Thank You to Tom Farer

by Chris Borgen

On behalf of all of us at Opinio Juris I would like to thank Tom Farer for joining us this week in the first Oxford University Press/ Opinio Juris book symposium to discuss his new book Confronting Global Terrorism and American Neo-Conservatism: The Framework of a Liberal Grand Strategy.

We would also like to thank Kristen Boon and Mark Shulman for joining us as guest commentors. And, of course, thank you to everyone who posted comments, questions, and critiques. We hope you found the discussion interesting and useful.

For the next OUP/ Opinio Juris book discussion, Mary Ellen O’Connell will join us as we consider her new book, The Power and Purpose of International Law

We will post the details soon.

Ken Responding to Tom

by Kenneth Anderson


Thanks for that cordial response.  I did not mean to give offense, but wanted to be direct about my perception. I’m also under pressure for something else, so I won’t go on for too long.  

On the Israel-Palestinian conflict and its role in defining neoconservatism and, more broadly, the book’s thesis overall.  I take your writing very seriously indeed, always have, and the reason I reread the book a second time was because this was what jumped out at me the first time through.  I have read rapidly, as there wasn’t much time, so I will grant that I might have misread things.  I do not want to mischaracterize things, so if I have really misunderstood things, then my apologies to you and OJ readers who – I stress – should read this very important and, especially, complex book for themselves.  Particularly when Tom and I have strongly different take-aways.  That said, certainly I accept those passages, but I persist in thinking that this is a, if not the, core difference identified between neoconservatism and its approach to terrorism and what the book proposes as a liberal alternative.  But look, I will go back and reread this again, in light of your comments here.  Maybe I have landed on particular bits and blown them out of proportion; I have done that to my regret in the past, and if I have here, my apologies.  I will also be curious to see the reviews and see how others see this issue.  I want to leave that now, in order to go on to the other issue.

You are right that neoconservatism is thoroughly consequentialist.  Again, going back to the book, that is a very strong theme of it, and I think it is right, indeed, the most important thing I most learned from the book.  It seems to me the fundamental truth of the book and you are right to highlight it here.  I am not sure that I would attribute quite as much goodness to the liberal way of things as you do, but I think that characterization of the neoconservative position is correct.  The reason it strikes me especially now in light of our exchange is that it aids me in seeing, in a new and fruitful way, how – going back to those various characteristics of neoconservatism that I drew out of Fukuyama – the idealism connects to the aversion to social engineering that was a part of it domestically.  That is, I think you are profoundly right about the consequentialism, sort of in service to a form of idealism, whether about democracy or other things.

I apologize if I have mischaracterized the book and again suggest to OJ readers that they read it for themselves.  It is a greatly provocative book, with a writing style that Tom has honed over decades to be at once highly readable, never dull and never turgid, but which also invites provocative responses; the response might be misplaced, I grant.  But I leave that to OJ readers to figure out.  The book is a great read, and Tom, my thanks for taking part in the discussion with me here.  You’ve persuaded me – against my better time-management judgment, I might add! – to go back to it a third time.

Beyond Caricature

by Tom Farer

Ken, since I have commitments most of today, I can answer only briefly and perhaps a little too abruptly, the surprising, even astonishing remarks in your last post, remarks so surprising, given their source, that I am wondering whether someone pretending to be you actually made the post.

Let’s begin with the granular. In my post on the Israeli-Palestine conflict I say the following: “I neither claim nor believe that the U.S. and the Islamic world would like down together like the lion and the lamb in the Peaceable Kingdom in the event of a settlement. There are other neuralgic points and the baggage of history is not discarded in a moment.” In my book at p. 170 I describe as “hallucinatory” the thesis that a settlement of the conflict would transform the Middle East into the Peaceable Kingdom.

