The Role of the State Department: Response to Posner

by Peggy McGuinness

As a State Department alumn (I was a Foreign Service Officer, not a lawyer with L), I want to echo Chris’s comments below and respond to some of Eric Posner’s assertions about the role of the State Department the debate over the legal policy to take as regards the GWOT. Eric says of the State Department:

The State Department’s job is to ensure that America’s relations with foreign states remain as harmonious as possible. The State Department always takes dovish positions, urging the president to negotiate rather than fight.

First, this is wrong as a matter of history, statutory mandate and current policy. The job of the State Department is to support the national security of the United States, represent the United States in its international relations, protect American citizens overseas, and, along with all other executive agencies, uphold the Constitution. There is actually a mission statement that on the State Department website(!). Interestingly, the mission statement refers specifically to the Bush National Security Strategy goals, whose three pillars are diplomacy, development and defense in pursuit of democracy throughout the world. This will mean pursuing harmonious relations when they are in the country’s interest (e.g., strengthening the core defense burden-sharing alliances, participating in free trade regimes) and not pursuing them when they are not (breaking off diplomatic engagement with rogue states, maintaining embargoes).

To be sure, the State Department’s function is primarily diplomatic, but the art of diplomacy often includes a good row. The Pentagon has the job of deploying force in pursuit of national security. But it is centrally the job of the Secretary of State to apply her judgment as to when diplomacy is no longer the appropriate means to promote the national security. Eric assumes that the State Department and its personnel are “always dovish.” The reality is frequently the opposite. As I have heard from many senior military officials over the years, soldiers, who know the horrors of war, are often the least enthusiastic about getting involved in it. For just one example, during the mid-1990s — the period when the Pentagon was suffering from what Richard Holbrooke dubbed the “Vietmalia syndrome” — State took the lead to bring a reluctant Pentagon on board plans to bring U.S. and NATO force to bear to end the civil war in Bosnia.

Second, it is incorrect that State “wants the president to comply with international law because otherwise trouble will ensue.” The State Department does not exist to promote international law – or even the current international legal obligations of the United States – per se. But international law is the framework that protects the work of the Department (the law of diplomacy) and facilitates the participation of the United States in international relations. Negotiating and concluding agreements with other states is one means – a frequently, but not always, efficient means – to carry out our international relations. International law is not an end in and of itself.

Third, as to Colin Powell’s role in the debate over the legal policy, Powell’s complete memo (delivered as a set of comments to the OLC memo since, as I understand it, his office was not included in the discussions between the White House Counsel’s Office and OLC) stated the foreign policy costs of the legal policy (the legal case was made by Taft in a separate memo ) quite well. In the section addressing the costs of determining that the GC did not apply to combatants captured on the battlefield in Afghanistan he noted:

It will reverse over a century of U.S. policy and practice in supporting the Geneva conventions and undermine the protections of the law of war for our troops, both in this specific conflict and in general.

It has a high cost in terms of negative international reaction, with the immediate adverse consequences for our conduct of foreign policy.

It will undermine public support among critical allies, making military cooperation more difficult to sustain.

Europeans and others will likely have legal problems with extradition or other forms of cooperation in law enforcement, including in bringing terrorists to justice.

It’s hard to be more prescient than that.

Eric is of course right that personalities and closeness to the President (or, importantly in this administration, the Vice President) can affect who wins or loses the policy fight. But these are policy fights among and between those who the President personally appointed to senior positions – not battles within an executive agency between the political appointees and the civil or foreign service.

Finally, as to what prompted the now-well-documented executive power grab orchestrated out of the Vice President’s office, there is nothing inconsistent with arguing the administration was driven by a combination of “contempt or indifference for international obligations” (Gonzales called the GCs “quaint”), “bad legal reasoning” and the view that the “executive needs to regain power that it lost to Congress and the courts in the 1970s.”

Neither OLC nor State is bearing the “costs” for the errors in the policy: The United States is paying the price in a significantly weakened national security.

http://opiniojuris.org/2007/01/16/the-role-of-the-state-department-response-to-posner/

2 Responses

  1. I know I am new at this blog, and I understand the need to respond to Posner’s (kind of) realism approach to foreign policy, but with every comment and every post, I see the possibility of mr. Bellinger actually responding to questions fading. I’d like to be wrong, though.

  2. It is quite misleading (though of course commonplace) to say that Gonzales called the Geneva Conventions “quaint.” What he actually wrote in the January 25, 2002, memo was that the challenge posed by transnational terrorist organizations such as al Qaeda “renders quaint some of [the Convention's] provisions requiring that captured enemy be afforded such things as commissary privileges, scrip (i.e., advances of monthly pay), athletic uniforms, and scientific instruments.” So let me ask you this, Peggy: do you actually disagree that such provisions (so plainly designed with ordinary soldiers of conventional armed forces in mind) are “quaint,” or that applying them to folks like KSM and Abu Zubaydah would be absurd? This is not to defend the substantive analysis of the Conventions and their applicability that the Administration adopted; but one can criticize that legal analysis without distorting the facts or ascribing to government officials claims they did not make.

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