4 Benavides Alliance for Progress

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FARID SAMIR BENAVIDES VANEGAS

FOREIGN ASSISTANCE AND INTERVENTION: THE ROLE OF THE

USAID IN COLOMBIA

ABSTRACT. In this paper I want to show how the ideology of development was used as

a tool to intervene in Colombias internal affairs. Through an analysis of the narrative of

development I show that USAID was the apparatus of power used to convey Americans

ideology of security and how development and foreign assistance were placed outside the

law, therefore, without the possibility of judicial check.

As los pases que oprimen dicen que liberan. La tirana toma el nombre de libertad, la

venganza el de la justicia, y se habla de amor y amistad donde no hay mas que indiferenciay rencor.

Ionescu1

1. INTRODUCTION

The United States Agency for International Development (USAID) and

Plan Colombia were established to bring progress and development tothe so-called underdeveloped world and Colombia. They are part of theprocess by which U.S. institutions developed a corpus of knowledge onthis particular region, making possible not only the construction of a place

to study but also the intervention in its internal affairs.2

My purpose with this paper is to analyze how foreign assistance hasbecome a tool of intervention in the internal affairs of Colombia. I will

I have benefited from the comments made by Prof. John Brigham and the members of

the Work in Progress group of the University of Massachusetts (Laura Donaldson, Laura

Hatcher, Alec Ewald and Aaron Lorenz). I am also thankful with the Editors of this special

issue for their important comments. Obviously, the sole responsibility for the outcome is

mine.1 (Thus, those countries that oppress say they liberate. Tyranny takes the name of

freedom, revenge the name of justice, and people talk about love and friendship where there

is nothing else but indifference and hatred) as in Alina Diaconu, Preguntas con respuestas:

Entrevistas a Borges, Cioran, Girri, Ionescu, Sarduy (Buenos Aires: Paginas Universales,

1998), at 27.2 On the topic of Latinamericanism based on Saids Orientalism, see Agustin Lao-

Montes, Mambo Montage: The Latinization of New York City, in Mambo Montage:

the Latinization of New York, eds. Agustin Lao-Montes and Arlene Davila (New York:

Columbia University Press, 2001).

International Journal for the Semiotics of Law

Revue Internationale de S emiotique Juridique 16: 195210, 2003.

2003 Kluwer Academic Publishers. Printed in the Netherlands.


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196 FARID SAMIR BENAVIDES VANEGAS

show how the USAID as an assistance agency has used the idea of develop-ment to work for an ideology of security. In so doing I want to show howthe process used to certificate those countries cooperating in the war on

drugs is where security and development meet each other. By showing therole of the USAID in Colombia I want to show this intervention at work.

2. THE NARRATIVE OF DEVELOPMENT

Development is a narrative constructed in the nineteen-forties and fiftiesin the social science in the United States and Europe. According toColombian scholar Arturo Escobar,3 development is a category discur-sively constructed, that is, it is not talking about a reality but it expressesa discursive strategy of power.4 The question is not then why some

countries are developed while others are underdeveloped, but rather whysome countries started to see themselves as underdeveloped in the earlypost World War II period. How to develop became a fundamentalproblem for them, and how, finally, they embarked upon the task of un-underdeveloping themselves by subjecting their societies to increasinglysystematic, detailed and comprehensive interventions.5 The narrative of

development provided the framework that made possible that Colombiadecided to overcome its underdevelopment and accepted the image givenby the so-called First World.

The Third World is the product of discourses and practices aimed at

creating an object of intervention; that is to say, they have created a spacein which they could apply its theories on the Third World. Behind this idea

was a narrative of the Other, seen as a different other with the need of beingeducated and helped with white theories, in sum, a world that could have

been a first world if only had renounced to its traditions and had adoptedthe idea of modernization and development. This idea is expressed in thefollowing terms:

Development assumes a teleology to the extent that it proposes that the natives will

sooner or later be reformed; at the same time, however, it reproduces endlessly the separa-

tion between reformers and those to be reformed by keeping alive the premise of the Third

World as different and inferior, as having a limited humanity in relation to the accomplished

3 Arturo Escobar, Encountering Development: The Making and Unmaking of the Third

World (Princeton, New Jersey: Princeton University Press), at 6.4 Cf. Michel Foucault, Governmentality, in The Foucault Effect: Studies on Govern-

mentality, eds. Colin Gordon et al. (Chicago: University of Chicago Press, 1991).5 Supra n. 2, at 6.


