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The Blanket - A Journal of Protest & Dissent

The Reagan Bitburg Doctrine

Francis A. Boyle • 11 June 2004

Just recently, four books have been published that attempt to deal with the nature of the complex relationships between international law and politics, especially concerning the transnational threat and use of force: Reisman & Willard, International Incidents: The Law That Counts in World Politics (1988); Boyle, The Future of International Law and American Foreign Policy (1989); The Council on Foreign Relations, Right V. Might: International Law and the Use of Force (1989); and now David Forsythe's masterful The Politics of International Law: U.S. Foreign Policy Reconsidered (1990). The publication of these four volumes at this particular moment in time can be attributable in part to the reigning attitude of international legal nihilism that the world witnessed in Washington, D.C. during the eight year tenure of the Reagan administration. In direct reaction thereto, from one perspective or another, all of the individuals and institutions involved in the production of these books felt some compelling need to reestablish the basic proposition that international law is relevant, if not critical, to the conduct of American foreign policy, especially concerning the threat and use of force. For that reason, all of these books are important because each contributes to the hitherto sparse and spotty literature in this field.1

Since I have already reviewed Reisman & Willard for the American Journal of International Law, I will not bother to repeat that analysis here.2 In my book, The Future of International Law and American Policy, I attempted to critique the legal and intellectual foundations of the so-called Reagan Doctrine as well as the various manifestations of Reaganism that were produced around the world and at home: its war against international terrorism; its support for the Israeli invasion of Lebanon in 1982; its opposition to the right of the Palestinian people to self-determination and an independent state of their own; its repeatedly aggressive policies against Libya; its buildup of chemical and biological warfare capabilities; its nuclear deterrence doctrines; the Strategic Defense Initiative, etc. So, when David Forsythe kindly asked me to write a Postscript to this book, I was quite pleased to discover that he had been working completely independently of me in the same general directions. To be sure, Professor Forsythe analyzed a different mix of problems produced by Reaganism than I had. But what seems remarkable is the consistency of the approaches taken independently by him and me with respect to criticizing various components of the Reagan administration's foreign policy--both in theory and in practice--from an international law perspective.

As Professor Forsythe noted toward the start of this book, elsewhere I have argued that the current way in which most public international law professors teach international law has become pretty irrelevant to the major problems of contemporary international relations. We really have not had a textbook or casebook that systematically analyzes the major problems of contemporary international relations from a truly international law perspective that endeavors to take into account the diversity of viewpoints on these subjects held by the different states and peoples of the world community. International law professors must take this great body of black-letter rules that has been handed down to us by our forebearers and attempt to make sense of them by applying them to, and testing them by, current problems of international relations. Only in this fashion will our profession continue to maintain some degree of relevance to the contemporary debate over the proper conduct of American foreign policy toward the start of the third millennium.

International law is thoroughly and completely grounded in fact and it is almost impossible to reach proper conclusions about what the rules of international law are or should be without an analysis of the actual facts involved. For this reason, careful attention must be paid to the pathbreaking effort undertaken by Professor Forsythe in this book. Here the author attempts to teach principles of international law within the context of analyzing actual real-world cases, crises, and problems. In my opinion, that is the only way we can make substantial progress toward understanding the subtleties of international relations and the role that international law and organizations do and can play in the international system. Professor Forsythe has performed a great service for the international legal studies profession by attempting to explore these interrelationships in this book.

Professor Forsythe's introductory chapter is quite correct to point out the complexities of the interplay among the President, Congress, and the Courts with respect to the formulation of American foreign policy. The rational-actor model postulated by the political realists completely breaks down when it comes to explaining the manner in which American foreign policy is actually made and conducted under our constitutionally mandated system of separation of powers. The United States of America speaks and acts with many voices on foreign affairs. In my professional opinion, that is all for the better--despite the hallowed teachings of the political realists to the contrary.

After all, America is supposed to be a constitutional democracy with a commitment to the Rule of Law both at home and abroad. If the executive branch of the federal government decides to embark upon a course of egregiously lawless behavior abroad, then it is a testament to the strength and resilience of American democracy that Congress, the Courts, and the American People refuse to go along with it. Forsythe's book clearly demonstrates that dynamic in a manner that has not been appreciated by most of the self-styled "realist" or "neorealist" analysts of American foreign policy. To be sure, it was a tribute to the genius of the late Hans Morgenthau that he alone was perhaps the only archetypal political realist who had a profound appreciation of, and deep respect for, the American democratic system of constitutional government.3

The only point I might add to Forsythe's excellent introduction to his subject is the power of international law in the estimation of the American People. Based upon my extensive experience working at the grassroots level around the country for the past twelve years, I am convinced that international law arguments oftentimes exert a decisive impact upon the way the American People come to perceive events unfolding abroad in a manner that is quite different from the deceptive way their realpolitik leaders have usually presented the situation to them. There is an enormous potential for proselytizing international law at the grassroots level of America that must be further exploited. Only then will more American People proceed to vigorously demand that all branches of their federal government, and especially the President, become respectful of the Rule of Law abroad as well as at home.

