrain in place of the strains created by Obama-era criticisms of the Sunni government's repression of its Shiite majority population. Seemingly emboldened, the Bahraini government followed only two days later with a raid on the home of the leader of the Shiite opposition that left five protesters dead and more than 50 arrested..
The sequence of events is emblematic of what a leading human rights advocate calls the "complete sidelining" of human rights in U.S. foreign policy under Trump. Writing in the current issue of Foreign Affairs, Sarah Margon, Washington director of Human Rights Watch, goes so far as to call the Trump administration — "and the president himself" — "one of the greatest threats to human rights in decades."
Margon notes in the article that Trump has not only backed away from criticizing foreign governments with spotty records on human rights but has gone further by actively encouraging repressive policies. One month before the overseas trip, Trump congratulated Turkish president Recep Tayyip Erdogan for winning a disputed referendum that fortified his authoritarian rule. In the same month, he called Philippine President Rodrigo Duterte to congratulate him on his "unbelievable job on the drug problem" — a brutal crackdown of extrajudicial killings that has cost more than 12,000 lives.
With the United States withdrawing from the field, human rights leadership is now passing to other countries, according to Margon. She cites two encouraging events from recent meetings at the U.N. Human Rights Council in Geneva. The Netherlands helped win approval of an independent investigation of the Saudi-led campaign in Yemen despite opposition not only from Saudi Arabia but also from the United States itself. Iceland took the lead in collecting support from 38 other countries for a joint statement condemning Duterte's war on drugs.
Margon professes encouragement from the events. "We've seen some movement on issues without American leadership, which is important," she says. With Trump in power, "ad hoc coalitions of like-minded countries will need to become the norm," she writes in the article.
Margon was one of two authors to appear at a Council on Foreign Relations event in Washington last week [April 6] to launch the March/April issue of Foreign Affairs, with its provocatively titled collection of articles, "Letting Go: Trump, America, and the World." Human rights is not the only and perhaps not even the most important area of retreat that Trump is leading on U.S. foreign policy.
In his article, Jake Sullivan, a senior fellow at the Carnegie Endowment for International Peace, laments Trump's backing away from what he calls "the post-World War II system of norms, institutions, and partnership that has helped manage disputes, mobilize action, and govern international conduct." Sullivan, who worked in Hillary Clinton's campaign after having served previously in the State Department and in Vice President Joe Biden's office, says these multilateral arrangements have been more successful, even in recent years, than detractors acknowledge.
As examples, Sullivan cites the mostly successful efforts to contain nuclear proliferation and to recover from the 2008 financial crisis and worldwide recession. He counts as well the Paris climate agreement despite Trump's withdrawal from the accord. "All of these problems require some mode of international cooperation," Sullivan remarked from the stage. The United States, he added, "has been" and "has to be" the catalyst.
Sullivan recalled in his remarks that he came face to face with one of the detractors while out on the 2016 campaign trail in Ohio. Speaking in Clinton's behalf, Sullivan spoke warmly of her support for "the liberal international order." His remarks finished, one woman in the audience approached him to say: "I don't know what that is, but I don't like any of those three words."
Like Trump, that Ohio voter apparently sees the post-World War II order that won the Cold War and embodied the American century as more burden than benefit for the American people. Sullivan aptly remarked, on the other hand, that these systems "have served to the United States' advantage."
Trump is a threat, in large part because of his basic misunderstanding of foreign policy in all its particulars — from trade to security. The threatened pullout from the North American Free Trade Agreement, Sullivan warned, would be "a huge self-inflicted wound." Even if some European countries have fallen short in their NATO obligations, several of them have provided critical support for U.S. policies not only in Europe, but also in, for example, Afghanistan and Iraq.
In the end, Sullivan thinks the international order sufficiently resilient to withstand one four-year term for Trump, though not necessarily a second. Margon too expects human rights to remain on the international agenda even with Trump's retreat. At this point, one can say no more than this: Time will tell.