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FOREIGN ASSISTANCE AND INTERVENTION 197

European. Development relies on this perpetual recognition and disavowal of difference, a

feature identified by Bhabha as inherent to discrimination.6

This is made by presenting the reality thus constructed as the reality as

such, and by hypostatizing the presence of the European science in theconstruction of that reality:

This experience of participant observer was made possible by a curious trick, that of elimi-

nating from the picture the presence of the European observer; in more concrete terms,

observing the Colonial world as object from a position that is invisible and set apart. The

West had come to live as though the world were divided in this way into two: into a realm

of mere representations and a realm of the real; into exhibitions and an external reality;

into an order of mere models, descriptions or copies, and an order of the original. This

regime of order and truth is a quintessential aspect of modernity and has been deepened

by economics and development. It is reflected in an objectivist and empiricist stand that

dictates that the Third World and its peoples exist out there, to be known through theories

and intervened from the outside.7

The illiteracy, poverty and necessity of the Third World were describednot as the product of the unjust structure of the world system, but as theresult of the stubbornness, laziness and traditions of the recipient coun-

tries.8 Given this nature of Third World countries, the aid had to changeeverything in those countries, their economic structures, their education,and even their legal system. But since they were deemed incapable ofcreating these conditions by their own, they needed the assistance of adeveloped country, namely, the United States.

The ideology of progress under this conception showed that the onlyway these countries could achieve the level of life existing in developedcountries was through the creation of the same conditions that madepossible the existence of development in the First World. Technical assist-

ance to poor countries was the way in which these theories were usedto change the culture of the recipient country. The discourse of needycountries, the logic of progress, and the distinction between developedand underdeveloped countries made possible the intervention in the cultureof the recipient countries.9 As Escobar pointed out, development was

6 Supra n. 2, at 54. About the role of anthropology in the construction of the notion

of savages, see Arturo Escobar, El final del salvaje: naturaleza, cultura y poltica en la

antropologa contemporanea (Bogota: CEREC, 1999).7 Supra n. 2, at 7.8 Supra n. 2 at 8.9 On the concept of social capital and its influence in the creation of human capital,

Cf. James Coleman, Social Capital in the Creation of Human Capital, American Journal

of Sociology 94 Suppl. (1988), S95S120, and Robert Sampson et al., Beyond Social

Capital: Spatial Dynamics of Collective Efficacy for Children, American Sociological

Review 64 (1999), 633660.


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conceived not as a cultural process (culture was a residual variable, todisappear with the advance of modernization) but instead as a systemof more or less universally applicable technical interventions intended to

deliver some badly needed goods to a target population. It comes as nosurprise that development became a force so destructive to Third Worldcultures, ironically in the name of peoples interests.10

This intervention had the purpose of creating an image of the Third

Worlds people as savages, poor, disadvantaged, and so on. By placingthe stress on the quality of people and their culture, the discourse ofdevelopment allowed the intervention of the United States in the recipientcountries and the use of the ideology of development to attain its goal of

security in the sub-region.Since there are developed and underdeveloped countries, American

foreign policy could be conveyed through assistance to needy nations.The intervention in the construction of local policies could not be seen

as interfering in those countries, because what the USAID was doing wasconsidered assistance to develop a better society.

The concept of modernization of the so-called most underdevelopedregions in the world allowed countries like United States to present them-selves as developed countries with a mission to fulfill in the world, that

is to say, the modernization of the world. This ideology of modernization,as Latham has called it, reframed the imperial ideals, defining the projec-tion of the developed nations power and was used to introduce Americanideas and to make easier the intervention in Latin America.11 As one StateDepartment official said, simple anticommunism would not be enough;the United States needed to present a captivating ideology of its own.

To win the struggle, the United States would have to assure Latin Amer-ican masses that they are the active participants in a genuine, democratic,

effective process of development.12

In order to convey security issues of interest for the United States, theAmerican intervention had to be disguised as assistance for development.This narrative was then the covert of the ideology of national security with

the USAID as its apparatus of power.

