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December 11, 2009

Going Backwards

This is the speech Franklin D. Roosevelt gave to Congress on March 1, 1945 after he came back from Yalta, speaking about what would become the UN:

[The Yalta Conference] ought to spell the end of the system of unilateral action...and all the other expedients that have been tried for centuries—and have always failed.

We propose to substitute for all these, a universal organization in which all peace-loving Nations will finally have a chance to join.

Sixty-four years later, Barack Obama said this in his Nobel Peace Prize speech:

America led the world in constructing an architecture to keep the peace: a Marshall Plan and a United Nations...

I -- like any head of state -- reserve the right to act unilaterally if necessary to defend my nation.

We're so great we created the UN! Also: screw the UN!

—Jonathan Schwarz

Posted at December 11, 2009 08:45 PM

For some reason, this address really struck me as "Orwellian." For me, it was really sickening to listen to these depradations of the concept of peace in this unique venue. And somewhere someone asked, what is it that makes all American presidents appeal to the militaristic right?

Posted by: Woodyeofalb at December 11, 2009 09:51 PM

For some reason, I couldn't even bring myself to listen to the speech, and having read as much of it as I could take, I'm glad I didn't. Sadly, all Presidents now do indeed appeal to the militaristic right, but it is hasn't always been so. Just nearly all the time in the lives of everyone still alive.

Why? Geez, I'm too tired . . .

FDR surely recognized the traditional right of preemptive war in self-defense when genuinely necessary, so the quoted statement by Obama isn't so shocking to me in and of itself. What's appalling to me is how divorced from reality Obama's rhetoric was.

I suppose it was inevitable that giving Obama the Nobel Peace prize while we are waging two wars (and giving it to him almost exclusively as an FU to W and Cheney) would lead to a puker of a speech full of militaristic talk, but are we all so deluded, and my beloved Norsk so well-mannered, that no one could bring himself to gasp audibly at statements like that quoted by JS? Whatever the truth of 9/11, we certainly were not attacked by Afghanistan, or for that matter even any Afghanis. Or any Iraqis! So let's not live in some dream world and talk about heads of state all having the right to protect their nations.

Posted by: N E at December 11, 2009 11:45 PM

All you can do is laugh:

Posted by: Bill Sigler at December 12, 2009 12:47 AM

weh weh weh weh, weh weh weh...

Posted by: grimmy at December 12, 2009 03:10 AM

NE: "..the traditional right of preemptive war in self defense when genuinely necessary..."?? What the heck does that mean??

Posted by: knowdoubt at December 12, 2009 07:18 AM

FDR surely recognized the traditional right of preemptive war in self-defense when genuinely necessary

I'm sure that in reality if he'd lived longer he would have done so, just like all U.S. presidents -- ie, with "when genuinely necessary" meaning "when carried out by us or people to whom we've given permission."

However, there is no right to preemptive war in self-defense in the UN charter. And he was endorsing the UN-to-be in that speech.

Posted by: Jonathan Schwarz at December 12, 2009 08:30 AM

Correlating the box cutters with Hitler's armies, in the same breath of taking a dump on Ghandi and King. While accepting the Nobel Peace Prize. With Toby Keith performing later that evening.

I thought you had to smuggle a kilo of coke in John Bolton's mustache before something like that happened.

Posted by: BenP at December 12, 2009 09:04 AM

it's a politician talking out of both sides of his mouth at the same time. that's normal.

Posted by: winston smith at December 12, 2009 09:12 AM

WIIIAI and SMBIVA both have somewhat amusing posts on Obama's "war is peace" speech.

Posted by: Save the Oocytes at December 12, 2009 01:13 PM


International common law, jus cogens if Latin makes it sound better to you, is fairly straightforward about war. Self-defense in response to an armed attack is permitted, as one would expect. But more than that is permitted, as I think you'd also expect if you think about it a little. If a nation knows it is going to be imminently attacked--as in the planes are in the air and the army is at the border--a nation also doesn't have to wait until its army and population is slaughtered to defend itself. It may use force preemptively, again in self defense, but only if the threat is imminent and real, not phony and expected down the road sometime. A nation cannot, for example, attack another country because it thinks the other nation is scheming to attack it eventually, even if a preemptive attack right away would be strategically superior. Immiment means imminent.

