Daily Times

The United States and Pakistan are like Martha and George in Albee’s Who’s Afraid of Virginia Woolf. They can’t even make love without insulting and abusing each other. The latest in their long and continuing walpurgisnacht is S.1707, the Enhanced Partnership with Pakistan Act 2009. (This article is based on S.1707 CPS, the version considered and passed by the US Senate.) Consider.
As the conditionalities stand, far from the expressed sentiments of partnership and its enhancement, the legislation is likely to become a document that will continue to sour relations between the two in times to come. This was predictable because rarely are two states so diverse in interests put together in one bed by the compulsions of realpolitik.
The US wants to help Pakistan, which is the stated purpose of the legislation, and yet cannot bring itself round to trust Pakistan even on the central premise of this partnership — i.e., fighting terrorism. Pakistan wants the money, is forced to play ball but precisely because its strategic interests in the region diverge, more than they converge, with the US, it keeps chaffing even as it tags along.
At the surface the issue is simple. If a state parts with money, it also has the right to put conditionalities on how that money is to be spent; more importantly, whether it thinks, through periodic assessment and monitoring, that the taker is not itching to fall out of line and release or withhold funds on that basis.
The taker has the option to either accept the conditionalities and take the money or tell the giver to lump it. So, why can’t Pakistan do either this or that? Ditto for the US. Remember, we are not dealing with individuals here. States operate differently. The US is not shelling out money to Pakistan, notwithstanding all the references to democracy and the people of Pakistan and people-to-people contact and due process and civil society, capacity building and much else, because Washington wants to play Good Samaritan. In these hard times money is not easy to come by even in a multi-trillion dollar economy. The US is doing so, very reluctantly and very distrustfully, because it perceives its core interests to be involved in this region. And, it needs Pakistan.
This is why, even as the US talks of partnership and says all the nice things about “a long history of friendship and comity” between the two states, it has inserted conditionalities and limitations on certain assistance (see Secs. 102 (b); 203 a, b, c and sub-clauses of c). True, all conditionalities are also governed by waivers by the secretary of state under the direction of the US president. But that is where law and realpolitik intersect and that is an interesting area.
Take, for instance, non-proliferation and the issue of access to person X or Y allegedly involved in such activities. If that issue is raised at some point, the US domestic law will come into play. But is that the only problem here? Consider it from another angle. Pakistan is not a signatory to the NPT and has not signed any legal document regarding non-proliferation. But — and this is important — it has assured other states and the UN, a fact documented, that it is opposed to proliferation as state practice. Further, the recently passed Resolution 1887 in clause 1 reads: “…a situation of non-compliance with non-proliferation obligations shall be brought to the attention of the Security Council, which will determine if that situation constitutes a threat to international peace and security, and emphasises the Security Council’s primary responsibility in addressing such threats”.
Similarly, clause 28 says: “[The SC] Declares its resolve to monitor closely any situations involving the proliferation of nuclear weapons, their means of delivery or related material, including to or by non-State actors as they are defined in resolution 1540 (2004), and, as appropriate, to take such measures as may be necessary to ensure the maintenance of international peace and security.”
This, then, becomes a multilateral affair under Chapter 7 and the US could invoke the SC on the basis of the operation of its own domestic law.
Realpolitik would likely dictate that the US would not do so or withhold the monies until circumstances keep the two actors in bed. This is where issues are determined by a rather simple formula. If the US needs Pakistan more than Pakistan needs the US, Pakistan could get away with much; conversely, the US would have the leverage to twist Pakistan’s arm. In reality, both actors continue to kiss and kick simultaneously.
How long the two states can remain in this tense relationship is anybody’s guess; no one can give a timeframe on that. The “until” is important because it manifests, as nothing does, the distrust between the two and the nature of relations, fraught as they are with distrust.
It is because of this that the legalese in the legislation becomes important. The argument that what the legislation says about nuclear-related activities, terrorist groups and, to some extent, civil-military relations is also the declared policy of the government of Pakistan and therefore there is no need to fret over it misses the legal point. It would have been different if the GoP had made an overt objection to these references while the legislation was being processed and considered. But it did not. Accepting money under the legislation without expressing any reservation over references contained in section 203 a, b, c and sub-clauses of c, means Pakistan accepts them as valid and is endorsing them at the level of the state. That is exactly where the shoe is going to pinch very badly when the two get off the bed and decide to have separate rooms. Why?
Because letting these references pass without any riders would open the state to legal problems in all these areas and that would come just at the juncture at which the configuration of geopolitics will undergo a change. Neither does it suffice to say that when that moment arises the US will close the tap like it previously did in the 1990s. This is not the 1990s and legal and semi-legal, even cooked up legalities can be used to underwrite action.
[Notice here that while the legislation makes references to rights, due process and independent judiciary, areas that need strengthening, it eschews the fact that going by the law would make it even more difficult for Pakistan to hand over people as was done during Musharraf’s tenure. This of course is an area that needs separate treatment.]
Similarly, to say that the bill has been watered down because the overt reference to India has been changed to “neighbouring countries” is even more simplistic. Now, in theory, even Afghanistan can have a say in determining whether or not Pakistan is complying with the conditionalities. Once again, the until factor comes in.
Moreover, because US troops are present in Afghanistan, the problem of the intersection of law and realpolitik acquires a different dimension — especially, because Afghanistan and related issues are already governed by an extensive and intensive legal regime which emanates from the UN and has multilateral status which the US could use in support of its domestic legislation. And this regime comes under Chapter 7.
The argument that this legislation is the best thing that has happened to Pakistan relies on two factors: it gets Pakistan badly needed money; and it helps Pakistan do, under pressure where necessary, what is good and important for Pakistan.
Both arguments eschew the complex dynamic of realpolitik that is being played out in this region by the states on the basis of their interests. Both start out with the premise that in all that is happening in the region and across the world Pakistan is the villain and is the only state that requires course correction. This is patently wrong.
All states in the region and outside need course correction, just as much as Pakistan does. Most have contributed to the original sin, a fact also acknowledged by the US secretary of state. Pakistan is already grappling with an internal threat which is being exacerbated by the less than satisfactory performance of the US and its allies in Afghanistan. Predictably, stories have started appearing in the US press (the Washington Post being in the lead) about the so-called Quetta Shura and the denial to some US visitors of Pakistani visas.
The fact is that the US is in a dilemma over how to solve a very wicked problem, as is obvious from the unclassified 66 pages of General Stanley McChrystal’s report (COMISAF Initial Assessment). It is easy to transfer responsibility and talk about what all Pakistan must do to save the US from its folly. This is surely a point where Pakistan would do well to present copies of David Halberstam’s The Best and the Brightest to the Obama administration. Sometimes, going back in time can be useful.
Where course correction is needed, the US needs it the most, having created chaos in this region and also contemplating strong action against Iran without increasing the overall level of security for anyone or looking into its own policies that might conceivably be at the heart of the ressentiment that has caused some groups to acquire such appeal.
As for what Pakistan should do now that it has lost the opportunity to debate the first draft of this legislation back in June, some say there are only two courses open to it. Tell the US that the wordings of the legislation, as it stands, are not acceptable to it and forego the monies; or, accept the monies it offers while swallowing the conditionalities and their ramifications.
Between quitting and maximum response there are options that can be utilised. But will we? No prizes for guessing the course Pakistan will take.

Ejaz Haider is op-ed editor of Daily Times, consulting editor of The Friday Times and host of Samaa TV’s programme “Siyasiyat”. He can be reached at sapper@dailytimes.com.pk