10 Supra n. 2, at 44.11 In a survey made by the USAID and published in the site www.usaid.gov the agency

found out that most Americans agreed with their solidarity with the most underdeveloped

regions in the world.12 Michael E. Latham, Modernization as Ideology: American Social Science and

Nation Building in the Kennedy Era (Chapel Hill/London: The University of Carolina

Press, 2000), at 89.


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3. THE APPARATUS OF POWER: USAID AN D ITS ROLE IN THE

BUILDING OF SECURITY

The representation of development assumed that Western societies andespecially the most industrialized ones were the standard of developmentand modernized societies. That was made possible thanks to the apparatusof production of knowledge and exercise of power created by the narrative.This apparatus successfully deployed a regime of government over theThird World, a space for subject peoples that ensures certain control over

it.13

USAID is the result of the American concern with the spread ofcommunism in Latin America. The Alliance for Progress was the firstprogram USAID established in the region in order to bring development

as a tool against the communist threat, but it was hotly debated by manyLatin American sociologists, especially from the CEPAL, who saw this aid

as a form of intervention in the internal affairs of these countries and as away to perpetuate the unequal conditions of trade exchange and to create a

culture of dependence.14

Despite all the official discourse indicating that the Alliance forProgress was to bring development, the fact is that it was just a mech-anism to implement American security.15 USAID became the apparatus

of power that conveyed the narrative of development. It did so in order tohelp in the building for security to the United States. Through its place-ment abroad the Agency sent the message that development is somethingthat has to be brought about beyond the frontiers of the country. 16 It has

developed a corpus of knowledge about the problems of the regions that

13 Supra n. 11, at 9.14 Celso Furtado, Obras escogidas (Bogota: Plaza y Janes, 1982) and Fernando Cardoso

and F. Weffont, eds., America Latina: Ensayos de Interpretacion Sociopolitica (Santiago

de Chile: Coleccion Tiempo Latinoamericano, 1970). The critiques to the Alliance for

Progress can be found in Antonio Garca, Atraso y Dependencia en America Latina

(Bogota: Librera El Ateneo editorial, 1972), and Anne Krueger et al., Aid and Devel-

opment(Baltimore and London: The John Hopkins University Press, 1989).15 Supra n. 11 and Stephen Rabe, The Most Dangerous Area in the World: John F.

Kennedy Confronts Communist Revolution in Latin America (Chapel Hill/London: The

University of North Carolina Press, 1999). As these scholars show, the Alliance was a

whole failure in comply its 94 goals. It brought more poverty and inequality. According to

Antonio Garca, In Colombia the Alliance became a device for subsidizing specified U.S.

exports, because Colombia was required to purchase expensive capital goods in the United

States and to ship 50 percent of those goods on US bottoms as in Cardoso and Weffont,

supra n. 13, at 160.16 Bussiere explains the treatment of poverty in American law. In her book she shows

how the use of some narratives and the strategies of litigation brought about that the US

Supreme Court did not recognized a right to welfare, even though the American tradi-


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has been used to transform the practices and cultures of the recipientcountries.

In its beginnings it was clear that the USAID was an agency in charge

of providing development as part of the strategy against communism. Thisrole was kept by USAID and it was one of the reasons why in the earlyseventies it was not provided with fund for its programs. 17 In the eightiesand after the fall of the Soviet bloc, the United States had no need of

protecting its back yardfrom the communist menace.Nevertheless, under President George Bush, the United States began

another war, the war on drugs, once the Cold War came to an end. InFebruary 1990, he called for more military resources to deal with new

threats beyond the traditional East-West antagonism of the last 45 years. . . Narcogangster concern us all, already a threat to our national healthand spirit . . . They must be dealt with by our military in the air, on theland, and on the seas.18 The budget for drug interdiction increased from

$5 million in 1982 to $1.27 billion in 1991. American tradition has been totreat the problem of drugs as a foreign problem;19 therefore there was notbetter institution than USAID to help in this new war.

In Colombia, the new American assistance was given especially to thejudiciary and the police. However, it was not enough to justify the pressure

exerted by the United States. While the United State government provided$30 million, Colombia spent in the war on drugs more than $1.5 billion,not to mention the human lives lost in this war.