This really strikes me as fairly common sensical, though distintuished jurists using the Socratic method can create a million increasingly difficult hypotheticals that eventually will make everyone dizzy.

Nukes and other WMDs also add a whole new wrinkle, especially if the fear is proliferation and the acquisition of such WMDs by terrorist groups. People like Cheney and Dershowitz and Bolton portray this change as so momentous and terrifying that they end up applying Cheney's 1% doctrine or something just like it to justify any act of aggression they think necessary because there's some slight chance that something horrific will happen if they don't act. In that way all aggression quickly becomes self defense, which neither international common law nor the UN Charter sactions.

What I said about international common law is that as a general principle FDR would have not disputed the principle that every country has a right to act preemptively under some circumstances to defend itself. A nation doesn't have to wait until its people killed or military has been destroyed to act, and if time or other circumstances don't make it possible to wait, it doesn't have to rely on the UN to protect it.

For example, FDR would not have disputed our right to defend ourselves against an impending attack by Japan, including by sinking the Japanese fleet when it was en route to Hawaii to attack our Pacific fleet, assuming we had wanted to stop the attack. (We baited the Japanese into attacking us, so we didn't really want to stop their fleet en route. Robert Stinnett's book Day of Deceit shows that we could have stopped the attack before it got off the ground had we so desired. I love FDR, so saying that always gives me a little shooting pain in the heart, but Stinnett's evidence looks compelling to me.)

Jonathan Schwarz

I might actually have more confidence in FDR than you do, and I didn't mean quite what you suggest. You're right that FDR was speaking in favor of, and in anticipation of, the creation of the United Nations, which was his great goal during the war and likely played an important part in his decision to let himself be blackmailed into not insisting on Henry Wallace as VP in 44 but instead accepting Truman. (FDR knew he needed the Senate to ratify the peace, which Wilson had failed to do after WWI. The Senate is constantly a problem.)

So yes, FDR wanted to avoid future wars, especially big ones, and he would never have supported an expansive notion of preemptive war.
But the UN Charter is a statement of general principles, not a legal treatise purporting to apply those principles in all the myriad situations in which they may arise. The exception of preemptive war in appropriate cirumstances as part of jus cogens or international common law predated the existence of the UN Charter and also survived it. Among nations as among men, there is no real dispute that you don't have to wait to be shot to return fire. But the exception is narrow and has to be or it justifies anything. United States Secretary of State Daniel Webster as far back as 1842 in connection with the Caroline affair made clear that for an aggresive attack to be justified as self defense against an anticipated attack by another nation, the need to use force in self defense must be "instant, overwhelming, leaving no choice of means, and no moment for deliberation."

Had there been any doubt about it, Webster (and everyone else) also surely would have pointed out that a nation can justifiably only attack the nation that it reasonably believes is imminently about to attack it, not any other nation in the world that shares the same religion or culture or civilization or political sensibilities or cuisine or whatever.

Posted by: N E at December 12, 2009 01:56 PM

a nation can justifiably only attack the nation that it reasonably believes is imminently about to attack it

a loophole that only allows several hummers, predator drones and an occasional Road-trains through

Posted by: almostinfamous at December 13, 2009 05:10 AM

Almostinfamous, Thanks, my point exactly.

Posted by: knowdoubt at December 13, 2009 08:32 AM

NE, Our Supremes have spoken rather succinctly about our/their respect for "international common law" or "jus cogens" as you may prefer. I think it went something like fuck international common law.

Posted by: knowdoubt at December 13, 2009 08:40 AM


Not so. Despite the Supremes' spate of Guantanamo rulings, which do not turn on peremtory norms of customary international law (or jus cogens for lovers of latin), the Supremes have not said a peep about jus cogens, which outlaws practices like slavery whether or not any particular nation has agreed to the prohibition.

The federal courts of appeals have recognized that peremptory norms of international may confer legal rights under US federal law, though apparently they do not exempt foreign nations from sovereign immunity or easily give rise to private rights of action under US federal law.
The Supreme Court has not taken any case to overturn those rulings, so they are US law.

