Transnational Self-Defense and Liberal Values: Replacing Law with Flawed Policy in the 'Obama Doctrine'
Forthcoming in Fuller, Christopher, Finkelstein, Claire (ed.) (2019) Using Law to Fight Terror: Legal Approaches to Combating Violent Non-State and State-Sponsored Actors, Oxford University Press
31 Pages Posted: 31 Jul 2017 Last revised: 26 Mar 2018
Date Written: July 24, 2017
In December 2016, the Obama administration released a Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations (Report). Its purpose was to “enhance the public’s understanding of the legal and policy principles that have guided U.S. national security operations”. The Report outlines the administration’s view of international and domestic law regulating the resort to, and use of, armed force against non-state armed groups in the territory of other nations, here called “transnational self-defense.” In a personal foreword, President Obama claimed that the Report “reinforce[s] the fact that we defend our interests at home and around the world in a manner consistent with the laws, values, and traditions that are the source of our greatest strength.” In this chapter I argue that the Report and related 2013 Presidential Policy Guidance (PPG), which I collectively label the “Obama doctrine,” are inconsistent with both international law and fundamental American liberal values in two important ways. First, the Obama doctrine permits the resort to force in preemptive self-defense when not clearly necessary to avert a grave threat of impending harm. Second, the Report and PPG strongly imply that all uses of force in transnational self-defense occur within the context of armed conflict regulated by international laws of war. This adoption of an armed-conflict paradigm for all acts of transnational self-defense is erroneous in some contexts: not all violence between states and non-state actors creates or occurs within an armed conflict to which the laws of war apply. Relatedly, the Report extends its law of war paradigm to attacks against all “associated forces” of a non-state group without precisely outlining a legal and factual basis for doing so. When combined, these errors allow for much greater destruction of life and property than is clearly necessary to defend against a relatively specific, certain, impending threat of harm. Respect for international law and American liberal values requires a much more circumscribed and calibrated approach to transnational self-defense.
Keywords: international law, self-defense, terrorism, counterterrorism, imminence, law of war
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