Going Legit

International legitimacy isn't a restraint on American power, but a precondition for its effective use.

By Suzanne Nossel

Tagged Foreign PolicyLegitimacy

It’s a truism today that America’s position as
the world’s superpower is shakier than it used to be. The nation’s
military is overstretched and unable to take on new commitments.
Interest payments on the national debt topped $400 billion in the 2006
fiscal year, threatening to crowd out needed expenditures to sustain
economic competitiveness. And Washington has made little progress on
urgent foreign policy objectives, including stabilizing Iraq, curbing
Iran’s and North Korea’s nuclear programs, expanding global trade, and
ending anti-American extremism in the Arab and Muslim worlds.

The Iraq war has directly caused much of this
damage. Financially, it has been a huge drain: The Congressional Budget
Office reported in mid-2006 that costs topped $432 billion. Militarily,
it has been punishing: The Pentagon admits that the conflict has badly
stretched the Armed Forces, with 70 percent of troops scheduled to
return to Iraq next year set to serve their third tours. In human
terms, the price has been high: nearly 3,000 American troops have died
to date.

The war’s dearest casualty, however, has been to
America’s international standing, specifically its legitimacy abroad.
The Iraq intervention has eroded the esteem, respect, and trust that
the United States once commanded on every continent, hampering a host
of current policy objectives and putting ambitious and important new
goals out of reach. Rehabilitating America’s legitimacy, therefore,
will be essential to ensuring that the Iraq war does not exact a
permanent toll on American global influence.

International legitimacy is a measure of the
acceptability and justifiability of a state’s actions in the eyes of
other states and their citizens. Legitimacy, a kind of moral capital,
reflects a collective judgment that the assertion of power, through a
policy or an action, is valid even if it is unpopular. After all,
leadership requires taking the occasional unpopular stand; but
whereas popularity is inherently ephemeral, contingent on personalities
and temporary alignments of interest, legitimacy is more enduring. It
provides a foundation for respect and understanding that can transcend
short-term, conflicting goals. Practically, when America’s purposes are
well-founded, openly articulated, and broadly consistent with its
professed values, the use of power toward those ends is generally
judged legitimate. But when the United States misleads others about its
motives, acts on inadequate or selective evidence, flouts its own
principles, or unilaterally exempts itself from broadly agreed
standards of conduct, its legitimacy suffers.

The current administration has put little weight
on legitimacy as a criteria for policy-making. The Iraq war, for
instance, wasn’t waged without regard for international legitimacy; on
the contrary, eschewing legitimacy was part of the plan. From the
start, Bush Administration officials derided the idea that American
power should answer to international norms. Vice President Dick Cheney
resisted calls by Secretary of State Colin Powell to bring Washington’s
case against Iraq to the UN, judging such diplomatic machinations a
waste of time. The Administration even sometimes seemed to suggest,
perversely, that if leading European nations or the UN were involved,
results would be slower and less effective.

Undoing this damage is a precondition for setting
U.S. foreign policy back on course. International legitimacy, viewed by
the Bush Administration as constraining American power, must now be
recognized as an indispensable tool for fortifying and extending it. As
we look to a post-Bush foreign policy, progressives need to recognize
that a concerted effort to reconstitute America’s legitimacy is the
best way to safeguard American superpowerdom in the long term.

The History of Legitimacy

The increasing importance of international
legitimacy and the rise of the United States as a global power go
hand-in-hand. During the colonial era of great power politics, military
prowess and territorial control ruled the day; countries with resources
and armies did not worry much about the court of international opinion.
But after World War II, as leading nations grappled with how to
administer war-ravaged Europe and Japan and how to prevent future world
wars, legitimacy moved to the forefront. International law was
expounded through treaty-based organizations like the UN, NATO, and the
Bretton Woods institutions. The dismantling of far-flung colonial
empires and the emergence of the principle of self-determination helped
fulfill the widening belief that power needed to be made accountable to
peoples affected by it.

