Posted by: Roncevert | July 7, 2010

Adieu Senator Robert C. Byrd

Capitol Flag at Half-Staff

Sen. Robert C. Byrd, from Sophia, West Virginia, was a Senator for 51 years and a member of the House for 6 years, making him the longest-serving member of the Senate and Congress in U.S. history. He held nearly every top leadership post in the Senate, including Majority Leader, chairman of the powerful Appropriations Committee, and President Pro Tempore, a ceremonial position that also put Byrd third in the line of presidential succession.

He died on June 28, 2010, at the age of 92. On July 1st I ventured to the U.S. Senate to pay my respects to Sen. Byrd, who lay in repose, as his family received condolences from Senators and Congressman, including Senator Rockefeller.  That evening I took a bike ride and took a picture of the U.S. Capitol flag at half-staff in honor of this great statesman.

Sen. Byrd's Statue at the WV State Capital Rotunda

Others have articulated compelling tributes to Sen. Byrd from President Obama’s observation that he safeguarded our country’s institutions to a scholar in the New York Times noting the philological soundness of Sen. Byrd’s quotes of Shakespeare on the Senate floor.  One of my favorite anecdotes is Sen. Byrd’s long journey through law school.  He attended night school at American University’s Washington School of Law for 10 years — as a Congressman and with only 70 prior hours of college credit!   Sen. Byrd later reflected that earning a law degree “gave [him] confidence.  He was now part of the club, “one of the hewers of wood and carriers of water” within Congress.  The JD enabled him “to better organize [his] thoughts” and “understand a lot more about history.” Certainly, Sen. Byrd’s respect for history, in particular classical, was echoed in his speeches including his famous denunciation of the 2002 Iraq use of force resolution.  To me, the Senator’s achievement also reflected his life-long journey of continual improvement through learning and the acquisition of knowledge.

In other words, I believe Sen. Byrd realized the essential truth of life articulated by Vico that men make their own history, that what they can know is what they have made.  Sen. Byrd revisited and reinterpreted history in order to build an entire institution in his image, the modern U.S. Senate.  In honoring our institutions, Sen. Byrd created a discourse whose material presence gave rise to new political realities and embedded constitutional norms.

In his personal life, Sen. Byrd, determined to overcome life’s apparent limitations, authored his own story. Rising from the poverty of the coal fields he reached the pinnacle of power during his political epoch.  He did not let the past overwhelm him, but instead fulfilled Michel Foucault’s observation that identity is repeatedly constructed; his “truth” would be validated and re-validated against a lifelong transformation. In writing his own narrative, he chose wisely and a nation benefited.

Posted by: Roncevert | April 20, 2010

Chance, Afghanistan, and Coup d’oeil

With the airspace over the transatlantic finally opening after the disruptive eruption of Iceland’s volcano, Eyjafallajokull, one has to question whether the U.S. and EU contemplated this force majeure (act of God) when concluding the landmark Open Skies agreement in 2007 that liberalized the U.S.-EU aviation market.  We are reminded that life is often contingent upon chance.   According to Prussian officer Carl von Clausewitz, of all life’s activities none is more impacted by chance than war (the action of which is “wrapped in a fog of greater or lesser doubt.”)

Carl von Clausewitz

When  dictating his observations on war against the backdrop of the Napoleonic era Clausewitz devoted an entire chapter to the necessity of “genius” in a commander.  Genius is demonstrated by temperament and intelligence leading to exceptional achievement.  Military genius, in particular, is tested by the uncertainty of chance inherent to war and requires the elements of (1) coup d’oeil and (2) determination.  Coup d’oeil translates in French to “glimmer” and in this context refers to an intellect, that even in the darkest hour, retains some glimmerings of the inner light, which leads to truth.  Determination means the courage to follow this faint light wherever it may lead. Clausewitz explained that the rush of events in war tests a commander’s strength of character – his temperament and intelligence – and only a commander that remains determined, steadfastly holding to his coup d’oeil, can become a military genius.

Clausewitz also drew an important distinction between such strength of character and obstinacy, which he described as a “fault of temperament” and “special type of egotism” that reveals itself when a person resists another point of view not from superior insight or principle, but because he objects instinctively.  We have seen enough obstinacy in the White House this past decade to last a lifetime.  I submit that in Afghanistan, the just war, we face a different test.

President Obama’s glimmer of light in Afghanistan, perceived at the beginning of his first term, will be tested.  Prior to the election, Gen. David H. Petraeus, leader of the “surge” in Iraq and an author of the new U.S. counterinsurgency (COIN) doctrine, was elevated to commander of U.S. Central Command (CENTCOM) signaling the growing importance of COIN in Afghanistan.  Two months after taking office, President Obama affirmed this policy shift by ordering nearly a 50% increase in U.S. force presence – 21,000 more troops – to support COIN operations in Afghanistan and calling for a civilian-military counterinsurgency strategy in the region.  Following a three-month policy review, President Obama announced on December 1, 2009 a new surge of 30,000 U.S. forces beginning in 2010.

In sum, nearly a decade after September 11th and the swift defeat of the Taliban regime, the United States is finally taking seriously the cumbersome process of confronting an insurgency, famously described by T.E. Lawrence as akin to “learning to eat soup with a knife.”

Despite this renewed focus, or potentially because of it,  Taliban insurgent attacks have recently increased.  The New York Times reports:  “As American and NATO troops prepare for a summer offensive in Kandahar — what could be their most critical push in more than eight years of war — any sense of safety in the area is being worn away by assassinations, bombings and other attacks on American and Western contractors, political officials and religious leaders.”  Furthermore, the surge in troop presence has seemingly resulted in increased controversy over civilian deaths near military convoys and at checkpoints.   A NATO convoy in eastern Afghanistan shot to death four unarmed civilians in a vehicle early Monday evening, including a police officer and a 12-year-old student, Afghan officials said.

Even before the approach of summer,  prior to the awakening of the Hemland River from a wintry slumber in the Hindu Kush Mountains, currents of strife in U.S. policy materialized.  Most notably, following a contested election and rebuff by U.S. Ambassador Karl Eikenberry in 2009, President Hamid Karzai launched a series of anti-Western speeches in March attacking foreign interference in his government – even during President Obama’s trip to the country.   The Washington Post reports that Karzai was angered that Obama pushed for anti-corruption measures instead of publicly supporting Karzai’s reconciliation efforts.  President Obama recently moved to mend fences with President Hamid Karzai, sending him a letter reaffirming their close ties and reiterating an invitation to visit Washington in May.

Clausewitz forecasts such difficulty in war and notes that the “proud spirit’s firm will dominates the art of war as an obelisk dominates the town square on which all roads converge.”  He observed that military engagements exist in both time and space; therefore, sound strategy requires the proper evaluation of both. Sheri Berman writes in Foreign Affairs (March/April 2010) that the U.S. should learn from the nation-building tactics of Louis XIV and the development of France’s ancien régime for guidance.  Perhaps.  We should take note of the lengthy time period (1643-1715) Louis XIV needed to expand his armed forces, legal authority, and bureaucracy to control the loosely affiliated provinces of France.

Thus, even as the U.S. Congressional elections, 24-hour news cycle, and chance of war demand otherwise, President Obama should steadfastly hold onto his coup d’oeil – his COIN strategy in Afghanistan – and have the  determination to see it through.

I recall the great West Virginia Hemlock trees that rise on the banks of the Middle Fork River, sometimes precariously clinging to sandstone boulders on the water’s edge.  As a sapling, the Hemlock plants its roots on the rocky crevice and prepares for the rapids of winter and droughts of summer.  Challenging the stone face would be futile.  To survive, its roots must adapt to the rocky terrain, finding between jagged cracks an earthen base to nourish its growth.  As the Hemlock develops, the roots and rock become one, a tree loyal to its foundation and determined to live.

Posted by: Roncevert | April 13, 2010

From Kyrgyzstan to Montcoal

For the past two weeks world headlines have focused on news from two distant places – Bishkek, Kyrgyzstan and Montcoal, West Virginia.  In Bishkek, opposition protesters overturned the increasingly authoritarian government of Kurmanbek Bakiyev, the leader of the 2005 Tulip Revolution.  In Montcoal, at least 25 miners died following an explosion at the Upper Branch Mine owned and operated by Massey Energy Company, which is dominated by Don Blankenship.

