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The Obama Administration, International Law, and Executive Minimalism

Published online by Cambridge University Press:  29 March 2017

Ashley S. Deeks
Ashley S. Deeks*
Affiliation:
University of Virginia Law School
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Extract

When President Barack Obama came into office in 2009 in the midst of serious, ongoing terrorist threats to the United States, he confronted important choices about how to approach the bodies of international law that regulate the resort to force and the conduct of armed conflict. By many accounts, the Bush administration had taken a maximalist approach to those bodies of international law, staking out broad substantive claims about what international law permitted in resorting to force and in detaining and treating members of Al Qaeda, and asserting those claims publicly and frequently.

The Obama administration has repeatedly taken a notably different tack, employing an approach that we might characterize as “executive minimalism.” That is, the Obama administration has signaled to other states its interest in self-constraint by making fewer bold substantive and rhetorical claims related to the jus ad bellum and jus in bello. It has pursued this objective partly by establishing various policies that authorize a narrower scope of action than what some believe international law permits. In particular contexts, it has also been more hesitant as a rhetorical matter to assert precise legal claims about what international law allows or where international law's limits lie. Accordingly, the Obama administration has sometimes taken action in the face of two (or more) possible legal theories without articulating its specific rationale.

Type
Agora: Reflections on President Obama's War Powers Legacy
Information
American Journal of International Law , Volume 110 , Issue 4 , October 2016 , pp. 646 - 662
Copyright
Copyright © American Society of International Law 2016

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References

1 See, e.g., Barack Obama, Renewing American Leadership, Foreign Aff., July–Aug. 2007, at 2 (critiquing Bush administration's use of renditions, secret sites, and indefinite detention).

2 Bickel, Alexander, Foreword: The Passive Virtues, 75 Harv. L. Rev. 40 (1961)CrossRefGoogle Scholar.

3 Cass R. Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court (1999); see also Jacobs, Sharon B., The Administrative State's Passive Virtues, 66 Admin. L. Rev. 565 (2014)Google Scholar (discussing how administrative agencies sometimes decide not to decide difficult issues).

4 For instance, in 2006, the Bush administration curtailed the use of secret detention sites abroad but never asserted that the use of those facilities was inconsistent with international law. White House Press Release, President Discusses Creation of Military Commissions to Try Suspected Terrorists (Sept. 6, 2006), at https://georgewbush-whitehouse.archives.gov/news/releases/2006/09/20060906-3.html.

5 Military Order of November 13, 2001, Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,831 (Nov. 16, 2001), available at http://fas.org/irp/offdocs/eo/mo-111301.htm.

6 See, e.g., The National Security Strategy of the United States of America 15–16 (Sept. 2002), available at http://www.state.gov/documents/organization/63562.pdf (discussing use of force against nonstate actors that may acquire weapons of mass destruction, but failing to discuss sovereignty limitations on using force in that context).

7 John B. Bellinger III, Legal Adviser, U.S. Department of State, Speech Before the London School of Economics: Legal Issues in the War on Terrorism (Oct. 31, 2006), at http://www.state.gov/s/l/2006/98861.htm.

8 The National Security Strategy of the United States of America, supra note 6, at 15.

9 Daniel Bethlehem, Not by Any Other Name: A Response to Jack Goldsmith on Obama's Imminence, Lawfare (Apr. 7, 2016), at https://www.lawfareblog.com/not-any-other-name-response-jack-goldsmith-obamas-imminence.

10 Memorandum from President George W. Bush to the Vice President, Secretaries of State and Defense, Attorney General, Chief of Staff to the President, Director of Central Intelligence, Assistant to the President for National Security Affairs, and Chairman of the Joint Chiefs of Staff, Humane Treatment of Taliban and al Qaeda Detainees (Feb. 7, 2002), available at http://www.pegc.us/archive/White_House/bush_memo_20020207_ed.pdf; Memorandum from Assistant Attorney General Jay S. Bybee to White House Counsel Alberto R. Gonzales and Department of Defense General Counsel William J. Haynes II, Application of Treaties and Laws to al Qaeda and Taliban Detainees (Jan. 22, 2002), available at https://www.justice.gov/sites/default/files/olc/legacy/2009/08/24/memo-laws-taliban-detainees.pdf.

11 Memorandum from Assistant Attorney General Jay S. Bybee, supra note 10, at 31.

12 18 U.S.C. § 2340 et seq.; see also Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty DOC. No. 100-20 (1988), 1465 UNTS 113.

