These past few months have seen the emergence, or rather the beginning of the emergence of the Obama’s administration’s policy towards the fight against global terrorism. A significant part of that policy is the new administration’s relationship towards international law. While some have pointed out (disapprovingly or not) that the Obama administration is continuing many of the policies of its predecessor, for example in relation to the state secrets doctrine, others have expressed much optimism, particularly in regard of some of the high-ranking appointments within the administration, such as those of Harold Koh or Anne-Marie Slaughter.
At this time it is of course much too early to tell whether the new administration will take international law into consideration seriously or not. Optimism may well be warranted, but it should in any case be a tempered, cautious one. The recent brief of the Obama administration in the Guantanamo litigation that we discussed earlier (see here and here) at best sent an ambivalent signal. On the plus side, the brief explicitly invokes international law, while its dropping of the term ‘enemy combatant’ is not only commendable as a matter of policy, but as Dapo explained also has implications on the question of targeting. On the other hand, the new administration basically retained the previous administration’s preventative detention standard, with a little bit of rebranding, even though this standard was simply conjured up out of thin air. Even more importantly, it retained the Bush administration’s position that the United States is engaged in some sort of global, amorphous armed conflict with Al-Qaeda, to which the international laws of war apply.
This last position is particularly troublesome. The Obama administration has dropped the ‘global war on terror’ or GWOT meme, now apparently redefining it as ‘overseas contingency operations’ (see more here and here, courtesy of Jon Stewart and the Daily Show). But the substance of the position is still the same, and we have still heard no explanation why this conflict is an armed conflict in the sense of IHL, outside the undisputed (and limited) non-international armed conflicts in Afghanistan, Iraq, and perhaps Pakistan. As was acknowledged at an excellent panel on closing Guantanamo at the ASIL meeting last week, this question is of fundamental importance, with wide-ranging implications on issues such as detention or targeted killings, and it still remains unresolved.