Like Southern West Virginia, Kyrgyzstan is an isolated, landlocked and mountainous corner of the world with a struggling economy.  Revolts, insurgency, exploitation, and corruption are part of the history of both the steppes of Central Asia and the hillsides of Appalachia.  Whereas regional powers court Kyrgyzstan due to its strategic location on the modern Silk Road, outside economic interests dig through Southern West Virginia to access its strategic coal reserves.  In both instances, life is hard and often cheap.


Make no mistake, the folks of Montcoal have a higher standard of living, reside within the world’s greatest democracy, and have a striking sense of community.  Yet, common (if relative) denominators remain such as failures in the rule of law and economic dependency on foreign powers with narrow interests.

In West Virginia, the issue is of regulatory failure, specifically the lack of meaningful oversight by the U.S. Mine Safety and Health Administration.  The indifference of Massey Energy, based in Virginia, to the working conditions of West Virginia’s miners is well documented.  [Massey’s environmental record is also troubling.]  President Obama has pledged a thorough investigation of the accident, which in a cruel twist occurred almost forty years after passage of mining reform in the U.S.  The Coal Act was passed in the wake of the 1968 mine disaster at Farmington, W. Va., that killed 78 miners, including the uncle of current West Virginia Gov. Joe Manchin.

In contrast, in Bishkek the issue is the near absence of law.  According to early analysis, the coup in Kyrgyzstan is a result of Bakiyev’s corrupt and unresponsive regime.  From its incorporation into Russia in the 19th century to its post-Soviet independence, Kyrgyzstan has struggled to develop a centralized government and lacks the energy and mineral resource wealth of its neighbors such as Kazakhstan and Turkmenistan.

I strongly suspect the role of an outside power in the process, especially given the speed and organization of the opposition in taking over prominent government offices.  It should be noted that Bakiyev acted against Moscow’s overt wishes when renewing the U.S. Manas Air Base lease last year. The latest reports indicate that Russia through its media played an indirect role in fermenting opposition to Bakiyev, especially regarding the use of Russian subsidies, which were granted last year in an effort to thwart U.S. influence.  As David Trilling of reports in Foreign Affairs, Moscow delivered the coup de grâce on April 2, when Prime Minister Putin announced a 100 percent tariff increase on Russian and Kazakh oil exports to Kyrgyzstan.

KK2 Route of the Northern Distribution Network

KK2 Route on Northern Distribution Network

The U.S. media has focused on the role of the Manas Air Base in the supply-line to Afghanistan.  However, this focus on Manas misses the additional importance of Kyrgyz rail and  road system to the “Nothern Distribution Network,” the alternative logistical routes developed by the U.S. military in 2009 in response to Taliban attacks on lines of communication through Pakistan.   The so-called “KK2 Route” (Kazakhstan-Kyrgyzstan)  of the Northern Distribution Network passes through the country.

The potential loss of access to Afghanistan through Kyrgyzstan is not so much a logistical roadblock for U.S. as much as it is a commercial opportunity for other states in the region on the Northern Distribution Network like Azerbaijan and Uzbekistan.  Given the remaining $120 million U.S. rent check at stake (the lease runs from 2009-2011 at $60M a year), it is doubtful that the temporary government will seek to terminate the lease.  The true setback is efforts by the U.S. to use the Northern Distribution Network as a counterinsurgency tool for developing regional stability and buy-in for ISAF and U.S. operations in Afghanistan.  Indeed, opposition leaders are accusing the U.S. of being complicit in Bakiyev’s corruption through fuel payments related to the Manas Air Base. (Nickles and dimes as opposed to hearts and minds.)

The Beautiful and Troubled Ferghana Valley

In the meantime, deposed President Bakiyev has  retreated to his home territory in the Ferghana Valley, a fertile and strategically-placed basin divided between Kyrgyzstan, Tajikistan, and Uzbekistan.  The Ferghana is a traditional staging ground for basmachi protests, Islamic extremism, and ethnic strife.   For example, the hazardous Islamic Movement of Uzbekistan operates there.  Ironically, it was Uzbeki President Karimov’s crackdown on protests in city of Andijan in the Ferghana Valley in 2005 that led to the U.S. development of Manas Air Base as a gateway to Afghanistan.  U.S. statements condemning the killing of protesters led Karimov to kick the U.S. off the Karshi-Khanabad (K2) Air Base and forced the U.S. military to find an alternative air base.