13 Mark Mazzetti & Scott Shane, Memos Spell Out Brutal C.I.A. Mode of Interrogation, N.Y. Times, Apr. 17, 2009, at A1.

14 Reply of the Government of the United States of America to the Report of the Five UNCHR Special Rapporteurs on Detainees in Guantanamo Bay, Cuba, at 4 (Mar. 10, 2006), available at http://www.state.gov/documents/organization/98969.pdf (“By its express terms and clear negotiating history, the International Covenant on Civil and Political Rights (‘ICCPR’) applies to each State Party only with respect to ‘individuals within its territory and subject to its jurisdiction.’ The ICCPR thus does not cover operations in Guantanamo, which is not within U.S. territory.”); see also ICCPR, Dec. 16, 1966, 999 UNTS 171.

15 Jack Goldsmith, More on Obama v. Bush on Preemption: Response to Lederman, Lawfare (Apr. 12, 2016), at https://www.lawfareblog.com/more-obama-v-bush-preemption-response-lederman.

16 See Taft, William H. & Buchwald, Todd F., Preemption, Iraq, and International Law, 97 AJIL 557 (2003)Google Scholar.

17 James Risen & David Johnston, Threats and Responses: Hunt for Al Qaeda; Bush Has Widened Authority of C.I.A. to Kill Terrorists, N.Y. Times, Dec. 15, 2002, at http://www.nytimes.com/2002/12/15/world/threats-responses-hunt-for-al-qaeda-bush-has-widened-authority-cia-kill.html (“The president has given broad authority to the C.I.A. to kill or capture operatives of Al Qaeda around the world, the officials said. But officials said the group's most senior leaders on the list were the agency's primary focus.”).

18 Jennifer K. Elsea & Julie Kim, Cong. Research Serv., RL33643, Undisclosed U.S. Detention Sites Overseas: Background and Legal Issues 2 (2007), available at https://www.fas.org/sgp/crs/intel/RL33643.pdf.

19 Bickel, supra note 2, at 42–47.

20 Sunstein, supra note 3, at 9; Cass R. Sunstein, Foreword: Leaving Things Undecided, 110 Harv. L. Rev. 4, 14 (1996) (defining minimalist judge as one who avoids broad rules and theories and focuses only on what is necessary to decide particular cases).

21 David Cole made a plea for what he termed “executive modesty” in the context of the Bush administration's broad claims of executive power to conduct warrantless wiretapping, hold individuals detained in the United States as “enemy combatants,” and mistreat detainees at Abu Ghraib and secret sites. David Cole, An Immodest Proposal, Nation (Nov. 22, 2006), at https://www.thenation.com/article/immodest-proposal; see also Lawrence Tribe & Joshua Matz, Uncertain Justice: The Roberts Court and the Constitution 186, 186–87 (2014) (“Obama took office amid promises of executive modesty and criticism of Bush … .”).

22 Sunstein, supra note 3, at 4.

23 Id. at 48.

24 Siegel, Neil, A Theory in Search of a Court, and Itself: Judicial Minimalism at the Supreme Court Bar, 103 Mich. L. Rev. 1951, 2009 (2005)Google Scholar.

25 Parallels exist between the Obama administration's approaches to international law and constitutional law in the area of war powers. In the domestic context, the administration has sought to avoid broad and controversial interpretations of the president's Article II powers, just as it has sought to avoid broad interpretations of international law. See Ramsey, Michael D., Constitutional War Initiation and the Obama Presidency, 110 AJIL 701 (2016)CrossRefGoogle Scholar (noting that, in the conflicts against Al Qaeda and the Islamic State in Iraq and Syria (ISIS),Obamaprincipally relied on congressional authorization even though independent presidential power justifications were available). At the same time, as we might expect, the administration has not expressly taken expansive Article II claims off the table, leaving to another day core questions about the constitutional allocation of war powers.

26 See White House Press Release, Fact Sheet: U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities (May 23, 2013), at https://www.whitehouse.gov/the-press-office/2013/05/23/fact-sheet-us-policy-standards-and-procedures-use-force-counterterrorism [hereinafter Targeted Killings Policy].

27 Military rules of engagement do something similar: they narrow the contexts in which military forces may use force, taking into account strategic and policy considerations not required by law.