The United States enjoyed a great deal of legitimacy in the postwar
period. The conservative scholar Robert Kagan argued in Foreign Affairs
that U.S. legitimacy derived mainly from the Cold War itself: Among
Western European governments and publics American actions were seen as
justified to face down a totalitarian menace. While violent proxy wars
in Latin America and Asia had some corrupting effects on America’s
image, they did not outweigh the perception of credibility in the Cold
War’s primary battleground of Europe. In contrast, political scientists
Robert Tucker and David Hendrickson contend that America’s legitimacy
derived not from its struggle against communism per se, but rather from
the respect President Harry Truman and his successors showed for
international law and norms.

The end of the Cold War scrambled the situation. On the one hand, it
left the United States as the world’s sole remaining superpower. With
liberal democracy ascendant, American values–including the market
capitalism that much of the world once saw as synonymous with
imperialist exploitation–now enjoyed wide acceptance in Eastern Europe,
Asia, and elsewhere. With the Soviet Union gone, what Kagan identified
as the “legitimizing effect” of the Cold War struggle evaporated. At
the same time, America’s legitimacy also came under closer scrutiny.
This imbalance led to concern over the unparalleled degree of U.S.
influence over the world economy, decision-making at the UN, and oil
supplies in the Middle East. Skeptics impugned American motives and
methods by pointing to examples of Washington’s hypocritical support
for oil-rich oligarchies in the Middle East, uneven commitment to
global free trade, and insufficiently aggressive efforts to halt
greenhouse gas emissions.

The Clinton Administration handled these concerns through balanced
policies and a degree of self-regulation. It showed enough respect for
the views of allies and for the UN to get away with circumventing
international rules from time to time–as when it failed for many years
(due to congressional resistance) to pay its dues to the UN or failed
to ratify the International Criminal Court (ICC) . During the Clinton
era, conservatives sharpened their longstanding critique of the idea
that American foreign policy needed to enjoy international legitimacy.
Many of these thinkers and politicians had, during the Cold War, seen
international institutions like the UN as Soviet-influenced impediments
to American interests. Now they argued that America must not be
constricted by external norms of legitimacy, particularly if legitimacy
might be arbitrated by international institutions like the UN that,
despite the Soviet Union’s collapse, still counted dictatorships and
tyrannies among their ranks.

Such an argument was implicit in Kagan and William Kristol’s 1996
call for a foreign policy based on “benevolent hegemony”–a concept that
continued to animate neoconservatives through the 2003 Iraq invasion.
Rooted in the Cold War experience in which Eastern European peoples
drew inspiration from Western liberal ideals, benevolent hegemony held
that if the United States acted from passionate conviction, its moral
rectitude would be recognized and followed, if not immediately then in
the long run. The concept of benevolent hegemony guided the Bush
Administration’s foreign policy even before September 11–evident, for
example, in its decision in late 2001 to withdraw from the
Anti-Ballistic Missile Treaty. The Administration knew the action would
initially be derided, but it believed that the world would come to
recognize that the creation of a North American missile shield would
ultimately enhance not just American security, but also “the interests
for peace in the world.”

After September 11, Bush’s decision to frame the battle against
terrorism as one of good versus evil also drew on assumptions of
benevolent hegemony. Bush expected that the self-evidently moral basis
of the fight against al Qaeda would insulate the United States from any
potential questions about the legitimacy of its actions, much as the
battle against Soviet totalitarianism had once done in many quarters.
For a short time after September 11, that logic seemed to prevail
broadly, uniting the world in swift approval for the U.S.-led invasion
of Afghanistan and other aggressive steps to clamp down on global
terrorism. But while the 2001 terrorist attacks temporarily legitimized
an aggressive American foreign policy, they also emboldened the
conservative critique of legitimacy itself. Conservatives–such as
Attorney General John Ashcroft and his Deputy John Yoo–crafted
arguments on the premise that to be constrained by internationally
accepted legal constructs after the attacks would be to short-change
U.S. security and abdicate America’s natural right to defend itself as
it saw fit. Bush and his supporters summoned the visceral patriotism of
a wounded nation to argue that the United States must unshackle itself
from the constraints of international rules that could tie its hands.
The embrace of the doctrine of preemptive war in the 2002 National
Security Strategy was a deliberate signal to the world that the United
States no longer saw itself constrained by norms of legitimacy,
arrogating for itself a unilateral right with no articulated
justification as to why it alone was authorized to preempt threats with

Thus the Administration approached the Iraq conflict with broad
confidence in the world’s belief in America’s benevolent hegemony and a
dismissive attitude toward the constraints of legitimacy. Although
Powell managed to convince the Administration to make a pitstop at
the UN Security Council to seek approval for its planned invasion, the
UN membership (and much of the American public) correctly suspected the
decision had already been made. And indeed, when the Security Council
balked at Bush’s case, the Administration moved forward anyway, constrained by neither the holes in its case for intervention nor by the
world’s resistance. Washington was convinced that its rightness, even
if not ratified in advance, would be revealed after the fact.