As far as most U.S. citizens are concerned, invoking the Rule of Law is as paradigmatically American as God, Motherhood, Apple Pie and the Eagle Scouts. Most American citizens have suckled law since they were weaned from their mother's breast. It is high time for U.S. international law teachers to tap directly into this powerful psychic reservoir of respect for law that is so uniquely and almost obsessively characteristic of the American People. Professor Forsythe's book provides us with the means whereby this task can be commenced.

Forsythe's treatment of the Reagan administration's so-called reinterpretation of the ABM Treaty is far superior to the cursory examination of this subject that I presented in chapter 10 of my book. Forsythe documents the entire disreputable affair in painstaking detail. The value of Forsythe's analysis is that he demonstrates the strength of international law in the United States domestic political process when Congress adamantly refused to accept the Reagan administration's reinterpretation of the ABM Treaty out of existence.

In this chapter, Forsythe also proves the critical relevance of international law to the conduct of American foreign policy on a matter of "high" international politics that affects the most vital national security interests of the United States. He thus convincingly refutes the confusingly descriptive/prescriptive arguments made by both the political realists and the Reaganites to the effect that considerations of international law do not and should not have anything to do with such issues concerning raison d'itat. His analysis also establishes the validity of the proposition that an American foreign affairs analyst cannot even begin to comprehend the rudiments of U.S. foreign policy decision-making processes without possessing at least a sound working knowledge of international law.

For what they were worth, I have already offered my own thoughts on the illegality of the Reagan administration's war against Nicaragua in chapter 5 of my book, Defending Civil Resistance Under International Law (1987). Here Forsythe does a first-rate job in demonstrating the interaction between international law and the congressional debate over U.S. funding for the contras. Because America is a constitutional democracy with a commitment to the Rule of Law, it proved to be exceedingly difficult for the Reagan administration to sustain its illegal war against the people of Nicaragua over the strenuous efforts of an organized domestic opposition that invoked the rule of international law and domestic law to their cause.

The Reagan administration's covert war against Nicaragua was generally said to have been the classic exemplar of the self-styled Reagan Doctrine of supporting anti-communist guerrilla movements around the world. Perhaps the best explanation and defense of the Reagan Doctrine can be found in the contribution to the aforementioned Right V. Might: International Law and the Use of Force that was made by Reagan's first Ambassador to the United Nations Jeane Kirkpatrick and her legal adviser Allan Gerson, entitled "The Reagan Doctrine, Human Rights and International Law." Here Kirkpatrick and Gerson quite correctly (though perhaps unwittingly) pointed out that on May 5, 1985 Reagan took the opportunity to publicly announce his so-called doctrine at Bitburg, West Germany (p. 22). There Reagan laid a memorial wreath at a cemetery that he knew contained the remains of dead Nazi Waffen SS stormtroopers despite the vigorous protestations of the justifiably outraged American Jewish community and U.S. veterans organizations, among others. As I argued in a general debate with none other than Gerson himself, inter alia, before the annual convention of the American Society of International Law held shortly beforehand in New York City on April 26:4

It is the Reagan administration's Machiavellian approach to foreign affairs that sponsored the Israeli invasion of Lebanon. It is the Reagan administration that brought you the United States invasion of Grenada. It was the Reagan administration that brought you the U.S. invasion of Nicaragua, which still goes on today. It is the Reagan administration's policy of constructive engagement that has encouraged the South African invasion of Angola. It is the Reagan administration which has launched an all-out vicious assault on the integrity of the International Court of Justice. And it is now the Reagan administration that is going to be paying tribute to 39 SS soldiers at a cemetery in West Germany. I think nothing could be a more eloquent and symbolic statement of what motivates the foreign policy of this administration than that act.