28 Targeted Killings Policy, supra note 26.

29 Id.

30 Id.

31 White House Press Release, Letter from the President—War Powers Resolution (Dec. 11, 2015), at https://www.whitehouse.gov/the-press-office/2015/12/11/letter-president-war-powers-resolution.

32 See, e.g., David Rohde, The Obama Doctrine, Foreign pol’y, Feb. 27, 2012, at 65, 65 (“Just as importantly, the administration's excessive use of drone attacks undercuts one of its most laudable policies: a promising new post-9/11 approach to the use of lethal American force, one of multilateralism, transparency, and narrow focus.”).

33 A Security Council resolution authorizing force requires an affirmative vote of nine states and no veto by a permanent member of the Council. See UN Charter, Art. 27.

34 See, e.g., Ryan Goodman, State Practice and the Use of Force: Iran Invokes the “Unwilling or Unable” Test Against Its Neighbors, Just Security (Feb. 26, 2014), at https://www.justsecurity.org/7588/state-practice-force-iran-invokes-unwilling-unable-test-neighbors. This approach echoes the principle of “constitutional avoidance” in which the Supreme Court will not decide a constitutional question if another basis exists on which the Court can dispose of the case. Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring).

35 Although French troops had the lead in fighting Al Qaeda in Mali, news reports indicate that U.S. forces have engaged in clandestine missions in Mali as well. Craig Whitlock, U.S. Sends a Handful of Troops to Mali, Wash. Post, May 1, 2013, at A7.

36 See Ashley S. Deeks, Consent to the Use of Force and International Law Supremacy, 54 Harv. Int’l L.J. 1, 16–18 & nn. 46–49 (2013) (describing possible differences in legal obligations and collecting competing views about whether a state may rely on consent alone as international legal justification).

37 See Condoleezza Rice, U.S. Secretary of State, Remarks en Route to Germany (Dec. 5, 2005), at http://2001-2009.state.gov/secretary/rm/2005/57643.htm (noting, in the context of revelations about secret detention facilities, that the United States respects the sovereignty of its partners, which implies that the United States obtained consent from the states hosting those sites).

38 Mark Mazzetti, The Way of the Knife: The Cia, a Secret Army, and a War at the Ends of the Earth (2013).

39 Goldsmith, Jack, The Contributions of th eObama Administration to the Practice and Theory of International Law, 57 Harv. Int’l L.J. 1, 4 (2016)Google Scholar.

40 Ashley S. Deeks, Intelligence Communities and International Law: A Comparative Approach, in Comparative International Law (Anthea Roberts, Pierre-Hugues Verdier, Mila Versteeg & Paul Stephan eds., forthcoming 2017).

41 Senate Select Committee on Intelligence, Questions for the Record: Caroline D. Krass (undated) (emphasis added), available at http://www.intelligence.senate.gov/sites/default/files/hearings/krasspost.pdf (noting additional prehearing questions).

42 Targeted Killings Policy, supra note 26 (emphasis added).

43 Harold Hongju Koh, Legal Adviser, U.S. Department of State, Address at Annual Meeting of American Society of International Law (Mar. 25, 2010) (emphasis omitted), at http://www.state.gov/s/l/releases/remarks/139119.htm.

44 See, e.g., Jane Mayer, The Predator War, New Yorker, Oct. 26, 2009, at 36.

45 Stephen Preston, CIA and the Rule of Law, 6 J. Nat’L Security L. & Pol’y 1 (2012).

46 18 U.S.C. §2441. Failing to comply with the principle of distinction during an armed conflict would potentially constitute murder under §2441(d)(1)(D) or intentionally causing serious bodily injury under §2441(d)(1)(F).

47 See Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), Art. 57(2)(a), June 8, 1977, 1125 UNTS 3; 1 Jean-Marie Henckaerts & Louise Doswald-Beck, Customary International Humanitarian Law 51–55 (2005), available at https://www.icrc.org/eng/assets/files/other/customary-international-humanitarian-law-i-icrc-eng.pdf (noting that Rule 15 asserts that the rule of precautions in attack is customary).

48 Henckaerts & Doswald-Beck, supra note 47, at 51–55.

49 International Committee of the Red Cross, Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law (2009), available at https://www.icrc.org/eng/assets/files/other/icrc-002-0990.pdf.