I don’t know if you read my post before writing but you claim to have carefully read my book twice. Nevertheless you reduce it to the proposition that “Resolve the Israeli-Palestinian conflict and you essentially resolve America’s terrorism problem, too . . . “ You go on to say “I realize that this is a caricature, but I don’t think it’s a completely unfair reading of the thesis.” Caricature is one thing. Grotesque misrepresentation is another.

It is misrepresentation at two levels. At the granular level it ignores my explicit rejection of the thesis you impute to me. At a higher level of generality, you state that your reading must be deemed fair because all of the features I have attributed to neo-conservatism could as easily be attributed to the right as a whole. Hence Israel must somehow lie at the heart of my analysis. Yet you yourself go on to distinguish neo-cons from their main allies on the right…

Neocons, Israel, Latin America, and Other Final Thoughts and Questions

by Kenneth Anderson

I want to offer a final entry that covers a couple of topics.  The first is the meaning of ‘neoconservative’ in Tom’s book.  These observations follow in part on Mark Shulman’s very valuable, historically informed post earlier.  the opening chapter on neoconservatism connects the conservative (in a generic sense) foreign policy of the post 9-11 period to the 1970s and especially 80s conservative foreign policy of the late Cold War and, in particular, the Reagan years.  That seems to me right in the general sense that 9-11 foreign policy did not come from nowhere; many of the senior actors (Elliot Abrams, John Bolton, Dick Cheney, Condaleeza Rice, etc.) had been around in more junior roles in the 1980s, as is usual in any presidential administration, and they had formulated their view in part – but, I would add, only in part, in relation to their experiences in the late Cold War and Reagan-Bush pere years.  What I am trying to figure out from the chapter on neoconservatism is what makes it ‘neocon’ as distinguished from just regular old ‘con’ – and that with reference to each of the 1980s and the post 9-11 period. 

I apologize for coming late with this entry; it was hard to get to this until the weekend, and I wanted to be certain I had fully re-read the book – Tom, just when you thought the discussion was over … a late and slightly polemical entry.  Apologies!

Towards Neutralizing the Jihadi Narrative: Settlement (No Pun Intended) of the Israeli-Palestinian Conflict

by Tom Farer

In this final substantive post of my Warholian week as guest blogger I offer a necessarily telegraphic summary of my long chapter on the conflict. Being telegraphic it will not even have the virtue of the chapter, i.e. even if it is clearly wrong, it won’t be wrong clearly.

For two reasons I devoted an entire chapter to a single neuralgic point in the long-seamed rub of the Judeo-Christian (and partially Enlightenment-Secular) West and the Global community of Islam. One is that the conflict brings together in one thrashing bundle most of the general issues I address in the book including the legitimate occasions for the use of force and cruel treatment of detainees and the limits of communal privileging in the face of the universality of human rights. The other is the important place the treatment of Palestinians particularly in the Occupied Territories has in the Jihadi narrative which the violent few use in an effort to rally support in the vast community of believers for whom they claim to fight.

I neither claim nor believe that the U.S. and the Islamic world would lie down together like the lion and the lamb in the Peaceable Kingdom in the event of a settlement. There are other neuralgic points and the baggage of history is not discarded in a moment. However, I do believe that in the absence of a settlement seen to be reasonably just, the Jihadi narrative will continue to resonate. In short I see it as a necessary but not sufficient condition for gradually cutting the cords between the violent few and a wide swathe of actual or potential sympathizers.

When two adversaries of roughly equal power negotiate a settlement, whatever they agree on is generally perceived to be reasonably fair because neither has the capacity to coerce the other into an unfair settlement and each is presumed the best judge of its interests. In a case like this where there is a huge asymmetry of power, a settlement will be perceived as just only if in the course of the negotiations a third party lends its weight to the weaker adversary or if the settlement satisfies external criteria of fairness. Since the relevant third party to this conflict, the US, has placed its weight at the disposition of the stronger party, that condition clearly does not obtain. So we are left only with the second scenario. And the only place where I can see respected external criteria is the corpus of international law…

Meta-Methodology; Dichotomies vs. Grids; Ideas, Interests, Intuitions and other Explanations of Policy Preferences, Etc.

by Tom Farer

Colleagues, The pan of discourse is beginning to sizzle. A delightful sound. So rather than racing on to another main issue I attempt to address in my book, in this post I stop and engage with discussants.

