by Ashley Deeks
Adapted From “The Obama Administration, International Law, And Executive Minimalism,” American Journal Of International Law (forthcoming 2017).
When President 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 detaining and treating members of Al Qaeda, and asserting those claims publicly and frequently.
The Obama administration has taken a notably different tack in a number of cases, employing an approach that we might characterize as “executive minimalism.” It has done this partly by establishing various policies that authorize a narrower scope of action than what some believe international law permits. In some contexts the administration also has been more hesitant to assert bold legal claims about what international law allows or where international law’s limits lie.
President Obama’s targeted killing policy offers a good example of substantive executive minimalism. In 2013, after extensive public discussions and critiques of U.S. targeted killings, the president announced a policy governing forcible counter-terrorism operations that take place away from “hot battlefields” such as Afghanistan and Iraq. The document makes clear that the United States has decided only to target a subcategory of people against whom the U.S. believes it legally could use force. The policy states that, in this context, the United States will only use lethal force against a target who poses a “continuing, imminent threat to U.S. persons.” Before striking, the government must have “near certainty” that the target is present and that non-combatants will not be injured or killed. The U.S. also expresses a preference for capturing an individual where feasible, rather than killing him. Each of these requirements exceeds what the law of armed conflict currently requires.
The policy explicitly preserves wider flexibility for the president when necessary, however. The fact sheet states that these new standards and procedures “do not limit the president’s authority to take action in extraordinary circumstances when doing so is both lawful and necessary to protect the United States or its allies.” The targeted killing policy reflects a decision to pursue substantive action that is narrower than what international law arguably allows, without proffering a detailed position on those wider boundaries.
Despite candidate Obama’s criticism of the Bush administration’s maximalist approach, it is precisely because of the Bush approach that the Obama administration has been able to employ its minimalist strategy, holding many of the Bush administration’s broad interpretations in reserve, if and as needed, without having to break new ground in its own interpretations of international law. In this regard, the Obama administration has returned to a more traditional U.S. executive branch approach to legal analysis, whereby the executive evaluates the legality only of the specific policy before it, rather than conclusively assessing the legality of broader (and possibly hypothetical) approaches.
The Obama approach offers significant advantages for the United States. Many allies favor the approach because it retains greater room for negotiation among states about international law’s content. Others value how it leaves more decision-making space for future U.S. administrations and makes it easier to reach consensus on courses of action among different national security agencies. Executive minimalism is not without costs, however. The Obama approach slows the development of international law by obscuring the value to assign to U.S. positions and by suppressing the back-and-forth exchanges among states, a process that helps shape international law. This approach also means that several controversial legal claims of the prior administration have been left undisturbed and therefore retain precedential value, both domestically and internationally. As a result, the Obama administration’s international war powers legacy will be a modest one.
Offering clear views about the U.S. government’s international legal positions undoubtedly incurs costs. However, the executive branch should continually keep in mind the underappreciated but significant benefits to the U.S. that flow from asserting both generalized and specific articulations of international law.
Before joining the Law School as an associate professor of law, Ashley Deeks served as the assistant legal adviser for political- military affairs in State Department’s Office of the Legal Adviser, and was a legal adviser at the U.S. Embassy in Baghdad.