"Generals, Make Way for the Lawyers"

Op-Ed, Boston Globe

October 8, 2012

Author: Juliette Kayyem, Lecturer in Public Policy

Belfer Center Programs or Projects: International Security

The next presidential debate, which will cover international issues, will no doubt be a moment for Mitt Romney to outline his "no apologies" foreign policy — and to expand on his view that President Obama hasn’t been forceful enough in the Middle East.

Indeed, all debates over foreign policy tend to come down to a choice about how much emphasis each candidate would place on "hard power" — the threat of military action — versus the "soft power" of diplomacy, the Defense Department versus the State Department. And Romney clearly believes that Obama has been too soft; Obama, no doubt, will preach that his quieter foreign policy has yielded better results than George W. Bush’s noisy one.

But two events last week suggest that this entire dichotomy is too simplistic. There are ways to assert American power and protect national interests that have nothing to do with the military or diplomacy. Move over, generals and diplomats. The lawyers are looking for a little action, and the next "war" may very well be in litigation.

On Thursday, Alexander Fishenko and six others were charged in a Houston federal court in a case that threatens to bring back the Cold War. Fishenko was born in the former Soviet Union, now Kazakhstan, and is a naturalized US citizen who owns a company called Arc Electronics. He is a multimillionaire. Apparently, he should be. The court papers show that years of surveillance by federal authorities revealed a "striking similarity between fluctuations in Arc’s gross revenues and the Russian Federation’s defense spending over the last several years."

The indictment is as engaging as a spy novel. The evidence suggests that Fishenko violated export rules by shipping coveted microelectronics, including devices for radar and weapons guidance systems, to Russia. And not just anyone in Russia. His client was Russia's military, which is eager to update its aging system with the help of American technological advancements. The Russians, in response, raised a technical issue: the American authorities had failed to give the Russian government any advance notice of the arrests. Wonder why.

Last Monday, in a court in Washington, D.C., Ralls Corp., owned by Chinese nationals, filed suit to block President Obama's nearly unprecedented decision last month to prohibit the company from helping to develop four wind farms in Oregon. The president's determination that the company must desist came from a recommendation by the little known Committee on Foreign Investment in the United States (CFIUS), which reviews economic activity by foreign companies for any national security implications.

Ralls Corp. installs wind turbine generators built by the Sany Group, the largest Chinese maker of construction equipment, which has close ties to the Chinese government. The wind farms, the administration said, are simply too close to a Navy military site and systems training center, near restricted air space. "There is credible evidence," Obama noted, "that threatens to impair the national security of the United States." The Chinese should take it personally; Danish and German companies both operate wind farms on the same parcel.

Blocking a company owned by foreign nationals from working on a domestic construction project is a striking move. It's been 22 years since any president has required a foreign company to divest all interests in an American project. These cases involve neither war nor diplomacy, but rather the other tools available to a president to protect American interests. We don't hear much about the lawyers these days, but legal and regulatory decisions are an essential aspect of national security strategy.

The United States isn’t going to enter a shooting war with China or Russia. Fights with those countries will take place far from any battlefield. And toughness can be displayed in many ways. There are many ways to "crack down." In small courtrooms throughout the country, lawyers go to war by other means, and their weapon of choice is a heavily footnoted, 12-font legal brief.

For more information about this publication please contact the Belfer Center Communications Office at 617-495-9858.

Full text of this publication is available at:
http://bostonglobe.com/opinion/2012/10/07/foreign-policy-generals-and-diplomats-
must-make-way-for-lawyers/0YTFeIRqbdcYF0HwpmPFAI/story.html

For Academic Citation: