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December 23, 2003
Right of First Refusal: Meaning?

As I posted yesterday -- and as it has flown around the blogosphere -- Gen. Wesley Clark made an odd comment to Chris Matthews during an interview two weeks ago, pledging to give Europe a "right of first refusal" on America's national security concerns. That phrase has been interpreted by some, including myself, to mean that Clark was prepared to offer European partners some sort of veto power over actions we would propose in defense of the US. However, two of the blogosphere's better lawyers, Professor Bainbridge and Eugene Volokh, took exception to the general interpretation and issued lengthy discourses on the legal ramifications of rights of first refusal.

I'm just glad I wasn't paying them by the hour.

Professor Bainbridge goes into the more detailed explanation, giving an overview of the legal term in both business and international relations, and ends up stating that Clark's use of the term indicates less than we thought:

I suspect what Clark really meant was that he would consult with our European allies in hopes that we and they would act together ... The "right of first refusal" language probably was a spur-of-the-moment attempt to say "And when I promise to consult with you, I really really mean it." That's a perfectly legitimate position to take, albeit one with which reasonable people can differ (hopefully reasonably). But it's not a right of first refusal. Hence, I find Clark's phrasing inapt, maybe even inept, but surely not unpatriotic.

Eugene Volokh goes through a quicker explanation of this legal concept but is less certain what Clark meant:

But it's not clear what, in a purely legal sense, a "right of first refusal on the security concerns we have" would mean. A promise to "try . . . to work with Europe" on security concerns isn't really a right of first refusal, or even very close to it. It may be a right of consultation, but it's not a right of first refusal. And even taking into account that Clark might have meant this in a figurative sense, it's hard to tell exactly what that sense would have been. ... My tentative sense is that Clark had heard of this cool-sounding legal phrase, and used it for its connotation of cooperation and business amity, without thinking that much about exactly what it would mean. This was on a TV program, after all, and people often talk especially imprecisely in such venues. So I can't really figure out exactly what Clark meant, or whether I should be outraged or not.

However poorly I rate against these legal eagles, I will have to continue to disagree. I'm no lawyer, but neither is Wesley Clark, and I don't for a moment believe that he was talking about a subtle term of art in the legal sense. If you read the entire quote, the context in which he places this offer makes it very clear that he was speaking in a broader conceptual sense:

UNIDENTIFIED MALE: However, if you were in Bush’s shoes right now, what would you be doing differently to rebuild those international bridges you believe have been compromised?

CLARK: Well, if I were president right now, I would be doing things that George Bush can’t do right now, because he’s already compromised those international bridges. I would go to Europe and I would build a new Atlantic charter. I would say to the Europeans, you know, we’ve had our differences over the years, but we need you. The real foundation for peace and stability in the world is the transatlantic alliance. And I would say to the Europeans, I pledge to you as the American president that we’ll consult with you first. You get the right of first refusal on the security concerns that we have. We’ll bring you in.

First: Clark was asked what he would do differently than George Bush. Bush took the Iraq issue to the UN Security Council twice before taking military action with a coalition instead of explicit UNSC approval. If you think of "right of first refusal" in Professor Bainbridge's terms, George Bush offered the UN this "right" twice and was rejected both times. This, according to the Professor's excellent analysis, would have made George Bush a free agent and allowed him to shop his action to third parties willing to buy it. This is exactly what happened. If Clark meant this in a legal sense, then he's saying he would do exactly the same thing as Bush, and he obviously isn't saying this at all. While I am excruciatingly aware that the leftist meme is that Bush is a unilateralist that was never sincere about his overtures to the UNSC, it remains a fact that he went there twice for approval, and his predecessor never attempted that in our Balkans efforts, facts with which Clark should be intimately aware.

Second: Clark speaks about creating a new Atlantic charter, presumably eliminating NATO and possibly redefining the UN at the same time, and incorporating this "right of first refusal" for our European allies. It's hard to imagine that a complete replacement of NATO could possibly be less radical than anything in George Bush's dreams in international relationships. We just added several new members of NATO, and simply tossing out this security arrangement to replace it with something new calls into question whether we'd hold the alliance together at all during such a process. Clark cannot be proposing this radical notion just to give Europeans a voice for consultations, as Professor Bainbridge writes. Nothing in NATO's current charter precludes American executives from consulting on such a basis.

Clark did not speak from a basis of business or international law definition of "right of first refusal"; he spoke with the intention of radically altering American sovereignty over its own foreign policy and national security. Clark may be the most dangerous candidate in the field at the moment, and the media and the blogosphere both have been slow to recognize this.

UPDATE: Welcome Power Line readers! Also, I have edited out a reference to Turkey as a "new" member of NATO. They have been a member of NATO for some time, but are attempting to join the EU; I conflated the two. Mark Kleiman's blog has a roundup of opposing viewpoints which focus too closely on the term itself instead of the overall context (at least, IMHO).

UPDATE II: Unfogged continues the debate here, to which I responded in his comments section. The relevancy of Clark's stated position from his previous written statements is that he continues to insist on creating a new "Atlantic charter" where the US would be bound to consult Eurpoean allies first before taking action, as if this never happened before, or even as if it never happened on the Iraq question. If Bush didn't consult European allies first before taking action, then someone needs to explain how UNSC Resolution 1441 came into existence. That was a clear compromise on Bush's part to Europe to provide Iraq a seventeenth chance to comply with UN disarmament demands.

Either Clark's stance on Iraq and the process that led to it is incoherent, a sort of "I'll be Bush without Bush" -- the most likely explanation -- or he really believes that we should subordinate our foreign-policy and national-security concerns to a European consensus that will never be achieved. Neither reflects well on his character nor on his qualifications as president.

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Posted by Ed Morrissey at December 23, 2003 6:06 AM

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