Though the Supreme Court hasn't ruled on peremptory norms of customary international law directly, its decision in Hamdan does support the incorporation of customary international law into legal treaties. Specifically, he Supremes found that 'the phrase “all the judicial guarantees ... recognized as indispensable by civilized peoples” in Common Article 3 of the Geneva Conventions is not defined, but it must be understood to incorporate at least the barest of the trial protections recognized by customary international law.'

Similarly, were the Supremes ever willing to touch such a hot political issue, which is a practice they especially disfavor in connection with foreign policy, they should hold that the barest principles of customary international law relating to preemptive war are incorporated into the UN Charter where the general terms of the charter do not clearly address an issue. But I highly doubt they'll ever touch a case like that.

Posted by: N E at December 13, 2009 05:56 PM

Once again the Posts here at Tinyrevolution reverberate with truth and hit hard with ideas that need to be examined.

A year ago I had no idea that Obama would be O BAH ma so early into his first term. (The collapse of the health care reform and the willingness to continue expanding our wars leaves me Scrooge like. BAH! and humbug!)

Posted by: Elise Mattu at December 14, 2009 01:46 AM

Well, NE, I guess we will just have to disagree but a reference would make your disagreement so much more plausible. A simple google of foreign law and Supreme Court will disclose there is certainly disagreement among the Supremes concerning the issue. The death penalty comes to mind, where during a case foreign law came up to support doing away with the death penalty that most every other civilized country has done. It is basically a conservative v. liberal issue with liberals supporting the consideration and reference to foreign law in decisions and the conservatives raising unmitigated hell over the mention of foreign law in decisions or references to. To believe your position I would have to shut my lying eyes. You are right about not "touching a case" they touch very few, less that one percent of the petitions are ever granted certirorai, which leaves a whole hell of a lot untouched.

Posted by: knowdoubt at December 14, 2009 08:13 AM

P.S. You cite the Geneva Conventions, really; is that the one that prohibits torture, sets standards for the treatment of prisoners, etc., puhleeeeze.

Posted by: knowdoubt at December 14, 2009 08:26 AM


The interplay of international law, domestic law, and federal court jurisdiction gets complicated fast, and I am not an expert, so I should quit faking it. The Supremes disagree about all sorts of international law issues, of course, as well as about the death penalty, war, justice, and everything else. Half the Court is to the right of Attila the Hun, even the charming babyfaced CJ Roberts, while the "liberals" are only to the right of most everybody else.

You're right that the Supremes have considered foreign law in determining what is cruel and unusual punishment banned by the 8th Amendment in death penalty cases, most recently in the 2005 Roper decision striking down executing those under 18 at the time of their crime. The ultrafascists, Scalia and Thomas, objected not only to the result in that case (executing children is fine with them) but also any consideration of international law, which even O'Connor said that was going too far.

But the Supremes haven't been all bad on international law. Hamdan and Boumadiene and the other Gunantanamo cases were a big loss for the Bush/Cheney/Rumsfeld team. The Supremes were annoyingly cautious in the scope of their holding, as is their practice, but they did basically smack down the Bush Justice Department. And they did so show respect for international law in doing it, even if that respect related to Article 3 of the Geneva Convention, to which the US is obviously a signatory. And, of course, there was substantial military support for that position among the better members of the Armed Forces.

All that being said, you're right that the Supremes are a worthless institutional protector of anything of value, as the Bush v. Gore decision made abundantly clear recently and Dred Scott long ago made clear and almost all decisions in the late 19th and early 20th century made clear. The Court is traditionally far more conservative than the people, and it is an undemocratic institution which, except for the brief period of the Warren Court, has always seemed to reflexively defer to Power.

Posted by: N E at December 14, 2009 09:18 AM

Thanks, NE, I was beginning to worry about you, I'm not an expert either and didn't have time to find the case citations...I just remembered some of the highpoints without the "style of the case" (citation). I won't get started but there are four or five worthless SOB's with no accountability to anybody or respect for their highly touted ethics that Scalia is so fond of ignoring.

Posted by: knowdoubt at December 14, 2009 01:13 PM