Let me start with Ken Anderson in part because his very interesting categorization of ways of thinking about strategy lubricates a segue to Mark Shulman and arguably Chris Borgen as well. For those who need a memory prod, he identifies three of these strategic paradigms about strategic paradigms. One, which I apparently share with Ken himself, proposes the possibility and necessity, I would contend the inevitability, of thinking in terms of a broad diagnosis of the jihadi terrorist phenomenon and an appreciation of the resources available for responding to it and the costs within a grand strategic framework of one or another tactical response, all then woven into a Grand Strategic Response. Persons within that category of thinking may and in fact do disagree about the appropriate contents of that Grand Strategy, but there is a discussion for another time. The second category is defined by the claim that the furious disagreements among grand strategists reflecting deep, visceral disagreement within the larger polity condemn us to respond only at the tactical level, i.e. to abort particular terrorist operations and eliminate specific terrorist groups in cases where the threat is palpable and more or less immediate, so most reasonable persons involved in decision-making will agree on the need to act and disagreement about means will be modest and therefore manageable. The third category contains the thesis that the nature of this particular threat, namely its loose networked character, makes strategy the hostage of “tactical level considerations.”

My experiences both in government (Pentagon and State Department) and as a long-time observer of foreign policy in this and other countries and even a participant in tactical operations (the UN intervention in Somalia in 1993) have confirmed for me the importance of J.M. Keynes’ famous claim…

The ‘Latin Americanization’ Thesis

by Kristen Boon

Tom Farer’s ‘Latin Americanization’ thesis deserves comment; i.e. that recent anti-terrorism / Guantanamo  measures by the Bush administration are comparable to tactics that certain authoritarian Latin American regimes undertook, in that (i) states of emergency were proclaimed in conjunction with incursions on human rights, and that (ii) neither judicial nor congressional oversight effectively limited the executive’s power.

The analogy between the current US administration’s behavior towards terrorism and the techniques of some Latin American governments is an interesting one.  As Farer notes, an important difference is that the Latin American governments that came under scrutiny by the Inter American Human Rights mechanisms had proclaimed states of emergency, whereas the US government did not formally suspend human rights or habeas corpus guarantees in the name of the safety of the nation…

What do the ideas of neo-cons explain?

by Mark R. Shulman

Building on Tom Farer’s insights, my friend Chris Borgen asks if “what we have is more like a grid with varying degrees of multilateralism and unilateralism as well as degrees of interventionism and noninterventionism.” Chris’s grid helps to explain intervention, i.e. when and how to intervene.  He implies that policy is made to reflect and implement ideas about the relationships between and among states and the role that force plays in shaping them.  Now, historians and social scientists have been trying to explain the expansion of the American empire for decades. Their insights are frequently based on sophisticated methodologies – tested with historical case studies in which the passion associated with current events has had some time to cool. Many traditional historians will agree with Chris that the power of ideas explains foreign policy. 

For instance, my first major article examined interpretations of the War of 1812.  In the late 19th century, proponents of a more aggressive foreign policy rewrote the history of this previously obscure war to illustrate the importance of power projection.  Historians such as Theodore Roosevelt and Alfred Thayer Mahan used their own new interpretations of the earlier conflict to establish an inexorable law of international relations: sea power = national greatness.  In 1898, as acting Secretary of Navy, TR issued orders for the new navy to sink the Spanish fleets, thereby opening the doors to the conquest of Cuba and the Philippines.  He converted his scholarly theories into self-fulfilling prophecies.  Here is a fine example of the power of ideas to shape policy.  Or is it?

Let’s pause the discussion for a moment to ponder some alternative views. 

