Transcripts For CSPAN2 Book Discussion On Point Of Attack 20

CSPAN2 Book Discussion On Point Of Attack May 11, 2014

Next on booktv john yoo argues International Law has very little effect on the behavior of powerful nations when they deal with each other but acts as an impediment when powerful countries try to do things like fake terrorism and to stop the spread of weapons through disruption. This discussion is about an hour and a half. Welcome everybody. Thanks for braving the weather to make it to the American Enterprise institute today. Im a resident scholar and i direct the center for Security Studies here at aei. Todays event which is being cosponsored by the society is a discussion of john yoos latest book point of attack the work of International Law and global welfare. The format of todays great a quite simple. John will start with an overview of the books thesis and then we will follow up with our panelists comments and i might throw in a point or two as well and then following that, we will open up the floor to your questions and have a good robust discussion. Before turning the microphone over to john, however, let me first briefly introduced the guest panelists. From the biographical materials that you have in hand but have had quite distinguished careers. Michael is a professor of law at Ohio Northern University and a former navy pilot at harvard law graduate and more importantly, graduate of the navy top gun program. Michael has written extensively in the areas of the law to the war ended appointe up later to e current war on terrorism. Harvey chairs the Advisory Committee on the wall and International Security and is a former professor at the National College and also serves as the chair at the College Strategy department. Among other important posts, he was the Legal Counsel to the fbi Deputy Director in the late 90s and has had his hand in drafting several Important National security related president ial directives. Thank you both for joining us today. Now let me introduce john yoo who has been teaching law at the university of California Berkeley Law School for 20 years, more than 20 years and has been a colleague here at aei for the past decade. The former Deputy Assistant attorney general and law clerk to Justice Thomas and silverman and the author of five major volumes and numerous scholarly articles on the power, the law of the war and International Law. His most recent book on the one wabout whatwe are talking about, point of attack, there is nothing shy or retiring in his argument. Nor do his books ever lack intellectual courage. Who else could be a visiting scholar and write the surge in iraq might not have been as important as we claim and who else would dare to argue that the International Regime is problematic precisely because it discourages the use of force rather than encouraging it . I can see john now being offered a record contract with the idea of remaking the give peace a chance and give war a chance. [laughter] like all of his books point of attack is a deeply serious work and has great merit pushing his readers to think anew in their assumptions. In short while provocative, point of attack is provocative in the best sense taking all of us ask the important questions and interim. When it comes to enhancing the global prosperity and security. John, over to you. Thank you for that introduction. It is a great pleasure to be here. Its been my home away from home for the last ten years. And like all homes away from home, the people are happier here, the food is better. Its too expensive for me to live here. But its been a great ten years. This is my tenth anniversary here at aei and this book is the product of that ten years i started working on when i came here after the iraq war and a lot of the other conflicts we have been going through as a country. Its also great to have dairy as a moderator and the perfect person he is one of the few people that shares the intense interest of the framers. I would be remiss if i didnt say that id stolen one of the ideas from his dissertation for my last book on Thomas Jeffersons view of executive powers and gary actually has the view that jefferson had quite a robust approach to the presidency but not in theory to try to disseminate the work. Its also a great pleasure to be with mike lewis and harvey mmike is on the front lines at the National War College that he was on the line i guess. Its great to be with them both and look forward to the discussion. He was my mentor for many years. Hes very angry at me for writing this book but he claims i stolen the idea from him. And with many other things i admit i did steal it from him, but he didnt publish it fast enough. He was someone i started working for right after law school in the interest of National Security and law so he was an inspiration for this book and he is responsible for its faults. And maybe about east asia we will have another panel tomorrow about east asia. And the russian invasion of crimea highlighted this as the Current International legal system of collective security i think has failed. The one that centers around the United Nations and the un Security Council, the primary rule is the use of force. I think historically that rule is incorrect this is the work of Woodrow Wilson in establishing the league of nations and the idea that this rule, this criminalization of oral harkens back and built on trust tradition that ran from cicero on the way through the great medieval thinkers. This is very wrapped up in