The weekend's reading in the Washington Post turned up two intriguing bits that could profitably be explored in Senator Hagel's forthcoming confirmation hearings. Neither is a game-changer or a show-stopper. I continue to believe he will be confirmed and I expect he will have plausible answers to both of these questions. But it would be revealing to hear those answers and the process of thinking them through might even help him be a better secretary of defense.
First, what does the Obama administration consider to be the necessary legal conditions for the use of force abroad? The question arises out of an interesting bit in Saturday's story about internal deliberations over whether and how much to assist the French in the Mali operation. There are numerous legal hurdles, including some domestic ones related to assisting governments after a coup (among its myriad troubles, Mali suffered a coup last year). But the part that interested me was this brief reference to other international legal hurdles:
"At the same time, U.S. officials were unsure whether they could legally aid France's military operations without a United Nations or other international mandate."
Now, I well understand the political desirability of international mandates, and I also know what the UN Charter stipulates. Since the Mali government asked for aid -- no, begged for aid -- the self-defense exception of the UN charter would seem to be easily met. Perhaps there was some legal confusion regarding whether a post-coup Mali regime was more legitimate than the militant islamists attacking the government from the north? Or perhaps there was something else at work, with the Obama administration entertaining a more stringent standard than U.S. governments had hitherto required for military action? If the latter, that would seem to be quite newsworthy with profound implications for coercive diplomacy in other settings: does the Obama administration believe it has the requisite legal predicate for military action in Iran (setting aside the policy wisdom of such action), or would it require a new and specific UNSCR or NATO authorization? What are legal options if we have neither a new UNSCR nor NATO authorization?
Second, what specifically did Senator Hagel find lacking about civilian control of the military during the past 6 years? This question arises out of a quote attributed to Hagel from today's opinion piece by Bob Woodward: "'The president has not had commander-in-chief control of the Pentagon since Bush senior was president,' Hagel said privately in 2011."
Now Hagel's quote covers a lot of history, including the stormy 1990s when serious questions were raised about the quality of civilian control. While an historical disquisition on the evolution of civilian control since 1992 from the secretary-nominee would be fascinating, for the sake of time and focus I would encourage the Senators to ask Hagel to answer just with respect to the last several years, covering the tenure of Secretaries Gates and Panetta. In what ways does Hagel consider the Pentagon to have been out of "commander-in-chief control" during that period?
This second question might be the more important one. After all, Hagel is not the lawyer who will be deciding the Obama administration's interpretation of international law. His hearings do provide an important opportunity for Congress to ask such questions to key officials under oath, however, so it is worth asking.
But the second question goes to the very heart of Hagel's job. As secretary of defense, he will be the interface between the political White House and the uniformed military -- something like the ball-bearings or even the grease in the ball-bearings of civil-military relations. He will be the single most important civilian working 24-7 on the civilian control issue. Understanding his theory of civil-military relations is crucial for helping the Pentagon (both civilian and military tribes therein) prepare for his arrival. And I can think of few better ways to clarify his expectations than for him to explain how he believes Gates and Panetta failed to bring the Pentagon under "commander-in-chief control."
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By Tom Mahnken
The seizure of the merchant vessel Maersk Alabama off the coast of Somalia shined a spotlight on a problem that has been spreading in the shadows for years. Piracy has grown in the waters bordering the Horn of Africa because states have failed to act like states and leaders have failed to lead. Whether military force is permitted as a response to piracy is, as my lawyer friends say, settled law. International law has recognized pirates as outlaws who may be killed on sight since the Roman Empire. More recently, and more precisely, late last year the U.N. Security Council passed Resolution 1851, which permits operations against pirates in Somalia. Even with such authorization, it has proven more expedient to many to buy off criminals than to enforce international law. The non-response to piracy has sent a dangerous signal to all those who oppose international order. As William S. Lind noted in a recent essay, "Piracy not suppressed represents history lifting its leg on the whole state system."
The Obama administration's reaction to piracy in general, and the seizure of the ship in particular, betrays muddled thinking about the nature of the threat posed by piracy and the proper response to it. At least implicitly, the Obama administration appears to be treating pirates as if they were insurgents. Criminals (including pirates) represent a challenge of an altogether different sort. Whereas a mixture of political and ideological motivations drives insurgents to violence, it is the search for profit that fuels criminality. It is true that both terrorists (in the form of the Islamist insurgent group Al Shabab) and the pirates that prey upon merchants in the waters off Somalia thrive off the fact that Somalia lacks a government capable of bringing order to that benighted land. However, it is hardly necessary to "fix" Somalia in order to deal with piracy. Addressing Somalia's role as an ungoverned area will take time; addressing piracy in Somalia need not.
What the United States and those who wish to join us need to do is to drive up, rapidly and decisively, the cost of engaging in piracy. The successful operation to free Captain Richard Phillips from Somali pirates is a good start, but it is just a start. More will be needed to remove this threat to the global commons. Specifically, President Obama should give on-scene commanders permission to shoot pirates on sight. He should also authorize punitive strikes against the bases from which Somali pirates operate. Such actions, over the course of days or weeks, should be sufficient to drive the pirates off the seas. Of course, punitive strikes will not turn these criminals into law-abiding citizens; they will still be free to smuggle qat or steal relief aid. Nor will military action bring order to Somalia; it will still be a troubled and troublesome land. But military action can ease the threat of piracy to international commerce and to world order.
The United States is the most powerful state in the world and possesses the most powerful navy in the world. It is high time that we began to act like it.
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Shadow Government is a blog about U.S. foreign policy under the Obama administration, written by experienced policy makers from the loyal opposition and curated by Peter D. Feaver and William Inboden.