Peter L. Berger's Blog, page 86

Service, Please!

Gal who works for President Trump walks into a restaurant to order dinner. The owner refuses to serve her, explaining to reporters that in doing so she and her colleagues are seeking to “uphold their morals” and “live their convictions,” including that “the restaurant has certain standards to uphold, such as honesty, compassion, and cooperation.”

In other news, two gay guys planning to marry walk into a bakery to order a wedding cake. The owner refuses to bake the cake, explaining to reporters that in doing so he is seeking to avoid sending a “specific message” about homosexual conduct to which he objects on religious grounds.

Two questions about these incidents. First, are they alike or different? Second, what was morally right for the owners—to serve or not to serve?

In my view, the restaurant and bakery incidents are alike, and the morally right choice for both owners would have been to serve the customer. I believe that mine is a distinctly minority view.

Consider first the viewpoint of partisans of the restauranteur. Many on the Left who believe passionately that LGBT people have the right to equal treatment in public accommodations have concluded that it’s permissible and even desirable to deny that same right to Trump Administration officials.

Why the different standard? Gay people are a legally protected minority, they say, whereas political celebrities are not. Trump and his hirelings are so horrible, they say, that it’s morally acceptable to treat them in ways that we’d never treat members of marginalized groups. Civility is fine, they say, but sometimes, when the stakes are high, civility must give way to higher values.

Thus we see a new flurry of opinion pieces with titles like “We Have a Crisis of Democracy, Not Manners” and “White America’s Age-Old, Misguided Obsession with Civility,” both recently published in the New York Times.

Intelligent arguments all, but I can’t buy them. Yes, some of us are more marginalized than others, but to me that fact does not justify a double standard favoring either group when it comes to basic respect and civil treatment. And yes, political misconduct often does more harm than mistreating a few individuals in public places. But to me that fact does not justify mistreating even a few individuals.

Many who disagree with me have cited as a support for their views the tradition of militant civil disobedience as exemplified by Mohandas Gandhi, A. J. Muste, and Martin Luther King, Jr. I admire this tradition and these men deeply. Please show me instances in which any of them, in the name of their militancy, taught their followers to throw their opponents out of restaurants, deny them service in public accommodations, shout them down when they try to speak, taunt or belittle them personally, seek physically to intimidate them in public places, or shoot them while they practice baseball.

One of my most important memories from my childhood in Jackson, Mississippi, was observing the sit-in led by young African-Americans at the lunch counter in the downtown Woolworth. Let’s recall that these students sought the right to be served, not the right to deny service to others. Nor did they taunt or bully or assault anyone, even as those who opposed them resorted with gusto to taunting, bullying, and assault. And whom do we respect today as the moral heroes of this event and many others like them and, largely because of their moral heroism, the eventual victors in the political struggle?

To me, those who view brutishness and unrestrained aggression as badges of militancy misunderstand both the power of militancy and the teachings of these three men.

Now let’s consider the perspective of the partisans of the baker. Their rationales are quite different. First, they say, religious liberty as claimed by the baker is a fundamental human right, existing as its own distinctive good and priority. All the restauranteur can say is: “Here I stand on the basis of my political opinions.” The baker can say: “Here I stand on the basis of my religious faith.” The latter claim, they suggest, is at least in some ways more profound than the former.

Many social conservatives also argue that this baker was not just some guy behind a counter selling baked goods to the public; he was involved in creative expression, similar to that of a painter or fashion designer. Because he invests himself artistically in each cake he creates, they say, he can sell the cakes to whomever he pleases. After all, is Beyoncé obligated to sing for anyone willing to pay her fee?

Finally, they say, wedding cakes are inextricably connected to weddings. As a result, baking the cake for a gay couple explicitly endorses the gay wedding, whereas a restaurateur selling a politician a meal from the kitchen is not openly endorsing that politician, or at least not to the same degree.

Intelligent arguments all, but I can’t buy them. Yes, religious liberty is indeed a fundamental human right. But for me, religious liberty derives from something broader: liberty of conscience. One of my guides here is James Madison, arguably the main architect of the U.S. Constitution, who describes conscience “the most sacred of all property.” And while I confess that I don’t fully understand how and to what degree Madison conceptually distinguished religious liberty from liberty of conscience, I do wish Madison’s wording had prevailed when, in 1789, he proposed that the First Amendment to the Constitution make explicit that “the civil rights of none shall be abridged on account of religious belief . . . nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.”

If we understand liberty of religion as one aspect and consequence of liberty of conscience, it seems that we must conclude today that a claim of conscience (such as the restauranteur’s) is in principle no less weighty than a claim of religious freedom (such as the baker’s).

Second, I see no way for society legitimately to separate, in the area of public accommodations, what is creative expression and what is not. The woman who cuts my hair is highly skilled, displays a bespoke attitude toward her work, and charges a lot.  Does make a hairdresser akin to an artist? I’m not sure. How could I be? How could a judge or politician be sure?

The truth is that no one can determine such issues in an objective manner, because the only standards we have are malleable and deeply subjective. If you say that my bricklaying constitutes an art form, or I say that my roadside vegetable stand or my gun shop or my vinyl record store represents personal creative expression, who are you—who is anyone—to disagree?

This same irresolvable subjectivity governs any attempt to determine whether and under what circumstances my contact with you in a public space constitutes an endorsement of you, or of anything. Does providing a wedding cake mean endorsement?Does smiling at you and holding the door open for you mean endorsement? You tell me. Actually, you can’t tell me, because the answer ultimately depends on when and in what ways I feel personally vulnerable or disagreeably exposed in relationship to you.

Here we face some fundamental realities. We humans live only in groups. All groups require cooperative acts. Any act of cooperation can be understood subjectively as contamination or endorsement. As a result, once we are collectively launched in this direction, particularly in public accommodations, there may be resting points, but there is no logical stopping point until all form of sociality become purely voluntary. Are you ready for that?

I’m not. Again, I grew up in Mississippi in the 1960s and 1970s. I’m very familiar with signs in diners, restaurants, stores, and elsewhere put up by good people acting on conscience and sincere religious conviction saying “We Reserve the Right to Refuse Service to Anyone.” Their decent intentions and motivations aside, I know in my bones what this phenomenon means. I know the bitterness it engenders, the ugliness it produces, and the defensive resentment it both represents and stokes. I want none of it.

Serve Trump officials dinner. Bake wedding cakes for gay couples. Confine both political acrimony and religious disagreement to places other than public accommodations, which we should vigilantly preserve as safe spaces for all.

Why, in a nutshell? Because in our American experiment in ordered liberty—what Katherine Lee Bates called “liberty in law”—the path we seek is to order ourselves in ways that make liberty vibrant and sustainable. One of those ways—one form of order on which shared freedom depends—is the societal rule that says all members of the public are treated equally in public accommodations.

It’s not so complicated. I set up my shop, you walk into my shop, and I treat you no differently than I would treat one of my favorite customers. Even if I detest your political views. Or find your long hair offensive. Or worry that in associating with you I am endorsing sexual immorality or an improper understanding of God.

As a society, we’ve learned through hard, bitter experience that this rule of equal hospitality in public accommodations is more conducive to social peace and enduring freedom than its alternatives. Have we now descended so far into the muck of political rancor and mutual incomprehension that following this simple rule has become too much for us to require of ourselves?

Daniel Politi, “Restaurant Owner Who Booted Sanders Has No Regrets: ‘I Would Have Done the Same Thing Again,’” Slate, June 23, 2018.

Jennifer Calfas, “Colorado Bakery Owner Insists He’s Not Biased Despite Going to Supreme Court Over Cake for Gay Couple,” Time, June 5, 2018.

James Madison, “Republican Distribution of Citizens,” The National Gazette, March 5, 1792, reprinted in Gaillard Hunt (ed.), The Writings of James Madison, Vol. VI (New York: G. P. Putnam’s Sons, 1906), p. 102.

Cited in Vincent Phillip Munoz, God and the Founders: Madison, Washington, and Jefferson(Cambridge, U.K.: Cambridge University Press, 2009), p. 30.

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Not Quite the Big Picture

The Big Picture offers a lively, readable account of a profound transformation taking place in the U.S. entertainment industry: namely, the collapse of the self-contained narrative film that for the last 100 years has defined the art and business of the cinema, and the massive shift of cultural weight and influence from movies to television—or more accurately, to the multi-part dramatic series that was originally developed for broadcast television but has now migrated to digital streaming services such as Netflix, Amazon, and Hulu.

Ben Fritz has covered the entertainment industry for several years, first for the Hollywood Reporter, then for the LA Times, and now for the Wall Street Journal, and his reporting has always shown incisive clarity. That quality is evident in his highlighting of the three main forces driving the present transformation: 21st-century information technology; changes in the viewing habits of Americans; and the globalization of the entertainment market. But when it comes to analyzing these forces, The Big Picture does not always live up to its title.

Like many smart reporters who develop a feel for their beat, Fritz found himself itching, a few years ago, to write a book explaining how all the pieces fit together. Writing such a book was not easy, though, because Hollywood, like the British Royal Family, employs an army of PR experts highly skilled in stroking the egos of journalists while keeping their inquisitiveness at a stiff arm’s length. Without a better sense of how this transformation appeared to insiders, even this outstanding reporter could not have ventured beyond speculation.

But then Fritz caught a break. In November 2014, an unknown hacker penetrated Sony Pictures Entertainment, causing a massive leak of internal documents, including all kinds of production memos and tens of thousands of private e-mails. According to his preface, Fritz hesitated to exploit this treasure, because some items were potentially embarrassing to individual Sony employees. But he also understood that “much great journalism has used stolen material as its source.” To his credit, he does not trade in gossip or moralize about revealed lapses in political correctness. Instead, he uses the hacked material to explain “why we get the movies we do.”

Why do we get the movies we do? Why is it so hard to find a compelling human drama, a genuinely funny comedy, or even a clever and visually appealing animated feature in a theater nowadays? When exactly did the big screen get colonized by oversized, overproduced, overblown comic-book superheroes who can barely talk, except to mouth pseudo-lofty sentiments and grunt vows of spectacular revenge against oversized, overproduced, overblown supervillains? How did the words “mature” and “adult” come to mean pornography? And why do so many technically amateurish, morally blinkered “indie” films get lauded as works of art, simply because they are produced on a shoestring budget and recycle a “progressive” cliché or two?