But instead the opposite happened. As Francis Fukuyama describes in
America at the Crossroads, it became apparent soon after the invasion
that benevolence would not come to America’s rescue. Instead of
welcoming American soldiers with sweets and flowers, Iraqi society
exploded into a complex civil war. U.S. forces failed to find weapons
of mass destruction, debasing the war’s central aim in both domestic
and foreign eyes. And high-profile cases of prisoner abuse and war
crimes against civilians made a mockery of Bush’s lofty vision of
bringing liberty and democracy to the Middle East. Both at home and
abroad, even those who initially believed the invasion was well-intended–not just conservatives, but also many Democrats in Congress–came
to feel duped.

The Case for Legitimacy

While the United States remains preeminent in its
military and economic strength, the most potent global challenges it
faces–nuclear proliferation, terrorism, failed states, and the scramble
for energy–are not amenable to resolution through money or firepower.
They depend on America’s ability to forge agreements, build consensus,
and persuade others, all of which in turn are contingent on whether
Washington enjoys international legitimacy.

A drive to restore America’s legitimacy, then, must rest on a clear
understanding of what legitimacy is, how it is attained, and why it
is useful. Bush has caricatured legitimacy as a straitjacket, a
“permission slip” from the world. But legitimacy has two rather more
respectable sources: rules and rectitude. The first involves
authorization by a formal body or written set of laws, such as an
international agreement or treaty. Acts that meet the criterion include
measures taken in self-defense against an imminent threat under the UN
Charter, policies on detention that match the Geneva Conventions, and
extradition agreements consistent with the Rome Statute of the ICC.

The second source of international legitimacy, rectitude, cannot be
granted or taken away through any formal process; it must be earned. It
revolves around the perception that a policy or action is justified and
is not as easy to come by as following a set of prescribed rules.
Indeed, codified international law is too ill-defined, incomplete, and
unevenly applied to be the only test of international legitimacy. For
example, when the United States has employed the technique of targeted
assassinations against al Qaeda leaders, international outcry has been
muted despite the fact that such extralegal killings violate
international law. Judgments of the rectitude of particular actions
take account of individual circumstances: whether an action is
provoked, what alternatives were available, and whether appropriate
methods were used. In the case of targeted terrorist
assassinations–where the provocation is clear, the prospects for
capturing an elusive and well-protected terrorist alive are low, and
the harm to innocents is nil–the weight of legitimacy may be on the
side of the assassin.

International legitimacy–whether derived from rules, rectitude, or
both–can be affirmed and judged in three different forums. First,
standing multilateral institutions–principally the UN Security Council,
but also international courts or regional entities like NATO and the
African Union–can formally ratify actions such as military
interventions. Second, states can individually express their support or
acquiescence with the actions of other states. For example, when the
United States, Europe, and others indicated in the spring of 2006 that
they would reduce funding to the elected Hamas-led government in the
Palestinian territories because Hamas was a terrorist organization,
they helped legitimize Israel’s decision not to turn over collected tax
monies to Hamas.

Third, legitimacy gets arbitrated by the public at large in
newspapers, cafés, web sites, and street protests. Particularly in this
last form, legitimacy can sound slippery and hard to define. But the
concept’s elusiveness does not diminish its importance. Liberal
advocates of legitimacy need to embrace alternative sources of
legitimacy when, for example, the UN Security Council is paralyzed in
the face of a threat. The United States can–and should–act alone if it
must. While the withholding of international support will suggest that
others doubt the legitimacy of an action, such misgivings do not–in
themselves–render the act illegitimate. While not prohibiting action,
broad international reservations should occasion a hard look at why
support is not forthcoming and whether reasonable measures–for example,
further attempts at resolution short of the use of force–are warranted.
A certain measure of legitimacy will derive from the very willingness
to engage and debate where the boundaries of legitimacy lie, rather
than standing aloof and claiming that such questions don’t matter to

