The Obama Administration, International Law, and Executive Minimalism

Abstract

When President Barack 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 in detaining and treating members of Al Qaeda, and asserting those claims publicly and frequently.The Obama administration has repeatedly taken a notably different tack, 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 pursued this objective partly by establishing various policies that authorize a narrower scope of action than what some believe international law permits. In particular contexts, it has also been more hesitant as a rhetorical matter to assert precise legal claims about what international law allows or where international law's limits lie. Accordingly, the Obama administration has sometimes taken action in the face of two (or more) possible legal theories without articulating its specific rationale.