In spite of the amount of money that the US government was giving toColombia, the idea of foreign assistance became a mechanism of pressureto obtain results from Colombia in the war on drugs. USAID was being

used as an instrument to develop the American foreign policy, in this case

tion had other narratives that allowed achieving that outcome. To recognize the right of

welfare would mean that United States has underdevelopment within its territory. Elizabeth

Bussiere, Disentitling the Poor: The Warren Court, Welfare Rights and the American Polit-

ical Tradition (University Park, Pennsylvania: The Pennsylvania State University Press,

2000).17 In 1972 and 1973, Congress rejected the bill presented by the government and it

refused funding USAID on the grounds that the aid was going to be used for military

purposes and that development was used as a way to enforce American foreign policy. This

is a clear example of how the USAID can work in situations of war to provide development

as part of the strategy against the enemy. Plan Colombia has the same features.18 Mathea Falco, Foreign Drugs, Foreign Wars, Daedalus 121/3 (1992), at 5.19 According to Falco, opium was identified with Chinese laborers in the West, cocaine

with blacks in the South, marijuana with Mexicans in the Southwest. In the Vietnam War

era one US Senator threatened to bomb Istanbul as part of a strategy against drugs, supra

n. 17.


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in relation to drug control. Every year, with the mechanism of certificationthe Unites States government pressed Colombian government for its lackof results in the war on drugs. The justification of the pressure was given

by the Foreign Assistance Act that prevent the United States governmentfrom giving money to countries that are not fulfilling its duties in thestruggle against drugs.

The programs developed by USAID at that time had nothing to do with

development or with assistance to improve the economic conditions ofColombian population. As it was mentioned earlier, the majority of themoney was given to the Police and to the judiciary. The latter receivedmoney to support the so-called faceless justice in charge of the prosecu-

tion and trials of people involved in drug trafficking, with the resultingviolations of human rights.

Under the Clinton Administration, USAID again served the purposesof the foreign policy of the United States, despite the declared discourse

that it was an agency in charge of bringing development to the country.Given the fact that President Ernesto Samper was considered an enemyof the United States because of his links with the Cali cartel, the ClintonAdministration tried to cut any link with his government and to force himto resign his office. However, President Samper resisted the pressure he

said that he would leave office on August 7th 1998 and coined the phraseAqu estoy y aqu me quedo (here I am here I stay) despite the fact thatdid not received the certification twice.

Since the Clinton Administration could not cooperate with PresidentSamper, it decided to use the USAID as a tool to cooperate with thegovernment but without Samper. This cooperation was useful to obtain

concessions from Colombian government under the promise of the certifi-cation, even though its promises were never honored.20 The USAID also

cooperated to draft the laws against drug trafficking. In so doing theAgency provided technical assistance to draft Act 333 of 1996, withmeasures to confiscate all the properties of those involved in the drug trade,and Act 365 of 1997 increasing the punishment for some crimes in order

to adjust Colombian legislation to international standards.21

20 American Ambassador Myles Frechette promised Colombian Minister of Justice

Carlos Medelln that the certification would be given provided the government signed the

Agreement of Cooperation against drugs on Sea. Colombian government did so and in that

year Samper government was decertified for the second time.21 The truth is that Colombian legislation is more severe than the legislation of many

European countries. It was clear that by international standards the US government was

meaning US standards.


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In this case development was the last concern of the agency, sincethe existing laws were as useful as the new ones to combat drug traffic.However, these laws and the assistance were used to convey the ideology

of American security and its war on drugs.The Agency succeeded in intervening in Colombian internal affairswithout being challenged in its legitimacy to do so. The process of certifi-cation was subject to heated debate, but the intervention of the USAID

passed unperceived. In the following section I will show how developmentand security meet each other in the process of certification.

4. THE MECHANISM: SECURITY AND DEVELOPMENT MEET

EACH OTHER

The concern for security is present in all the activities of the Amer-

ican representations abroad. A description of the American Embassy inColombia shows that the main concern is security and how suspicious

American authorities are regarding foreign people.22 The fear of insecurityhas permeated other institutions functioning abroad, like the USAID, sinceits declared purpose development is superseded by the goal of securityfor United States. The architecture of the place reflects this fear and showswhat we can expect from American institutions: assistance that helps to

obtain the purpose of security. The concern of the Agency to reconciledevelopment and security can be seen in its new involvement with thepolicies of justice in Colombia, in which the goal for development hasyielded to security.