The lampooning of legitimacy by the Bush Administration, of course,
has made the concept taboo in some circles. After the first
presidential debate in 2004, John Kerry was drubbed by critics for
suggesting that acts of preemption should have some widely recognizable
justification (in his ill-chosen words, passing a “global test”).
Afraid of being portrayed as weak on defense, many progressives now
hedge their arguments, calling for building support for U.S. policies
and rebuilding America’s popular image, but not speaking of restoring
international legitimacy.

Though a worthy goal in its own right, renewing America’s popularity
is not the same as restoring its legitimacy. A charismatic new
president who traveled the world could help rebuild America’s image and
favorability ratings. A generous new foreign aid program might do the
same. But, unless accompanied by visibly increased attention to
international norms, these changes will not allay concerns over
America’s motives.

The crumbling of American legitimacy has had wide ripple effects,
from the spread of jihadism to the rise of anti-American governments in
Latin America to the inability of the United States to muster UN
support for an intervention in Darfur. According to the UN’s special
envoy for Sudan, that country’s beleaguered population is wary that
international intervention is a first step to recolonization and has a
“genuine fear of the Iraq scenario being repeated.” As human rights
advocate David Rieff has pointed out, even liberal interventionists
clamoring to stop the Darfur genocide must confront the fact that,
after Iraq, a U.S. invasion may well be more inflammatory than pacific.

Taking Legitimacy Seriously

Legitimacy is not a sweeping foreign policy
vision, but rather a principle that functions like a set of guardrails
to keep the country on course toward the overriding goal of
sustaining American superpowerdom. Mouthing the rhetoric of legitimacy
will not help. The Bush Administration’s Orwellian invocation of the
language of liberal internationalism–active promotion of freedom, human
rights, and the rule of law–amid policies marked by unilateralism,
preemptive force, and human and civil rights abuses has all but drained
the meaning from those terms. In projecting the embrace of legitimacy
as a centerpiece of its foreign policy, the United States will be
judged not by its words but by its actions.

First, we must eliminate the most glaring contradictions between
American values and policies. Practices including secret detentions,
the rendition of suspected terrorists to countries known to practice
torture, sub-standard judicial procedures for foreign detainees, and
interrogation methods that violate the Geneva Conventions must be
ended. Remedial half-measures like the Military Commissions Act of 2006
that attempt to unilaterally redefine long-standing international legal
obligations only compound the problem. Senior officials responsible for
torture, extralegal renditions, and the degradation of prisoners should
be sacked and, where appropriate, prosecuted. The Guantánamo Bay
detention center, a symbol of discredited practices and disregard for
international norms, should be shuttered. Evidence against detainees
that is obtained through methods judged coercive must be excluded. The
right of all detainees to access U.S. courts through the writ of habeas
corpus should be restored. By ridding itself of these most egregious
emblems of illegitimacy, the United States will begin to change the
terms of the debate, depriving critics of their most obvious targets.

Second, we need to take steps that demonstrate that the United
States will make future actions conform to its values. The creation of
an autonomous intelligence oversight body, perhaps modeled on the
Federal Reserve Board, would help safeguard against the misuse and
distortion of intelligence and could convince skeptics that the United
States is committed to stopping the manipulation and misuse of
intelligence. Augmented congressional oversight of overseas missions,
military procurement, and contracting would likewise signify that U.S.
defense policy decisions are based on stated criteria, not cronyism.

Third, the United States must take affirmative steps to restore
relationships with other nations. The United States need not embrace
the UN and its kin uncritically, but it does need to wipe away the
perception that it aims to undermine such bodies. Heavy-handed,
punitive reform efforts at the UN have mostly failed. Instead, the
United States should offer positive incentives that reward change at
the organization with increased engagement, resources, and political
support. For example, even though the United States voted against the
formation of a Human Rights Council at the UN, it should nonetheless
seek election to the body and help it build the credibility its
predecessor lacked.