These are my complaints, not Fritz’s. He is not pleased by the demise of the “mid-budget original film.” Nor is he especially enamored of comic-book superheroes, with the possible exception of Spider-Man. But his overall concern is less with the larger ramifications of these developments than with what matters most to the movers and shakers in America’s Dream Factory: the bottom line. This is hardly surprising. The majority of reporters who cover Hollywood work for the business section of their news organizations, not the arts section. So typically, they treat movies and TV shows as widgets, or production units, rather than unique cultural expressions that sometimes rise to the level of art.

This widget approach works fine when Fritz explains how changes in technology and viewing habits have contributed to the decline of the classic American moviegoing experience. He frames this story in dialectical terms, with the thesis being classic moviegoing, the antithesis being couch-potato home viewing, and the synthesis, made possible by the age of Big Data, being Netflix.

As of this writing, Netflix is all over the news, with cover articles appearing in publications like the Economist and New York Magazine. Fritz was ahead of this curve, explaining in a cogent few pages how a once obscure mail-order-DVD business grew into a digital-streaming Godzilla, able to strike fear into the coldest Hollywood hearts. To my fellow Netflix subscribers: The next time you open your account, take a good look at the cute little rectangle by your name. Behind that smiley face surges a tsunami of viewing options, curated for you by serried ranks of hyperactive algorithms that never sleep and care nothing for the elevation or debasement of your taste and character, only for their own ability to satisfy your present whim and keep you coming back for more.

Less cogent is Fritz’s repeated lament for lost glory days when, he presumes, Americans all watched movies together and collectively discussed them for days afterward. It is unclear why he harps on this theme. Did an agent or editor advise him to sex up the book with an attention-getting argument? If so, it was poor advice, because the book is not improved by passages like this: “Films at their best are cultural moments, when millions of us gather to laugh, cry, scream, or dream together in a theater with a huge screen and a state-of-the-art sound system. These movies completely immerse us and for a few hours make us forget about our Snaps and our Instagram likes.”

Here Fritz does not take the widget approach, but neither does he offer any artistic judgments. Instead, he defaults to the standard postmodernist view of films as social and political texts which either reinforce the oppressive status quo or raise awareness against it. Singling out two recent films that in his view recall the lost glory days, he asks, “Would Wonder Woman have sparked a national conversation about the representation of women in our culture, or would Get Out have everyone talking about the intersection of horror and the African-American experience, if so many of us weren’t watching the same movie together at the same time?”

Almost none of this rings true. First of all, who are “we”? Theaters show films for several days or weeks, so even when a movie is deemed an “event,” most people go to see it at a time that is convenient for them, and in a place (the local cineplex) where everyone else is a stranger. With the exception of major sporting events, presidential elections, and mass shootings, there are very few occasions when millions of Americans laugh, cry, scream, and dream together. Second, most Americans are not particularly inclined to discuss movies, but when they do, I’ll bet you a gallon of greasy popcorn they don’t use phrases like “the representation of women in American culture” or “the intersection of horror and the African-American experience.”

So far, we have seen Fritz treat films and TV programs in two different ways: as mere commodities, and as fodder for postmodernist analysis. Neither is adequate, in my view. But it is hard to find thoughtful aesthetic judgment in any artistic medium these days, least of all commercial entertainment. So I will cut Fritz some slack and turn to the best part of his book, which is the chapter on the third force transforming the U.S. entertainment industry: the globalized market. The shorthand for this is China.

As Fritz makes clear, the single, overriding reason for the proliferation of loud, vapid movies about comic-book superheroes is that such movies constitute a dependable, almost risk-free product that makes boatloads of money in China. In this connection it is worth noting that back in 1915, when the cinema was in its infancy, the U.S. Supreme Court defined it as “a business, pure and simple.” One effect of this ruling was to deny movies the protection of the First Amendment. Half a century later, that decision was overturned, and today the U.S. entertainment industry enjoys a greater degree of artistic freedom than that of any other country. Yet when it comes to the export of “audiovisual products,” both Hollywood and Washington revert to the older definition.

For example, in the 1980s and 1990s, when a group of trading partners led by France and Canada sought to carve out a “cultural exception” to agreements under the WTO, the American response, under both Democratic and Republican administrations, was distressingly obtuse. U.S. trade officials simply rejected the other countries’ concerns with preserving their own cultural traditions, and insisted that the production and distribution of films and TV shows is a business, pure and simple. I am not arguing here that cultural protectionism is good policy. But I am suggesting that to ride roughshod over the type of concerns raised by France and Canada is a bad way to do business with friendly democracies.

It is an even worse way to do business with unfriendly regimes that take culture very seriously—indeed, that aggressively deploy it as a tool of “sharp power.” Yet this is precisely how Hollywood has been doing business with China over the last several years. Fritz’s chapter stops short of the very latest developments, but it does point in their direction.

The first such development took place this past August, during the lead-up to the 19th National Communist Party Congress in October. Very briefly, the Communist Party under Xi Jinping launched a crackdown on Chinese companies that had been heavily investing in Hollywood. One of the chief targets was Wang Jianlin, the CEO of the massive real-estate conglomerate Dalian Wanda, which as Fritz relates, was well known in Hollywood for “its monstrous hunger to devour anything and everything it could find.”

The subsequent withdrawal of major Chinese investment caused a near panic, because as Fritz writes about an earlier hiccup in this investment, “The Americans had no choice but to keep playing along. Nobody else was willing to pour billions of dollars into the struggling movie business.” According to one senior executive quoted in the trade publication Deadline: Hollywood, “People are starting to ask, where is the money now? Because they have to feed the beast.” The same article quotes this warning from a highly regarded “China watcher”: “With no alternatives for risk-tolerant investors on the horizon . . . Hollywood will be forced to take every overture from China seriously.” (emphasis added)

Some of these overtures can be troubling. As I have written elsewhere, there are already quite a few Hollywood actors and technical directors willing to collaborate with Beijing in the production of propaganda films aimed exclusively at the Chinese audience. One such film, Wolf Warrior 2, is laced with strikingly anti-American messages. And while Wolf Warrior 2 made very little money outside China, it was a tremendous hit at the Chinese box office. If that pattern should repeat, then what will prevent the major studios from seeking a piece of the action by collaborating on equally troubling projects? Things have not yet reached this point. But if they do, then the Big Picture will have grown very dark indeed.

It is widely believed, though not proven, that the hacker was an agent of the North Korean regime, angered by the insulting portrayal of Kim Jong Un in The Interview, a foul-mouthed comedy from Sony scheduled for a Christmas 2014 release. See my reviewof both the film and the surrounding circumstances.

Mutual Film Corp. v. Industrial Commission of Ohio, 236 U.S. 230.

Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495

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NATO’s Binary Moment

Tomorrow, July 11, the heads of state of NATO member countries will meet at the gleaming new NATO Headquarters on Boulevard Leopold in Brussels. At one level, this will be a summit like many others: There will be calls to spend more on defense, with solemn promises to do just that by those who have been falling short. There will be specific plans to improve readiness and to invest in infrastructure and mobility, as well as a reassertion of shared democratic values and principles. But at another level this NATO summit is about something much more fundamental: It could be the final opportunity for the allies not just to articulate but also to agree on a shared strategic assessment of deteriorating regional and global security and to start planning accordingly. Four years since the Russian seizure of Crimea, NATO is still in flux. Those who think that, come July 13, things will go back to business as usual had better think again.

The core issue that continues to hobble NATO is the misalignment of the national security priorities of its individual member-states with those which the alliance as a whole must agree on to remain effective. Today NATO’s member-states see their national security dilemmas differently, and the question remains to what extent they will be able and willing to merge these into an overarching strategic direction for the alliance. Despite the fact that Russia’s military seizure of Crimea shook NATO out of its post-Cold War complacency, the regional security optic remains the dominant variable across the alliance. Flank countries like Norway, the Baltic States, Poland, and Romania see Russia as the overarching threat; Germany and France recognize that Russia is threating the rule-based European order but do not seem to believe that they are threatened in the same way as the flank states. Moreover, ever since the MENA mass immigration wave first crashed onto Europe’s shores, Germany, Italy, and France have increasingly seen the south as the primary area of concern, with France and Italy looking deep into Africa, as far as the Sahel. There is also the tough question of how Turkey, the provider of the second largest standing military force in NATO, will set its priorities going forward, especially when it comes to its relations with Russia.

In turn, the United States—the only truly global power in NATO—is faced with increased security competition in Asia, in addition to growing instability in Europe and MENA and escalating competition for the High North and the Arctic. Consequently, Washington has put a premium on burden sharing, insisting that the allies not only spend on defense at the 2 percent of GDP level that they agreed to at the last two summits, but also that they field usable military capabilities and improve logistics. The United States also sees power projection and the global fight against terrorist networks as two important NATO tasks going forward, whereas for Europe the latter has a decidedly domestic focus. In short, almost three decades after the end of the Cold War, NATO is heading into yet another summit faced with the fundamental questions of what its shared threats and priorities are, and how to build an enduring consensus on the strategy and resource allocation needed to implement it.

This is not to say that nothing has been done since 2014; indeed, NATO’s Enhanced Forward Presence initiative, which put a rotational U.S. Brigade Combat Team in Poland and four rotational multinational battalions in the Baltic States, NATO’s Tailored Forward Presence which increased deployments in Romania and Bulgaria, the U.S. reinvestment in its military presence in Europe, the creation of the Atlantic Command headquarters in Norfolk, and the new Joint Support and Enabling Command (JSEC) in Germany are all important steps in strengthening NATO’s defenses in Europe. Still, at its core the issue is political: an apparent lack of strategic consensus across the alliance, reflected in NATO’s regionalized national security optics.