Due to the gravity of the moral, legal and political issues at stake, it becomes critical for the reader to seriously study David Forsythe's definitive repudiation of the supposed legal basis for the Reagan Doctrine. Both in this chapter and in the next one on the Reagan administration's invasion of Grenada, Forsythe's analysis vigorously reaffirms the integrity and the utility of the traditional interpretation and approach to international law concerning the threat and use of force that has been historically espoused by the United States government since the foundation of the United Nations Organization in 1945. By contrast, when it came to foreign affairs and defense policies, the Reagan administration advocated nothing more sophisticated than an across-the-board anti-communist crusade to form the overall basis for the conduct of American foreign policy. The Reagan administration's illegal invasion of Grenada was yet another case in point.

As Professor Forsythe demonstrates, Grenada was the paradigmatic example of how much naked power the United States President really has, and how little influence Congress, the Courts, and the American People ultimately wield when the President decides to use military force. So much for the argument put forth by many political scientists and international lawyers that the President has been unduly burdened by legal restrictions imposed upon him by Congress in the area of foreign affairs and defense policies. When a President is determined to use military force, there is little that anyone can do to stop him. Reagan's illegal bombings of Tripoli and Benghazi in 1986 are yet another example of the validity of this proposition.

Those who have argued that the President has been somehow "fettered" by the Rule of Law with respect to the conduct of foreign affairs are either generally ignorant of, or else purposely dissembling over, the fact that under the Constitution, treaties, statutes, and relevant Supreme Court and Courts of Appeal decisions, the President of the United States of America is the most powerful person in the world. The President has the political initiative to do whatever he wants in the area of foreign affairs and defense policies, and there is little that Congress, let alone the Courts, can do to stop him in the short term.5 Witness Nicaragua and Vietnam where it took many long years and much hard work by the American People and Congress to finally terminate these clearly illegal wars.

By comparison, Grenada was a classic case where the President was able to act expeditiously and unilaterally to accomplish his realpolitik objectives before Congress could respond and despite the fact that such action clearly violated international law and U.S. statutory restrictions on the books that the President paid no attention to whatsoever (e.g., the War Powers Resolution). Professor Forsythe's analysis of the Reagan administration's invasion of Grenada shows that our much-vaunted constitutional system of separation of powers under the rule of law can be easily circumvented or overthrown by a headstrong and belligerent president in the heat of an immediate crisis (even when that crisis has been manufactured by the president himself). Professor Forsythe also demonstrates the inherent dangers of the American rally-round-the-flag phenomenon that is so prevalent during times of real or self-induced international crises.

The American people must somehow come to grips with this phenomenon before it overwhelms us in yet another Tonkin-Gulf-Resolution/Vietnam-War scenario. The War Powers Resolution was originally intended to solve this problem. But a long line of abusive and usurpatory presidents - both Democrats and Republicans - have negated this supreme law of the law on the bogus grounds that the act is said to be unconstitutional.

Article 1, Section 8, Clause 11 of the U.S. Constitution emphatically states: "The Congress shall have Power . . . to declare War . . ." (Emphasis added.) Nevertheless, an entire series of imperial presidents have reinterpreted out of existence this critical protection for the American Republic against an unjust, unwise, or precipitous war. The framers of our Constitution decided for good cause to lodge the awesome power to resort to warfare only in the hands of the representatives of the entire populace by requiring both houses of Congress to act together. Two hundred years later, however, today's monarchical presidents - like George III before them - contemptuously assert that they are above the law as well as above the American social contract founded by the U.S. Constitution. Unfortunately a number of our court decisions have deferred to this line of argument, as Forsythe shows. It is high time for the American people to declare their independence from the tyranny of an imperial presidency.

As Professor Forsythe demonstrates with respect to the Reagan administration's belligerent policies toward - especially - Grenada (and I would add toward Nicaragua, El Salvador, and Haiti), perhaps it is sometimes true that in today's world, the strong do what they will and the weak suffer what they must. The sophistic teaching that "might makes right" is a great self-legitimizing philosophy for the strong - but what about the weak? Their hopes and expectations are dependent upon the strength and the integrity of the international legal order.

As Thucydides dramatically portrayed in his book, the Athenian democracy's adherence to the philosophy of realpolitik was ultimately responsible for the outbreak of the Peloponnesian War and eventually the defeat of Athens at the hands of authoritarian Sparta. Today, like Athens before it, blinded by hubris, the U.S. Executive might very well lead the civilized world into another cataclysm. Only this time, there will be no Philip of Macedon around to pick up the radioactive pieces.