Likewise, after years of standing aloof from the ICC and retaliating
against allies that are party to it, Washington should reopen talks
on terms that would allow the United States to join. The creation of
new standing organizations and forums of like-minded states is another
way to help legitimate U.S. policies. Replicating regional groups like
the Gulf Cooperation Council, creating a regional security alliance
with South Asia, or expanding a reconstituted NATO beyond Europe is a
start. Beyond that, a worldwide organization of democracies could
provide an important alternative to the UN. While jury-rigged alliances
that are seen as rubber-stamping U.S. policy will not help, having a
breadth of standing alliances that can be mobilized for different
purposes will.

In addition to building new alliances and organizations, the United
States must work to shape the norms against which legitimacy is judged.
Having pledged itself to uphold legitimacy, the United States will
continue to have a heavy stake in setting the rules used to assess it.
For example, a major stumbling block to the kinds of humanitarian
interventions that the country ultimately backed in Bosnia, Rwanda, and
Kosovo was the absence of a legal framework to justify the use of force
to prevent genocide. In late 2005, the UN membership adopted a
“responsibility to protect” persecuted peoples, providing a legal
foundation for future such interventions. Introduced by Canada, the
doctrine initially drew opposition from countries fearing infringement
on their sovereignty, but it eventually gained wide support. Such
action provides a useful model for how the United States might shape
new norms. Working with Canada and other countries that are viewed more
benignly will allow the United States to piggy back on the legitimacy
they enjoy globally.

Finally, a foreign policy predicated on legitimacy also requires a
shift in the practice of U.S. policy-making and diplomacy. Some
American diplomats, trained in an era when U.S. supremacy was
unquestioned, are still accustomed to asserting U.S. positions by fiat.
For some, acknowledging international norms and sensitivities is
interpreted as reflecting weakness, rather than a sophisticated
understanding of what it takes for American policy to succeed. By
embracing a pragmatic, interest-based argument for legitimacy,
policy-makers can factor it into decision-making without being accused
of placing morality or deference to others ahead of hard-headed
security calculations. To sustain legitimacy, the United States will
need to put greater weight on retail diplomacy: adducing arguments,
legal frameworks, facts, and evidence to justify American positions,
and not expecting that its authority alone will carry the day. The
United States should make clear that it is prepared to have its
proposals, evidence, and experts held up to scrutiny, convincing others
of its legitimacy, rather than assuming it.

A New American Legitimacy

While it may never make a good campaign slogan,
the elevation of legitimacy as a pillar of U.S. foreign policy is
deeply consistent with American values. Dating back to the colonial-era
image of a “city on a hill,” America’s self-image has always been that
of a country respected and admired for its principles. This attitude
may explain why majorities of Americans polled in 2005 by the Center on
Policy Attitudes and the Chicago Council on Foreign Relations report
that they are supportive of the United Nations and even the ICC.

To be sure, Americans are strongly patriotic and deeply concerned
about threats to their safety and way of life. They will reject
concessions to international legitimacy that seem to interfere with
America’s pride or its security, or to mandate inaction in the face of
threats or moral imperatives. Nevertheless, accepting the imperative of
American legitimacy does not imply that the United States can never
claim some exemption from rules or norms. It does counsel judiciousness
in choosing how and when to advance such claims. In asserting an
exception, the United States should ground its claim not in subjective
assertions of America’s benevolent motives or admirable values, but in
objectively observable realities of its global position.

By taking legitimacy seriously, the United States will be able to
mend relations with reliable allies, particularly in Europe, temper
calls to rein in American power, and address domestic concerns about
the misuse of American power, thus cutting into the attractiveness of
new forms of isolationism. More than that, a foreign policy with
legitimacy at its core both will enable the United States to restore
its own standing in the world and make the promotion of its own aims
easier. The challenge for the United States is to recognize the value
of legitimacy now as it did some 60 years ago. In doing so, America can
pick up the tools it developed to save the world from tyrants and use them
to save itself.

Read more about Foreign PolicyLegitimacy

Suzanne Nossel served in the State Department during the Clinton and Obama administrations, most recently as Deputy Assistant Secretary of State for International Organizations. She writes frequently on foreign policy topics, and coined the term “Smart Power,” the title of a 2004 article in Foreign Affairs.

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