The question of equitable burden-sharing will not go away, and a calm assessment of the relative imbalance of allied contributions, both in terms of money and usable capabilities, needs to be factored in, if only for the simple reality that, since NATO’s inception, the United States has been by definition a primus inter pares among the allies, both in terms of its military contributions and the foundational strategic nuclear guarantee it continues to provide to its allies. Likewise, the ongoing argument over some allies’ reluctance to spend the agreed 2 percent of GDP on defense needs to be addressed head on. This is not just about euros and cents, but rather about the political importance of allies meeting their obligations. And so at the Brussels summit NATO will face a truly binary moment: Either the Americans and the Europeans will manage to see eye to eye on the continued critical importance of the alliance to Transatlantic stability and global security, or, a decade later, historians may see this summit as the beginning of NATO’s demise as the premier Western collective defense organization.

Perhaps the greatest irony of NATO’s predicament today is that, while the combined economic and, military resources (if deployed) of Europe and North America are simply unmatched, the politics needed to actualize this power potential continues to lag. Back in 1949 the level of geopolitical flux caused by communist expansion into Europe and Asia drove the argument for the creation of a collective defense pact to bind the United States and its allies, and the call was emphatically answered in the affirmative. Now, although for different reasons, the level of risk posed to Western security by China’s surging economic and military power, Russia’s geopolitical revisionism inside and outside Europe, and Iran’s increased competition for influence in the Middle East requires a similar collective commitment from the West. Today NATO’s problem is not a lack of resources; if anything, the key difference between 1949, when the North Atlantic Treaty was signed, and 2018 is how immensely wealthier Western democracies are today. Nonetheless, the West still seems unable to agree on how to respond to the profound and enduring geostrategic shifts we are confronting today across the globe, and how to adequately resource its militaries.

The upcoming NATO summit in Brussels will be important not so much for what it accomplishes in terms of practical decisions, programs, and plans, but insofar as it becomes the starting point for building a broader and badly needed Western global strategy for the future. The apparent irony of the current friction across the Atlantic, with the rising finger-pointing and recriminations, is that the coming era of state-on-state competition requires an ever-closer alignment of interests and priorities across the West. Confronted with the rise of China’s power and influence in the Pacific, the United States needs the alliance to maintain security and stability along Europe’s eastern and southern flanks, to ensure that in the coming years security competition in and around Europe remains suppressed to a level that makes a general war unlikely. In turn, Europe needs to ensure that the United States remains engaged in and committed to its security. No single European state can ultimately ensure Europe’s defense absent the United States. Not even the United Kingdom, Germany, and France combined could assume the role of principal security provider for the Continent; nor could any other combination do so. Europe’s problems encompass not only Russia but a growing panoply of challenges to the Continent’s security and stability, from MENA immigration flows and political destabilization to the faltering European Union project, accelerated by Brexit, to the risk that the Western Balkans will once more erupt into open conflict. The West faces challenges from Chinese economic power and Russia’s resurgent geostrategic assertiveness, and the political centers of even the largest and most-established democracies in Europe are shrinking amidst challenges from the extreme Left and Right.

The reality that Europe and the United States need each other when it comes to security and defense should be the baseline of Transatlantic dialogue going forward. Should Europe instead throw its lot in with the much-touted vision of “strategic autonomy” and fail to shore up NATO, in the end the entire Transatlantic community will be worse off for it. If some in Europe today think it is too tough to meet the defense spending targets needed to maintain NATO, they should consider that the kind of outlays needed to build an effective European defense and security system will be orders of magnitude greater in comparison. Lest the proponents of decoupling European defense from America and creating an autonomous European military forget, the pooling and sharing of resources in NATO, combined with the U.S. strategic guarantee to Europe, make NATO the best defense and security bargain bar none.

NATO’s greatest achievement during the Cold War was its ability to effectively deter the Soviet Union and the Warsaw Pact, in the process creating an indispensable security umbrella for Europe’s postwar recovery and the common European project. The best evidence for NATO’s continued utility is that, under its umbrella, Europe has enjoyed the longest period of peace in its history. In hindsight, such overwhelming success can be easily taken for granted—in fact, the post-Cold War generation in Europe and North America, having no memory of what is at stake, is now coming into its own. Still, it bears recalling how much work it took to make NATO into the most powerful collective defense alliance in history. Today NATO’s continued effectiveness requires another similar effort and commitment, as its obstacles are preeminently political.

Long established and highly bureaucratized international organizations do not simply disappear overnight; rather, they tend to linger on well past the point of addressing the needs of those who chartered them. Today there is a risk that NATO may follow this path, becoming first hollowed out and then marginalized, even while its bureaucracy soldiers on a while longer.

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Rethinking European Integration

Discussions surrounding the United States’ Europe policy have become hopelessly polarized by the election of Donald Trump, who has aligned himself with anti-EU figures such as former UK Independence Party leader Nigel Farage and has made Euroskeptic and anti-German statements that are unprecedented for an American President. In an interview shortly before his inauguration, for example, Trump called the European Union “a vehicle for Germany.” It would be all too easy to dismiss such statements as typical Trumpian grousing, except for the inconvenient truth that many Europeans, particularly in the Eurozone “periphery,” agree with them to some extent. For example, while northern Europeans dismiss criticism by Trump Administration officials of Germany’s current account surplus as irrational, southern Europeans such as the former Italian Prime Minister Matteo Renzi have long endorsed them.

While Trump supporters are anti-EU and anti-German, much of the foreign policy establishment in Washington, DC remains implicitly committed to a version of European integration that few in Europe, apart from a hard core of “federalists,” still support. These policy hands reflexively believe that “more Europe” is in the American interest and see few problems with the evolution of the European Union since the beginning of the euro crisis. In particular, they seem to be increasingly aligned with Germany and happy with Germany’s increasing power in Europe. Thus there are now two opposing views on the American interest in European integration among American policymakers, and these views are largely a function of partisan attitudes to Trump, with few nuanced positions in between and little discussion of what kind of Europe would actually benefit America most.

It may be impossible to pursue a coherent approach to Europe—or for that matter any other part of the world—while Trump is President. His foreign policy seems to be based not so much on a different view of the American interest than his predecessors than on his own interests—what Charles Blow has called the “parasitic presidency.” But analysts and policymakers should begin to think about a new Europe policy for once Trump has left the White House. That cannot simply mean a return to the Obama Administration’s policies, which did little to help solve the European crisis that began in 2010 and is still ongoing.

After World War II, the United States—uniquely among great powers in history—supported the emergence of a political unit that had the potential to become a rival power center. But what at first glance looks like a seamless story of unqualified and consistent support for European integration turns out on closer examination to be more complicated. The reasons for U.S. support for European integration are not entirely straightforward, many are largely forgotten, and significant shifts have occurred over time.

Washington came to support European integration, Geir Lundestad argues, for five reasons.1 First, European integration was a way to contain Germany by “tying” it to the West—what might be called “containment through integration.” Second, European integration was a way to contain the Soviet Union. Third, U.S. policymakers thought European integration would encourage European self-sufficiency and reduce America’s burden in supporting Europe in the longer term, especially in terms of aid and defense spending. Fourth, U.S. policymakers saw an integrated Europe as more rational and efficient in economic terms. Fifth, U.S. policymakers simply assumed that Europe should follow the American model—in other words, that it should create a large “domestic” market with no internal trade barriers.

In the immediate postwar period it was the need to contain Germany that was the most important factor behind early U.S. support for European integration. For example, Secretary of State John Foster Dulles feared Germany could “play both sides from the middle” using economic pressure to achieve “a mastery of Western Europe which they could not achieve by arms.”2 He began a 1956 memo explaining his reasons for supporting European integration with the “problem of tying German organically into Western Community so as to diminish danger that over time a resurgent German nationalism might trade neutrality for reunification with view seizing controlling position between East and West.”3

This thinking informed the plan for the economic regeneration of Europe announced in June 1947 by Secretary of State George C. Marshall—what became known as the Marshall Plan. In exchange for massive amounts of aid, the United States demanded that European states work together. The European Payments Union, which was launched a few years later, again at U.S. insistence, multilateralized European economic policy by establishing a debt and credit clearing house and thereby limiting the possibility that European countries could restrict imports from each other. These American initiatives set the stage for the Schuman Plan and the first institutions of supranational European governance, the founding of which was again strongly supported by the United States.

The assumption among U.S. policymakers was that an integrated Europe would be an economically successful Europe, which they in turn saw as being good for America. For example, CIA director Allen Dulles said that the Marshall Plan “presupposes that we desire to help restore a Europe which can and will compete with us in the world markets and for that very reason will be able to buy substantial amounts of our products.”4 Even after Europe’s economies had recovered and an economic community that was less open than Washington would have preferred was being launched, U.S. policymakers remained optimistic that integration would lead to “the development of strong, modern economies with higher productivity and consumption levels.”5

However, as the situation in Europe stabilized after the building of the Berlin Wall in 1961, U.S. support for European integration became weaker and more qualified. The catalyst, Lundestad argues, was President Charles de Gaulle’s challenge to the assumption that an integrated Europe would be aligned with the United States. Rejecting the United Kingdom’s application to join the European Economic Community in 1963, de Gaulle spoke of the danger of “a colossal Atlantic community under American dependence and direction” as opposed to his own vision of “strictly European construction.” A week later, he and West German Chancellor Konrad Adenauer signed the Elysée Treaty. This came as a shock to U.S. policymakers—President John F. Kennedy saw it as “an unfriendly act.”6

Thus, from the 1960s onwards, U.S. policymakers began to see the potential for European integration as more of a challenge. In 1971, a U.S. government report questioned another assumption of U.S. Europe policy—that European unity would lift burdens from U.S. shoulders. “The truth is not so simple,” it said. “European unity will also pose problems for American policy, which it would be idle to ignore.”7 President Richard Nixon’s National Security Adviser Henry Kissinger saw potential tensions: “We have sought to combine a supranational Europe with a closely integrated Atlantic Community under American leadership. These two objectives are likely to prove incompatible.”8

For the United States, European integration was always been a means to an end—or rather to several ends. In particular, U.S. policymakers supported European integration because they thought it was a way to constrain Germany and overcome the problem of balance within Europe. However, since the euro crisis began in 2010, and with it a renewed debate about German “hegemony” in Europe, it is has become increasingly clear that the forgotten problem of balance has returned, albeit in a different form than before 1945: within the European Union relative power now depends on economic rather military resources. The question for U.S. policymakers now is what the United States can and should do about it.