My cursory viewpoints on the Reagan administration's callous policies toward Central American refugees can be found on pages 189 to 197 of Defending Civil Resistance Under International Law. The Reagan administration illegally intervened into the civil war in El Salvador by providing enormous amounts of military and economic assistance to a brutal military dictatorship that used that assistance to perpetrate a gross and consistent pattern of violations of basic human rights of the people of that country, thus creating an enormous number of refugees fleeing in fear for their lives. Nevertheless, the Reagan administration took the position that these individuals were generally not entitled to qualify as refugees, and thus for political asylum, because they were alleged to be in the United States primarily for economic reasons. On its face this claim was at odds with the obvious facts of a prolonged civil war in El Salvador, as well as the brutal genocide practiced against the indigenous people of Guatemala by their government. The Reagan administration's disingenuous position on these matters constituted a clear-cut violation of its obligations under both the U.S. Refugee Act of 1980 and the 1967 U.N. Protocol to the Refugee Convention.

As Professor Forsythe shows, the reason the Reagan administration denied reality in these cases was that to have acted otherwise, by determining that such refugees were entitled to asylum, would have constituted tacit recognition of the violations of fundamental human rights being perpetrated every day by the military dictatorships that were and still are ruling El Salvador and Guatemala. This in turn would have undercut the psuedo-legitimacy of the democratic facades of the Duarte and Cristiani governments in El Salvador and the Cerezo government in Guatemala in the perceptions of both American public opinion and the international community. Furthermore, in the event foreign governments, such as those in El Salvador and Guatemala, are found to be engaging in a gross and consistent pattern of violations of the fundamental human rights of their own citizens, a number of U.S. statutes should be triggered that would mandate the cut-off of various forms of U.S. military and economic assistance.

The Reagan administration sought to forestall that day by denying these legitimate refugees their recognized right to asylum under both U.S. domestic law and international law, and indeed continued to deport refugees back to Central American even in the face of mounting evidence that many suffered persecution, torture, and death upon their return. The Reagan administration sacrificed the lives of these human beings in the name of its own determination of U.S. national security interests despite the rules of international and U.S. domestic law.

Professor Forsythe patiently takes the reader through all the legalistic lies, distortions, and half-truths put forth by various members of the Reagan administration in order to justify their inhumane policies. He concludes that chapter by correctly observing the highly deleterious impact these policies might exert upon the future peace and stability of the Western Hemisphere in particular, and the cause of world order in general. This latter topic is then taken up and pursued at greater length in the chapter dealing with the financial crisis at the United Nations, which was produced by the Reagan administration's decision to withhold the United States' legally obligated assessments.

In my opinion, the entire crisis over the nonpayment of U.S. assessments to the United Nations resulted from the Reagan administration's willingness to paralyze that organization. The Reaganites seemed to see the U.N. as some sort of international conspiracy of Third World and communist states that was vaguely directed against the national security interests of the United States. The Reagan administration's comprehensive attack upon the integrity of the United Nations organization as well as its affiliated organs and institutions represented a serious setback to the long-term cause of world order, and to the immediate demands of maintaining international peace and security. Here Professor Forsythe performs an excellent service by reporting the arguments and actions of the administration and also the Congress to justify U.S. withholding of its legally obligated assessments from the United Nations and its affiliated organizations.

Quite obviously, it would taken an entire book to refute their collective criticisms of the United Nations Organization. Until that book is produced, however, I would recommend The United Nations and the Maintenance of International Peace and Security (1987), which was published under the auspices of the United Nations Institute for Training and Research (UNITAR). In response to the anti-U.N. onslaught launched by the Reaganites, UNITAR and the School of International and Public Affairs at Columbia University organized a joint conference on "the United Nations and the Maintenance of International Peace and Security: A Retrospective and Prospective View," held in September 1986. This UNITAR book contains the background papers prepared for that conference. Topics included the peaceful settlement of disputes, peace-keeping, outlawing the use of force, the International Court of Justice, the office of the secretary-general, disarmament, arms control, nuclear proliferation, and international terrorism.

For readers of Forsythe's book, the most important contribution to the UNITAR volume was the introductory chapter by Ernst Haas - a virtuoso survey of the actual record of the United Nations organization's successful management of international conflict during the first forty years of its existence. Haas's research was a powerful antidote to the polemical attacks against the U.N. mounted by the Reagan administration and its supporters located throughout the academic world and in the mainstream news media. Because of the general prevalence of these later criticisms in public discourse, I believe it is important to reproduce Haas's summary of conclusions here:

. . . .

Perhaps the most important lesson to be learned from analyzing Haas's meticulous study is that the United Nations will become even more effective at the task of maintaining international peace and security to the extent that it has the active support of the U.S. government.

