This short book by Harold Koh, the former Legal Adviser to the State Department under President Obama and a former Dean of the Yale Law School, is primarily a work of advocacy calling for elite mobilization against the Trump Administration’s policies on armed conflict, immigration, trade, climate change, and human rights. In The Trump Administration and International Law, Koh, a distinguished scholar, prominent practitioner, and able writer on international law, plots a strategy of resistance to Trump’s policies both within the federal bureaucracy and outside it, rather than with traditional legal scholarship.
I will group my comments — which are generally critical — under three topic headings: Armed conflict; immigration; and trade.
The weakest section of the book is the chapter entitled “America’s Wars.” Koh begins by claiming to support the “critical project of bringing the Forever War to an end”:
For America, peace should be the norm and war the exception. Condoning a state of perpetual war would mark a gross deviation from our constitutional and international norms.
In staking out this anti-war position, Koh claims to be aligning himself with the views of former President Obama, while stating that “with Donald Trump’s election, that goal has lost its White House sponsor.”
That is demonstrably false. Under Obama, the United States sponsored international military intervention in Libya (to an extent arguably in violation of UN Security Council Resolution 1973), maintained troops in Syria and Afghanistan, and sent armed forces into central Africa to fight the Lord’s Resistance Army. While certainly not as overtly interventionist as the Bush Administrations had been, Obama’s record in wrapping up the “Forever War” was hardly a brilliant one. Indeed, in 2013 (and now) Koh himself defended US military intervention in Syria as consistent with international (and domestic) law, despite the absence of legal authorization under the UN Charter.
By contrast, Trump’s record of disengaging from overseas armed conflicts — or in other words, of bringing the “Forever War” to an end — is, despite its flaws, far better than that of either of his most recent predecessors’. The recent US military withdrawal from Syria, for all its raggedness, was a far more significant step in the direction of restoring “our constitutional and international norms” than anything Obama did in his eight years as President.
Koh’s mistake here is two-fold. First, he does not appreciate that the bureaucratic resistance which he seeks to mobilize will likely obstruct the project of ending the Forever War, rather than accommodate it. Syria is of course the major case in point. Disregarding Trump’s clear and emphatic policy objective of US withdrawal “very soon” (articulated in April 2018), “the president’s appointed envoy for Syria and the Department of Defense worked to ensure Washington could stay,” according to Aaron Stein writing at War on the Rocks.
Koh does not acknowledge the depth and genuineness of Trump’s commitment to ending US imperial overstretch: this is not, for Trump, a matter of talking points. Nor, despite his years in government, does Koh seem to grasp that our sprawling national security apparatus, whose assistance Koh invokes in subverting Trump’s policies, has powerful incentives to keep the Forever War going. Bureaucratic careers, salaries, promotions and prestige are all at stake in maintaining a militarized, interventionist American mission abroad indefinitely.
Second and even more importantly, Koh argues for a resuscitated doctrine of humanitarian intervention that would supersede the UN Charter, disregard the Russian and Chinese veto power in the Security Council, and sanction even large-scale US and Western military engagements abroad, on the scale of the Clinton Administration’s War in Kosovo if not greater. While Koh’s criteria for permitting military intervention are refined, in practice they would surely authorize and encourage extensive US military activity abroad in the name of human rights. In short, there is a contradiction at the core of Koh’s argument between his stated goal of ending the Forever War and his support for a policy of militarized humanitarian interventions.
Koh does not examine the consequences of his interventionist approach either in terms of the burdens it would impose on the American people or in terms of the abrasive effects it would have on peaceful relations between the US and its Russian and Chinese rivals. Would Russia tolerate indefinitely a US “no fly zone” in Syria of the kind Hillary Clinton advocated? Success in Syria is imperative for Putin’s regime; for the US, Syria is of marginal importance. Should the US really risk a war with a heavily armed Russia, or one with our NATO ally Turkey, for the sake of the Syrian Kurds?
Even Bush’s 2003 Gulf War could have been defended as a “humanitarian” mission to bring democracy to Iraq and to protect its minority populations from the cruelties of Saddam Hussein. The “Three Trillion Dollar War” in the Gulf, as Joseph Stiglitz and Linda Bilmes called it in their 2008 book of that title, is hardly a glowing advertisement for the kind of doctrine Koh defends.
Nor does the independent state of Kosovo, twenty years after NATO’s 1999 military intervention against Serbia, demonstrate the merits of such action. According to an Associated Press article marking the anniversary of NATO’s campaign, “though it is now independent, Kosovo and its 1.8 million people lack full international recognition. NATO forces are still there and relations with Serbia remain frigid despite years of European mediation efforts.” As the article summarized its conclusions: “[i]n Kosovo so far, the sword has worked better than the ploughshare.”
Military intervention on behalf of human rights has long and substantial connections with Western imperialism and colonialism, tracing back as far as the sixteenth century Salamanca School and even further back to the Crusades (which were fought, in part, for the relief of eastern Christians under Muslim rule). It is astonishing that Koh does not seem to register that fact.