Over the past eight years since the euro crisis began in 2010, Europeans have been intensely debating the European project. It was long assumed that European integration would produce convergence and reduce conflict. The European project was both the product of, and meant to be a validation of, liberal international relations theory. But it is now increasing apparent that the European Union, and in particular the European single currency, has in many ways produced divergence, and is increasing conflict, between member states. As a result, even many “pro-Europeans” have become disillusioned with the European Union. Europe is now deeply divided about whether further integration towards “ever closer union” is desirable, let alone possible.

The question of the future of the European project is complicated by Germany’s increasing power within it. Since the beginning of the crisis, Europeans have been debating whether Germany is becoming a European hegemon, despite the fact that the European Union was meant to overcome hegemony in Europe in general and German hegemony in particular. Some are even wondering whether the European Union is now a kind of German “empire.” In this context, simply calling for “more Europe”—that is, further integration—is unhelpful, because this has in practice increasingly come to mean the further imposition of German preferences, particularly in terms of fiscal rules that entrench German preferences on economic policy—which, even under Obama, the United States opposed. It’s easy to forget today that Obama and Merkel had heated exchanges over Germany’s approach to the euro crisis, and that in 2016 the U.S. Treasury even put Germany on a currency “monitoring list” list” along with China, Japan, South Korea, and Taiwan—a step that foreshadowed the Trump Administration’s focus on Germany’s current account surplus, but that had little impact on German policy.9

For their part, Americans have been slow to wake up to the contours of this renewed debate about balance and hegemony in Europe. They have not engaged much with questions surrounding the limits and dangers of integration in its current form. In particular, they have had little to say about the difficult questions around whether, by expanding the European Union’s system of rules, European integration undermines democracy—one of the main stated reasons why the United Kingdom voted to leave the European Union in the referendum that was held in June 2016. The United States needs to develop a Europe policy that engages with the issues the Union has faced since 2010—and with which it is still struggling.

What would that look like? I’d suggest a return to its largely-forgotten role as an “offshore balancer.”

In debates on U.S. foreign policy in the last two decades, “offshore balancing” has been used to mean a withdrawal from security commitments and overseas force deployments,or an alternative to engagement or “preponderance.” In particular, realist international relations theorists like Christopher Layne, John Mearsheimer, Stephen Walt, and Barry Posen have made the case for “offshore balancing” in this sense.10 However, what I mean by “offshore balancing” is something different. Rather than “pulling back,” the United States needs a more forward-leaning Europe policy. In particular, the United States should once again engage with the problem of the internal balance of power within Europe. U.S. policymakers need to think more seriously about the current distribution of power between EU member states.

The instinct of U.S. policymakers—at least until Trump—has been to encourage Germany to “lead.” In effect, they blithely encouraged Germany to be the European “hegemon.” This is quite a shift, given that throughout the Cold War, one of the United States’ priorities was specifically to prevent the emergence of just such a regional hegemon. This reversal in U.S. policy seems to have happened because American policymakers have internalized European integration as an objective of U.S. foreign policy to such an extent that they have forgotten it was originally a means, not an end. They assumed, along with many Europeans, that European integration would itself solve the problem of balance once and for all, and make the emergence of a regional hegemon impossible almost by definition. As this assumption has shown serious cracks in its facade over the last eight years, U.S. policymakers have failed to re-think.

As Europe has struggled with multiple crises and the fault lines within the European Union have deepened, it has become increasingly clear—if it wasn’t already from European history—that Germany cannot be a European hegemon. Rather, Germany is in a problematic position of “semi-hegemony” in Europe—as it was previously in its history.11 Washington’s pragmatic focus on Germany—in effect bilateralizating the Transatlantic relationship to a great extent—may actually be making the problem of Europe’s lack of balance worse by exacerbating the tendency in Berlin to think it can run Europe. Rather than encouraging Germany to become a European hegemon, the United States should actively prevent it from trying to become one—as it would once have instinctively done.

Operationalizing such a strategy aimed at helping to restore Europe’s internal balance would require careful planning. It may well mean supporting EU member states—and in particular France—against Germany. It may also involve making linkages between economic and security issues. Trump has already done this—but in such a crude way that it has had the effect of uniting Europeans against the United States. Instead, U.S. officials should carefully seek to work with Europeans and facilitate coalitions of EU member states on particular issues, for example the “periphery” on Eurozone issues—and where necessary exert much greater pressure on Germany than Obama was prepared to.

Americans have long viewed Europe—in contrast to Asia and the Middle East—as what Jeremy Shapiro has called a “solved problem.” As the United States seeks to “rebalance” towards Asia, the last thing it wants to do is engage more deeply in Europe’s internal affairs. In fact, U.S. policymakers have not unreasonably expected Europeans to be able to solve their own internal problems. But it is increasingly clear that they cannot—and the only resources required for the kind of “offshore balancing” strategy I am proposing would be diplomatic. Moreover, it is only by overcoming the structural issues Europeans have been struggling with for the last eight years—and in particular the problem of balance—that Europe will ultimately be able to become the partner in solving global problems that the United States wants.

1Geir Lundestad, “Empire” by Integration. The United States and European Integration, 1945-1997 (Oxford: Oxford University Press, 1998).

2Lundestad, “Empire” by Integration, p. 23.

3Lundestad, “Empire” by Integration, p. 24.

4Tony Judt, Postwar. A History of Europe Since 1945 (New York: Penguin, 2005), p. 94.

5Geir Lundestad, “Empire” by Integration,p. 85.

6Lundestad, “Empire” by Integration, p. 70.

7Lundestad, “Empire” by Integration, p. 98.

8Lundestad, “Empire” by Integration, p. 102.

9Under a law targeting currency manipulators passed in 2015, the Trade Enforcement and Trade Facilitation Act, the United States has to launch “enhanced bilateral engagement”—that is, talks—with any country that runs a bilateral trade surplus with the United States of more than $20 billion, has a current account surplus of above 3 percent of GDP, and makes persistent net foreign currency purchases equivalent to more than 2 percent of GDP. If the country in question does not take remedial action within a year, the United States can take steps including denying a country access to development loans, banning it from government procurement contracts, calling for stepped-up surveillance by the International Monetary Fund, and/or excluding it from trade negotiations. See C.F. Bergsten and J.E. Gagnon, “The New U.S. Currency Policy,” Peterson Institute for International Economics, April 29, 2016, https://piie.com/blogs/realtime-economic-issues-watch/new-us-currency-policy.

10See for example Christopher Layne, “From Preponderance to Offshore Balancing: the United States’ Future Grand Strategy,” International Security 22, no. 1 (Summer 1997), 86–124; Christopher Layne, “Offshore Balancing Revisited”, The Washington Quarterly 25, no. 2 (Spring 2002), pp. 233–248, https://www.tandfonline.com/doi/abs/10.1162/01636600252820252; John J. Mearsheimer and Stephen M. Walt, “The Case for Offshore Balancing,” Foreign Affairs, July/August 2016, https://www.foreignaffairs.com/articles/united-states/2016-06-13/case-offshore-balancing; Barry Posen, “The Case for Restraint,” American Interest (November/December 2007), 7–17, http://www.the-american-interest.com/2007/11/01/the-case-for-restraint/; Barry Posen, “Pull Back: The Case for a Less Activist Foreign Policy,” Foreign Affairs 92, no. 1 (January/February 2013), 116–129 https://www.foreignaffairs.com/articles/united-states/2013-01-01/pull-back; Barry Posen, Restraint: A New Foundation for U.S. Grand Strategy (Ithaca: Cornell University Press, 2014).

11See Hans Kundnani, The Paradox of German Power (New York: Oxford University Press, 2014).

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Contempt of Court

Anthony Kennedy’s retirement from the Supreme Court will allow President Trump to fill the vacancy with someone selected from a list of hardline conservatives hand-picked by the Federalist Society and ensure a reliable five votes for conservative causes for decades to come. Reproductive freedom guaranteed under Roe v. Wade could be scaled back or eliminated, a right to carry firearms imposed nationwide under an expansive interpretation of the Second Amendment, the right of labor to organize further eroded, and affirmative action declared invalid (as if to underscore this lattermost concern, the Justice Department announced new guidelines urging universities to avoid consideration of race in admissions). Mitch McConnell’s extraordinary gambit in refusing to allow a vot­­e on President Obama’s nomination of Merrick Garland to the Court seems to have paid off. But the very hardball tactics used to move the Court to the right may undercut its most important asset: its popularity and moral authority.

Much of the influence of the Supreme Court—especially with respect to constitutional law—involves the soft power of persuasion. Of course, courts can invalidate legislation and order special remedies, but durable change requires the cooperation of other branches of government and, ultimately, the respect of the people. The Supreme Court is at its most potent when it can tap into and help shape a cultural zeitgeist, clarifying previously inchoate social norms and overcoming inertia in the popular branches of government. But to do this, the Court needs to be in sync with popular opinion while also appearing to be above ordinary politics. When it oversteps or misjudges the popular mood, its opinions meet with effective and sustained resistance.

Even some of the Supreme Court’s now universally celebrated cases, such as Brown v. Board of Education, have been lessons in what we might call cooperative constitutionalism and in the limitations of judicial power standing alone. After Brown, southern states famously resisted desegregation for roughly a decade. It took congressional action in the form of the Civil Rights Act of 1964—in particular the threat of the loss of Federal funding—to begin meaningful desegregation in the South. Even then, courts needed the help and cooperation of local school districts in devising and implementing workable desegregation remedies and ultimately the support of the local residents affected by them. Desegregation worked in the communities that eventually embraced it as a civic and moral obligation. It was circumvented and for all practical purposes repudiated in the many others that did not, which is why today’s public schools are more racially segregated than those in the late 1970s.

Similarly, the criminal justice reforms of the Warren Court did not, in the end, safeguard the rights of criminal defendants generally; instead popular resistance to what many believed was “revolving door justice” provoked a backlash in the form of draconian mandatory sentencing and inspired prosecutors to avoid heightened procedural safeguards through plea bargaining, which now accounts for over 90 percent of all criminal convictions.

