Home -> Law Blog Directory -> Legal Commentary Blogs -> Balkinization

Legal Commentary

: Balkinization

The endless mischiefmaking of the dead-duck Bush Administration

By Jack M. Balkin

Today's New York Times has two stories that underline the price we pay, thanks to our defective Constitution, of maintaining in formal legal power--without any political authority otherwise--one of the most thoroughly repudiated administrations in the history of the American republic. It is not only, as noted in an earlier posting, that the Administration is placing in the permanent civil service a bunch of incompetent and unqualified ideologues and that the economy is in the hands, at least in part, of a high-rolling former Goldman Sachs executive who offers no evidence that he has any genuine idea of what he is doing from day to day. Today we find out that "the United States" (for which read Condoleeza Rice, presumably with the support of her ostensible boss) is pressing NATO to admit Georgia and Ukraine without going through the usual formalities. Elsewhere on the same page of the Times is an interesting story tellingly titled "Ex-Diplomat Says Georgia Started War With Russia," detailing the testimony of Georgia's former ambassador to Russia. According to the story, "A former confidant of President Mikheil Saakashvili, Mr. Kitsmarishvili said Georgian officials told him in April that they planned to start a war in Abkhazia, one of two breakaway regions at issue in the war, and had received a green light from the United States government to do so. He said the Georgian government later decided to start the war in South Ossetia, the other region, and continue into Abkhazia."

One can, of course, wonder about the accuracy of the testimony. My own suspicion is that the "green light" was received not from "the United States government," but, rather, from Sen. John McCain's chief foreign policy adviser, who had formerly been a well-paid lobbyist for Saakashvili. We know that McCain immediately supported Georgia ("We are all Georgians") and the adventurist Georgian president could well have believed that he would be able to help bring to the White House someone who might indeed be willing to beat the drums of war vis-a-vis Russia.

The point, of course, is that almost no serious foreign policy analyst believes that Georgia and the Ukraine should get close to NATO, unless, that is, we want to slip back fully into the late, great days of the Cold War and solemnly assure the world that American troops and bombers will be used should the territorial integrity of either of these nations be threatened. Obama, too, joined in some of the knee-jerk support for Georgia, but one hopes that now that he (almost) actually has responsibility for American foreign policy, he will be considerably cooler.

The more important point is that it is almost lunatic for this outgoing Administration, even if it were not the most thoroughly repudiated Administration at least since 1932 (and Hoover was repudiated only with regard to domestic policy), to make decisions, in the name of "the American people" that no sane person (there I go again) can view as required to be made at this very moment because of the exigencies of current emergencies. If the US were attacked, then George W. Bush, alas, would have to be "the great decider." But we can surely wait until Jan. 20 to find out whether "the United States" really wants to roil the NATO alliance in behalf of the remarkably debatable--I am tempted simply to say "inane and irresponsible"--proposal to expand NATO to include two quite unstable states with at least some adventurist leaders who would love to bait the Russian bear if they thought they could count on American support should the bear retaliate.

Full post as published by Balkinization on November 26, 2008 (boomark / email).