Most of Koh’s section “Immigration and Refugees” is devoted to a (rather self-laudatory) account of the litigation surrounding Trump’s three Travel Bans. Koh’s policy objections to at least the original Travel Ban blocking entry into the US by nationals of several Muslim-majority nations are well conceived: Trump’s policy was ill-considered and poorly designed. Yet, as Koh cannot avoid acknowledging, the Supreme Court eventually upheld Travel Ban 3.0. Koh finds the Court’s decision “grievously wrong,” and spends some pages in his “Afterword” justifying his opinion. But Koh himself seems to me grievously wrong in assuming that the “sanitized” Travel Ban “discriminates against one religion for the benefit of others, in Violation of the First Amendment’s Establishment Clause.”
The Court’s opinion deals persuasively with that objection (which is prominent in the dissenting opinion of Justice Sotomayor). Koh’s reading of the Establishment Clause seems to rest on two highly dubious propositions: that the Establishment Clause applies to the extraterritorial activities of the US government precisely as it applies within the US; and that the Establishment Clause is a broad-gaged prohibition on discrimination on a religious basis, rather than, as its language implies, a more limited prohibition on the specific act of “establishing” a religion. These questions obviously deserve more extended discussion than I can give them here. But let me just say this.
First, I find it hard even to understand how the US government could “establish” a religion in a foreign jurisdiction, given that to do so would be usurping that foreign power’s authority to make its own laws. How could the United States “establish,” say, the Catholic Church in Italy, as long as Italy remained an independent sovereign state? “Establishing” the Catholic Church in Italy would involve giving it certain rights, privileges and immunities under Italian law, not US law. Moreover, while it may be true that in some exceptional circumstances the US could, perhaps, “establish” a religion abroad, it is far from clear to me that that would be unconstitutional. Suppose, e.g., that the post-war US occupation government of Japan under General MacArthur compelled Japan to ratify a new Constitution (as it did) that “established” Shinto as the religion of Japan (as it did not). Would that have been a violation of the Establishment Clause? I doubt it. In any event, Koh’s position needs much more robust and reflective argument than he gives it.
Koh’s account of Trump’s trade policy pays scant attention to what is surely the key element of that policy: restructuring our trade relations with China. Trump managed to finally strike a new trade deal with China – and has avoided what many feared: a prolonged, destructive trade war. But Koh might have assessed the circumstances that seem to many US leaders — prominent Democrats like Senator Schumer among them — to call for deep structural changes in US-Chinese trade and investment relations. Strangely, too, Koh seems to think that trade relations have little or nothing to do with national security. That is not a mistake that China’s leaders make. Nor should ours.
While the jury is also still out on other important elements of Trump’s trade policy, one should also note Trump’s success in negotiating, and persuading Mexico to ratify, the US-Mexico-Canada Agreement (USMCA).
In general, this book is of much less value than it ought to have been.
First, Koh largely ignores the sources of Trump’s policies, and the reasons they have won approval among millions of voters. He seems unable to comprehend that when tens of millions of Americans review the record of the Second Bush and Obama Administrations, they see little but frustration and failure. He does not recognize the deep disillusion that these voters have with the quality and performance of members of the ruling elite like himself — whether those elites are in the media, the academy, the federal bureaucracy, the corporate world or transnational institutions. He does not seem to consider that what Roger Eatwell and Matthew Goodwin called “nationalism populism” has become a political force to be reckoned with, and that it seems to be here to stay. Nationalist populism has scored major victories in the US, the UK, Italy, and Eastern Europe, and while it has inevitably also suffered serious reversals, it is deeply rooted in problems that late liberal capitalist democracy has created but seems unable to solve. Koh and other angry critics of Trump would do well to consider why this trend arose and how it can be accommodated without resort to repression and state violence.
Second, Koh badly underestimates the coherence and originality of Trump’s foreign policies. Trump is offering something different both from Bush’s unilateralism and Obama’s multilateralism, something that relies neither on “hard” military power nor on “soft” cultural power to achieve American ends. Trump believes in leveraging American economic power to promote the Nation’s vital interests — including our central position in global trade and our financial ascendancy. As Trump put it, with admirable succinctness, in his October 2019 press conference with Italian President Sergio Mattarella, “I’d always rather use economic power before I use military power, because people aren’t getting killed with economic power, okay?”
In some respects, Trump’s policy is unilateralist, as Bush’s was. But unlike Bush, Trump has been very chary in the use of military force to accomplish his aims. In other ways, Trump’s policies are continuous with Obama’s, especially in emphasizing the need to draw down our military presence abroad, to avoid large-scale conflicts, to deepen our engagement with China (recall Obama’s “China pivot”) and to use diplomacy (especially trade diplomacy) in preference to armed force. But unlike Obama, Trump has no hesitation in declaring that he puts the interests of the American nation and people ahead of all others.
Trump’s critics may not agree with Trump’s innovations, preferring instead to defend the approaches characteristic of the Obama years (or of Bush’s). But at least they ought to have the objectivity and the perspicacity to understand what makes Trump different.