State Department

Yale legal scholar Harold Koh understands foreign legal systems -- that doesn't mean he's going to implement them here.

By Ronald Slye

U.S. President Barack Obama's nomination of Harold Hongju Koh, the dean of Yale Law School, for the position of legal advisor to the State Department spurred uproarious criticism. A number of media commentators argued that his espousal of a transnationalist legal perspective makes him a dangerous choice. The New York Post branded him a member of the "axis of disobedience." The National Review reprinted a letter castigating Koh for saying he could imagine precepts of sharia law at work in the United States.

These critics argue that a transnationalist approach subordinates U.S. national interests to global or foreign ones (an especially timely issue given the global legal wrangling over the United States' "enhanced interrogations" policy). But this view is incorrect and based upon a lack of understanding of this dynamic legal approach.

All transnationalism does, in a nutshell, is work to describe and understand how law develops in a globalizing world. It is not prescriptive, purporting to say how international law and domestic law, or public and private law, should interact; nor does it attempt to answer whether the United States should adopt or reject a particular rule of international law. Instead, it challenges the descriptive power of international law's traditional dichotomies, between public and private, and domestic and foreign law. It recognizes that states are not the only actors in international law -- that organizations such as the United Nations, for instance, play a vital role. It also examines how international actors interpret, internalize, and enforce laws.

This is hardly a radical approach -- in fact it is solidly within the mainstream of academic legal scholarship, legal practice, and U.S. constitutional law. Everyone from corporate lawyers to International Criminal Court prosecutors recognize the dynamic relationships between domestic and international law. And the vast majority of international law scholarship, whether "liberal" or "conservative," concerns the proper relationship between international and domestic law. No one questions that international law exists or matters.

Additionally, the power to create and enforce laws now lies outside capital courtrooms -- and thus requires a transnationalist approach. The World Trade Organization ensures a level playing field for international trade; the World Intellectual Property Organization protects patents globally; and U.N. Security Council resolutions impose financial sanctions on states. The State Department needs a counselor who understands all such global actors.

Finally, since the founding of the republic, international law has influenced U.S. law and vice versa. All three branches of the U.S. government have incorporated, interpreted, resisted, and responded to international law. And, especially since World War II, the United States has played a proud and instrumental role in developing it and ensuring its enforcement. Those interactions are the focus of a transnationalist legal approach to law, and why Koh must understand transnationalism to act as the State Department's legal advisor.

Ultimately, legal transnationalism, particularly as articulated by Koh, falls squarely within the mainstream. Koh himself is a moderate, having worked for both the Republican Reagan and Democratic Clinton administrations. Everyone from Laurence Tribe of Harvard Law School to Dean Kenneth Starr at Pepperdine University School of Law, as well as half the country's law school deans, supports him. This is not surprising. We are, of course, talking about the legal office that most directly engages with issues of international law. Why would we not want one of the foremost international law experts in the country in that position?

Ronald Slye is an associate professor of law at Seattle University and the director of its international and comparative law program.

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By Tony Badran

Why engaging Syria on Bashar al-Assad's terms is a fool's errand.

For years, the regime in Damascus has been an international pariah, given Syrian President Bashar al-Assad's support for terrorist groups Hamas and Hezbollah, his family's heavy-handed attempts to dominate Lebanon, his broken promises on domestic reform, and his proxy war against U.S. troops in Iraq.

But now, with a new administration in Washington that has vowed to talk with its adversaries, Damascus has openly stated that it expects the administration to come rushing back in repentance. So far, however, the Obama team has been cautious.

On her Middle East trip, U.S. Secretary of State Hillary Clinton made several important statements on Syria. Just before heading to the region, Clinton told reporters that it was "too soon" to speak of any U.S.-Syria thaw. Then, in her stop in Jerusalem, she told reporters that Washington would "not engage in discussions for the sake of having conversation. There has to be a purpose to them; there has to be a perceived benefit for the U.S."

Critics of the policy of isolating Syria have often made "engagement" seem like an end in itself, but through her careful remarks, Clinton clarified that engagement should be based on a clear understanding that talks are but a tool to an end. This is a welcome development. The Assad regime is notorious for dragging out processes and offering no meaningful concessions while extracting unilateral ones.

For instance, despite promising French President Nicolas Sarkozy that he would send an ambassador to Lebanon before the end of 2008, Assad has yet to even name one, let alone dispatch him or her to Beirut. All the while, he has pocketed French concessions. Similarly, the French lobbied to renew discussion over the EU association agreement with Syria, which contains clauses regarding human rights and weapons of mass destruction. Yet, Assad is in the middle of a nuclear coverup scandal with the International Atomic Energy Agency and has publicly told the French that it is "forbidden" for any Westerner to raise human rights and democracy issues with his regime.

Given the history of U.S.-Syrian ties, it is important that Washington signal clearly from the very outset that it is prepared to walk away from the process if it is leading nowhere. With its economy wrecked by decades of mismanagement and shackled by sanctions, Syria needs the United States, not the other way around, regardless of absurd claims by certain analysts and apologists that engagement with Syria will magically cure the region's travails.

Meaningful engagement requires a proper understanding of the limited nature of Syria's relevance, assets, and what it really has to offer. By any measure, Syria is at best a secondary regional actor. Syria has no real economy to speak of. Its minuscule oil reserves, which are the regime's main lifeline, are dwindling, and the country has already become a net importer of oil. Its conventional military power is modest. Its only ability to project any influence has been through its sponsorship of militancy and violence and its ties to Iran, without which it would be relegated to the status of a marginal backwater. The regime's legitimacy hinges on radical narratives of "resistance and rejectionism" toward the United States and Israel. But the gap between the Syrians' actual importance and their self-image and sense of entitlement is vast.

