So much is going on amid the COVID-19 crisis that it’s hard to keep track and make sense of it all. One now coming into focus, however, concerns its legal aspects. It so far has at least three facets.
First, over the past few weeks several U.S. states and individuals have advocated suing, threatened to sue, or have actually sued the Chinese government and the World Health Organization on account of their alleged criminal negligence with regard to the onset of the pandemic. James Kraska, a law professor at the Naval War College, may have been the first, in a March 23 blog post, to raise publicly the idea of holding the Chinese government legally liable for “trillions” of dollars’ worth of damages. By then individuals and businesses in Florida, California, Pennsylvania, Nevada, and Texas had either filed suit or were preparing to do so.
Not long after—although time has been shoved through a set of temporal funhouse mirrors lately, so it’s become hard to define “long”—on April 21, the state of Missouri sued China just as three individuals on Long Island sued the World Health Organization for criminal malfeasance. Then Mississippi piled on.
No doubt this is but the tip of the legal iceberg to come, and in due course the plaintiffs may well include lots of actors who are not American. But the largest chunk could come from the White House: The president apparently likes the idea of suing China, big time, among other financial penalties reportedly under consideration. He may not have thought of this really terrible idea himself, but since when has that ever mattered?
Meanwhile, second, Donald Trump has cast himself as star of a psychodrama whose plot centers on how many Americans he can get killed by reopening the economy earlier than experts advise and not be punished for it in November. If the politically salient economic indicators are pointed in the right direction in late October, he probably figures, it won’t matter how many more people die needlessly on account of his bottomlessly deficient judgment. He hasn’t even really tried to hide his thinking, possibly because he is too narcissistic to know how. As a result, there has probably never been more apparently attractive raw material for a class-action criminal negligence suit—if Trump loses the election—in the entirety of American legal history.
Third, Andrew Cuomo has threatened to sue the feds if they try to filch medical supplies located, ordered, and paid for by the state of New York. Several other governors have indicated their agreement with that tack.
The first two of these facets forebode uses of law that are woefully wrongheaded. We are already forced to deal with a devastating pandemic. The last thing we need in the first two of these instances is a plague of lawyers trying to profit from the mayhem it’s causing.
The third, to the contrary, is a necessary and noble use of the law. If Cuomo et al. determine to uphold the Constitution in that manner, let them—all the way to the Supreme Court if necessary. And it may well become necessary since the American people elected to the presidency a man who in January 2017 swore to defend a Constitution he has apparently never read, doesn’t understand, and wouldn’t like if he did read and comprehend it. What kind of mind disavows federal responsibility for managing a pandemic crisis and then turns around three days later to claim “total” authority for decision-making in regard to it?
Suing China, the WHO, or an ex-President Trump are very bad ideas not just because I lack sympathy for idled lawyers who can’t find enough hours to bill in the COVID-19 crisis. I do lack such sympathy, it’s true, and I lack it utterly; but that’s not my main concern. These propositions are wrong in principle. They will make things worse, at least for non-lawyers.
The shortsightedness of these antics may be borne forward by motives somewhat less than pure and public-spirited. It is very hard to believe that those now suing China or the WHO over their COVID-19 sins ever expect to see a penny for their labor. I, however, wish to venture a penny for their thoughts: Why do these things if actually achieving success is so farfetched?
Well, hold on a second. It is possible to win a suit against a political organization that sometimes does and sometimes doesn’t seem to want to become a state: In August 1997 the PLO settled a suit brought by the Klinghoffer family over the murder of Leon Kinghoffer on the Achille Lauro in October 1985. So maybe suing the WHO, also an organization and not a state, is not entirely futile?
Yes, it is: The United States is a founding member and of course a signatory of the U.N. Charter, which makes the United Nations as a whole, its agencies and its high-level employees (e.g., Tedros Adhanom Ghebreyesus) included, immune from national legal processes. Lawyers know this.
Winning damages against a sovereign state is at least equally improbable. No widely accepted and practiced international legal institution exists for such purposes, and plenty of customary law understandings justifiably void insinuated claims of legal standing. The People’s Republic of China is immune from U.S. legal claims under the Foreign Sovereign Immunity Act of 1976, which was an updating of much older precedents going back to 1812. A plaintiff might try to end-run sovereign immunity by arguing that the PRC was acting in a commercial capacity rather than as a sovereign, but that argument will go nowhere in any sane court. The only basis on which U.S. citizens may sue a sovereign state concerns terrorism, according to a law passed in 2016. Some Republican senators are reportedly using the 2016 law to craft a stripping of Chinese immunity from the 1976 law. As others have noted, it requires a most tortured logic even to go down this path. But tortured logic in service to venal politics is their specialty (see Senate impeachment trial, 2020).