50 Michael R. Gordon, U.S. Airstrikes Destroy Scores of ISIS Oil Trucks in Syria, N.Y. Times, Nov. 17, 2015, at A11.

51 For two views, see Beth Van Schaack, Targeting Tankers—and Their Drivers Under the Law of War (Part 2), Just Security (Dec. 3, 2015), at https://www.justsecurity.org/28071/targeting-tankers-drivers-law-war-part-2 (treating the precautions as probably legally required), and Butch Bracknell, Warnings to Civilians Directly Participating in Hostilities: Legal Imperative or Ethics-Based Policy?, Lawfare (Nov. 29, 2015), at https://www.lawfareblog.com/warnings-civilians-directly-participating-hostilities-legal-imperative-or-ethics-based-policy (treating the precautions as a policy decision).

52 The U.S. legal position might have been ambiguous even if the United States had not chosen to target the trucks. However, understanding the parameters of the U.S. legal and policy positions seems more pressing because the United States chose to act in this situation and likely will face similar situations in the future.

53 See infra text accompanying notes 56–61.

54 See infra text accompanying note 61 (describing Obama's “red line” in Syria). 55 See infra text accompanying notes 63–65 (discussing Obama administration's approach to targetability of “war-sustaining” capabilities).

56 Exec. Order 13,491, sec. 3(a), 74 Fed. Reg. 4893 (Jan. 22, 2009), at https://www.whitehouse.gov/the-press-office/ensuring-lawful-interrogations (citing Geneva Conventions and Convention Against Torture).

57 See, e.g., White House Press Release, News Conference by the President (Apr. 29, 2009), at https://www.whitehouse.gov/the-press-office/news-conference-president-4292009 (“I believe that waterboarding was torture. And … whatever legal rationales were used, it was a mistake.”).

58 See Kenneth Anderson & Benjamin Wittes, Speaking the Law: The Obama Administration's Addresses on National Security Law (2015) (compiling speeches).

59 David Pozen, The Rhetorical Presidency Meets the Drone Presidency, New Rambler (2015), at http://newramblerreview.com/book-reviews/law/the-rhetorical-presidency-meets-the-drone-presidency (concluding that the executive has baked “ambiguity and circuity” into its legal formulations).

60 Brian Egan, Legal Adviser, U.S. Department of State, Address at the Annual Meeting of the American Society of International Law: International Law, Legal Diplomacy, and the Counter-ISIL Campaign (Apr. 1, 2016), at http://www.state.gov/s/l/releases/remarks/255493.htm.

61 See, e.g., Dapo Akande, Does Use of Chemical Weapons Justify Intervention in Syria?, EJIL: TALK! (Apr. 27, 2013), at http://www.ejiltalk.org/does-use-of-chemical-weapons-justify-intervention-in-syria; Julian Ku, The Legality of President Obama's “Red Line” on Syrian Chemical Weapons, Opinio Juris (Apr. 25, 2013), at http://opiniojuris.org/2013/04/25/the-legality-of-president-obamas-red-line-on-syrian-chemical-weapons.

62 Egan, supra note 60.

63 Id.

64 Goodman, Ryan, The Obama Administration and Targeting “War-Sustaining” Objects in Noninternational Armed Conflict, 110 AJIL 663, 663 (2016)CrossRefGoogle Scholar (“President Obama embraced what many in the international law community long regarded as off-limits: targeting war-sustaining capabilities, such as the economic infrastructure used to generate revenue for an enemy's armed forces.”).

65 Id. at 663.

66 John B. Bellinger III, Obama, Bush, and the Geneva Conventions, Foreign Pol’Y, Aug. 11, 2010, at http://foreignpolicy.com/2010/08/11/obama-bush-and-the-geneva-conventions (noting that the Obama administration is applying the Third and Fourth Geneva Conventions no differently than the Bush administration did).

67 For a discussion about why the U.S. executive branch might be loath to renounce precedents that enhance executive power, see Ingber, Rebecca, The Obama War Powers Legacy and the Internal Forces That Entrench Executive Power, 110 AJIL 680 (2016)CrossRefGoogle Scholar.

68 Bellinger, supra note 66.

69 See Jack Goldsmith, The Cheney Fallacy, New Republic, May 18, 2009, at https://newrepublic.com/article/62742/the-cheney-fallacy.