The certification process is the space in which development and securitymeet each other. This instrument gives power to the President of the UnitedStates to certificate those States involved and committed in the war ondrugs. Through the mechanism, United States can intervene in formulating

the internal policies of the certified states and impose its requirementswithout being successfully label as interventionist.

Since the American Embassy and USAID were the most importantproviders of money in the country, their importance cannot be under-

estimated. The centrality of power of the Embassy and the role the USAID

22 The recent bill on terrorism highlights this conception. According to news informa-

tion, foreign students will be closely controlled in the courses they take and they even

will be denied access to some careers, like nuclear physics and chemistry. The bill send

a message in which it says that foreign people are not trustworthy when they study some

careers and are good students. Cf. Diario El Tiempo www.eltiempo.com , November 2nd,

2001, p. 1.


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played allowed American government to exert that pressure and to makethe certification an important tool to impose its visions about nationalpolicy and security. The narrative of development allowed USAID to avoid

the label of interventionist and to help security to meet with technicalassistance.In the final section I will show how foreign assistance has been free

from juridical intervention. What this means is that assistance is considered

pure politics and a sovereign act protected from judicial review.

5. POWER AND THE OUTSIDE: JUDICIAL REVIEW AND

SOVEREIGNTY

French sociologist Pierre Bourdieu coined the term field in order to avoidthe use of the concept of society. Field has been useful in the analysis

of the law to show how the law is a place in which parties are strugglingfor obtaining certain capital that can be social or political. According to

Bourdieu the elements that characterized a field are the following:

a. It is a limited space,b. In the field, people are struggling for the control of the capital in

dispute,c. The field is regulated and it is under the guidance of certain

rules,

d. However, those rules are not unquestioned, therefore there are timesin which the rules are not obeyed and its legitimacy is questioned,

e. The access to the field is not guaranteed per se because it has an

unequal distribution of power.23

The idea of a field is to point out the importance of the place in the analysisof the law. The law is geographically placed, and it can be used to conveyed

ideologies of race and dominion.24 The law has a national position, thatis, the law is associated to the concept of the Nation-State. Outside theState, the law has no place, it has no meaning and therefore it cannot beapplied.

The distinction between the inside and the outside allows the distinctionbetween that what is regulated and that what is not under control of the law.In the juridical field there is conflict to determine what is within the scope

23 Carlos Morales Ravina, ed., La fuerza del Derecho (Universidad de los Andes,

Bogota, 1992), at 62.24 Peter Fitzpatrick, The Mythology of Modern Law (London: Routledge, 1992), at

111.


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of the law.25 Some activities are defined as activities outside the law; someof them are the political activities. The war, as an activity usually madeoutside the territory and as part of foreign policy, is also another field that is

not under the control of the law.

26

In the field of the law there is discussionabout what is legal and what is not. The placement of an activity under thescope of legality allows the intervention of certain apparatus of power. Itsplacement outside legality or in the place of a-legality expels the possible

control of its apparatus of power.Sovereignty and politics are two concepts that allow the placement of

an activity outside the law. In the Theology of the Political, Schmitt hasshown that the sovereign is that person who has the power to declare the

state of exception and who defines who the enemy is. This is clearly acategory that falls outside the law. The law does not define its field in termsof friend enemy but rather in terms of legality/illegality. As Luhmann hasdemonstrated, once a behavior is taken under the control of the juridical

system it is read in terms of those categories.27

The political, according to Schmitt, is the field in which we definefriends and enemies. The extreme case of the political is the state of war,sovereign is who can declare the war and the latter is declared against thosewho are different from us, who do not belong to our group: our enemies.

