To President Obama, the concept of international law is palpable, as his September 2009 speech to the U.N. Security Council emphasized: "[W]e must demonstrate that international law is not an empty promise, and that treaties will be enforced." Many in his administration are doing their utmost to subvert America's well-deserved reputation as an adherent of the rule of law by subordinating it to the dangerous concept that international law, as defined by its high priests, overrides our domestic law, including in the judiciary.
What is or is not legally binding about international law, particularly customary international law, is wide open to dispute. Customary international law used to refer to "state practice" in international affairs, a generally sensible way of deciding such questions as navigation protocols, reflecting what seafaring states have done over the centuries. In recent decades, however, the academic Left has seized on customary law as a fertile field for imposing its own ideological standards internationally and binding countries to "laws" they never explicitly approved.
Because democratic debates in constitutional systems like ours are so unsatisfying and often so unproductive for America's statists, they have, in essence, launched an international power play to move outside of our legal systems. They find much greater prospects for success in international forums like the United Nations than in the U.S. Congress. Hence, the role and limits of international law, determining what is legally binding for our international conduct and domestic policy, will be a critical area of debate in the coming years.
The most visible, immediate impact of President Obama's fascination with international law appears in the global war against terrorism, a term he tries to avoid. Instead, he adopted the view widely held in Europe and among legal theorists that terrorist threats and attacks should be treated under the criminal law enforcement paradigm, rather than as attacks on America subject to the law of war. The question is whether we treat terrorists simply as bank robbers on steroids or as national security threats to which we should respond in legitimate self-defense. The Obama administration strongly supports the criminal law paradigm, which most Americans emphatically reject.
Closing Gitmo is not just good policy but "norms" America
Thus, reflecting the law-enforcement approach, Obama rapidly ordered the closure of the Guantanamo Bay terrorist detention facility and either the release of those still detained or their transfer to the United States. He also pushed to abandon "enhanced interrogation" techniques and insisted upon trying as many terrorists as possible in civilian courts, under ordinary criminal law procedures rather than in military tribunals. This mindset's strong ideological roots reflect the administration's fundamental acceptance of leftist conventional wisdom on international law. Under this view, for Obama, closing Gitmo is not just good policy but, more importantly, "norms" America with international opinion on handling terrorists.
Why we should defer to international norms on terrorism is, to say the least, unclear. The U.N. has repeatedly tried and failed to reach a comprehensive definition of terrorism. Its continuing inability to agree on something so fundamental helps explain why the U.N., particularly the Security Council, has been AWOL in the war on terrorism, and why international norms should not dissuade us even slightly from legitimate self-defense efforts.
Unfortunately, mishandling the war against terrorism doesn't end with distorting the correct legal and political paradigms to combat it. The Obama administration has broader ambitions as well, including an ill-concealed desire to join the International Criminal Court (ICC). Although billed as a successor to the Nuremberg tribunals, the ICC, in fact, amounts to a giant opportunity to second-guess the United States and the actions we take in self-defense. The ICC's enormous potential prosecutorial power awaits only the opportunity to expand almost without limit.
"Universal jurisdiction," permits countries utterly unrelated to an event to initiate criminal prosecutions
The Clinton administration initially signed the ICC's founding document, the Rome Statute, in June 1998, but there was no prospect that the Senate would ratify it. The Bush administration unsigned the treaty and entered into more than 100 bilateral agreements with countries to prevent our citizens from being delivered into the ICC's custody. To date, the ICC has proceeded slowly, partly in the hope of enticing the United States to cooperate with it, and the Bush administration succumbed to it in its final years. The ICC's friends under President Obama want to go even further. Secretary of State Hillary Clinton said in 2009, for example, that it was "a great regret but it is a fact we are not yet a signatory" to the Rome Statute, signaling unmistakably what she hopes to do.
The Obama administration's willingness to submit U.S. conduct to international judicial review also extends to the concept of "universal jurisdiction," which permits even countries utterly unrelated to an event to initiate criminal prosecutions regarding it. The administration has yet to say, for example, that it will oppose potential European efforts to prosecute those responsible for enhanced interrogation techniques. This devotion to international norms is designed to intimidate U.S. decision makers, military forces, and intelligence agents, and violates basic democratic precepts that we are responsible for and fully capable of holding our government to its responsibilities under our Constitution.