70 Bradley, Curtis A., The Bush Administration and International Law: Too Much Lawyering and Too Little Diplomacy, 4 Duke J. Const. L. & Pub. Pol’y 57, 73–74 (2009)Google Scholar (“[T]he Bush Administration, especially during the first term, often gave the impression that it did not need to … listen to others.”). On an early trip to Europe, President Obama critiqued the Bush administration's approach as overly unilateral, stating, “I know that there have been honest disagreements over policy, but we also know that there's something more that has crept into our relationship … .SoI’ve come to Europe this week to renew our partnership, one in which America listens and learns from our friends and allies … .” White House Press Release, Remarks by President Obama at Strasbourg Town Hall, Strasbourg, France (Apr. 3, 2009), at https://www.whitehouse.gov/the-press-office/remarks-president-obama-strasbourg-town-hall.

71 Sunstein, supra note 3, at 4 (noting that a court that “leaves things open will not foreclose options in a way that may do a great deal of harm”).

72 See, e.g., Scott Shane, Election Spurred a Move to Codify U.S. Drone Policy, N.Y. Times, Nov. 24, 2012, at A1 (describing dispute within executive branch about legality of signature strikes); Charlie Savage, Obama Team Split on Tactics Against Terror, N.Y. Times, Mar. 29, 2010, at A1 (describing interagency dispute about whether mere supporters of Al Qaeda detained away from the “hot battlefield” were detainable under international law and noting that U.S. Department of Justice's Office of Legal Counsel was “not prepared to state any definitive conclusion”).

73 Charlie Savage, At White House, Weighing Limits of Terror Fight, N.Y. Times, Sept. 16, 2011, at A1 (“Defense Department lawyers are trying to maintain maximum theoretical flexibility, while State Department lawyers are trying to reach out to European allies who think that there is no armed conflict, for legal purposes, outside of Afghanistan, and that the United States has a right to take action elsewhere only in self-defense, the official said. But other officials insisted that the administration lawyers disagreed on the underlying legal authority of the United States to carry out such strikes.”).

74 Ryan Goodman & Sarah Knuckey, What Obama's New Killing Rules Don't Tell You, Esquire, May 24, 2013, at http://www.esquire.com/news-politics/news/a22769/obama-counterterrorism-speech-questions-052413.

75 Deeks, supra note 36.

76 Jo Becker & Scott Shane, Secret “Kill List” Proves a Test of Obama's Principles and Will, N.Y. Times, May 29, 2012, at A1 (noting that as Obama signed three executive orders related to Guantánamo detentions and interrogation techniques, “he was already putting his lawyerly mind to carving out the maximum amount of maneuvering room to fight terrorism as he saw fit”).

77 See generally Waxman, Matthew, Cyber-Attacks and the Use of Force: Back to the Future of Article 2(4), 36 Yale J. Int’l L. 421, 448 (2011)Google Scholar (suggesting, in the context of similarly opaque cyber operations, that “the processes of claims and counterclaims moving toward a predictable, stable outcome, or the accretion of interpretive practice commanding broad consensus, will likely be slow and uncertain”).

78 Ashley Deeks, UK Air Strike in Syria (with France and Australia Not Far Behind), Lawfare (Sept. 9, 2015), at https://www.lawfareblog.com/uk-air-strike-syria-france-and-australia-not-far-behind (describing adoption by various states of armed conflict paradigm against ISIS and their apparent reliance on the “unwilling or unable” test).

79 See, e.g., Daskal, Jennifer, The Geography of the Battlefield: A Framework for Detention and Targeting Outside the “Hot” Conflict Zone, 161 U. PA. L. Rev. 1165, 1181 (2013)Google Scholar.

80 See Adam Entous, U.S. Unease over Drone Strikes: Obama Administration Charts Delicate Legal Path Defending Controversial Weapons, WAll ST. J., Sept. 26, 2012, at A1 (describing Obama administration lawyers’ concern about reliance on Pakistan's shaky consent to drone strikes, given the drone program's “long-term legal uncertainty and precedent-setting nature”).

81 See Perina, Alexandra, Black Holes and Open Secrets: The Impact of Covert Action on International Law, 53 Colum. J. Transnat’l L. 507, 562 (2015)Google Scholar.

82 Ernesto Londoño, In Libya, a Rare U.S. Military “Rendition,” Wash. Post, Oct. 7, 2013, at A1 (reporting that Libyan government condemned the “kidnapping” of one of its citizens).

83 As discussed above, in certain situations the Obama administration actually renounced Bush administration legal positions or adopted those positions wholesale.