In my last project, “Law, War and the State of the American Exception”, I looked at the Obama administration’s policies in four areas where its predecessor challenged or violated international law. One of these was the use of force, in particular the revised doctrine of preemptive self-defence. Around March 2010 I wrote a series of posts called ‘Continuity we have to believe in’ and they formed the starting point of the argument I advance in my forthcoming book Law, War and the State of the American Exception.
Jack Goldsmith’s latest post over at Lawfare offers further evidence of the continuity between the Bush and Obama administration. The issue is how we define “imminence” and Goldsmith points out that Obama’s national security team are not that far from Bush’s 2002 National Security Strategy. It’s particularly interesting to note how the current Assistant to the President on counter-terrorism issues, John Brennan, says that a new definition is increasingly recognised by the international community, whereas the Bush NSS stated only that we must adapt the definition. Who in “the international community” I wonder is Brennan talking about? It is clear from the evidence produced by the Iraq Inquiry that British government lawyers rejected completely the argument that there was a case for the use of force in preemptive self defence against Iraq.
It’s also important to note that Brennan’s remarks were made in the context of “the ongoing war against al Qaeda”. The question of imminence here relates not to attacks against states but against individuals, what is often called targeted killings (see Phillip Alston’s latest article on this topic). And here there is a crucial continuity that Goldmsith’s post does not highlight. It involves the question of the geographic scope of the war on terror.
An area in which there is some disagreement is the geographic scope of the conflict. The United States does not view our authority to use military force against al-Qa’ida as being restricted solely to “hot” battlefields like Afghanistan. Because we are engaged in an armed conflict with al-Qa’ida, the United States takes the legal position that —in accordance with international law—we have the authority to take action against al-Qa’ida and its associated forces without doing a separate self-defense analysis each time.
In other words, al Qaeda members even outside Af/Pak are still enemy combatants (rather than terrorist suspects) and they can be targeted with lethal force without evidence that they are about to commit a terrorist atrocity (which the law enforcement paradigm would insist on for the use of lethal force to be lawful). Brennan does say that there are legal restraints on the American use of force in these circumstances but they are the laws of war not international human rights law or US Constitutional law. This is further evidence that America’s war on terror has entered its second decade.
Contrast this approach to counter-terrorism with the statements of former MI5 chief Eliza Mannigham-Buller and MI5’s current activities, which involve the arrest of terrorist suspects in Birmingham. By Brennan’s standards we might very well have seen Predator drones over the streets of the UK’s second city. That might sound ridiculous. But what makes it sound ridiculous is a political not a legal context.