Monday, April 21, 2014

Whom to Punch in the Nose: Bundy, Putin, Both, or Neither?

by Michael Dorf

Popular fiction and conventional wisdom offer the same advice: When faced with a bully, don't give in, for that will only embolden him; better to stand up to the bully because every bully is ultimately a coward. To be sure, not everyone says the bully's victim should punch the bully in the nose, especially if the bully is bigger than his victim or has bully friends. Maybe the victim can enlist others in his defense, or (contrary to the unofficial rules of the schoolyard), go to the authorities.

I don't mean to be flip about a serious subject. In the last decade or so, bullying has been (rightly) recognized as a serious problem, and there is lots of good advice out there. Here I want to briefly explore its application (or non-application) to two ongoing crises: the standoff between the federal Bureau of Land Management (BLM) and rancher Cliven Bundy and his defenders; and the conflict in Ukraine.

In each conflict, each side views (or at least portrays) the other side as the bully. Thus, in Nevada, Bundy's defenders say that the federal government is bullying him. And while Sen. Harry Reid's description of Bundy's private militia as domestic terrorists drew much of the news coverage late last week, other observers worry that by backing down from confrontation, federal officials will embolden right-wing anti-federal-government militias more broadly. In short, they would prefer that the feds stand up to Bundy's bullying.

Meanwhile, in the conflict over Ukraine, Russia portrays the Kiev government as neo-Nazis intent on persecuting Russian-speakers and other minorities, while the Ukraine government and its supporters fear that if the armed men who have seized government buildings in eastern Ukraine are not confronted, they will be further emboldened (even as they also worry that the substantial bloodshed that could result from a major confrontation would serve as precisely the pretext that bully Putin wants to send Russian tanks rolling across the border).

I don't want to get bogged down in a discussion over which side is the "real" bully in these conflicts. Here, as elsewhere, the bully tag may depend on the framing. Consider, for example, the question of whether to regard Tamils in Sri Lanka as a minority, because they constitute only a little more than ten percent of the population, or as the potential hegemon because they are the largest group in the neighboring Indian state of Tamil Nadu, which is considerably larger than Sri Lanka. This question was much mooted during the Tamil insurgency that ended a few years ago, because being the smaller party conferred victim status.

So let's put aside the question of who is the real bully as ill-defined and focus on a different question of how to navigate between two grave risks in international and domestic affairs involving the use or potential use of force: If you have a hair trigger, loss of life can follow, but if you show too much restraint, you embolden bad actors who might have been stopped by a modest show of force. To over-simplify quite a bit, we might think of these competing risks as, respectively, the risk of starting World War I and the risk of appeasing Hitler and, in the bargain, not even preventing World War II.

Seen from the perspective of the federal government, how serious is each risk in each conflict?

Let's start with the Nevada standoff. Bundy and his defenders have no legal justification for their actions. The closest thing I have seen to a cogent argument on their behalf came from Sen. Rand Paul, who appears to think that there are legitimate questions about the constitutionality of the federal Endangered Species Act. He's right about that. Although I think that the ESA is valid under the Commerce Clause, I am not completely confident that five Justices of the Supreme Court would agree, at least not in all circumstances. As a circuit judge, John Roberts indicated that he had doubts about the validity of the ESA as applied to protect a species of toad that lived entirely in one state. And so, perhaps Paul is right that the underlying basis for the government's grazing restrictions are invalid--but if so, that in no way warrants Bundy in simply refusing to pay his fines, much less in taking up arms against the federal government. He could have made his argument in court.

The very fact that Bundy's legal position is so weak heightens both risks. On the one hand, it underscores that he and his followers are extremists. Directly confronting Bundy et al really could result in a bloodbath. At the same time, however, legitimizing armed resistance as a means of protest--what another Nevadan, former GOP Senate nominee Sharron Angle, once called "Second Amendment remedies"--would almost certainly invite additional armed resistance from anti-government types who hold all sorts of unorthodox legal views.

The stakes in Ukraine are ultimately much higher. Secretary of State John Kerry's announcement that the U.S. would use "21st century tools to hold Russia accountable for 19th century behavior" predictably became the instant object of ridicule: How, exactly, would Twitter and Facebook stop Russian tanks? And, joking aside, doesn't the Budapest Memorandum actually require the United States to respond much more forcefully? But of course the Obama Administration's unwillingness to use armed force in defense of Ukraine is driven by the overriding imperative of avoiding a direct shooting war between the U.S. and Russia, which could lead to nuclear armageddon.

In the end, then, the calculations for the Obama Administration look relatively straightforward: If Bundy et al can be made to comply with the law peacefully, great, but if push comes to shove, the federal use of force would be warranted. By contrast, Putin knows that Ukraine is not sufficiently important to the West to justify military conflict, and thus he is emboldened already. Economic sanctions may have some limited effect but the biggest constraint on his conduct is the conduct itself: the Anschluss of eastern Ukraine, if it comes, could be very costly to Russia.