As for suing an ex-president for decisions he made in office, any federal court would dismiss the case as non-justiciable. It would rule that redress for political matters is subject only to the Constitution’s provisions concerning elections and impeachments. Lawyers know that, too.
So, then, could the motive behind these suits be boredom, since a lot of us lately have more time on our hands than we’re used to? Could it be, in some cases, the aforementioned quest for billing hours? Might it be publicity on behalf of narrow personal or parochial political advantage in one way or another? You think?
To get right to the gist of the first matter, let’s stipulate three inarguable facts. First, whether one thinks China’s rise is inevitable and peer-competitor bound, or that the Chinese political system will implode from the pressures of growing misalignment with its society and economy, or that some other unprovable prophetic itch about China’s future path merits scratching, no one denies that China will be there, large and lunging toward one future or another, for a long time. We will have to deal with whatever China becomes, whether we hate it, like it, or can’t decide.
Second, China is not a Western society and will never become one. No agency, certainly none outside Asia, can transform China into a fundamentally different culture, its political culture with it, then it has been for the past several millennia. Except for its technically non-dynastic succession protocols, the current regime, whatever it calls itself, is functionally indistinguishable from a Chinese dynasty, of which there have been many dozens during the 3,000 years since, by legend in China’s Book of History, the engineer Yu forsook succession by merit and passed his rule on to his son. Catchy phrases like “socialism with Chinese characteristics” shouldn’t fool anyone: The “socialism” part is hooey; the “Chinese characteristics” part is the only part that matters.
Third, the United States, unless its leaders decide to drag the nation into a cave somewhere in the Appalachians and pile rocks in the opening, will not only have to deal with China one way or another, but as a great Pacific power it will have to deal with every other country in the region whose interests are affected by China. Associates of the United States like Singapore, and allies like South Korea and Japan, do not want U.S. officials at any level to sue the Chinese government. They do not favor U.S. officials at any level suing any other sovereign state, both because of the precedent it would set and because their ceaseless efforts to hedge among the great powers are compromised by gratuitous belligerence between them. Gee it would be nice for a change if we thought about the interests of our partners before we go get all huffy and morally unctuous. Right; not a chance these days.
It follows that if we cannot make China disappear, cannot make it into something we wish it to be, and cannot avoid engaging in its wider Asian region, then we would be very stupid to antagonize the Chinese nation and its government over symbolic marginalia. Even as a great power, the United States has only so much reputational and diplomatic capital. To squander it on foolish jousts of pique would be merely risible were it not so counterproductive. How so?
The Chinese people nurse grievances against the West for what they call a “century of humiliation.” Some of the hurt the Chinese Communist Party propagandists have conjured up amounts to hype, but encyclopedic ignorance of history is required to miss the fact that a storehouse-worth of truth is not involved, too. Americans were but junior partners in the Western phalanx of arrogance and greed that assaulted China starting in the 1830s, but some American ships did carry opium from India to China in advance of the Opium Wars.
At that time, Americans earnestly debated whether U.S. interests lay with defending China against European predations in support of the principle of self-determination or in helping the British Empire to introduce enlightened ideas, and Christianity, into China in the interest of “progress.” Over the next half century that debate leaned toward what became the Open Door policy, which can be understood as an attempt to preserve a share of the China market for the United States, an effort to limit European imperial appetites on behalf of China’s basic territorial integrity, one piece of a geopolitical strategy aimed at preventing a hegemon (read, at the time: Japan) from arising in East Asia, or at one point or another all three.
It doesn’t matter anymore. Americans may judge the legacy of U.S. Asia policy to be on balance pro-Chinese, and not without some justification; but anyone who expects gratitude in international politics is a fool. Besides, the memory node that matters most, and burns brightest, in Chinese heads these days is of the Boxer Rebellion and its aftermath, which involved U.S. forces and demands for Chinese reparations. Most Chinese today do not readily distinguish between what the Europeans were up to and what the United States was up to during the century of humiliation, and that is partly because a lot of Chinese cannot be bothered to distinguish among various flavors of “white people.” (“White people” are not the only part-time racial chauvinists on this planet, you understand.) But there is another, less distant reason for that, too.