What Washington wants from Syria is not help, but an end to misbehavior. The State Department has rightly defined U.S. policy objectives by making public a list of issues on which the United States seeks tangible Syrian behavioral change: support for terrorism, clandestine nuclear programs, subversion in Lebanon, and human rights at home.

The Syrians reacted with typical hostility. One regime mouthpiece even declared that Syria had "broken" the United States, and so it had no business making demands. Another told prospective U.S. delegations to Syria not "to waste their time and ours" if they intend to raise such issues as Syria's support for terrorist groups, as U.S. Sen. Benjamin Cardin did during his recent trip to Damascus. In Syria's view, it's U.S. policies that need changing.

In fact, since President Barack Obama's election, Syria has announced its own conditions for any "dialogue." Those include lifting of sanctions and removing Syria from the list of state sponsors of terrorism. In return, Syria has offered comically little: Reopening the American school in Damascus, for instance, is hardly a pressing concern for Washington.

A workable engagement policy requires bench marks and clear, irreversible, substantive deliverables from Syria. It needs all the leverage the U.S. government can bring, such as sanctions, which are proving exceedingly useful especially now that the economic crisis is hitting Syria hard. There should be no talk of lifting sanctions, or removing Syria from the terrorism list, before Assad moves first and in credible fashion. That isn't likely to happen for structural reasons.

For the engagement crowd, the coming diplomatic dance will be instructive. Clinton is sending two envoys to Damascus: acting Assistant Secretary of State for Near Eastern Affairs Jeffrey Feltman and a senior National Security Council official, Daniel Shapiro. Feltman in particular is a solid choice. He understands Syrian thuggery and slipperiness firsthand, having been physically threatened by Syrian proxies during his stint as U.S. ambassador in Lebanon.

If history offers lessons, it's that engaging this Syrian regime is unlikely to be fruitful. Clinton's statement about engagement as only a means to an end will soon be tested. Damascus is clearly betting that the Obama team will confuse diplomacy with glibness. But if the secretary refuses to substitute process for purpose, the Syrians will likely be in for a rude awakening.

Tony Badran is a research fellow with the Center for Terrorism Research at the Foundation for Defense of Democracies.

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Why it's far too early to label the U.S. secretary of state a failure.

By Kenneth Weisbrode

Hillary Clinton's trip to Asia marks her first venture into the "vast external realm" as secretary of state. She is spending this week in Japan, South Korea, Indonesia, and China in order to give and gain what most likely will be salient first impressions.

The trip already has been met with mixed commentary. The New York Times pointed out that she's the first secretary since Dean Rusk (a notable Euroskeptic of his time) to visit Asia first. Does this mean other parts of the word -- particularly Europe and the Western Hemisphere, not to mention Africa and the Middle East -- are lower on her priority list? Has Clinton returned to the Republican roots of her youth and become an Asia-firster?

Her husband's one-time political confidant, Dick Morris, suggested that the trip, coming on the heels of the appointment of high-level diplomatic envoys for Afghanistan and the Middle East and a resurgent National Security Council, means nothing less than an "incredibly shrinking role" for Clinton in the Obama administration. In this interpretation, East Asia was a consolation prize.

Time will only tell if any of the predictions are correct. For now, they are absurdly premature. And they overlook two critical points.

The first is that where a secretary, or a president, for that matter, goes first doesn't necessarily mean much in the long run. All manner of pressures and events will intercede from now on. Nobody's priority list is fixed on day one. President Nixon's first trip abroad was, in fact, to Europe. It was followed by one of the darkest periods in trans-Atlantic relations.

In any case, it's only comparably recently that secretaries of state or presidents traveled very much at all. Franklin Roosevelt's secretary, Cordell Hull, whose tenure in the job was the longest, spent a great deal of time in the hospital, as did John Foster Dulles toward the end of his term. They traveled abroad for the occasional diplomatic conference but left most of the "fact finding" to their men and women on the ground, that is, America's ambassadors.

Dulles's predecessor, Dean Acheson, however, noted the strange trend in government whereby routine diplomatic activity appeared to move up the totem pole of power in the 20th century. First there were ministers, then ambassadors, then secretaries of state, and soon presidents themselves were drafting talking points and engaging in what Henry Kissinger made famous as "shuttle diplomacy."

Acheson had a point. Once upon a time diplomats proposed and politicians disposed. Now, politicians appear to have a monopoly on both. But there's nothing natural or preordained about it, or about the symbolism of destinations. Colin Powell came into office determined to cut back on the amount of time he spent in airplanes. Nobody recalls now where he went first as secretary or whether the volume of his travel was a critical factor. Condoleezza Rice reversed the practice and traveled a great deal, but it is hard to say now whether that made much of a difference in her effectiveness; her relationships back home with the president and other members of the administration were probably more important.

The second critical thing to remember is that the success or failure of a secretary of state -- indeed of an administration's diplomacy -- is not wrapped up entirely in its handling of the crises of the moment. In this respect, Clinton may be thankful that the biggest possible pitfalls now have other people's names written on them.

Rather, the stewardship, or cultivation -- which George Marshall and George Shultz described as akin to gardening -- of America's relationships with the other major powers and regions of the world is vital. It grabs fewer headlines and tends to be neglected, as it was badly in the past two administrations. But it matters tremendously. Whoever is giving Clinton advice has probably made this point. And it is a good one. Bon voyage.

Kenneth Weisbrode is the Vincent Wright fellow in history at the Robert Schuman Center for Advanced Studies, European University Institute, Italy.