Each policy path in Central Asia is seemingly linked and interdependent, fraught with unknown unknowns — a lesson the U.S. knows all too well.  As the U.S. and Russia (and China) engage in a modern Great Game for influence in Central Asia, countries such as Kyrgyzstan will continue to be like a river between mountains, twisting and turning to adjust to the landscape.  In such isolated mountainous terrain, like in the hills of Southern West Virginia, the guiding channels of law and governance take years to build.

Posted by: Roncevert | April 5, 2010

Smart Power and the Tip of the Sword

Following my prior discussion on the Obama-Clinton Doctrine, this post will analyze the second tenet of diplomacy. Specifically, we will review the concept of  “Smart Power” with the objective of adding specificity to this frustratingly vague term.

Looking to the future, Secretary Clinton invoked "Smart Power" at her confirmation hearing before the Senate Foreign Relations Committee chaired by Senator Kerry

The State Department recently defined Smart Power as the “‘blend of principle and pragmatism’ that makes ‘intelligent use of all means at our disposal,’ including promotion of democracy, development, technology, and human rights and international law to place diplomacy at the vanguard of our foreign policy.”  Did you get that?  Neither did I.  Apparently, to borrow from Clintonista James Carville, it’s the “don’t act stupid, stupid” principle of traditional American foreign policy.

To be fair, when first introduced in 2004, the term Smart Power was intended to signal a meaningful shift in U.S. foreign policy under a prospective Democratic administration in the 21st century.  In expounding on this term, former Clinton diplomat Suzanne Nozel noted in the March/April 2004 issue of Foreign Affairs that:

“The unparalleled strength of the United States, the absence of great-power conflict, the fears aroused by September 11, and growing public skepticism of the Bush administration’s militarism have created a political opening for a cogent, visionary alternative to [President Bush’s] foreign policy.”

Like many of us, Ms. Nozel was concerned by the Bush Administration’s undermining of international law and institutions – the “electric grid” that powers U.S. predominance within the international system – and pursuit of unchecked militarism.  We were alarmed that neoconservatives were employing liberal values such as human rights and democracy to substantiate naked assertions of force.  Smart Power seeks to restore balance in U.S. foreign policy and follow the Democratic tradition of Harry Truman, who was willing to fight wars to contain the Soviet Union, but who recognized that over the long term a liberal international order would ultimately serve U.S. strategic interests and achieve victory in the Cold War.

Smart Power follows G. J. Ikenberry’s thesis of “strategic restraint” whereby great powers seek to create a durable and mutually acceptable order among states while “locking-in” the predominant position of the leading state(s).  Great powers  show restraint in their actions, such as acting through international institutions (e.g., UN Security Council) and in accordance with international norms (e.g., Geneva Conventions), to achieve legitimacy and gain acquiescence from secondary states.  Over time, as the rules and institutions are embedded, even potential challengers have interests in maintaining this system and the costs for radical change of this “constitutional order” are increased.  While a potentially “hegemonic” actor like the U.S. can unilaterally achieve foreign policy objectives exclusive of the international system, acting within this order and building this grid is just plain smart.  In contrast, launching wars without the support of allies and in the face of international norms without planning for the aftermath is just stupid, stupid.

Secretary Clinton has added that using Smart Power means placing “diplomacy at the vanguard of foreign policy.” Smart Power therefore means using diplomacy as the tip of the sword, not as the bandage for a stricken wound.  It follows an ancient tradition of strategic planning articulated by Sun Tzu in the Art of War:  “One hundred victories in one hundred battles is not the most skillful.  Subduing the other’s military without battle is the most skillful.”  In other words, winning through forward looking strategies, without actual confrontation, is the optimal outcome.  Smartly utilizing core strengths, co-opting potential competitors, and locking-in preferences through long term planning are not exclusive tools of foreign policy.  We have seen this dynamic in West Virginia.

Getting "Smart" After Matewan

Back home, the conclusion of the Mine Wars of the early 20th century between coal companies and labor is not marked by the outcome of battles like Blair Mountain or Matewan, or decided by federal intervention in violation of the Posse Comitatus Act.  Those miners with their overwhelming numbers, local knowledge, and moral authority could have mounted a prolonged, if not successful, insurrection. Instead, the coal operators, with their promise of jobs, property holdings and political influence, changed the playing field over the long term.  They stopped using vigilantes and unrestrained aggression, and turned to legislation and market power to achieve their ends.  Miners continued to unionize and protest, but the days of murder and sabotage ended.  Even though working conditions have improved as a result of labor’s efforts, mining in West Virginia continues to be one of the most dangerous occupations in the world, and coal operator are barely challenged in their control of the industry.  Perhaps the most telling outcome of the Mine Wars are raw numbers: today there are roughly 17,000 miners in West Virginia, down from a total of over 100,000 a century ago.