Ideas, Interests or Intuition? 

Much like Tom and Chris, I have generally ascribed aggressive foreign policies to the power of ideas: including Manifest Destiny, navalism, liberal internationalism, la Mission Civilisatrice, and even the Four Freedoms.  However, it is important to understand that other historians and social scientists have derived equally compelling but different kinds of explanations for aggressive foreign policies. 

Materialist historians have explained America’s foreign adventures in terms of greed.  William Appleman Williams viewed them as intended to preserve “a capitalist frontier safe for America’s market and investment expansion.” Others point to religion and quote William McKinley’s account of his decision to annex the Philippines in order to Christianize (the mostly Catholic) Filipinos. 

Social psychologists, such as Jon Haidt, would take us still further from the notion that foreign policy is driven by rational thought – by ideas.  For Haidt, people make most decisions based on intuition, and then build a rationale that supports their “gut feeling.” I suspect that Tom Farer would agree that this perspective goes some way to explain President Bush’s foreign policy – and perhaps the roar we heard emanating from the Xcel Energy Center in St. Paul last night.

So, how are these perspectives helpful?  As lawyers, we are accustomed to placing motive and intentions into a box. We can more or less agree about what is knowable, based on fairly well established standards of proof.  But when we seek to explore why a group of people establish and implement a long-term strategy, we’re confronting new kinds of issues about what is knowable and what is provable. 

I think that Tom is fully aware of these limitations.  Early in his book, he describes George Bush’s view of the terrorist threat, noting limits in his own ability to understand the President’s perspective. “To the President, if we take him at his word, this conflict, like the preceding one against the Soviet Union, is an ideological battle of world-historical dimension” [at 2, emphasis added].  Tom is saying 1) the President articulates the issue in terms of ideas. 2) We may or may not believe the President intends to tell the truth about his perspective. And 3) the President may or may not fully comprehend why he views the conflict this way.  Tom is right to note these limitations. 

To uncover the essence of the neo-cons’ foreign policy, therefore, I’d argue we need look beyond their words. What we can learn about their material interests, their religious views, and their subconscious may actually provide more enduring explanations.  

Legitimate Use of Force and the National Interest: Continuing the Discussion

by Tom Farer

I want first to qualify my statement in the last post that probably a majority of contemporary scholars and governments still cling to the position that the only legitimate uses of force are defense against armed attack and enforcement action authorized by the Security Council. In fact, particularly among European and American legal scholars and NATO governments there has grown a conviction that force may or at least should be used as a last resort to prevent or terminate crimes against humanity even without Security Council Sanction; these scholars (among whom I number myself) and governments have, in other words, endorsed Humanitarian Intervention (HI). This position could be seen as a corollary of the claim, first officially articulated, I believe, by Lloyd Axworthy when he dominated Canadian foreign policy, that states have a responsibility to protect (RTP) their nationals and that the failure to exercise that responsibility gives other states a license to act as the delinquent state’s proxy for that purpose. (I recognize that the assertion of a right to intervene for humanitarian purposes preceded in time authoritative articulation of RTP.) While not explicitly endorsing Humanitarian Intervention, by endorsing the idea of RTP, Kofi Annan while serving as UN Secretary-General certainly hinted at its legitimacy. The International Commission on Kosovo set up by the Government of Sweden expressed my own views when it drew the distinction between “legitimacy” and “legality” under the Charter. Legitimacy obtains, I believe it was saying in the case of non-UN-sanctioned military operations like NATO’s in the Kosovo case, when the use of force satisfies Just War criteria.

Roger Alford’s thoughtful comment provides a nice segue to the issue for which I tried to lay a foundation in my second post, namely whether or in what circumstances a state can legally take preventive military action unsanctioned by the Security Council against non-state terrorists residing in another country. By “legally” I mean within the UN Charter paradigm. Roger writes that I am “equivocal” about the case where the potential target state is either unwilling or unable to act at the request of the state at risk from the terrorists. Perhaps it would be more precise to say that I am “uneasy and unclear.” Uneasiness is native to the issue and will therefore endure. The lack of clarity is susceptible to immediate correction.