And, of course, Roe v. Wade is the most obvious example of the limits of judicial power: the many communities that have refused to accept Roe have effectively repudiated it, both through unrelenting legal challenges that have slowly but surely whittled away at its guarantees, and by making it impractical for women to obtain even those abortions that still are constitutionally guaranteed. And these stymied efforts aren’t just the result of a court that habitually overreached. Indeed, far from the stereotype of the “activist court” dictating sweeping social and political change from the bench, in reality the Warren Court was typically more of a bellwether, anticipating changes in social attitudes that had already begun in popular culture and in state and local politics and nudging outliers into line with an emergent consensus. Tellingly, its most important opinions were almost all unanimous or near unanimous opinions of the Court; even the ever-controversial opinion in Roe enjoyed a comfortable 7-2 majority.

The new Court will face a number of unprecedented threats to its reputation—and hence to its authority. While conservatives have gained control of the political system, liberals have by and large won the culture wars; as a consequence, the Supreme Court will be markedly out of step with the mood of most of the nation. Moreover, fair or not, the belligerence and overt bigotry of the current President will inevitably cast a shadow over his nominees and any Court shaped by them. In addition, the Senate’s treatment of President Obama’s nominee to the court, Merrick Garland, will reinforce the conviction among many that this Court is simply illegitimate. Finally, the inevitable 5-4 opinions of an ideologically polarized Roberts Court will reinforce the suspicion—already voiced by even eminent and respected conservatives, such as former 7th Circuit judge Richard Posner—that the Supreme Court is “a political court.”

As a result, instead of deference, the Court can expect widespread resistance, stoked by blistering dissents from the out-voted liberal Justices. The Court may strike down affirmative action in higher education, but it will not have the moral authority to make strict colorblindness a widely accepted norm. University students, faculty and alumni are committed to racial diversity and will work to find new ways to achieve it. For instance, already, many are taking a hard look at the standardized tests that disadvantage disproportionate numbers of black, Latino, and Native American applicants; the University of Chicago recently announced it would no longer require such tests and an anti-affirmative action ruling by the Court would doubtless inspire many others to follow. The Court can reverse Roe v. Wade and allow states to ban abortion, but, unlike in 1973 when Roe was decided, women today can end pregnancies in their early stages at home using increasingly common drugs and given the widespread conviction that women should have this option, it’s likely that those drugs will be readily and widely available, whatever the law.

Although some conservatives look forward to a speedy return to the jurisprudence of the pre-New Deal era, the next few years will be dangerous ones for the Court. Conservatives and liberals alike have much to lose if an aggressive right wing squanders the legitimacy that generations of prudent Supreme Court Justices built, as our current President has squandered the moral authority of the executive branch. The Court would be wise to avoid polarizing decisions and instead work to earn the respect it will need to shape any durable constitutional order.

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How the European Court of Justice Undermined Europe

Slovakia v. Achmea is among the most damaging judgments handed down by the European Union’s supreme court, the European Court of Justice (ECJ), since it opened its doors in 1952. In one fell swoop the Luxembourg-based ECJ has impeded its member states’ access to capital markets, undermined the functioning of the single market, and created a significant security threat to the European Union. It has also potentially, and no doubt inadvertently, reduced the cost of Brexit to the United Kingdom.

On March 6, in Case C-284/16 Slovakia v. Achmea, the ECJ handed down a ruling that effectively rendered all intra-EU bilateral investment treaties unlawful. The case involved the Dutch-Slovakia Bilateral Investment Treaty (BIT). Achmea, the Dutch financial services company, had entered the Slovakian health insurance market when it had been liberalized. Subsequently a new Slovakian government reversed the liberalization; as a result Achmea suffered losses from its forced market exit. It then sued Slovakia under the Dutch-Slovakian BIT and obtained an award of $27 million in damages from a Frankfurt-located arbitration tribunal. The award was challenged in the German courts by Slovakia, which resulted in a referral to the ECJ.

The Luxembourg court took the view that rulings made under bilateral investment treaties undermined the autonomy of the European Union’s legal order. The member states, it said, are required to apply EU law and ensure that uniform application of that law can be maintained by the national courts. All courts and tribunals applying EU law must be able to request a ruling on points of EU law. However, the nature of investment arbitration tribunals meant that they could not be viewed as a court or tribunal of a member state. Consequently, no request could be received from such tribunals, and therefore the application of EU law by BIT investment tribunals threatened the autonomy and integrity of the Union’s legal order.

This “autonomy” argument is much more devastating than it first appears. First of all, it is difficult to limit the application of the ruling to this particular case, as it is an argument of principle and a claim of jurisdiction by the European Union’s highest court. Secondly, it also would appear to apply to not just intra-EU BITs but also to BITs that EU member states have with third states.

Ten member states intervened in support of Slovakia in the Achmea case. These were the Czech Republic, Estonia, Greece, Spain, Italy, Cyprus, Latvia, Hungary, Poland, and Romania. Several of these states have well-known problems with their judicial systems and the rule of law, from concerns around procedural delays, to an obsession with legal formalism over substance, to the increased politicization of their courts. The irony of the situation is that the loss of BIT cover due to Achmea is likely to hit many of these states, and Slovakia itself, particularly hard, as foreign investors rethink their commitments and FDI flows shrink. Without BIT protection, FDI flows will likely be concentrated increasingly in the strongest rule-of-law states in Western Europe.

But the fallout from the ruling may touch Western Europe too, as foreign investors reconsider the reliability of their investments there. Berlin, after all, fought all the way up its judicial hierarchy before it would accept that, if firms had heavily invested in nuclear power on the basis of government promises to keep the power stations open, and Berlin subsequently turned around and announced an early closure date, then they had a right to compensation. Similarly, the Spanish government has approximately 30 pending cases before international arbitration tribunals over the way it summarily terminated renewable subsidy programs. The Dutch government recently pulled the plug on three new coal-fired power stations it had induced industry to build, and is now denying the need for compensation. As a result of this Western European reluctance to fully support the legitimate concerns of foreign investors, Achmea may in fact damage capital flows across the entire continent, east and west.

The consequences of this judgment therefore are likely to be profound. First, given the weaknesses of the rule of law culture in some member states, bilateral investment treaties provided an effective means of protecting property rights. The ECJ, without any consideration of the inconsistent application of the rule of law across the Union, and the varied quality of national judicial procedures, summarily removed a long-standing means of protecting property rights which had been put in place by express agreement between the states. This is despite the fact that the Union’s own executive arm, the European Commission, has raised concerns over the quality of judicial processes in a number of member states, and is actively considering means to punish those states financially if they fail to maintain high rule of law standards.

Second, there was no recognition on the EU bench, nor apparently amongst the ten member state interveners, of the value of bilateral investment treaties. Over the past three decades a substantial amount of empirical evidence has been gathered as to the beneficial impact of BITs. They provide a guarantee that encourages cross-border capital flows that would not otherwise occur. BITs act as a silent discipline on capital-receiving states, ensuring that capital holders’ rights are protected and investment flows are sustained. By removing BITs, the Luxembourg judges are threatening capital flows and the economic development of many member states. Achmea is a particular threat to the Central and Eastern Europe (CEE) states, who still need substantial capital flows to rebuild their economies due to the impact of more than 40 years of Soviet occupation.

The impact on CEE states brings us to the third consequence, the effect on the single market. There is now a real prospect that many states across the European Union with weak judicial systems will find it much more difficult to ensure that they obtain the capital flows they need. Within Europe, international capital will increasingly retreat to the member states with the most developed judicial systems, largely concentrated in northwestern Europe. Such a “capital retreat” is likely to have significant consequences for the effective functioning of the Union’s single market. In essence, the EU single market will be split into capital haves and have-nots, undermining EU integration and stalling economic development in a large part of the Union.

The fourth consequence is the knock-on security impact. If Western commercial international capital is increasingly not available, then member state governments will be looking around for new sources of capital. This opens up a potential geopolitical opportunity for Russia and particularly for China, which is likely to step into the breach. Already China has sought to use its 16-Plus-1 initiative with 16 CEE states to divide the European Union along west-east lines. In the wake of Achmea, Beijing will now see a new investment leverage opportunity, using its near-unlimited access to capital via its party-state controlled banking system to obtain greater leverage amongst capital-starved EU states.

More positively from a UK perspective, Achmea provides an opportunity for Britain to retain much of the capital flows that it would otherwise face losing as a result of Brexit. Part of the original single market deal between Britain, France, and Germany was that the United Kingdom would become the European Union’s FDI hub. In the years that followed the creation of the single market, UK FDI boomed, and it became, after the United States and China, the country with the third-largest stock of FDI in the world. The United Kingdom was the European Union’s investment aircraft carrier: the jumping-off point for foreign capital entering the Union.

This huge boon to the United Kingdom was endangered by the vote to leave the European Union. The prospect of limited access to the single market would see significant investment flows shifting into other EU member states. However, if the United Kingdom, as now is likely, remains in the single market and the customs union but not in the European Union itself, then London will gain a significant investment advantage over the Union. London will have both single market access and all the benefits of its range of bilateral investment treaties. As a consequence, international investors will seek to invest in Great Britain and then trade from there into the European Union. The ECJ via Achmea will have therefore created the rather stunning result of giving the Brits the capacity to maintain their European FDI crown and making the UK actually more attractive as a place for foreign investment post-Brexit than before it voted to leave the European Union.

The question remains as to why Luxembourg would hand down such a damaging ruling and inadvertently help the Brits. It remains perplexing why the ECJ judges are so fixated on the existence of bilateral investment treaties. The “autonomy” justification appears to be a very weak argument. Most national courts across OECD countries accept the validity of assorted informal court settings, including arbitration tribunals applying their domestic law. The courts do not see any need to insist on controlling that process, nor do they further insist that all cases on appeal must come directly to their courts or otherwise the authority of those panels will be struck down. No supreme court of any EU member state makes the sort of expanded claim for the application of its law in the way that the ECJ does. Judges of superior courts across the European Union appear on the whole rather relaxed as to the application of their law in arbitration tribunals or applied in foreign courts.

