Interview with Scott Anderson
Mr. Anderson discusses foreign policy priorities for the Biden Administration and the role that transnational lawyers can play in confronting international challenges.
Sunset in Washington, D.C. Photo: Richard Ricciardi, licensed under CC BY-ND 2.0.
By: Megan Liu, Staff member
Scott R. Anderson. Photo: Columbia Law School, National Security Law Program.
Scott Anderson is a Visiting Fellow in Governance Studies at the Brookings Institution, Senior Fellow at the National Security Law Program at Columbia Law School, and Senior Editor and Counsel for Lawfare, where he is a regular contributor and makes frequent appearances on the Lawfare podcast. He previously served as a diplomat and attorney-adviser with the U.S. Department of State, including as the legal advisor for the U.S. Embassy in Baghdad, Iraq.
In this interview, Mr. Anderson discusses foreign policy priorities for the Biden Administration, as well as the role that transnational lawyers can play in tackling global problems.
This interview has been edited for clarity and length.
A lot happened in 2020, including the U.S. presidential election, a global health threat, and racial justice movements. What do you think are the policy consequences of this moment?
In many ways, 2020 was a seminal year that challenged and re-defined many of the paradigms that have long defined various aspects of U.S. law and policy. The scale of the COVID-19 pandemic is such that it has disrupted daily life for nearly every human on the face of the Earth. This requires states to begin to think differently about their security: What are the real threats to the public, to the economy, and to the future of our “way of life”?
On top of that, the Black Lives Matter Movement and other social justice movements have brought new and important issues to the fore of our political consciousness. I think these movements have been driven not only by the failings of the United States domestically, but also by many of the Trump Administration’s approaches abroad, including its hostility towards migrants and refugees, its conscious down-playing of human rights, and its belittling of non-European countries. Thanks to these movements, more people have become comfortable with the vocabulary of ideas that they are advancing, which emphasizes the extent to which privilege and white supremacy are major power structures within the United States that have to be acknowledged and addressed.
I think these developments are going to lead to some real changes both in how the United States operates internally and how we engage with the rest of the world. We have already seen some signs of change, a few of which even reach across partisan lines. In particular, parts of both parties are finding common ground in their focus on domestic affairs and limiting U.S. commitments overseas. The political right frames this as an “America First” narrative, while the left tends to focus on the need to limit military engagements and focus on diplomacy, but there is some undeniable common ground. At the same time, there are people in both parties who recognize that the United States has a central leadership role in world affairs and cannot walk back from that role without negative consequences. I expect that the debates between these perspectives are going to reshape how the United States approaches its role in the world moving forward.
And what will the consequences of this shift be for lawyers and the law?
On the legal side, these political debates intersect with a number of important questions, including the issue of democratic accountability in foreign policy. Lawyers are going to play a central role in helping to articulate what policymakers can and cannot do, especially because the Biden Administration and its supporters genuinely seem to care about the rule of law. All signs point to them adopting, as the Obama Administration did, a conscious effort to have credible legal grounds to act in foreign policy and, more importantly, to articulate publicly their reasoning and expose themselves to criticism. Lawyers are going to play a central role in that process.
I also think the Biden Administration will have to fundamentally reconsider how certain aspects of the Presidency have come to function. Over the last four years, the Trump Administration was able to do an immense amount with the broad authority delegated, often willingly, by Congress and the federal courts to the executive branch. Both the right and the left have decided that this formula is problematic in various areas. Although there are often good reasons to give the executive branch authority, there is a growing realization that the benefits of delegation and executive discretion must be balanced against democratic accountability and other safeguards.
Given this bipartisan realization, I think we may be entering a period with the potential for reform that we have not really seen since the post-Vietnam, post-Watergate era — one where there is serious Congressional interest in restructuring foundational statutes that the President uses to advance U.S. foreign policy interests. For lawyers interested in foreign relations and national security, it is an exciting time to be working in this space.
What should the new Biden Administration’s foreign policy priorities be?
First, it is widely accepted that the Administration must prioritize reengaging with many of its longstanding bilateral and multilateral relationships. The damage done to key U.S. alliances over the last four years cannot be overstated. The Trump Administration was dismissive or unnecessarily hostile towards key NATO and European allies, as well as various international institutions. At the same time, it forged strange bonds with — and often seemed to defer to — authoritarian leaders in other countries with problematic human rights records and interests in tension with those of the United States. A major realignment needs to happen to put the United States back on the right foot.
Second — and calling this a “priority” might put me in a minority — but I think the Biden Administration needs to find ways to set some outer legal limits on Presidential authority and discretion. We are coming out of an era that demonstrated the dangers of leaving almost-unbounded authority in the hands of the President. In the area of war powers, the Soleimani strike showed how close we got to a worst-case scenario in our relations with Iran, with the president acting without the support and even contrary to the wishes of Congress.
