National Security Policymaking in the Shadow of International Law

Abstract

Abstract This chapter describes how the norms and values embedded in international human rights law (IHRL) are sometimes adopted, not as a matter of formal law at the international level but rather as a matter of governmental policy and practice. The chapter analyzes two Obama administration counterterrorism policies and describes both their legalistic character and the advantages and disadvantages of the policy approach. Such policies can preserve flexibility while moving in the direction of IHRL as a matter of practice, providing interoperability benefits with more human rights–oriented allies. In addition, such policies implement human rights–oriented norms in practice even as they impede acceptance of these norms as a matter of legal obligation. The chapter concludes that the emergence of such legalistic policies is evidence of international law’s constraining impact and that national security policymaking can be a pragmatic and effective alternative to formal international lawmaking, even though it also may sidestep the process of creating robust new international law rules. In addition, the persistence of such policymaking across administrations illustrates the power of institutional path dependence, the role of lawyers, the constraint of interoperability with allies in multilateral military actions, and the way norms get embedded in government organizations.