It is true that in the debates about the U.S.-EU Transatlantic Trade and Investment Partnership (TTIP) deal there was a huge populist debate about “private courts” operating behind closed doors. There are legitimate questions here around transparency. In principle, all arbitration rulings should be published; the process of appointment of arbitrators should be open and systems of redress robust. These can be addressed by international agreement or ultimately within the European Union by EU directive, for those hearings that take place or awards that bind on EU territory.

It is also the case, however, that BITs and their arbitration processes have provided a valuable means to ensure capital flows and economic growth to parts of the world that would otherwise have difficulty in obtaining capital. And it is also a true but overlooked point that commercial investment capital is largely the product of pensions and investment by citizens that deserve robust protection, including via bilateral investment treaties.

As the impact of the Achmea case becomes apparent, and the wave of critique of the ruling laps at the doors of the ECJ, let us hope that the Luxembourg judges decide that a tactical retreat is in order.

Under the EU Treaties, specifically Article 267 TFEU, courts of member states can make a reference for a preliminary ruling to the ECJ to rule on a point of EU law. Unlike the U.S. Supreme Court where the Court decides whether to hear a case, the ECJ is required to rule on almost every application that is made to it.

Under the terms of the Dutch-Slovakian BIT one of the available arbitration panels was located in Frankfurt, which is why the reference to the ECJ was ultimately made via appeal from the arbitration panel to the German courts and thence from the German courts to the ECJ.

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The Great Unraveling, Cont’d

We used to console ourselves that Donald Trump is not for real. He does not mean what he tweets, and he cannot possibly want what he trumpets. So stay cool. The rhetoric of American presidents has always been more grandiloquent and fanciful than their action—like JFK’s pledge to “pay any price” and “bear any burden” to “assure the survival of liberty.”

Yet by now, America’s friends know that their fears are no fantasies. Yes, Donald Trump really does want to demolish the international order the United States had built, financed, and guarded since World War II. Here is the latest chapter in this grim saga—the upcoming NATO summit in Brussels, followed by a schmooze fest à deux to be held by Trump and Russian President Vladimir Putin in Helsinki.

To be sure, Trump’s predecessors have always supped with strongmen and dictators because strategic interest beat out moral concerns—from Spain’s fascist caudillo Francisco Franco to the despots of Saudi Arabia. Yet Trump not only flatters and coddles them, be it North Korea’s Kim Jong-un or Russia’s Vladimir Putin. Nor is his fascination with today’s authoritarians a matter of impulse or whim. Given the mounting evidence, a design is shaping up that bodes ill for the West, the linchpin of U.S. grand strategy for 70 years.

The core of that relationship is NATO, plus adjunct institutions like the G7, the economic “politbureau” of the West, and farther afield, the World Trade Organization, née GATT (General Agreement on Trade and Tariffs), a brainchild of the United States spawned in 1947 to advance free trade.

Recall the G7 summit in Canada a month ago. Trump came late, left early, and lashed out at key allies in between while pressing them to re-admit Russia. He refused to sign the summit declaration. A bit later, he tweeted: “Free trade is now to be called fool trade.” On May 31, he had imposed punitive tariffs on the European Union and on Canada.

While calling Canada’s premier Justin Trudeau “weak and dishonest,” he praised Pyongyang’s dictator Kim as “talented” and “very smart,” as a leader who wants to do “the right thing.” Without consulting America’s old South Korean ally, he canceled joint military exercises, demeaning them as “provocative” and “tremendously expensive.”

Now it is Vladimir Putin’s turn to advance to Trump’s “newest best friend,” a shibboleth Trump had sprung on the world in the run-up to the 2016 elections. That moniker seems bizarre no more.  It just so happens that the President will meet Putin at their first formal summit right after the NATO confab in Brussels on July 11 and 12.

The allies are bracing for the worst, as Trump has already telegraphed his punches. In a letter to his “newest best enemy,” German chancellor Angela Merkel, he wrote, ”The United States continues to devote more resources to the defense of Europe when the Continent’s economy, including Germany’s, are doing well and security challenges abound. This is no longer sustainable for us.” This love letter was accompanied by the threat to pull U.S. troops (about 35,000) out of Germany, perhaps relocating them to Poland. Reportedly, this move would be executed outside of NATO, and within a bilateral Polish-American agreement. Forget multilateralism.

What’s next, when Trump and Putin gather at their Helsinki summit? Smaller allies are always nervous when elephants make love, trampling the grass beneath them. But in this case, the Europeans are not necessarily wallowing in fantasies of fear.  The obvious deal is one of betrayal, with Trump paying for Putin’s good will with the lifting of sanctions plus the acceptance of the Crimea grab and the indirect incorporation of Ukraine’s southeast. Having held the line on sanctions, the Europeans will rightly feel duped.

Trump has already paved the way, pontificating: “Crimea is Russian because everyone who lives there speaks Russian.” Of course, they do. Catherine the Great stole the peninsula from the Ottomans in the Russo-Turkish War of 1768-1774 and then Russified it.

What does Trump want from Putin? In March, he tweeted that Russia “can help solve problems with North Korea, Syria, Ukraine, ISIS, Iran and even the coming Arms Race.” This is a nice menu, but Putin is not Trump’s waiter. Great powers never set the table for other great powers; they want to be paid up front for every dish they serve. Yet this classic feature of power politics is not the central point. Trump is monkeying with what diplomatic historians call a “reversal of alliances.”

Instead of dealing with pesky (and indeed underspending) allies, Trump is dreaming about playing with the big boys: Russia, China and the recently promoted North Korea—back to 19th-century Europe on a worldwide scale. The chips in this game are raw power, not the regional and global institutions the United States crafted ages ago.

Yes, alliances like NATO, where the mightiest member shelters the rest, have blessed the Europeans with a measure of free-riding, delivering security at a discount. In return, though, such institutions amplified and legitimized American power, not to speak of anchoring global stability. Yet Trump fantasizes that NATO serves only those deadbeat Continentals. In truth, NATO is the cornerstone of American power on the Eurasian continent and across the Atlantic.

Yes, multilateral institutions like the IMF, WTO and the World Bank obliged the United States to submit to common rules, but in exchange, the world’s largest economy could profit from open markets for goods and capital, not to speak of the dollar as global currency. Of the ten largest companies (by market value), eight like Apple and Facebook are American. Lashing out with tariffs left and right, Trump is tearing away at this win-win fabric.

Evidently, he does not understand that trade war is a lose-lose game. Nobody wins, least of all the American consumer who must pay more for everything made from steel and aluminum now rendered more expensive by punitive tariffs, from refrigerators to construction machinery and aircraft. On the rebound, such levies beget retaliation on other fronts, like Harley-Davidson motorcycles and, down the line, U.S. agriculture, one of the country’s biggest exports. Midwest farmers, especially in swing states, will not be amused.

Kick your old-time allies hard enough, and they will budge, as the Europeans are doing by gingerly raising defense expenditures. Kick them harder and often, and they will begin planning without Mr. Big. They might cozy up to the Kremlin or build permanent walls around the EU, especially non-tariff barriers, which are a lot more effective than duties. A world that has looked to America will eye other vistas. Those who used to bandwagon with Uncle Sam will balance against him. In the end, raw power unalloyed by responsibility always begets push-back.

Donald Trump might get a personal kick out of this “let’s screw ’em” world he wants. America home alone will not. Even little kids ultimately gang up on the schoolyard bully who keeps stealing their lunch. This bully, though, will not reform. Can they send him to reform school? They might—on November 3, 2020. Meanwhile, the Great Unraveling will continue.

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Russia’s Kleptocracy Laid Bare

From the World Cup in Russia to the much-anticipated summit with President Trump in Helsinki, Vladimir Putin seems to be basking in the world’s attention these days. But beneath the shallow pageantry, the core essence of Putin’s regime is all too easily forgotten. First and foremost, today’s Russia is a large-scale transnational kleptocracy, one that embezzles and steals billions and that uses Western safe havens to keep its dirty money. While Putin struts his stuff on the world stage, new revelations from Panama come as a timely reminder of this truth.

According to Russia’s Novaya Gazeta, the business empire of Sergey Roldugin, the billionaire cellist and close friend of Vladimir Putin, has officially come under investigation in Panama. The newspaper, which partnered with the Organized Crime and Corruption Reporting Project (OCCRP) and the International Consortium of Investigative Journalists (ICIJ) in the original Panama Papers investigation, reports that Roldugin’s Panama offshore company International Media Overseas S.A. (IMO) is suspected of financial crimes; the case is being led by the organized crime department of Panama. The news comes after an earlier criminal case against IMO had been opened by the British Virgin Islands authorities. These stand out as the first official criminal investigations into the Russians mentioned in the Panama Papers.

IMO is one of the pillars of Roldugin’s offshore empire, as first revealed in the major leak from Panamanian corporate service provider Mossack Fonseca in April 2016. For example, IMO simultaneously signed two deals with the state-owned Rosneft: the sale agreement to buy Rosneft’s shares and an agreement terminating the sale agreement. The latter bound Rosneft to pay IMO a penalty of $750,000 for the sale failure. Thus the money from the state-owned Russian company went directly to IMO’s offshore bank accounts in Panama.

Another simple scheme used by IMO was to buy shares of particular Russian companies—whether state-owned or owned by friendly oligarchs—only to sell them back the very next day with premiums worth half a million dollars each on a deal.

Such schemes are par for the course for Roldugin and his fellow kleptocrats. In 2011, for example, the BVI-based Sandalwood Continental loaned $200 million to a certain Cyprus-based Horwich Trading Ltd. The next day, Sandalwood transferred the right to the debt to the BVI-based Ove Financial Corp. The latter paid $1 for the deal and the very same day compensated the spent $1 by reselling the debt to IMO. Later it was revealed that Sandalwood Continental was controlled by the sanctioned Rossiya Bank, owned by Yury Kovalchuk—a close friend of Putin’s who is known as his personal banker.

