Philip C. Bobbitt

Even a Superpower Should Play by the Rules

by Philip Bobbitt
17 November 2003
The Observer

Every president seems to have a mental role model to which he refers and aspires as he defines his own tenure. For Lyndon Johnson, it was FDR. For Bill Clinton, it was John F. Kennedy. For George H.W. Bush, it was Dwight D. Eisenhower. And it is becoming clearer that for George W. Bush that it is Ronald Reagan.

There are good reasons why George W. Bush might want his policies, especially his foreign and security policy, to be modeled on those of Ronald Reagan. Although it is grossly misleading to portray George H.W. as simply having "presided" over the demise of communism, it is certainly true that Reagan and Margaret Thatcher stiffened the spine of Western resistance to an accommodation with the Soviet Union. The problem is that the United States and the alliance face different issues in a world much changed from the era of Ronald Reagan's presidency. The events of Sept. 11 did not bring about this change, but, rather, were dramatic evidence of it. Those events did, however, bring about President Bush's remarkable, and largely successful, reorientation of his foreign and security policy. In one important respect, though, Bush's policies have not changed. His administration continues to separate law and strategy.

For we have entered a period in which strategy and law are coming together for the State, an entity that previously had been defined by keeping them separate. Strategy was external; law was internal. Now, owing to an international system of communications, a superseding system of international human rights, a global system of trade and finance that trumps national markets, transnational threats such as global warming, AIDS and SARS, terrorism itself, and, above all, the threat of nuclear proliferation, strategy and law are becoming inseparable. In such an era, there can be no successful international security policy that does not have an active and engaged role for law.

A US that cannot explain why it seeks the enlargement of democratic practices among all states – and yet supports the suppression of the Algerian elections that would have brought Islamic fundamentalists to power – will not be able to rally a worldwide consensus in favor of democratic enlargement. A US that can offer no reason why an unelected Iraqi council should be the drafter and ratifier of a new constitution, other than the administration's desire to hand over authority and its fear that elections will put that authority in anti-American hands, will have its way only so long as power can compel assent.

Most significantly, the US cannot champion democracy and acquiesce in the deprivation of a democratic franchise for Palestinians. It is better in the long run, even from the perspective of US power, to write the rules with others, though these rules may sometimes be applied against US wishes, than to abandon rule-following. But why negotiate rules that will only hamstring freedom of action later? This was the position of George H.W. Bush's administration.

The first Bush administration governed on the cusp of the law-saturated international order of the twentieth century. But now the world is moving toward a new order that relies more on the market and informal, consensual institutions. The UN peacekeeping forces are giving way to coalitions of peacemakers. Complex arms-control treaties are being replaced by more flexible, mutual incentives for restraint. Once repressive states are adopting humane constitutions in order to gain access to the European Union. But the emerging market-state, of which these developments are a harbinger, is not a market. The state's essential and unique role lies in its creation and adherence to law. And this defining moment of transformation from the nation- state to the market-state requires more attention to law and legal institutions than in the previous period.

Bush has the small businessman's contempt for law. He does not believe there are good reasons for using law and legal regulation to achieve social objectives. Like so many businessmen who understand markets, he sees law as an obstacle to the achievement of his political goals. For example, although the unique American vulnerabilities that arise from its global strategic role ill-suit it as a subject for the jurisdiction of the International Criminal Court, surely President Bush was wrong when he theatrically removed the United States' signature from the ICC Treaty, which was in no danger of being ratified by the Senate anyway. And, although he was doubtless correct to withhold American participation in the rhetorically rich Kyoto Treaty, he was just as surely wrong to refrain from offering practical alternatives for any subsequent treaty on global climate change and the environment. Bush's foreign policy was shoved into the reality of the twenty-first century by an atrocity, but he used his political leadership to change course and rally his country in two lightning wars: The three-week defeat of the Taleban, in an area the Soviet Union had been unable to subdue for six years, and the equally fast destruction of one of the world's most violent regimes in Iraq.

These wars were accompanied by a massive commitment to nation-building: $257 million to Afghanistan and an astounding $87 billion pledged to Iraq. At the same time, the administration proffered a "road map" for the Middle East. Perhaps most significantly, in a speech that invoked Ronald Reagan seven times but said nothing about the president's father's administration, President Bush urged a policy of democratic enlargement – the policy first articulated by President Clinton that urged the aggressive renovation of states toward democratic models. But even President Clinton was reluctant to force such a case with respect to the Middle East.

These are courageous and imaginative initiatives and it is revolting to observe the glee that the president's critics abroad take in the difficulties of pacifying Iraq, Afghanistan, Israel and Palestine, but something crucial is missing from them. What is missing in all of the president's post-Sept. 11 initiatives is reliance on law. There is no doctrine in President Bush's National Security Strategy comparable to the doctrine of containment expressed in a legal document, NSC 68, which governed US policy for four decades. There have been no efforts made to suggest new rules for international law that would increase the role of the G-8 in security matters and global governance, or that would reconcile the UN Charter with interventions like those in Kosovo and Iraq, or, indeed, that would set any limits or standards on humanitarian intervention or WMD pre-emption. The administration offers techniques, like pre-emption, but refrains from giving guidelines for their use, and thus robs them of legitimacy.

President Bush is not a simpleton and he is not greedy for his country's wealth. Rather, he sees himself as a CEO, as a businessman, running a competitive firm. The law is merely a set of obstacles to be overcome, to be evaded, to be repealed. Unfortunately, none of the central problems he faces – terrorism, WMD, precarious financial systems, intellectual property rights, escalating trade barriers – can be solved without law.

It must be frustrating for President Bush, who is a sincere and trustworthy ally, to come to London and suffer such persistent derision and abuse. And it must be painful for Tony Blair who no doubt appreciates the president's straightforwardness, his courage, and his willingness to honor his commitments. But Blair will prove an even better ally and friend if he can persuade the president that American interests and the interest of the alliance depend upon the perception that the US is acting legitimately, not lawlessly.

The US can extend its influence beyond its temporary hegemony if it joins with others in crafting a system of rules to govern state responsibility for humanitarian well-being, preventing the proliferation of WMD, and underwriting the creation of governing institutions that preserve civil society. To fail to do so risks more than protest; it risks the alliance itself, and all the good we can do together for the world.

— Philip Bobbitt is a former White House adviser on intelligence and foreign policy. He now lectures at the University of Texas.