Now that the Bush administration has come into power and somewhat returned - at least in relative terms - to the traditional American support for international law and organizations, we are experiencing for the first time in forty-five years, support from both superpowers - at least in principle - of the United Nations and its international regime. It is incontestable that Mikhail Gorbachev has launched a foreign policy with a central component being to strengthen the international regime concerning the threat and use of force that is found in the United Nations Charter. In significant part, Gorbachev was spurred into action by the curious spectacle of the Reagan administration striving to undermine this very regime - which the United States had created after the end of World War II in order to serve its own interests - the declining hegemon seeking to devour its own children. Once it became clear that the overall objective of the Reagan administration was to bypass or undercut the United Nations regime, the Soviet Union was compelled to recognize its stake in the effectiveness of the United Nations, and thus immediately acted to shore it up, using all its influence and power as well as those of its allies and supporters.

Indeed, under Gorbachev and Bush it now seems that the Soviet Union and the United States are attempting to reach a formal understanding to reinforce and expand the currently existing U.N. regime regulating the threat and use of force. The successful completion of that task will only serve the respective national interests of both superpowers, no matter what disagreements they might have inter se, and produce an international political climate that is even more conducive to a real international security regime (as that term has been traditionally defined by international political scientists) between them. In my opinion, this latter objective is what Gorbachev is striving to accomplish now. In any event, his initiative is certainly worth U.S. reciprocation. Even from a realpolitik perspective, that is the only reasonable alternative the United States has in today's world of "existential deterrence."

Therefore, I would say that the United Nations regime regulating the threat and use of force is alive and well, and will remain so for the immediate future. Witness the efflorescence of United Nations peace-keeping operations or proposals for their development around the world today: in the Middle East, the Persian Gulf, Namibia, Angola, Central America, Cambodia, Afghanistan. Extending this list in the future is the only way most of these serious international conflicts possessing systemically destabilizing tendencies can be effectively dealt with. But as Professor Forsythe's analysis suggests, none of these worthwhile goals can be achieved unless and until the Bush administration repays the money owed to the United Nations by the U.S. government, and then stops making clearly illegal threats to withhold America's lawfully obligated U.N. assessments in the future.

In his conclusion, Professor Forsythe does a superb job summing up the political dynamics between international law and the formulation of U.S. foreign policy. I would add that the future of international law and U.S. foreign policy is whatever the American people want to make of it. Right now, international law is alive and well in the United States of America. For it resides in the hearts, hands, and minds of the American people, and, as David Forsythe proves, even those of some judges, legislators, bureaucrats, lobbyists, think-tankers, professors, and self-styled experts who inhabit Washington, D.C., and New York City.

We must all be grateful to Professor Forsythe for elucidating the complicated dynamics of the interaction between international law and U.S. foreign policy in this incisive, well-written, and accessible study. Both the strengths and weaknesses of international law in American foreign policy decision-making processes have been laid bare for all Americans to see. We must ponder and wrestle with the conclusions. But above all, we should give thanks for his insights, and for his deep personal and professional commitments to reestablishing the rule of law in the conduct of U.S. foreign policy.





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The Blanket - A Journal of Protest & Dissent


All censorships exist to prevent any one from challenging current conceptions and existing institutions. All progress is initiated by challenging current conceptions, and executed by supplanting existing institutions. Consequently the first condition of progress is the removal of censorships.
- George Bernard Shaw

Index: Current Articles

22 June 2004

Other Articles From This Issue:

Eyes Right
Anthony McIntyre

"Rumour Mill" - Safeguarding Nationalist Community
Sean Mc Aughey

From Alternative Press to Corporate Mainstream: The Case of the Andersonstown News
Liam O Ruairc

Taming the Celtic Tiger
Fred A. Wilcox

Weapon of Mass Destruction
John Kennedy

The Reagan Bitburg Doctrine
Francis A. Boyle

God's Command to Angels
Allama Iqbal
M. Shahid Alam (trans.)

Plan Puebla Panama And Free Trade - The Corporate Contribution To Low Intensity Warfare
Toni Solo

17 June 2004

A Day That Comes, Also Goes
Tom Luby

One of the Nine
Anthony McIntyre

IRPWA Delegation Targeted By British Army/RUC
Martin Mulholland

'The Confines of Republicanism'
Liam O Ruairc

I Was Only Following Orders
Fred A. Wilcox

Reagan's Legacy
Sean O Lubaigh

The Humanity in Us All
Dorothy Naor


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