By Mike Dorf
In my latest Verdict column, I discuss the Obama Administration's continued refusal to declare that the July coup in Egypt was a coup. As most readers probably know, such a determination would render Egypt ineligible for further military aid. But, as I note in the column, lawbreaking with respect to foreign affairs and national security fits a broader pattern by both Obama and most of his recent predecessors. As I also note, the lone exception is President George H.W. Bush.
What might explain Bush I's seemingly unique respect for the rule of law in foreign and military matters? Here are a few non-mutually-exclusive possibilities:
1) Arbitrary Time Frame
I started my survey with President Reagan but Reagan's two immediate predecessors--Presidents Ford and Carter--also had pretty clean records when it comes to following domestic and international law with respect to foreign affairs and the use of force. President Nixon, needless to say, did not, but still, just backing up the timeline undermines the argument for the uniqueness of Bush I.
2) One-term Presidency
Building off of number 1), it's worth noting that Bush I and Carter each served only one term, and Ford served less than a term, whereas the lawbreakers--Nixon, Reagan, Clinton, Bush II, Obama--were all two-termers. However, I'm skeptical of this explanation, because much illegality occurred during first terms: Nixon's bombing of Cambodia; Reagan's invasion of Grenada; Bush II's Iraq invasion and torture policy.
3) Line-Drawing Questions
My column declares that Bush I had a clean record based largely on the authorization for and conduct of the first Gulf War, but one could quibble based on the invasion of Panama in December 1989. I give Bush the benefit of the doubt on that one, however. The Noriega-backed government had declared that a state of war existed between the U.S. and Panama, and so I regard that declaration as satisfying the international requirements for armed self-defense and excusing Bush from the need for prior congressional authorization. A critic, however, could say that deployment of U.S. force around the Canal Zone itself precipitated the Panamanian declaration. I take no position on the wisdom of the invasion.
4) Wartime Experience
Ford, Carter and Bush I had WW II military experience. Perhaps those experiences led them to be cautious in the use of force. But maybe not. Presidents Kennedy and Nixon also served in the military during WW II. (All five served in the Navy. President Reagan served in the Army in WW II, but mostly in a stateside filmmaking unit so we'll put his case aside as sui generis.) Nixon was a lawbreaker and Kennedy's Bay of Pigs invasion was problematic as a matter of international law; further, whatever the legality of Kennedy's Vietnam policy, it certainly wasn't marked by caution about the use of military force. The right generalization here seems to be that beginning with Clinton, military service is not needed in presidents. (Both supporters and detractors tried to make something--positive or negative--of Bush II's National Guard service, but it never got much traction in either direction.)
5) Diplomatic Experience
As Ambassador to the UN and later, envoy (essentially an ambassadorial position) to China, Bush I may have gained an appreciation for the value of diplomacy. He was widely regarded as successful in getting international buy-in for the first Gulf War.
Bottom Line: All of the foregoing, as well as some substantial amount of luck due to the timing of the foreign policy issues faced, probably played some role in somewhat distinguishing Bush I from other recent presidents. That's not a nice neat thesis, but then nice neat theses often are false.