Trump also gave a shoot-out to the other major U.S. ally in the region by predicting improved relations with Bahrain in place of the strains created by Obama-era criticisms of the Sunni government's repression of its Shiite majority population. Seemingly emboldened, the Bahraini government followed only two days later with a raid on the home of the leader of the Shiite opposition that left five protesters dead and more than 50 arrested..
The sequence of events is emblematic of what a leading human rights advocate calls the "complete sidelining" of human rights in U.S. foreign policy under Trump. Writing in the current issue of Foreign Affairs, Sarah Margon, Washington director of Human Rights Watch, goes so far as to call the Trump administration — "and the president himself" — "one of the greatest threats to human rights in decades."
Margon notes in the article that Trump has not only backed away from criticizing foreign governments with spotty records on human rights but has gone further by actively encouraging repressive policies. One month before the overseas trip, Trump congratulated Turkish president Recep Tayyip Erdogan for winning a disputed referendum that fortified his authoritarian rule. In the same month, he called Philippine President Rodrigo Duterte to congratulate him on his "unbelievable job on the drug problem" — a brutal crackdown of extrajudicial killings that has cost more than 12,000 lives.
With the United States withdrawing from the field, human rights leadership is now passing to other countries, according to Margon. She cites two encouraging events from recent meetings at the U.N. Human Rights Council in Geneva. The Netherlands helped win approval of an independent investigation of the Saudi-led campaign in Yemen despite opposition not only from Saudi Arabia but also from the United States itself. Iceland took the lead in collecting support from 38 other countries for a joint statement condemning Duterte's war on drugs.
Margon professes encouragement from the events. "We've seen some movement on issues without American leadership, which is important," she says. With Trump in power, "ad hoc coalitions of like-minded countries will need to become the norm," she writes in the article.
Margon was one of two authors to appear at a Council on Foreign Relations event in Washington last week [April 6] to launch the March/April issue of Foreign Affairs, with its provocatively titled collection of articles, "Letting Go: Trump, America, and the World." Human rights is not the only and perhaps not even the most important area of retreat that Trump is leading on U.S. foreign policy.
In his article, Jake Sullivan, a senior fellow at the Carnegie Endowment for International Peace, laments Trump's backing away from what he calls "the post-World War II system of norms, institutions, and partnership that has helped manage disputes, mobilize action, and govern international conduct." Sullivan, who worked in Hillary Clinton's campaign after having served previously in the State Department and in Vice President Joe Biden's office, says these multilateral arrangements have been more successful, even in recent years, than detractors acknowledge.
As examples, Sullivan cites the mostly successful efforts to contain nuclear proliferation and to recover from the 2008 financial crisis and worldwide recession. He counts as well the Paris climate agreement despite Trump's withdrawal from the accord. "All of these problems require some mode of international cooperation," Sullivan remarked from the stage. The United States, he added, "has been" and "has to be" the catalyst.
Sullivan recalled in his remarks that he came face to face with one of the detractors while out on the 2016 campaign trail in Ohio. Speaking in Clinton's behalf, Sullivan spoke warmly of her support for "the liberal international order." His remarks finished, one woman in the audience approached him to say: "I don't know what that is, but I don't like any of those three words."
Like Trump, that Ohio voter apparently sees the post-World War II order that won the Cold War and embodied the American century as more burden than benefit for the American people. Sullivan aptly remarked, on the other hand, that these systems "have served to the United States' advantage."
Trump is a threat, in large part because of his basic misunderstanding of foreign policy in all its particulars — from trade to security. The threatened pullout from the North American Free Trade Agreement, Sullivan warned, would be "a huge self-inflicted wound." Even if some European countries have fallen short in their NATO obligations, several of them have provided critical support for U.S. policies not only in Europe, but also in, for example, Afghanistan and Iraq.
In the end, Sullivan thinks the international order sufficiently resilient to withstand one four-year term for Trump, though not necessarily a second. Margon too expects human rights to remain on the international agenda even with Trump's retreat. At this point, one can say no more than this: Time will tell.
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