Limiting America's military options is a high priority for the Obama administration.
In fact, limiting America's military options and capabilities through international agreements and organizations is a high priority for the Obama administration. It has been hard at work since Inauguration Day negotiating with Russia to significantly reduce both America's nuclear weapons and delivery systems. The administration appears open to imposing new constraints on our missile defense programs. These were previously eliminated in 2001 by the Bush administration's withdrawal from the 1972 Anti-Ballistic Missile Treaty, which barred us from building national missile defenses. President Obama has already abandoned missile defense sites in Poland and the Czech Republic that were intended to protect the continental United States. Any missile defense budget cuts will cause enormous damage, no matter what is agreed with Moscow.
Moreover, the president's aspiration, articulated in his 2009 Prague speech, to achieve a world without nuclear weapons is well on track, whether or not other nuclear nations (and proliferators) follow suit. Obama has committed to a multitude of multilateral arms-control treaties and negotiations, such as again pressing for Senate ratification of the Comprehensive Nuclear Test Ban Treaty (previously defeated by a Senate vote of 51-48 on October 13, 1999). Undoubtedly, the Landmines Convention, another Clinton administration legacy (adopted in Ottawa in December 1997) will also reappear on the administration's agenda. In addition, the president wants to negotiate treaties to stop new production of fissile material, to prevent an outer space "arms race," and to regulate trade in conventional weapons that will have potentially enormous implications for our domestic debate over the Second Amendment and firearms control.
In addition, many senior administration officials have demonstrated their sympathy for using international "human rights" norms on the conduct of war to constrain the United States. Of course, no one advocates uncivilized or inhumane behavior, but the critical point is who defines such behavior and who holds those who violate the accepted standards accountable. Under our Constitution, we are fully capable of deciding how and when to use military force, how our warriors should conduct themselves, and how to deal with those who violate our standards. We do not need international human rights experts, prosecutors, or courts to satisfy our own high standards for American behavior.
Having failed to win within our political system, they retreat into international organizations.
This is not the view, however, of those who want to constrain our sovereignty. After all, if we decided what is right and wrong, they couldn't second-guess us and bend us to their views. Having failed to win this point within our political system, however, they simply retreat into international organizations, hoping they and their international leftist allies can win there what they failed to win at home.
Israel is often a preferred target because it is small and even less popular in the elite circles of international law and norming than the United States. Thus, the U.N.'s recent Goldstone report on Israel's 2008-2009 Operation Cast Lead against Hamas in the Gaza Strip criticized Israel for violations of the law of war, such as the "disproportionate use of force," in ways that severely undermine Israel's inherent right of self-defense. If such conclusions become widely accepted, they will obviously have direct and substantial effects on our ability to undertake our own self-defense, which is, of course, exactly what the globalists have in mind. The U.N. Human Rights Council, established in 2006, has proven to be even worse than its completely discredited predecessor, spending most of its time examining Israel's defects rather than the world's worst human-rights violators. Nonetheless, based on its post-American ideology, the Obama administration rejoined the council. Unsurprisingly, U.S. membership has had no effect on council decisions, but our return has given it a legitimacy utterly lacking in our absence.
President Obama has used military force to protect America, but almost apologetically and with undisguised longing to do exactly the opposite. Thus, even when announcing a substantial increase in U.S. forces in Afghanistan to combat the Taliban, he avowed simultaneously his hope to begin withdrawing those forces in mid-2011.
Such a clear signal of weakness only encourages the Taliban and al Qaeda to hold on until that point, when Obama could begin bringing troops home, perhaps even proclaiming "mission accomplished." Ironically, of course, the campaigns in Afghanistan and Pakistan employ armed drone aircraft to target and kill terrorist leaders and supporters, although, needless to say, the targets don't get Miranda rights read to them. The administration seems unwilling to reconcile these strikes with how it handles terrorists captured in the United States. Already, there are international complaints that the drone attacks are precisely the kinds of "targeted" or "extra-judicial" killings complained about for years when undertaken by Israel. But what conclusion will terrorists draw if they realize that, as with the Christmas Day 2009 bomber, you are likely to be safer if you attack the United States in its homeland rather than in the "Af-Pak" mountains? President Obama should adjust his antiterrorism policy in America to reflect the war paradigm in central Asia.John R. Bolton is a senior fellow at AEI.