To a degree Roger himself suggested the source of my unease…

Biden Says Obama Administration Might Pursue Charges Against Bush Administration Officials

by Kenneth Anderson

I apologize for interrupting the flow of our conversation with Tom, but it does not seem that this  story has been widely reported in the press at this time – at least I hadn’t seen it.  But I am curious to ask Tom – for later in the discussion – how, if at all, this sits with the strategy that he lays out in the book.  I don’t mean to shoehorn this into the book discussion, but it does pique my curiosity.  More broadly, as a policy matter – because presumably these are areas subject to political judgment and discretion to some extent – how should a subsequent administration react to what it regards as excesses of the previous one?

Legal Restraints on the Use of Force in Combatting Mass-Casualty Terrorism

by Tom Farer

There are only two things about the consequences of the use of force that can be predicted with absolute confidence. One is that innocent lives will be destroyed. The other is that when democracies go on a war footing, the normally ample liberties of their residents (particularly resident aliens but also citizens) will shrink. It therefore follows from the description of Liberalism contained in my first post that liberals will be skeptical about proposals to use force and will oppose them whenever less inherently destructive means appear to be available or when it appears that violent means will have a net adverse effect on humanitarian values. In short, for Liberals there is a presumption against recourse to force which dissolves in the face of exigent circumstances and legitimate ends. Self-defense is a legitimate end. The use of force for traditional reasons of state, namely to enhance national power, wealth or prestige at the expense of other peoples, is not. (I note, parenthetically, that skepticism does not equate with that lock-step exhaustion of non-violent means embedded in UN practice. When, for instance, genocide looms, the most immediately appropriate response will often be to reach for the bayonet. And the very readiness to leap to the option of force, if credible, may obviate its actual application.)

I think it fair to say that at least in the first decade following the founding of the United Nations, the generality of scholarly and diplomatic discourse supported an interpretation of the Charter that incorporated Liberalism’s use-of-force metric. Article 2(4) read in conjunction with the totality of Chapters 7 and 8 was construed as banning force except where it was authorized by the Security Council under its Chapter 7 authority or was employed in self-defense against an actual or what reasonably appeared to be (pace Kelsen and Randelshofer) an imminent armed attack. To be sure, there were scholarly voices of dissent—most notably Julius Stone, Derek Bowett and Myres McDougal– that on various grounds claimed a wider ambit for the use of force. And certainly a number of states able to project force transnationally—in particular the US, the USSR and Israel—episodically employed it in ways that could not be reconciled easily, if at all, with the more restrictive view. But even in the face of that inconsistent practice, probably a majority of scholars and UN members continued right through the Cold War to insist that the only legal uses of force unauthorized by the Security Council were cases of self-defense against actual or imminent armed attack.

In recent years, however, the Charter conceived as above all a formally hegemonic system of restraint on the use of military power to advance self-defined national interests has been buffeted from several quarters…

Liberals, Neocons, and the Grid of American Foreign Policy

by Chris Borgen

In his opening post and in the opening chapter of his book, Tom Farer gives us a tour of the horizon of how international law and self-interest interact in American foreign policy thinking. He paints a picture which focuses on a struggle between two different views of America’s role in the world, the Liberal view and the Neocon view.

In this opening post, I want to press Tom on his use of this dichotomy and ask if the story here is really one of Liberals versus Neocons or rather a more complex picture where there is a cross-hatching of aims, means, and political preferences. Rather than two different world views along a spectrum (Liberal and Neocon), perhaps what we have is more like a grid with varying degrees of multilateralism and unilateralism as well as degrees of interventionism and noninterventionism. I think it is otherwise quite difficult to describe the various voices in American foreign policy debates…

(A description of of these varied voices after the jump…)