Posted by: Roncevert | April 2, 2010

Principled Engagement and the Universal Periodic Review

U.S. State Department representatives such as Harold Koh and Sarah Cleveland have spoken of an emerging “Obama-Clinton Doctrine,” which consists of four tenets:

  1. Principled Engagement;
  2. Diplomacy as a Critical Element of Smart Power;
  3. Strategic Multilateralism; and
  4. Living Our Values Makes Us Stronger and Safer, including following Universal Standards, not Double Standards.

With regard to the concept of principled engagement, this refers to the interdependence of the globalized community and U.S. interests in actively shaping the conduits of commerce and power, such as international institutions.

UN Human Rights Council

In particular, Mr. Koh cited U.S. engagement with the new U.N. Human Rights Council, which replaced the derelict Human Rights Commission. As a member of the ABA UN & International Institutions Coordinating Committee, I had received an update from the State Department on its plans to participate in the Human Rights Council’s Universal Periodic Review (UPR) process.  UPR serves as a 4-year report on state compliance  with HR obligations. The UPR process includes a webcast plenary session where the subject country orally defends its progress and follow-up corrective action plans.

I was pleased that Mr. Koh publicly reiterated U.S. involvement, including a listening tour across  America to solicit information.  The tour returns to DC on April 29, 2010. You do not have to attend one of these “barn raisers” – as we call ’em back in West Virginia – to participate. Merely email information to the State Department at  The U.S. UPR report will be presented in November 2010.  If you would like to participate then I suggest reviewing the State Department’s technical guide.

No doubt there will be criticism as to the efficacy and validity of this exercise, but process can equal substance, especially when developing practices conducive to compliance with international legal commitments.  Auditing, transparent review and corrective action plans are familiar elements to regulatory attorneys.  Additionally, for lawyers concerned with customary international law, participation in the UPR  demonstrates state practice and opinio juris.

By pausing at the UPR stop sign on the open and contentious country road of human rights, we are acknowledging our treaty commitments and fidelity to universal norms.  Some folks plainly dislike the United Nations. Well back home you don’t always go to church to hear the preacher. You attend because you are a member of a community and care deeply about its vitality.

Posted by: Roncevert | April 1, 2010

Harold Koh and Role of State Dept. Legal Adviser

When considering U.S. statecraft in the 21st century, it is important to highlight the role of international law in guiding foreign policy. To this end, Harold Koh, Legal Adviser of the State Department, recently described his job as encompassing four interdependent roles: (1) counselor; (2) conscience; (3) defender of U.S. interests; and (4) spokesman for international law.

Harold Koh

Before the annual meeting of the American Society of International Law (ASIL), Mr. Koh noted that he serves as: a lawyer charged with identifying and resolving international legal issues; a reminder within government that wise decisions and moral policies are not mutually exclusive; an advocate of U.S. interests within the international system; and a voice of support for international law in the United States.

Most commentators focused on his remarks at ASIL concerning the use of force and unmanned aerial vehicles (UAVs). Considering my current work on UAVs in the civil context, I was similarly interested. However, as a former mentor of mine from the Oxford-GW Human Rights Law Program, I was particularly struck by the poignancy of Mr. Koh’s observations about the role of Legal Adviser (L) and its relevancy to this forum.

I strongly support this characterization of the chief international lawyer of the U.S. government and humbly submit that this model may be replicated on a scale appropriate to individuals supporting this Administration and the strengthening of U.S. strategic interests. First, as counselors, we can be attentive to current issues and conflicts in international relations and identify strategies to address such events. Second, with conscience resolve, we can be a reminder to ourselves and each other that values such as life, liberty, and the pursuit of happiness are not exclusive to the United States. Third, we can zealously pursue U.S. strategic interests and recognize, without apology, the dangers to our way of life and the global order. Finally, we can be outspoken advocates for international law, helping to educate individuals and communities on its impact from the hollers of West Virginia to the hallways of Capitol Hill.