In the years after the Korean War and then the Cuban missile crisis, the U.S. Department of Defense’s Strategic Integrated Operational Plan (SIOP) called for China to be ringed by deployments of nuclear-capable attack aircraft on constant alert status. Here is how one pilot involved at the time explained it recently in a State Department oral-history debriefing:
The alert commitment involved keeping four airplanes on nuclear alert in Taiwan at Tainan Air Station as part of the larger SIOP. We had targets inside China and we had fighter squadrons that would sit alert with nuclear weapons strapped to their bellies and specific target assignments. So if the balloon ever went up, the pilots knew exactly where they were going to deliver their weapon on target. We had fighter squadrons doing that not only in the Philippines, but also in Korea. There were fighter squadrons stationed in Japan, but we did not keep nuclear weapons in Japan, so they pulled their nuclear alert time over in Korea. All that was a part of the SIOP as it existed at the time.
If you do the math, this means that, at any given time between about 1963 and 1970, between eight and twelve U.S. nuclear-armed aircraft were on alert to strike targets in China in the event of a general war crisis with the Soviet Union. The assumption was that “Red China” was a military ally of the USSR, such that a preemptive or early-response U.S. strike had most likely to take out Chinese targets as well. In the days before counterforce capabilities existed, that meant killing millions of Chinese civilians based on a premise that wasn’t even valid, at a time when Chinese strategic nuclear weapons could not threaten U.S. soil in reply. If that is not a humiliating circumstance to be forced to live with, what is?
To the wages of humiliation we must add those of incomprehension. Samuel Huntington once aptly described the United States as a “Tudor polity,” by which he meant a political order heavy on courts and parties. The role of law in Anglo-American political thinking, common law as opposed to the continental tradition of course, has always loomed large. The “parties” angle comes in because Anglo-American thinking is premised on plural power centers using procedural tools to adjudicate claims advanced by what Madison called in Federalist No. 10 “factions.” China has never experienced actual rule of law, only rule by law. Its only experience of plural power centers occurred during periods of ruinous internal war and chaos, of which there have been many in its history—so the idea of a deliberately weak center in a political order does not exactly commend itself.
It is the Anglo-American conception that is the outlier. When other political cultures think about power, their standard default aim is to centralize it to make it more effective. British and American thinkers’ first consideration concerning power is to spread it out so that it cannot readily threaten civil society and individual liberty. Only an island nation and a singularly secure “world island” can afford such thinking. What is close to hilarious is the assumption of some Americans that our way of thinking about power is not exceptional but is in fact self-evident and universally true, such that only “bad people” would think about it differently.
Exactly that assumption, however, is what we’re about, especially when aroused by some vivid threat or alluring opportunity. U.S. foreign policy is far too often a secularized manqué of Protestant eschatology, and many are now aiming that atavistic habit at China. Just a few years back we thought that we had them reading from the hymnal of universal best democratic/markets practice, and that Chinese democracy was drawing ever closer on the heels of its own marketization. We even prided ourselves on our patience in awaiting it. When we realized that Chinese leaders (and most of their followers, too) were not aspiring stakeholders after all but recalcitrant nonbelievers, we determined to shun them if we could not convert them and get them born again. We call that “hard decoupling” now.
Which is to say, we are back to our well-practiced Manichaean mischief. We, the children of the sons of light, are turning the Chinese into the children of the sons of darkness. How else could the current secretary of state, a very religious man in the partial mold of John Foster Dulles, attest that China is bent on world “domination”? We are theologizing geopolitics, again, lately in our favorite para-Calvinist way, by suing them in an altogether new and demented form of Dollar Diplomacy. We do this, of course, without the slightest whit of self-awareness, or any concern whatsoever that our Enlightenment-lite universalism may not in fact be universal.
It isn’t, and there’s a reason for that. Aristotle wrote, “The soul never thinks without a mental picture.” The Anglo-American soul’s picture, when it thinks about political life, is the dynamic equilibrium: multiple parts interacting in stable rhythms to produce a balanced whole. That’s why we Americans like the separation of powers, understand concepts like the invisible hand and E pluribus unum, and believe in free speech because we think truth will out in multipartite free, fair, and rational debate.