Another offshore company of the unusually wealthy musician Roldugin, the BVI-based Sonnette Overseas, used the same scheme. Thus, in 2007 the company was provided a $6 million loan by another offshore company, Levens Trading, at a 2 percent interest rate. A few months later, the lender waived the debt for a $1 premium from Sonnette Overseas. According to official data, Levens owned 100 percent of the billionaire Alexey Mordashov’s Severstal subsidiary Severstal Vtormet.

Some of Roldugin’s deals were worth millions; others, tens and even hundreds of millions—all adding up to nearly $2 billion in his offshore accounts. The conventional wisdom in Russia is that the Panama schemes allowed friendly oligarchs and businessmen to funnel money toward Vladimir Putin, for his personal enrichment. Roldugin, as an old-time friend, was a trustworthy person to control the bank accounts.

What is mind-blowing, though, is the way state-owned companies, primarily Rosneft, embezzle their money. The Roldugin schemes offer yet more proof that the so-called privatization of 19.5 percent of Rosneft in 2016-2017 was anything but a fair sale of a governmental asset to private owners. I previously suggested that the scheme was initiated to make the share, or part of it, end up in accounts controlled by Putin’s men. So far, the murky financing schemes (with the state-owned VTB providing a loan for a deal buying an asset from the state), and the sudden change of owners confirm my suspicions. (The initial buyers, a consortium of Qatar Investment Authority and Glencore, tried to sell the shares to the Chinese oil giant CEFC, and the deal should have been financed again by VTB. But this spring CEFC filed for bankruptcy. The latest news is that QIA wants to buy out Glencore’s share).

The scheme of the cash withdrawal itself is as old as time. Russia’s financial system is designed to encourage such schemes, as the law doesn’t allow Russian residents to freely send money abroad. Russia’s currency control system imposes transfer limits of the equivalent of $5,000 and $10,000 per day for private citizens and corporations, respectively. For larger transactions a sale contract is needed. That is how millions of fake sale contracts are made in Russia every year allowing Russians to legally transfer money abroad. That is how money ends up in offshore accounts and is transferred through fake sale contracts or loan agreements, as in the Panama arrangements.

Of course, none of the Panama revelations has led to prosecution in Russia. Ironically, though, the owners of Summa investment holding, the Magomedov brothers, were brutally arrested, put in jail and now face sentencing on organized crime charges for using the very same scheme. Russian investigators claim that Zuyavudin Magomedov sent $18 million to a Scottish limited partnership as payment for imports of Ukrainian grain which never took place.

The same scheme of fake loans was used in the notorious Moldovan Laundromat case, when nearly $20 billion was withdrawn and laundered through banks in Moldova. Two foreign dummy corporations signed a loan agreement with two guarantors, a Moldovan and a Russian company. The debtor failed to repay and the lender filed a lawsuit to the Moldovan court suing the guarantors. The Moldovan court, a participant in the scheme, ruled in favor of the debtor. As RBC explains, “because there is a Moldovan citizen in the deal, the lawsuit is filed to a Moldovan court, where a corrupted judge rules that the Russian company, one of the two guarantors, has to pay the debt. The court assigns a bailiff who is also a member of the scheme, the bailiff then opens an account in Moldindconbank where the Russian company transfers the money.” Needless to say, the Moldova scheme was carried out under the FSB’s krysha.

Over the years, Russia’s kleptocrats have become quite adept at these money-moving maneuvers. But there is an obvious downside for their enablers in the Kremlin: once money has left Russia, it is usually gone for good. No matter how hostile the West might be toward Russian oligarchs, Putin has had no takers on his bids to get their billions back to Russia. Russia is a treasured place to steal budget money and make billions on dirty and illegal schemes, but on the flip side, the country is no haven for keeping money safe. Even Putin’s own cronies are loath to bring their money back from abroad.

The best example here is the Chelsea Football Club owner Roman Abramovich, who preferred to relocate to Israel instead of going back to Russia when the Brits didn’t extend his business visa. Abramovich is part of the Family, a powerful clan of people whom Vladimir Putin guaranteed personal and financial safety. Unlike other compatriots, Abramovich parted from his oil business in Russia years ago on good terms and with generous compensation. He has no powerful enemies, unlike the Magomedovs, whose assets he is allegedly trying to buy on the cheap now that they are in jail. And yet even he doesn’t take the risk of bringing his money back to Russia.

The lesson for the West is clear: the anti-kleptocracy crusade should be proceeding full speed ahead. Closing the legal loopholes that allow Russia’s kleptocrats to stash their plunder abroad may not cleanse Russia, which will remain hopelessly mired in corruption so long as Putin is in power. But it will help ensure that Western democracies never become as corrupted as Russia is today.

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Western Unity Is Best for Russian Summitry

In preparing for the summit with Russian President Vladimir Putin on July 16 in Helsinki, President Donald Trump could benefit from a coordinated Western approach toward Moscow as a prelude. But at present, disputes within the West are a serious hindrance. At the July 11-12 NATO summit, leaders should consider priorities and develop clear policies, especially regarding Russian aggression in Ukraine and Georgia. Absent this, Trump’s hand with Putin may be weakened.

The U.S.-Russia summit, if properly prepared and conducted, could begin to put a floor under tense relations. Progress, however, may depend in part on whether Putin sees the West as unified and Trump as someone who speaks for it. Putin likely perceives disunity between America and Europe in Trump’s revocation of his support for the June 9 G-7 summit communiqué and his criticisms of German Chancellor Angela Merkel, Canadian Prime Minister Justin Trudeau, and other leaders. And Putin can be expected to play on this in efforts to split the West and obtain concessions from Trump, such as sanctions relief.

Europeans are concerned about Trump’s criticism of NATO, the European Union and the WTO and what this portends for the NATO summit. Divisions within the EU also imperil Western unity. In recent days the populist government of Italy refused to accept a ship loaded with 629 migrants (which then found safe harbor in Spain), reigniting the continent’s controversy over migrants. Beset by this issue in Germany, Chancellor Merkel is struggling to keep her coalition alive. And the European Union has again been trying to find ways to alleviate and share refugee burdens.  The UK has made “no substantial progress” on how to manage the Irish border after leaving the Union. French President Macron has compared the rise of populism across Europe to the spread of “leprosy.”

The United States and Russia have deep differences on several major issues, including the war in Syria and interference in the 2016 U.S. election. But of broad importance for the West is opposing Russia’s use of coercion to carve a sphere of influence in the post-Soviet space.

In fact, Russian invasions and military occupation of parts of Ukraine and Georgia have been driving forces in the decline in Russia’s relations with the West. These crises should receive priority attention at a Trump-Putin summit, but risks of Russian power plays against other neighbors also merit consideration. Trump could encourage Putin to show restraint and give his diplomats more leeway to resolve conflicts.

The United States and Europe strongly support the sovereignty, independence, and territorial integrity of the states that emerged from the detritus of the former USSR. They provide aid for reforms, and urge Moscow to allow neighbors to choose their own foreign policy directions. But the Kremlin disdains this.

In dealing with Russia over its determination to exercise a sphere of influence, unity of Western purpose is important. It sustains the unprecedented sanctions imposed after Russia seized and annexed Crimea and launched war on eastern Ukraine in 2014. Unity also helps NATO protect its eastern members by rotating forces there.

In Ukraine, Russian forces and proxies are waging a low-intensity war in the Donbas region that has led to over 10,000 deaths. After extensive investigation, the Netherlands and Australia hold Russia responsible for its role in the July 2014 downing in the Donbas of Malaysia Airlines Flight 17, which left 298 people dead. Moscow still denies responsibility. German-French-led negotiations to halt hostilities are foundering; positions are “far apart.” Until Moscow decides to withdraw from the Donbas, the introduction of a UN-mandated peacekeeping force is unlikely.

In Georgia, Russian forces have occupied Abkhazia and South Ossetia since 2008, when Moscow waged war against its southern neighbor. Georgia has made significant reform strides, such as holding free and fair elections and spurring economic growth and openness. Its aim to join NATO has made it a prime target for Russian hard power and propaganda, but Tbilisi eases strains by pursuing practical cooperation. Russian tourism in Georgia has skyrocketed, as have wine exports to Russia.

In Armenia and Azerbaijan, Russia exerts little effort to resolve the simmering conflict over Nagorno-Karabakh, an isolated ethnic Armenian region in Azerbaijan. Moscow supplies arms to both sides and has a military base in Armenia. In April amid rising risks of renewed fighting, the French, Russian, and U.S. co-chairs of the Organization for Security and Cooperation in Europe’s Minsk Group urged the sides to respect a ceasefire and keep heavy equipment behind the frontlines.

In Moldova, Russian forces occupy its breakaway region of Transnistria. On June 22, the UN General Assembly urged that Russia unconditionally withdraw troops and armaments, but Moscow is unlikely to comply.

The military alliance between Belarus and Russia remains strong, but Minsk has rebuffed pressures from Moscow to allow a Russian airbase. Belarus also has trade and border security disputes with Russia. Reacting to its aggression in Ukraine, President Alexander Lukashenko has stoked Belarusian nationalism and sought improved ties with Europe and the United States. Moscow could seek a leadership change if Lukashenko pursues a more independent foreign policy.

Neighbors are not only concerned about military pressure from Russia, but also about risks that it might exploit leadership transitions. At the summit, Trump could encourage Putin to let transitions play out on their own and not to intervene.

In May, Armenia experienced a peaceful change of power after popular protests deposed entrenched leadership. Shortly after assuming office Prime Minister Nikol Pashinyan, the former opposition leader, visited Moscow and emphasized to Putin his country’s strategic ties with Russia. Putin wished Pashinyan “success” even though the Armenian’s ascendancy owes to the kind of grassroots rebellion that Putin has opposed in Georgia and Ukraine. Moscow may be wary about using a heavy hand in Armenia for fear it might cause politics to veer westward, as happened in Georgia and Ukraine. The Kremlin will keep a close eye on this strategic outpost.

In Uzbekistan, after the passing in 2016 of a repressive leader long in the tooth, President Shavkat Mirziyoyev has taken steps to open the country wider and lessen internal repression. Strains with Moscow have ebbed, but Uzbekistan has not shown interest in joining regional security or economic structures that Russia dominates.