Schmitt defines it in the following terms: for Clausewitz war is the ultimaratio of the friend enemy grouping. War has its own grammar, but politicsremains its brain. Its logic can be derived from the friend and enemyconcept. Only in real combat is revealed the most extreme consequenceof the political grouping of friend and enemy. From this most extremepossibility human life derives its specifically political tension.28

According to Fitzpatrick, in his interpretation of Schmitts work, thesovereign is revealed only in or after the decision on the exception,29 that

is to say, the sovereign manifest itself in the very moment of decidingabout the normal and the exception. It appears that the sovereign is outsidethe law. However, the exception is rule by the law in some sense from

25 I understand law in a narrow sense. Law, in this paper, refers to the internal juridical

order, that is, the Constitution and the national law. To say that something is outside the

law is to say that it is not under the control of the Constitution and therefore is not subject

to judicial review.26 John Agnew, Place and Politics: The Geographical Mediation of State and Society

(London/Sydney/Wellington: Allen & Unwin, 1987), at 36.27 Niklas Luhmann, El sistema jurdico (Madrid, Centro de Estudios Constitucionales).28 Carl Schmitt, The Concept of the Political (New Brunswick/New Jersey: Rutger

University Press, 1975), at 32.29 Peter Fitzpatrick, Bare Sovereignty: Homo Sacer and the Insistence of Law (in file

with author).


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the distance, as Fitzpatrick points out the sovereign stands outside thenormally valid legal system,30 yet he belongs to it.

In the juridical field the concept of the political, in the Schmittian sense,

is in tension with the concept of the law as a field of rationality and control:as a place of inside and outside. Agamben highlights this tension betweenthe inside and the outside of the law and shows how the exception becomesthe normal, that is to say, how the law is taking power of its exteriority.

The exception does not substract itself from the rule; rather, the rulesuspending itself, gives rise to the exception and, maintaining itself inrelation to the exception, first constitutes itself as a rule. The particularforce of law consists in this capacity of law to maintain itself in relation

to an exteriority. Yet he finds that the power of the exception is also quiteapart from law. The sovereign nomos cannot be positioned only inside,but must somehow extend intrinsically to an outside from which therecan be the creation and definition of the very space in which the juridical-

political order can have validity. Only in being positioned outside, saysAgamben, can there be the space in which it is possible to trace bordersbetween inside and outside and in which determinate rules can be assignedto determinate territories.31

The concept of national security is the concept in which politics, in the

Schmittian sense, development and security meet, in order to place foreignassistance outside the space and control of the law. Koh analyses in hisbook32 the Iran-contra affair and concludes that in this case there was aviolation of the Constitution, because the national security doctrine estab-lished in the constitution does not allow the presidency to have exclusivepower in foreign affairs. However, the fact is that in this case and in other

cases, like the Vietnam war, the Presidency had unlimited powers and thejudiciary, namely the Supreme Court, allowed to exert those power on the

grounds that in war law is silent.Kohs book tries to answer why President Reagan won in the political

battle about the Iran-contras case. His answer is that the president won,and always wins, because it has the institutional initiative in foreign affairs,

Congress has been lenient in tolerating the actions of the presidency andthe Courts have been tolerant with the presidents deeds. However, thispaper has shown that the discourse of development allowed the interven-

30 Supra n. 28.31 Supra n. 28.32 Harold Koh, The National Security Constitution (New Haven/London: Yale Univer-

sity Press, 1990). However, to Harold Koh, the Constitution expresses the idea that

the issues related to National Security have to be shared by the three branches of the

Government.


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tion in Latin America under the disguise of assistance for progress. Thecase in Nicaragua shows that the assistance for development allows theintervention to protect National Security issues, and moreover the internal

discourse on national security prevents the Court from intervening in apower thought as exclusive of the presidency.The political question doctrine is a doctrine that establishes the differ-

ence between the field of the law and the outside of the law. The political

question doctrine is a way to avoid intervention of the judicial branch incertain issues, hence, by labeling an act as political it is insured its positionoutside the law. The political question doctrine was treated for the firsttime in Lutherv. Borden,33 in which the Supreme Court refused to decide a

dispute between two contenders about the legitimate government of RhodeIsland.34 However it was in Baker v Carrwherein the Court took the matterin a more systematic manner. In this case, petitioners questioned the consti-tutionality of 1901 Tennessee Statute because it deprived them of their

federal rights by classifying them for vote with respect to representation inthe General Assembly.