Chinese political premises could hardly be more different. The Chinese soul’s picture is one of a symmetrical hierarchy aimed from top down, “all under heaven”—天下 (tianxia). Authority is not plural but monadic, such that everything under heaven must be organized. Political power has no horizontal distribution, but is strictly vertical. Because of profound differences in the very nature of language, the American concept of “free speech” is not so much opposed by Chinese leaders and intellectuals as simply unintelligible to them.
It is hard to think of two peoples, Americans and Chinese, more likely to talk completely past one another and not realize that it is happening. That is exactly the dynamic we should expect when a rule-of-law political culture sues a rule-by-law political culture. The Chinese leadership will not understand our construal that what we are doing is gentlemanly and in-bounds; they will interpret it as a deliberate effort to make them lose face, and to humiliatingly coerce them. It will not end well.
This is why, in short, that for Americans—states, organizations, individuals, it makes little difference—to sue the Chinese government over its manifest mishandling of the COVID-19 crisis is guaranteed to both rip off a painful psychic scab and, worse, play right into the hands of a Chinese elite highly tempted to manipulate a form of vengeful nationalism to hold on to power in what are certain to be parlous economic times ahead. It will gratuitously harm the bilateral relationship and help those responsible for the screw up simultaneously. Is it really too much to ask of American leaders that if they insist on having bad relations with China, that they please base their animus on grievances arising from actual Chinese Communist Party intentions? There are plenty to choose from, after all.
Why, then, would anyone with the U.S. national interest at heart do such foolish things? Possibly, to return the matter of motives, because they could not care less about U.S. national interests. Case in point: The governor of Missouri was completely blindsided by what his attorney general did on April 21. According to a must-stay-anonymous member of the governor’s staff, the state’s AG just does whatever he feels he needs to do to advance his political aspirations. Alas, that is increasingly all that’s left of the patriotism of too many members of our hollow political class. And so, of course, we come to one Donald J. Trump.
That Donald Trump is a narcissist who cannot credit any but zero-sum relationships, and whose attitude toward both truth and power is exclusively transactional, no serious person can doubt. That he presides over an administration best likened to a smoldering pit of Randian moral squalor, with a vileness so vivid that it forces us daily to reconsider the meaning of the concept, no serious person can doubt. That he would blithely jeopardize the lives of thousands of Americans to further his own personal interests is too obvious to require elaboration.
That he is a brilliant political operator, alas, many of his despisers cannot yet bring themselves to credit. As if it were easy to get elected president of the United States. That he is not so much the problem as is the fact that the American people elected him in a free and fair election, is another sensitive matter than many of his critics still cannot bring themselves to admit. That is because if they did, they would realize that voting Trump out of office in November will not put an end to the political currents he both represents and manipulates. A lot of people, understandably, will do whatever they can to avoid coming to terms with that unpleasantry.
This is the main but not the only reason why trying to put Trump in jail for criminal negligence or mass involuntary manslaughter is such a bad idea. I love the anti-Trump lyrical internet parody using the Beatles’ “With a Little Help from My Friends” as a basis, but not its concluding suggestion that Trump should be jailed. We need to heal as a nation. We need to reduce the fuel supply for the conflagration of our politics so that we can sort out the real reasons for our considerable divisions. Trump was irresponsible to goad chants of “lock her up” during the 2016 election campaign. Advocating locking him up during or after the 2020 campaign would be no less irresponsible and divisive.
It is very dangerous to criminalize political judgment, even in this case judgment that has been so clearly selfish and harmful. It is a slippery slope if there ever was one in the American system because doing so violates the premise of humility at the core of classical liberalism. The liberal heart values compassion, friendship, and gratitude, not vengefulness, dogmatism, and meanness of spirit. We must not think to go there, because once journeying we are bound to get lost and become unable to find our way back home.
Here we can learn a lesson from Nelson Mandela. When apartheid ended, Mandela was faced with a choice: He could prioritize justice for wrongs done in the past, or he could prioritize healing looking toward the future. He chose the latter course for a wounded and traumatized South Africa, even though it allowed some nasty people to get away with murder. He was wise to do so.
These three vignettes, two involving the instrumentalizing of the law for retrograde purposes and one for noble purpose, do not exhaust the current legal portfolio. Sneaking in under the radar, since it is not COVID-19 related, is the Trump administration’s indictment of Venezuelan president Nicolás Maduro and several aides on March 26 for alleged narcoterrorism offenses.
Maduro is a political pimp of truly disgusting mien, no doubt. Hugo Chávez actually cared, at least at first, about the “little guy” in Venezuela. Maduro cares only about feeding his belly and protecting his ass. But neither he nor his loathsome regime are serious threats to the United States.
The Trump administration’s indictment of Maduro of course brings to mind the indictment of Manual Noriega, the Panamanian head of state, in 1989. The narco-heavy charges were similar even though the personal and political backdrops were different. More than that is similar: The same two U.S. officials who went after Noriega then are the ones who pressed to go after Maduro now: William Barr and Elliott Abrams. Barr, now attorney general, was a senior Justice Department official in 1989; Abrams, now special representative for Venezuela, was assistant secretary of state for Latin America.
The two cases differ in at least one legal respect: Noriega was a head of state, while Maduro is no longer recognized as such by sixty governments. So there is ambiguity as to whether the customary law prohibition against indicting heads of state applies. Nonetheless, it is difficult to justify arresting, indicting, and incarcerating a foreign political figure of any significant rank for breaking U.S. law, which is tantamount to insisting on the jurisdictional authority of U.S. law over those who are not American citizens, and whose alleged crimes did not take place on American soil. Presumably, the justification for any indictment of this rare sort would be that U.S. soil is involved on the receiving end of an illegal commercial activity that has nothing to do with head-of-state sovereign immunity. That’s clever, but even a child can see that it’s just a legal pretext, true as stated but false as intended.
Years ago I asked A. Leo Levin, then the retired dean of the University of Pennsylvania Law School, what legal justification existed for grabbing Noriega, and specifically for using his alleged crimes to justify the invasion of Panama before he was even convicted of breaking any laws whatsoever anywhere. Leo explained: “The legal justification is that we are much, much stronger than they are.” “But Leo,” I replied, “that breaks my heart.” And he ended the conversation simply by smiling and saying, “Yes, well, get in line.”
Now, note carefully that Barr, Abrams, and many others—myself included in this case—disparage the authority of the International Criminal Court on the grounds that the ICC prosecutor is not democratically accountable to any political body. They also disparage the global jurisdiction pretentions of judges like Spain’s Baltasar Garzón, and the German judge who recently indicted a member of the Assad regime for crimes perpetrated not on German but on Syrian soil. But if they oppose international jurisdiction and affirm national sovereignty, then how can they justify the claim that foreign nationals—foreign heads of state no less—can and sometimes should be involuntarily subject to American law? It’s not for no reason that non-U.S. nationals think of American policy as being more than occasionally hypocritical.
In 1989 it took an invasion to snatch Noriega and throw him in a U.S. jail. No doubt Maduro, knowing well the Noriega episode, has wondered of an evening just what the Trump administration might be willing to do to bring him down. Far be it from me to know. My hunch is that the administration is not prepared to do anything kinetic with respect to Venezuela. All of this smacks of Florida electoral politics, with a side benefit of turning a once-proud Marco Rubio into an even more supine mendicant than he already is. Such fecklessness debases U.S. credibility and promises to make the situation in Venezuela worse, but it is not particularly dangerous.
If, on the other hand, Trump gets fully behind the “sue China and the WHO” malarkey as he shapes his presidential campaign around a “hate China” pitch—already evident and growing more obvious daily—he may well invite the whirlwind. This is no ordinary case of the Trump White House using a foreign policy issue for narrow purposes of domestic political advantage. The Maduro indictment has nothing to do with COVID-19, but it is of a piece with the dangerous political undertow now being generated by the Trumpista juggernaut as we head through and hopefully out of the pandemic crisis toward November. A campaign theater of “hate China” histrionics, coming at a time when the Chinese leadership is itself disjointed and under domestic pressure, is potentially accident-prone enough to blunder into an actual war. That would be a case of life imitating artifice like none we’ve ever seen.
John Locke famously wrote, “Where-ever law ends, tyranny begins.” Let me propose a Locke-friendly codicil: “Where law is instrumentalized and trivialized, would-be tyrants rejoice.” So don’t sue the Chinese government and the World Health Organization. Don’t indict ex-presidents and cabinet officials. Don’t play fast and loose with sensible jurisdictional boundaries, domestic or international. Each one of these insults to true rule of law would come back to bite us in the ass sooner or later. So let’s please not go there. Isn’t our collective national ass in a sorry enough condition already?