In Kazakhstan, President Nursultan Nazarbayev over the years has skillfully engaged Moscow while inviting Western, Russian, and Chinese firms to help develop the country’s bounty of energy and mineral resources. Days ago a top official surprised observers when he said Nazarbayev might not run for re-election in 2020. Nonetheless, the Kazakhstani leader has arranged to chair the national security council beyond his presidency. He may be keen to ensure that the transfer of some power does not cause unease in the Kremlin.

Why should the U.S. government care about Russia’s stance toward its neighbors? Leaving aside the Baltics, which are NATO members, other post-Soviet states are unlikely soon to become U.S. treaty allies. Moreover, U.S. trade with them is modest, and large American investments are found only in Caspian energy.

The answer is that Europe and European security are vital U.S. interests. Russian aggression in Georgia and Ukraine has undermined the post-Cold War structure of peace in Europe and raised concerns that Moscow might employ force elsewhere against neighbors. Western sanctions are likely to be maintained until Russia withdraws from Ukraine. Should Moscow ever again use force against a neighbor, the West may once more respond with coordinated sanctions.

While it is uncertain Trump will do this, he could improve his bargaining position with Putin at the summit by bolstering allied ties at the NATO summit—especially his relations with the British, French, and German leaders—and by gaining their support for his strategy with Putin. At the center of the strategy ought to be U.S. opposition to Russia’s use of coercion to dominate neighbors, but also U.S. support for voluntary, pragmatic ties between them. Second, Trump could try to align his policies on Russia more closely with those of the substantial bipartisan consensus in Congress. Cooperation is especially important regarding Ukraine, on which Congress and key American allies have strong feelings.

This approach could help Trump impress upon Putin that the West will persist in opposing actions that undermine European security, even as the West remains ready to engage Russia on issues of mutual interest, such as reducing nuclear dangers, managing the Arctic, and sustaining the International Space Station.

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NATO and European Security in the Trump Era

The headlines in the run-up to the July 11-12 NATO Summit are filled with foreboding, and the prognosis of most Europe-watchers is grim. It seems the Euroatlantic alliance is facing an existential crisis triggered by a U.S. President who is at the very least dismissive about NATO’s relevance for America’s interests or, worse, has NATO squarely in his crosshairs as part of his grand scheme to demolish the Liberal World Order. Some even mutter darkly that the Siberian Candidate is taking orders from his Russian handlers, intentionally wrecking an otherwise thriving, cohesive Euroatlantic alliance at the behest of his Muscovite puppet-master. Alarmed experts can hear the Evil Kremlin Dwarf gloating as NATO collapses in disarray, precisely at the time when the United States most needs its European allies to counter a resurgent Russia.

The dire warnings about an impending crisis in NATO might turn out to be true, but the plaint about America’s crying need for European allies underscores the muddle-headedness that has come to characterize so much Transatlantic thinking about European security. What a pity—and how ironic—that it has taken Donald Trump to bring the long-festering, pus-filled abscess of the Euroatlantic alliance to a head.

Simply put, there is essentially only one reason for Washington to get agitated about a resurgent Russia—if the United States cares about European security and sees it as an American priority. Minus the European-security angle—principally, the issue of current and prospective Russian depredations in neighboring countries—there is no U.S.-Russia standoff, only a smattering of secondary disagreements and irritations that would never add up to a systemic conflict. Whatever his faults, the current occupant of the White House has taken an accurate measure of this state of affairs, including the question of whose interests are most jeopardized by an assertive Kremlin and who is actually willing to do something about it. Trump is rude, but he’s right.

A resurgent Russia is not under any circumstances going to invade Alaska, although it might, given the right conditions, entertain the notion of military action against certain members of the European Union. The United States will not need Trump’s infamous wall to fend off millions of refugees generated by Russian military operations, current and potential, in Syria, Ukraine, or some other places on the EU’s periphery. Americans will not huddle shivering in their homes if Russia should demonstratively shut off gas exports for a week or two in mid-winter (for purely technical reasons, they’ll surely claim) to buy Western acquiescence with some priority geopolitical project of the Kremlin. Europeans are not doing the United States any great favors with half-hearted endeavors to lend a hand—within the limits set by their tight budgets and dilatory public opinion—with America’s solemn obligation to defend Europe. While I have always believed that European security ought to matter to Americans, it really ought to be of greater import to Europeans. They’ve got to want it more than we do.

This is hardly a novel concept, and American officials have been complaining politely for several decades about burden-sharing and the yawning disconnect in contributions to Euroatlantic security. While some Europeans have acknowledged the problem, precious little has been done to remedy it. Then along came President Trump, who, in his inimitable, undiplomatic fashion, has administered a good, hard rhetorical kick to the collective European derriere, which appears finally to have gotten people’s attention. It’s a shame things had to come to this, but there you have it.

The public discussion about burden-sharing has focused on getting European allies to pony up a minimum of 2 percent of GDP in annual defense spending, a long-standing NATO goal that has been repeatedly agreed in principle and shamelessly evaded in practice. While the 2 percent figure serves as a handy metric, as a remedy to what ails the Euroatlantic alliance it is, in fact, woefully inadequate. Heretofore it has been an heroic assumption to suppose that European allies could muster the political will even to meet the minimum agreed financial burden-sharing expectations. Beyond that, an additional quantum leap in political will would be required to accomplish what the Euroatlantic alliance truly needs: European strategic autonomy. Europe must be willing and able to act alone in its security interests, with minimal or no American input.

After the Kosovo conflict in 1999, pundits tartly noted that “the Americans cook the meals, and the Europeans clean up the dishes.” The imbalance between the two sides of the Atlantic has only gotten worse since then. This is not an expedient division-of-labor arrangement, with European soft power as a welcome complement to American “hard” security. Rather, the disconnect in capabilities inclines the two halves of the alliance to view one another with suspicion and disdain. Europeans are prone to regard the Americans, who wield the only effective security “hammer” in the Western world, as seeing every problem as a nail, while Americans are apt to dismiss the Europeans as feckless whiners in all things security-related.

This is a deeply unhealthy arrangement that’s guaranteed to perpetuate mutual resentment. Americans and Europeans have allowed it to fester so long because it was convenient for both sides. For all their grumbling about burden-sharing, Americans assumed they were the true experts at hard security and didn’t really trust the Europeans to do things right anyway. For all their irritation with perceived American arrogance and belligerence, the Europeans didn’t really want the expense and hassle of doing hard security themselves. Moreover, the Europeans had managed to secure U.S. military intervention when necessary in Bosnia, Kosovo, and Libya, where European security interests were at stake but American equities were minimal. Why expend political and economic capital for European security if, when push comes to shove, you can get the Americans to do the heavy lifting?

European strategic autonomy has been given new urgency by Trump, who is effectively calling into question Europe’s collective manhood and warning of a diminished American willingness to undergird European security. For all the agonizing over Trump’s lukewarm commitment to NATO’s Article 5, the real crunch for Euroatlantic security cooperation is likely to come in a different context—quite possibly a breakdown of one or more of the post-Yugoslav peace settlements, whose enforcement has relied on an over-the-horizon threat of U.S. military intervention. This intervention can no longer be assumed, as Trump might well decide, echoing James Baker, that “we haven’t got a dog in that fight.” The fact that Europeans were unable to handle the Wars of the Yugoslav Succession in the 1990s was deplorable. The fact that Europeans appear even less capable now to deal with a renewed crisis in the western Balkans is absolutely scandalous. Critics of Europe’s lackadaisical approach to security are right to be indignant.

Much of the traditional American reserve toward European strategic autonomy has emanated from a concern that it would be EU-centric and would undermine NATO without actually creating any robust, effective EU alternative. Judging by recent statements from some American officials, this concern persists. It is misplaced, for a number of reasons. First, Western security simply requires a stronger European component, and the question of whether that component wears an EU or a NATO hat is tertiary. Indeed, because of the overlap between EU and NATO membership, there is no reason it could not be dual-hatted. It would be far better, especially for Washington, to have EU-centric security arrangements that could handle a Balkan crisis than to have an impotent NATO-centric Europe that relied completely on the United States for all hard-security measures. Second, European strategic autonomy could hardly undermine NATO more than the resentments engendered by the current imbalance in capabilities and political will. Third, if the Europeans manage to wreck NATO without creating any capable alternative, it is they, not the United States, who will bear the consequences. Donald Trump seems to grasp these considerations, and for all his bluster and seeming hostility toward America’s European allies, he is instinctively the greatest friend of European strategic autonomy ever to sit in the White House.

The rise of Trump prompted the intriguing idea of proclaiming Angela Merkel as the new leader of the Free World. Realistically, however, Germany’s atrophied military capabilities make such a suggestion risible. I remember some 15 years ago hearing Germany described as the Sick Man of NATO. Well, the patient hasn’t shown any improvement in the interim. In the absence of German/European strategic autonomy, Merkel’s devotees might aspire at best to elevate her to the leadership of some postmodern fantasyland devoid of hard-security challenges. Unfortunately, the real-life Europe—with an assertive Russia, unstable borderlands, disruptive immigration, and terrorism—bears little resemblance to such a vision. Moreover, with the Nord Stream 2 pipeline, selfless German multilateralism is very much taking a back seat to German economic interests, at the cost of seriously undermining both the economy and security of Ukraine and Germany’s easternmost EU partners. “Germany First” might not be the slogan, but at least as far as Nord Stream 2 is concerned, it is the reality.

In fact, the Free World would be best served not by having a leader at all, but by having a partnership. It need not be a fully equal partnership with respect to every facet of security, but something must replace the current relationship of radical disproportion and dependency, which is both corrosive and unsustainable. Instead of the United States taking the lead on European security and relying on its European allies as a force multiplier, we need to see Europeans safeguarding European security and calling on the United States as a force multiplier. We must dispense with the pernicious American conceit that Europeans cannot be trusted to manage their own security, and we must rid ourselves of the pernicious European illusion that Europeans need not be bothered to manage their own security. If Donald Trump manages to push us in this direction, he will have earned a hallowed place in Euroatlantic history.

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