the legal theory. They talk about lots of things we tal talked about today like humanitarian intervention, preventive and preemptive war and ways that go well beyond the simple idea that any use of force other than self defense is illegal. The countries havent followed this idea of the just war crime allies of selfdefense historical. They were not doing it under the charter institutionally dead but plenty since the charter in selfdefense and to the un i think has been fairly careless to stop it and the invasion of ukraine is a good example. Part of the rule is an institution that if you require the full agreement of the Security Council to authorize measures against any kind of aggression and china and russia said on the Security Council. They are going to veto any effort to respond to the invasion of crimea or any military engagements that might arise in the South China Sea or asia. Essentially renders not just of the rule being denied in practice but it also means institutionally that the charter the effort to create a system to manage the conflict after world war ii which doesnt work and its really not going to work for the future that they cannot respond and control into the other remarkable thing during the period after world war ii and the amount of death and destruction from the great power of the war has actually fallen to below that is unheard of in Human History but by the whole order of magnitude the deficit that we have experienced from the great power has fallen to never before seen level since the peace in the modern nationstate system. Its an incredible record but i dont think it has anything to do with International Law. Few historians and Scientists Say theres a number of different reasons. The one is clearly the Nuclear Weapons makes it such harder, much more expensive and dangerous to come to the conflict. The balance between the superpower for much of the cold war actually has the effect of suppressing the conflict between the great powers and since then the collapse of the sovie sovien after the rise of the United States is a sort of supplier of peace and stability and free trade around the world has also reduced the power but one way to look at this is that the great source of the war the world war that kills the most people in Human History both started in europe and were between the european powers had spread to the rest of the world. The invasion is a good symbol of what had preceded until the invasion of ukraine. There had been no unilateral withdrawal of the borders in europe by the force. The one area that had produced all of the conflicts that had caused so much of the deaths off the last two or 300 years and i think it is barely responsible for the Nuclear Weapons into the bipolar struggle between the u. S. And soviet union and ultimately since then, the u. S. Role in maintaining the Certain International orders. At the same time, there are threats to the order that are being posed by what we used to call the rogue nations that want to challenge the International System like iran, maybe china, russia and its caused by the proliferation and the rise of International Terrorist groups and even large humanitarian catastrophes. These are all challenges to the International System that has produced a great period of peace and prosperity. And this is where hes quite right to say give war a chance. A certain kind of war is undersupplied because of the ban in the International Law on the end use of force that prevents the western allies and the United States from intervening to shore up the International System. These are all places committees are all areas where the system actually prevents and discourages nations from using force where we might want to because they are going to be much higher and the cost of conflict. As it is now all of the conflicts would be illegal and i think the system and the set of rules ought to encourage the power to use force to control those kinds of threats to the International System. It doesnt need to worry about the war between the great powers where it doesnt have much effect and its been kept for other reasons anyway. This is very similar to the way the law and economics scholars think that the contract law where you should keep the promise is what you should obey the contracts, but the law encourages you to breach the contract if you can do something thats more efficient that is a greater benefit and something lawyers fought over for many decades under the influence of the judge richard poser and so on in the 70s at the university of chicago they began to prevail and actually it has become the law in many jurisdictions. Its similar in the International Law if there is a norm against the war it should be one countries can breach andf it makes the world better off after the war. Let me now turn to what this means about russia and ways to respond to russia and maybe this will be a good focal point for the discussion. We are paralyzed looking at california about what to do in response to the invasion of ukraine. Part of it is we cant get the other International Institutions to cooperate and in part that is because there are several prominent members that are opposed to anything. So here are somethings i think we could do to respond to russia that i think would be consistent with this approach, but which may well be seen as troublesome. If they should terminate the start treaty as one that limits the u. S. And russia to 1,550 Nuclear Weapons and it pleases other limits on the delivery vehicles