The Court analyzed the justiciability of the case and held that themere fact that the suit seeks protection of a political right does notmean it presents a political question. According to the Court the non-

justiciability of a political question is primarily a function of the separationof powers. In trying to determine which cases were clearly politicalquestions the Court dealt with foreign relations. Even though the Courtacknowledged that foreign relations usually fall within the field of polit-ical questions, it pointed out that certain cases fall within the scope of its

jurisdiction. The Court decided that the cases did not involve a political

question and wrote that,Prominent on the surface of any case held to involve a political question is found a

textually demonstrable constitutional commitment of the issue to a coordinate political

department; or a lack of judicially discoverable and manageable standards for resolving it;

or the impossibility of deciding without an initial policy determination of a kind clearly for

nonjudicial discretion; or the impossibility of a courts undertaking independent resolution

without expressing lack of the respect due to coordinate branches of government; or an

unusual need for unquestioning adherence to a political decision already made; or the

potentiality of embarrassment from multifarious pronouncements by various departments

on one question.35

What the Court did was determining the boundaries of the political andthe juridical. The decision shows the commitment of the Court of legal-

33 48 US (7 How.) 1 (1849).34 Donald L. Doernberg, Identity Crisis: Federal Courts in a Psychological Wilderness

(Durham, North Carolina: Carolina Academic Press, 2001), at 79.35 Bakerv. Carr, 369 US 186, 217 (1963).


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izing some aspects of the structure of the State in order to exert controlover them. But the case also shows that the outside of the law does notnecessarily mean the geographical outside. The ruling of the Court was

controversial and it is subject to different interpretations.

36

The Court applied the political question doctrine to the Vietnam War.This war was subject to different attacks with regard to its constitution-ality. In all those cases the Court decided not to intervene in the political

decisions of the government, leaving the war as a field outside the law. 37

According to Damato and Oneil, the Court rejected the cases pointing outthe differences between political questions and legal questions, assigningthe former to the legislature and the latter to the courts.38 The doctrine

was used to preserve the powers of the President to decide about theenemies of the United States, even though it was a measure reserved to theCongress.

Most of the cases were related with civil disobedience, since many

plaintiffs were against the war. However the Court dealt with the fact of themilitary assistance to another country, without the declaration of war, andused the political question doctrine to place the fact of foreign assistanceoutside the law and out of reach of the Courts control. This shows howthe ideology of National Security has been used to place foreign assistance

and foreign affairs out of the reach of the Courts. In this way the narrativeof development allowed the intervention to pursue security issues, but thelatter was used to place this intervention in foreign affairs outside thelaw.

In Holtzman v. Schlesinger,39 the Court decided about the applicationto vacate a stay entered by a three-judge panel of the United States Court

of Appeals for the Second Circuit. The applicants, a Congresswoman fromNew York and several Air Force officers serving in Asia, in order to stop

the assistance provided to that country. The claimants argued that suchmilitary activity has not been authorized by Congress and that, absent suchauthorization, it violates Art. I, 8, cl. 11 of the Constitution. The UnitedStates District Court agreed and, on applicants motion for summary judg-

ment, permanently enjoined respondents, the Secretary of Defense, theActing Secretary of the Air Force, and the Deputy Secretary of Defense,

36 Supra n. 33.37 Holmes v. United States 391 US 936; Hartv. United States 391 US 956; McArthurv.

Clifford 393 US 1002.38 Anthony Damato and Robert Oneil, The Judiciary and Vietnam (New York: St.

Martin Press, 1972), at 51.39 414 US 1304.


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from participating in any way in military activities in or over Cambodiaor releasing any bombs which may fall in Cambodia.

Justice Thurgood Marshall delivered the opinion acting as a single

Circuit Judge. After the resistance to the involvement of the United Statesin the Vietnam War, Congress passed two bills denying authorization tothe government to provide assistance to Cambodia, unless it was destinedto obtain the liberation of the Prisoners of War. The applicants, facing

that President Nixon was providing this assistance, without the permissionof Congress, claimed that the war was illegal and that the President wasviolating the law.

