The Bush Administration took a maximalist approach to the jus ad bellum and jus in bello, staking out broad claims about what international law permitted in resorting to force and detaining and interrogating Al Qaeda members. In contrast, the Obama administration established more minimalist policies that authorized a narrower scope of action than what international law permits and often avoided bold rhetorical claims about what international law allows. The Obama approach improved relations with allies and deferred difficult inter-agency debates. But it also incurred costs by slowing the development of international law and making it more difficult for other states to interpret the precedential value of U.S. actions. As a result, this paper argues that the administration’s international war powers legacy will be a modest one.
Ashley S. Deeks, The Obama Administration, International Law, and Executive Minimalism, 110 American Journal of International Law, 646–662 (2016).