For another example, in the area of treaty withdrawal, the Trump Administration was able to aggressively withdraw from an array of treaties and even threatened to withdraw from more fundamental agreements like the North Atlantic Treaty. Then as Trump was leaving office, the Justice Department’s Office of Legal Counsel released two opinions boldly asserting the President’s exclusive authority to withdraw from treaties even over Congress’s objections, providing a foundation for future presidents to pursue similarly disruptive policies if left unchecked.
Congress needs to push back on these positions by setting some guardrails on Presidential authority and discretion. In my view, the Biden Administration should consider supporting efforts to reform the War Powers Resolution and set statutory limits on treaty withdrawal from certain key international treaties. Congress also needs to think about how to push back if the President does not respect those limits by, for example, setting up causes of action that permit litigation and expedited procedures that can help enact contrary legislation. We saw some signs about the potential of the latter in the congressional debates about arms sales, Iran, and support for the Saudi-led military campaign in Yemen in recent years, but these procedures could be substantially strengthened and made more effective.
For Congress to enact any of these changes, however, it will need the support of the executive branch. It is very hard to envision any package of reforms that will get support from two-thirds of both the House and Senate necessary to override the President (as Congress did with the War Powers Resolution in 1973). But with support from the Biden Administration, a simple majority in Congress should be able to enact basic guardrails, so we don’t have as disruptive a president in the future. I think this should be a high priority because all signs indicate that, while Trump is unlikely to ever be president again, the values he espoused and worldview he personified will continue to play a role in U.S. politics moving forward. And if the United States wants to be able to make credible international commitments to allies that span future administrations, Congress needs to find a way to keep future presidents within acceptable bounds.
Going back to your first priority, what about multilateralism? Linda Thomas-Greenfield said back in November that “America is back. Multilateralism is back.” The Biden Administration has rejoined the Paris Agreement and halted the decision to depart from the WHO.
At this point, the Biden Administration has only been in office for about two months. So, at this stage, the current Administration is most likely evaluating the previous Administration’s approaches to a variety of issues to consider what it should keep and what should change. This is a prudent step for the Biden Administration to take, as incoming administrations are often too willing to jettison their predecessor’s policies, even where some may have been rooted in some good ideas. That said, for this reason, we will have to wait to know various aspects of the Biden Administration’s broader foreign policy agenda, as they will not be entirely clear until this review is done.
But COVID-19 is not one of those issues still being debated. We are still at a critical phase of the global pandemic. Several leading countries are beginning to come out of the worst phases, as we see higher rates of vaccination. That is a real sign of progress. But the pandemic is not just a domestic priority; it is also an international problem. The Biden Administration has politically committed to vaccinating all adult Americans this year, and no one is going to second guess the Biden Administration’s commitment to addressing the needs of its own citizens as a top priority. Many other countries are doing the same. But this also means that the United States and other wealthy countries are going to be buying up a substantial part of the global supply of vaccines, even as less fortunate countries continue to struggle with the virus. Real substantial thought should be given to how this will affect and aggravate global inequities. For this reason, I suspect a major agenda item for the United States going forward will be to consider how to control the pandemic in a more equitable fashion and on a more global scale. After all, until that happens, the international system and global economy will not be able to recover fully.
At a time when our nation is divided, how have you sought to understand viewpoints different from your own?
That is always a challenge. But it is also something that people should do as a matter of personal responsibility, especially for those who want to be intellectually honest about our political and legal systems. In my own “media diet,” I try to make a conscious effort to read writings by people with whom I do not agree and understand the assumptions underlying their arguments, which are likely to differ from my own. There is a real value to engaging with the strongest version of opposing arguments, not just the “straw man” arguments that are often relayed to us within and through our own media bubbles. Meeting people who disagree with you on their terms is the only way to really test their arguments and assumptions, as well as your own.
All that said, we have a social media environment that often rewards the very opposite. Anyone who has had a Tweet go viral has felt the excitement of, “Oh, people are listening to me.” But the Tweets that most often go viral tend to reinforce existing world views, and often do not substantively engage with another in any depth. We as humans like the cognitive affirmation that we are right and others are wrong, and we build community bonds around that. But those community bonds can be dangerous if left unchallenged, and in some cases have led to very divergent views of “reality.” So, I would encourage people to fight the silent song of social media, to take it with a grain of salt, and to recognize that the exchanges that get you the most rewards online are often not the most productive dialogues to have from the perspective of developing a genuinely better understanding of the world.
What do you hope for your children to learn from this moment?
Since the Cold War era, there has been a lot of truth to the importance given to U.S. global leadership. But this idea is also bound up with a lot of national mythmaking. As a nation, we have to be willing to challenge and reconsider these myths, and to deal with our own real shortcomings, if the United States is going to live up to its most fundamental principles. My hope is that the next generation will begin breaking down and reconsidering some of these paradigms on their own terms, without the rancor and social conflict that often makes that such a difficult task today. That way they will not have to wait for real moments of crisis, like we have experienced over the past year, to begin making changes for the better.
Megan Liu is a second-year student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. She graduated from Durham University (United Kingdom) in 2016.