Justice Marshall analyzed the powers of the Presidency to wage a war

without the approval of Congress. In this analysis he cited Chief JusticeMarshall who in Talbot v. Seeman (1801) that the war has to be wagedwith that approval. However, he analyzes the provisions of the law andfind that Congress might have authorized the President to wage the war in

Cambodia, yet the Paris Peace Accords is against that conclusion. JusticeMarshall avoids deciding the case by saying that,

. . . if the decision were mine alone, I might well conclude on the merits that continued

American military operations in Cambodia are unconstitutional. But the Supreme Court is

a collegial institution, and its decisions reflect the views of a majority of the sitting Justices.

It follows that when I sit in my capacity as a Circuit Justice, I act not for myself alone but

as a surrogate for the entire Court, from whence my ultimate authority in these matters

derives. A Circuit Justice therefore bears a heavy responsibility to conscientiously reflect

the views of his Brethren as best he perceives them, cf. Meredith v. Fair, 11, 4445 (1962)

(Black, J., Circuit Justice), and this responsibility is particularly pressing when, as now, the

Court is not in session.40

Since it is a difficult decision to make and he is acting on behalf of the

Court, Justice Marshall decided to deny the application and rely on thepowers of the Government. In his decision he concluded:

When the final history of the Cambodian War is written, it is unlikely to make pleasant

reading. The decision to send American troops to distant lands to die of foreign fevers and

foreign shot and shell, New York Times Co. v. United States, (1971) (Black, J., concurring),

may ultimately be adjudged to have been not only unwise but also unlawful.

But the proper response to an arguably illegal action is not lawlessness by judges

charged with interpreting and enforcing the laws. Down that road lies tyranny and repres-

sion. We have a government of limited powers, and those limits pertain to the Justices of

this Court as well as to Congress and the Executive. Our Constitution assures that the law

will ultimately prevail, but it also requires that the law be applied in accordance with lawful

procedures.

Although the Court did not use the political question doctrine, it decided

the case on the grounds that are decisions that have to be taken by the

40 414 US 1304.


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government and by the judiciary. The fact that foreign assistance wasplaced abroad and that it was related to the concept of the political, inSchmitts sense, place the foreign assistance not only outside the American

territory, but also outside the law.The tolerance of the Courts was one of the factors that allowed Presi-dent Reagan to breach the law and send arms to Nicaragua, even thoughin doing so he was having negotiations with the government of Iran

and providing military assistance without the consent of Congress. Thesource of this tolerance is found in the doctrine made in the Vietnam War,because the Courts understood that in matters related to foreign assist-ance and foreign policy the law has no place to intervene. According to

Koh,

. . . since Vietnam, the Supreme Court has intervened consistently across the spectrum of

United States foreign policy interests to tip the balance of foreign policy making power in

favor of the president. Whether on the merits or on justiciability grounds, the courts have

ruled for the president in these cases with astonishing regularity.41

Even though he explains the development of the doctrine by which the

Court does not intervene in foreign affairs, he does not explain why theCourt chose that doctrine. In this paper I have shown that the fact that thewar and foreign assistance were considered political in Schmitts sense canbe an explanation for the reluctance of the Court to control the acts of thePresidency in foreign affairs.

6. CONCLUSION

In this paper I aimed to demonstrate that the narrative of developmentwas used to create the category of the Third World. The creation of thiscategory allowed the creation of discourses about the Third World andcreated a space of power wherein apply those discourses. But the narrativeof development in Colombia was not used to bring progress to this country.The narrative was used as the vehicle to legitimize and deploy an ideology

of security. In Colombia, development was used to insure the security ofthe United States.

USAID was the apparatus to apply a narrative of development and makepossible the ideology of security without the danger of being labeled asAmerican intervention.

Narrative, apparatus and space demonstrates the role of the USAID inColombia. The discussion on the political question doctrine shows that

41 Supra n. 31, at 134149. Koh cites a statement by President Nixon in which he says

that when the President does it, that means that it is not illegal.


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foreign assistance has been placed outside the law, and therefore as a spaceoutside the legal field. Foreign assistance is in that way a tool of interven-tion used by the United States to promote its foreign policies. Its placement

outside the country and the law has allowed being a field without dispute.

University of Massachusetts

Amherst

U.S.A.

E-mail: [email protected]

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4 Benavides Alliance for Progress