As we enter a Presidential election year and as candidates on both sides of the political spectrum start to articulate their foreign policy positions, I have become increasingly perplexed with a paradoxical phenomenon.
Our current President, Barack Obama (right), inaugurated 3 years ago today, is a Democrat supposedly to the left of center. Yet he seems far right of center on many foreign policy issues – in fact, so far right that it will become virtually impossible for many Republican candidates to announce positions farther right.
This post will not debate the (in)correctness of any of these positions. Rather, it will explain some key foreign policy issues in light of international law, and discuss why I believe the Administration’s policy situates itself on the right.
► First, let’s start with Guantánamo.
The word itself sparks so much debate (as is evident from IntLawGrrls' series of posts here, as well as posts here and here) that it would be futile in this brief post to attempt to debate the pros and cons of indefinite detention of terrorist suspects. Rather, let me remind everybody of the Obama Administration’s stance on Gitmo. In his first day in office, as indicated in the above photo, President Obama signed an executive order promising to close the detention facility at Guantánamo Bay. Many civil and human rights advocates applauded this decision, and President Obama himself seemed intent on reneging on some of the Bush Administration policies which he had so adamantly campaigned against.
Fast forward to 2012.
Not only has the Guantánamo prison remained open, but the Obama Administration now firmly believes in indefinite detention of terrorist suspects – the very concept which President Obama had fought against until 2008. In fact, the President just signed into law the infamous National Defense Authorization Act, which authorizes the indefinite detention of terrorism suspects and also limits transfers of cleared detainees to other countries.
Excellent academic debate has already occurred on this subject (here, here, and here). Thus, I will only highlight a few key points about this law.
President Obama pledged, through this law, to detain suspects indefinitely at sites such as Guantánamo; through this law, the President has also limited our ability to reduce the number of detainees by transferring those whom we no longer believe to be a threat to third countries. Thus, not only is President Obama not closing Guantánamo, he is likely to increase the number of detainees we house there. I cannot imagine how Republican candidates such as Mitt Romney, Rick Santorum, or Newt Gingrich will be able to formulate more conservative policies that would still appeal to the American electorate.
What does international law have to say on Guantánamo-like detention policies?
It depends on who is applying and interpreting international law. International human rights law forbids arbitrary detention; thus, the legality of the Guantánamo Bay detention program depends on whether such detention is “arbitrary.” Moreover, the law of armed conflict allows for an indefinite detention of enemy combatants captured during wartime, while war is ongoing.
The indefinite detention of Guantánamo Bay inmates is thus legal if one accepts the premise that the United States has been engaged in a continuous war against Al Qaeda and Taliban. President Obama has clearly shown, through his Administration’s policy, that he stands right-of-center on
Guantánamo Bay issues. His Administration’s view has become virtually identical to that of the Bush Administration: that we are at war with Al Qaeda and Taliban terrorists, and that we can detain and hold suspected terrorists at sites like Guantanamo until the end of hostilities.
► Second, President Obama’s foreign policy on targeted killings places him right-of-center as well.
Over the last year, two high-profile targeted killings have been successfully executed under the Obama Administration. First, Osama Bin Laden was found in Pakistan, and presumably targeted
and killed. Second, an American citizen, Al-Awlaki, who had been suspected of aiding and/or engaging in terrorism, was located in Yemen and killed in a drone strike. Third, the Obama Administration has condoned and increasingly used drones in order to target and kill terrorist suspects in Afghanistan and Pakistan. Excellent academic debate has taken place over all these issues (IntLawGrrls' prior posts here; also see posts here, here, and here). But let me briefly highlight some international law issues related to targeted killings.
International human rights law prohibits extrajudicial killings, and the legality of any of the killings mentioned above depends on whether one considers them to be “extrajudicial.” The law of armed conflict clearly allows for the killing of enemy combatants engaged in the battlefield or in combat operations. Thus, any of the killings mentioned above can be justified if one accepts the premise that we are engaged in war against Al Qaeda and Taliban terrorist suspects, that individuals who we targeted were members of Al Qaeda or Taliban forces, that the battlefield moves with them (in other words, the battlefield is located wherever they are found), and that no other options for their capture were viable, if they were found hors combat. Like in the case of Guantanamo, the Obama Administration has adopted a right-of-center view almost identical to the one held by the Bush Administration.
The argument goes something like this: we have been engaged in a war against Al Qaeda and the Taliban; the battlefield is not located just in Afghanistan but rather, it moves along with the combatants; all of the individuals who have been targeted and killed have been enemy combatants; none of them could have been detained (for those who were located hors de combat).
I am not sure how Romney, Santorum or Gingrich can come up with a more conservative policy on targeted killings.
► Third, President Obama has shown a willingness to circumvent Congress in his decision to commit American troops to the military intervention in Libya. In my view, this decision demonstrates another right-of-center stance by the Obama Administration: that the President as commander-in-chief has the inherent Constitutional authority to engage in war, regardless of Congressional authorization or lack thereof. Excellent debate has also taken place over this issue and whether the War Powers Resolution should have required President Obama to seek Congressional approval before sending our soldiers to Libya. (See here, here, and here.) Rather than rehash the debate, let me just point out that the broad view of presidential powers held by the Obama Administration, set forth in a memorandum by the Office of Legal Counsel, situates our President on the far right, and that Republican candidates will have a difficult time coming up with a more conservative stance.
Obviously, this issue is not one of international law, but rather has to do with our constitutional structure and complex separation of powers issues, which I will leave for discussion to my constitutional law colleagues.
Ultimately, American voters will decide in November whether they approve of President Obama’s foreign policy. In the meantime, during the upcoming campaign months, we may witness some very interesting debates on these issues.