International Herald Tribune February 15, 2010 John B. Bellinger III
Last month marked the one-year anniversary of President Obama's first signature foreign policy initiative: the issuance of three executive (1) orders ordering the closure of the detention facility at Guantánamo Bay, (2) the suspension of the C.I.A. interrogation program, and (3) the review of all U.S. government detention policies and legal positions. The orders met with wide acclaim in Europe and were heralded as the return of the U.S. commitment to international law.
But one year later, the Obama administration is having difficulty implementing all three directives and has continued many of the Bush administration's other counter-terrorism policies, including many that are highly controversial with America's allies. In other areas, such as engagement with the International Criminal Court and compliance with rulings of the International Court of Justice, the administration has so far been less supportive of international legal institutions than its predecessor.
These realities show that the Bush administration demonstrated a greater commitment to international law in its second term than is generally acknowledged abroad, particularly in Europe, and that there are bedrock domestic political constraints in the U.S. that may prevent the Obama administration from living up to expectations.
Mr. Obama missed his self-imposed one-year deadline to close Guantánamo Bay because Congress passed legislation preventing the president from moving detainees to the United States. Although Mr. Obama has ordered the refurbishment of a prison in Illinois to house the detainees, the Guantánamo facility is unlikely to be to shuttered in 2010 and — unfortunately, in my view — may not even be closed over the next three years because of domestic opposition.
Meanwhile, despite the flurry of executive orders, many of the Bush administration's counter-terrorism policies remain in place.
Mr. Obama has emphasized that the U.S. is still in a global "war" with Al Qaeda, and he has continued to use military force to kill (by drone strikes or other means) or detain members of Al Qaeda and the Taliban. And the administration continues to assert the right to hold members of Al Qaeda and the Taliban indefinitely, without trial, pursuant to the laws of war, rather than as criminal suspects.
The Justice Department recently decided that 50 Guantánamo detainees will be detained indefinitely without trial. Attorney General Eric Holder announced in December that the Justice Department would prosecute Khalid Shaikh Mohammed and other 9/11 planners in court in New York, but the administration has recently conceded that it will have to move the trials to a more secure location, perhaps on a military base. And Mr. Obama announced his intent to prosecute other terror suspects through military commissions, which have been criticized by human rights groups and many European governments.
The Obama administration also quietly announced last summer that it would continue the practice of rendition to snatch and transfer terrorism suspects to America, or even from one country to another, outside of judicial frameworks, provided the detainees do not face the risk of torture.
(Harold Koh elaborated on the issue of rendition, saying that "adding up more procedural safeguard in rendition process)
Mr. Obama's unexpected continuation of these controversial policies poses a dilemma for European governments. Will they choose to ignore these policies because they like Mr. Obama? Or, after a sufficient honeymoon, will they begin to be as critical of the Obama administration as they were of the Bush administration?
My hope is that European governments will revive the trans-Atlantic legal dialogue the State Department initiated during the second term of the Bush administration to improve mutual understanding and narrow U.S.-European differences. European governments need to recognize that even though the Bush administration made mistakes, the conflict with Al Qaeda raises complex questions that existing international law does not adequately address.
In areas outside of terrorism, the Obama administration has demonstrated less commitment to international law and legal institutions than many Europeans expected. Although administration officials recently announced plans to attend the I.C.C. ten-year review conference in Uganda later this year, they have re-iterated concerns about potential I.C.C. prosecutions of U.S. soldiers and have said they will not seek Senate approval of the Rome Statute, which established the I.C.C. And in contrast to vigorous efforts by the Bush administration, the Obama administration has done nothing to implement binding decisions of the International Court of Justice that the U.S. must review the death sentences of nearly 50 Mexican nationals in U.S. state prisons.
President Obama may be able to do more to translate his words into action with respect to international law and institutions in his second year in office. But given the continuing threat of terrorism against the United States and election-year politics, we should not expect dramatic shifts in U.S. policy. When it comes to international law, the international community may find that there will be more continuity than change between the Bush administration's pragmatic second term and the Obama administration.
Mr. Obama's unexpected continuation of these controversial policies poses a dilemma for European governments. Will they choose to ignore these policies because they like Mr. Obama? Or, after a sufficient honeymoon, will they begin to be as critical of the Obama administration as they were of the Bush administration?
My hope is that European governments will revive the trans-Atlantic legal dialogue the State Department initiated during the second term of the Bush administration to improve mutual understanding and narrow U.S.-European differences. European governments need to recognize that even though the Bush administration made mistakes, the conflict with Al Qaeda raises complex questions that existing international law does not adequately address.
In areas outside of terrorism, the Obama administration has demonstrated less commitment to international law and legal institutions than many Europeans expected. Although administration officials recently announced plans to attend the I.C.C. ten-year review conference in Uganda later this year, they have re-iterated concerns about potential I.C.C. prosecutions of U.S. soldiers and have said they will not seek Senate approval of the Rome Statute, which established the I.C.C. And in contrast to vigorous efforts by the Bush administration, the Obama administration has done nothing to implement binding decisions of the International Court of Justice that the U.S. must review the death sentences of nearly 50 Mexican nationals in U.S. state prisons.
President Obama may be able to do more to translate his words into action with respect to international law and institutions in his second year in office. But given the continuing threat of terrorism against the United States and election-year politics, we should not expect dramatic shifts in U.S. policy. When it comes to international law, the international community may find that there will be more continuity than change between the Bush administration's pragmatic second term and the Obama administration.
