CommentaryThe leading law-based news these days has been the ‘Mueller Report’ and its more-or-less exculpatory conclusions about U.S. presidential “collusion.” Even if evolving clarifications of this controversial report should further support the absence of presidential illegality in this specific matter, illegality that could involve certain corollary allegations concerning “obstruction of justice,” the Trump administration would remain willfully indifferent to a broader variety of pertinent legal norms. Drawn from both national and international law, these peremptory rules are essential to the security of the U.S. and to the nation’s immutably core obligation to uphold worldwide human rights and justice.
This article will explain these ongoing U.S. presidential derogations, in the proper jurisprudential and historical context.
In vital matters of U.S. national security, certain truths may sometimes be counter-intuitive. Although the American president’s constitutionally core obligation is to “preserve, protect and defend” the U.S., Donald Trump has become a conspicuous impediment to America’s safety in world politics and to the wider patterns of global security within which this country must inevitably operate.
As a plausibly expected result, Trump’s foreign policies, especially in their meager intellectual underpinnings, have placed the U.S. into a prospective whirlwind of geopolitical and jurisprudential decline.
Where should one even begin to itemize such a far-reaching juridical indictment? Shall we start with the President’s gratuitous disregard for expanding nuclear threats, or with his proudly relentless indifference to worldwide human rights? This indifference, similar to Trump’s open unconcern for the nuclear arms race, has legal implications and is not merely a volitional or narrowly partisan policy decision.
Should we now be more urgently concerned with President Trump’s continual discrediting of America’s institutionalized foreign policy and national security establishment, or with his derivative and corollary legal impairments? Is this even a realistic or meaningful bifurcation? Are the mutually underlying programs here not overwhelming intellectual?
How else should we assess Trump’s undisguised willingness to accept the “insights” of talk show hosts, foreign tyrants and assorted think-tank scholars over the refined and data-based conclusions of the U.S. intelligence community?
There are more distinct core questions that must also be raised. How long can this country or the wider world continue to endure a U.S. president who elevates “attitude over preparation” and freely draws his operational “attitude” from the commercial worlds of real estate and casinos?
However we choose to respond, the most basic tenets of international law plainly oppose Trump’s view of “America First.” In essence, this corrosive posture of “everyone for himself” defines a shoot-from-the-hip national security policy that is not only inherently deformed, but founded upon largely visceral celebrations.
If left in place and unmodified by well-reasoned obligations of national and international law, the “America First” view will prove incrementally injurious to both U.S. national interest and worldwide stability. This is probable when referencing narrow trade-related issues and more broad security-focused ones. If left in its extant form, “America First” will propel certain countries (including the U.S.) toward significant infringements of fundamental legal obligations.
As for a timely law-based remediation, only a serious eleventh hour attempt to understand global interrelatedness can rescue the U.S. from Trump’s security and human rights policies from being built upon sand.
To ultimately succeed in meaningfully tangible ways, U.S. national security policy must steer clear of Realpolitik-based presidential calls for geopolitical belligerence, and instead embrace a well-reasoned commitment to global cooperation. Only then, along with other nations, could American become ascertainably “first.”
In 1758, Emmerich de Vattel, a favored jurisprudential source for the American Founding Fathers, noted, “[T]he laws of nature being no less obligatory on nations than on individuals, whatever duties each man owes to other men, the same does each nation . . . owe to other nations.” Later, a corroborating assessment was offered by William Blackstone saying that each state is expected to “enforce the law of nations, as part of the common law: inflicting an adequate punishment upon offenses against that universal law.”
Notwithstanding these authoritative assessments, the current U.S. President is persistently indifferent to egregious human rights violations committed by America’s allies and unconcerned about preserving the rights of noncombatants under binding humanitarian international law.
In the same text, the Emmerich de Vattel continues, saying, “The first general law tat we discover in the very object of the society of nations, is that each individual nation is bound to contribute everything in her power to the happiness and perfection of all others.” In other words, we learn directly from a legal scholar consulted by Thomas Jefferson and other authors of the Declaration of Independence and the U.S. Constitution, that thinly nationalistic or nativist foreign policies can never succeed. Over time, they must necessarily represent the diametric opposite of what is required.
In U.S. national security politics, implementing any appropriately durable and legal policies will demand a more penetrating depth of analytical thought. At the beginning of any much-needed conceptual turnaround, the President will quickly have to accept a more robustly imaginative and global set of security policy postulates. Since the outer worlds of law, politics and statecraft are a mirrored reflection of our private selves, this newly challenging collection would express a subtle yet indispensable awareness. Always.
It follows that even in complex national security matters, everything must begin with the “microcosm.” Ultimately, it is within the deeply opaque mysteries of individual human morality – mysteries focused on the timeless and universal preoccupation with power over death – that we must seek the most elementary truths of human legal interdependence and American national security. By extrapolation, whenever we look toward a more lawful policy management of terrorism, war and genocide, a continuous posture of “America First” would inevitably undermine America’s national security objectives. Any such posture would reflect the most rudimentary human disregard of any serious intellect and learning.
