One important question these days is the extent to which President Obama’s approaches to the jus ad bellum and jus in bello will survive the incoming Trump Administration. This question persists in part because the Obama Administration set forth a number of important national security decisions as policy decisions, rather than framing the assertions as matters of law. In areas ranging from the 2013 targeted killing policy to covert action to consent to the use of force, President Obama adopted policies that were more modest than what the full scope of international law might allow, without necessarily stating where the outer legal limits lay.
We might think of this as an executive version of what Professors Bickel and Sunstein have referred to as “judicial minimalism.” Sunstein argues, for instance, that where courts take up difficult and controversial questions, they should issue modest, narrow decisions that attract consensus rather than articulating bold, high-profile constitutional visions in their opinions. Bickel’s and Sunstein’s theories derive in part from the judiciary’s lack of democratic accountability, and therefore cannot be straightforwardly mapped onto action by the executive, which is democratically accountable to voters. Nevertheless, some of the same advantages that flow from a judicially minimalist approach to domestic law also flow from a minimalist executive approach to international law.
Most notably, a minimalist approach such as President Obama’s allows for greater dialogue with other states about the meaning and outer bounds of international law. Saying little about what one views as the outer parameters of international law suggests a greater recognition that one state alone cannot make or determine those outer parameters and invites interstate dialogue about law’s meaning. Further, more minimalist decisions can attract broader consensus around the narrower decision; leave more decision-making space for future administrations to move further in from or closer to the edge legally; and reduce internal decisional costs within a single administration, especially where two executive agencies do not agree on where an outer legal limit lies.
But there are costs to minimalism as well, which may become particularly salient as we transition to a new administration. First, ambiguity in the U.S. position about whether something is a legal claim or a policy claim can make other states and commentators distrustful, especially because of the perception that U.S. policy is malleable and opportunistic. A new administration that alters various Obama policy decisions will confirm this fear. Second, failing to be precise about outer legal limits and underlying legal justifications makes it easier for other states (and even actors within the United States) to make problematic claims about what international law permits. Ambiguity (or even secrecy) about the U.S. legal justification for an operation can expose the United States to undesirable interpretations by other actors about what kind of precedent a particular operation set.
Third, and more generally, when a state declines to make legal claims, it slows the development of international law by suppressing the action/reaction dynamic between states. A state that pursues a maximalist approach to international law can gain certain advantages for itself: staking out strong international law positions may create focal points for continued inter-state negotiations and ultimately facilitate the evolution of international law in a direction favorable to the maximalist state.
In adopting a strategy of executive minimalism in several areas, the Obama administration established a narrative of restraint relative to the Bush administration and alleviated pressure from critics who feared Bush’s more maximalist approach to these international law doctrines. Operating in the language of policy rather than the language of law, however, comes with costs that we may soon regret.
I have just posted an essay on this topic on SSRN. The piece is part of a forthcoming Agora in the American Journal of International Law on President Obama’s War Powers Legacy.
Here’s the introduction:
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.” That is, the Obama administration has signaled to other states its interest in self-constraint by making fewer bold substantive and rhetorical claims related to the jus ad bellum and jus in bello. 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 as a rhetorical matter to assert precise legal claims about what international law allows or where international law’s limits lie. This means that the Obama administration has sometimes taken action in the face of two (or more) possible legal theories without articulating which theory it is using.
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 approaches that it may never employ.
The Obama approach to the jus ad bellum and jus in bello offers significant advantages for the United States. Many allies favor the Obama approach because it retains greater room for negotiation among states about international law’s content. Others value the approach because it leaves more decision-making space for future U.S. administrations and reduces internal decisional costs within the current administration. These benefits flow from an executive approach to the law that echoes what Professor Alexander Bickel termed in the judicial context the “passive virtues” and Professor Cass Sunstein more recently termed “judicial minimalism.” Executive minimalism is not without costs, however. The Obama approach slows the development of international law by obscuring the value of and weight to assign to U.S. positions and by suppressing the international claim/counterclaim dynamic. 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.
This essay first summarizes the Bush administration’s substantively and rhetorically broad jus ad bellum and jus in bello claims, which set the stage for the Obama administration’s approach. The essay then draws from Bickel’s and Sunstein’s work to identify some characteristics, benefits, and costs of minimalist decision-making. Using examples related to targeted killing, consent to the use of force, battlefield targeting, and intelligence activities, the essay argues that the Obama administration’s approach to certain legal issues in this realm may be considered minimalist. It concludes by considering the normative advantages and disadvantages of the Bush and Obama approaches to the jus ad bellum and jus in bello.