but it is an effort to treat the United States and russia as the same when it comes to the Nuclear Arsenals even though russia isnt really projecting power around the world and the u. S. Has a lot of other responsibilities for peace and stability. It doesnt make sense for the United States to treat russia as an equal terminate a treaty and the Nuclear Arsenal can float to whatever it needs to be for our security obligations rather than any kind of commitment with russia. Obviously the second thing this is as if someone was describing in a position of president obama took in malaysia about how hes only trying to hit singles and foreign policies of these days and it seems to me that in ukraine right now we are just looking at the call of the third strikes because only the military aid that we are given is the meals ready to eat and it seems to me that even under president carter when the soviets invaded afghanistan we did more than give the afghan rebels food. It seems to me another thing we could do and this would be very difficult under the charter, but under the set of rules i think it would be fine to give military aid to the ukraine and to supply any kind of rebels that there might be in the region to the soviet russian control. The third thing i think you could do would be to restore the Ballistic Missile systems that the Obama Administration pulled out as a sort of diplomatic authoring of the reset of relations that has clearly failed if russia wants to go around invading its neighbors and they could send a strong signal of the support for its allies without any boots on the ground or military conflict with russia by putting those systems up. Thethey worked before and helped the russian soviet go bankrupt and caused them and help contribute to the fall of the soviet union. Why not give it another try. And the last thing that i would say we should end our cooperation with serious. I dont see why the u. S. Should be a partner with russia in the action that is having the effect of propping up the Syrian Regime and actually switching momentum towards the regime. Last, i think this is difficult to see this happening quickly but it could have been in the longer term it is institutionally creating an alternative to the un and to the Security Council. Where you still need an institution and a process to legitimize the use of force, then create one. It doesnt have to be focused around the un and at the charter. It can be focused around those countries that are democracies that have open markets and have the same values as the United States. With that, thank you very much and i look forward to the comments. Thank you for coming out and for having me here. I think the professor is absolutely right that the un Security Council was broken into un Security Council is broken and prevent a veto is going to prevent the use of force in the places where the use of force would improve Human Welfare. He had mentioned that the number of great power wars and the people that died in the great power war diminished to near zero since the institution of the United Nations. But at the same time, the number of internal struggles of the civil war, low intensity conflict around the world has gone way up and have had a number of people buying in those conflicts over the world. And the idea of saying you can improve Human Welfare by intervening in these conflicts and preventing these conflicts from having the kind of humanitarian disasters they become in many cases is a legitimate use of force but its a use of force is absolutely forbidden by the un charter unless we can get russia and china to all agree at the same time that this is a place we want to use force. The other exception with the article 51 of self defense, and in most cases, that does not apply. Another point that the professor makes in his book is that there is at least an undercurrent of nations that have sort of through state practice indicated a willingness to go beyond where the un charter says they are supposed to go. In terms of using the force to prevent either humanitarian crises or other kinds of disasters. So whether it is tanzania intervening in uganda or cambodia or bangladesh all of which werent in a lateral interventions or collective intervention like nato and kosovo where you had a group get together and decide we need to stop the humanitarian crisis in post coas kosovo. But they have been praised for the kind of good and they have done. One of the central themes to the buck is to say how do we figure out when the war is going to be a net benefit to Human Welfare effects it has a law and economics in that it is saying you have to calculate here are the benefits that are going to a group. Here are the lives that will be saved and here are the lives that will be approved as a result of doing whatever happens, whether that be libya, c. , iran etc. And while that is i think a laudable idea, in practice it is going to be very difficult. And i think that we can look at perhaps the best way of looking at things is to look at the example that would be rwanda. Everybody looks back and says how could 800,002,000,000 people be killed with machetes and small farms in the late 20th century while all of europe and the rest of the world stood by and watched . It seems that they cry out for intervention. But looking at the one intervention that has happened in the past few years, libya is a good example of the indeterminacy of the good of that is done.

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