To begin fixing these urgent and relevant legal matters at their core, President Trump should not draw any credible hopes for improved U.S. national security policy by clinging to the clichéd claims of American “exceptionalism.” Though gleefully unacknowledged in even the best educational institutions, there remains a palpably yawning gap between their nation’s steadily-advancing technical understanding and its ongoing attractions to elements of anti-science dogma. While Donald Trump cheerfully and somewhat literally wraps himself in the American flag, his endlessly mindless encouragement of intra-national belligerence and international hatred will never correctly serve our national security interests.
The only plausible result of any such visceral encouragement will be steadily-expanding global lawlessness, including international aggression and growing violence against the human environment.
Where do we go from here jurisprudentially? Exeunt omnes? This president has demonstrated few original ideas and, correspondingly, a never-ending panoply of retrograde and law-violating policy proposals. Among the latter are various manifestly unhelpful distortions of global trade policies and a counter-productive interference with law-based immigration.
We have learned from key decisions by U.S. Chief Justice John Marshall that most authoritative international law – no matter what its source – is ipso facto a part of this country’s law. Constitutionally, such incorporation was originally limited to treaties per Article 6, or the “Supremacy Clause.”
We should return to the “microcosm,” which by definition represents the heart of any legal system. Leaving aside certain obvious intellectual advantages, we are clearly not the same as other species. There remains rampant killing among the “lower animals” of course, but is only residually willful or gratuitous. Mostly, it is survival driven and such killing may simply be “natural.” Biologically at least, it seemingly makes sense.
However, a question must be posed. What human species can tolerate or even venerate purely maladaptive sources of personal gratification? To what extent, if any, is this expressly venal quality related to our disappearing prospects for constructing modern civilizations upon the ancient premise of human oneness?
Often as individuals, we still cleave desperately or opportunistically to various sacred promises of “redemption.” The Swiss psychologist Carl G. Jung defined civilization as “the sum total of individual souls seeking redemption.” This need is not, by itself, a global-survival or national-survival issue. However, it has become a truly existential problem that we may convincingly associate with war, terrorism or genocide, whenever these promises are reserved to designated segments of humanity while simultaneously denied to other “less-worthy” segments.
In such jurisprudential matters, applicable truths can often be complicated. Whatever our divergent views on what happens after death, the basic morality that we share could still represent the last chance we have for global coexistence and secure world community. This can only be the case if we first accomplish the difficult leap from simply acknowledging a shared common fate to actually “operationalizing” our individual feelings of empathy.
Legal foreign policies will always require serious intellectual thought. Americans can still care for one another as human, but only after they have first accepted that the judgment of a resolutely common fate will not be waived by deliberately inflicting harms upon allegedly inferior “others.” While plainly inconspicuous to most, contemporary crimes of terrorism, war and genocide are often “just” sanitized expressions of atavistic religious sacrifice. In the most starkly egregious instances, ritualized violence could effectively represent determinable human hopes of overcoming private mortality through the mass killing of certain “others.”
Americans and all other residents of our legally interconnected planet have a palpable right to expect that any U.S. president would seek to understand such intellectual problems. U.S. foreign policies must build a more regularly insisted upon intellectual form of understanding. Presumptively expedient wars, counter-terrorism operations and anti-genocide programs must be conducted with just cause, just means, and as intricate contests of “mind over mind.”
Although the U.S. must continue to function within a “Westphalian” system of international law, the earlier wisdom of Emmerich de Vattel and William Blackstone concerning reciprocal national legal obligation is still valid. Accordingly, since international law remains an integral part of U.S. law, any apparent vindications of the President by the ‘Mueller Report’ must be judged partial and transient. Indeed, as has just been summarized, Donald Trump’s continuous derogations on utterly core obligations of U.S. national security and worldwide human rights law remain far-reaching and consequential.
Even in our persistently “Westphalian” system of international law, these derogations cannot be rationalized or properly justified in terms of “America First.”
Louis René Beres, a frequent contributor to JURIST, is Emeritus Professor of International Law at Purdue University. He is the author of twelve major books and several hundred articles dealing with international relations, international law and political philosophy. Professor Beres’ most recent writings can be found at The New York Times; Yale Global Online; Harvard National Security Journal; World Politics (Princeton); The Bulletin of the Atomic Scientists; International Journal of Intelligence and Counterintelligence; The Atlantic; Israel Defense; The Jerusalem Post; The Hill; US News & World Report; The National Interest; Parameters: Journal of the US Army War College; Special Warfare; BESA Perspectives (Israel); The War Room (Pentagon); Modern War Institute (Pentagon); and Oxford University Press.
Suggested citation: Louis René Beres, Beyond the Mueller Report: Law and Still-Persisting U.S. Presidential Derogations, JURIST – Academic Commentary, April 1, 2019, https://www.jurist.org/commentary/2019/04/louis-rene-beres-beyond-the-mueller-report/
This article was prepared for publication by Ashley Rundell, a JURIST Associate Editor. Please direct any questions or comments to her at commentary@jurist.org.
