The Volokh Conspiracy - Obama and international law

Ken Anderson has been working up a head of a steam about the incipient hypocrisy of Democrats who are quietly adopting Bush administration positions, or moderate variants thereof, after having spent eight years calling these very positions idiotic & criminal & similar things—also known as the Orin postulate. I had thought Anderson premature in his outrage—so far, he's pointed mainly to NYT articles and the like which he thinks are setting the stage—but now erstwhile Obama supporters have begun to worry about the same thing, with respect to a range of issues, including torture, international law, and the war in Iraq. The evidence remains slim, but it is growing; it includes the machinations of Democratic senators, signals from the Obama administration about Iraq troop withdrawal, and—most of all—appointments of Clinton-era officials. Virtually everyone has forgotten that the Clinton administration took a pretty casual approach to international law and, while it did not torture people, had little compunction about rendering terrorist suspects to countries where they would likely be tortured. You might think that Clinton was less contemptuous of international law than Bush was (though this is less clear than it might seem), but this is at best a matter of degree, and a clean break, "change," does not seem to be in the cards.

Lawyerly talents will be harnessed to the rationalization process—what was illegal under Bush turns out not to be illegal under Obama because of some subtle variation in the structure of the project (which itself will be used to prove that the Obama administration takes the law more seriously—why else, after go to the trouble of rationalizing law-breaking?). Obama defenders will also seize on subtleties in timing and emphasis to inflate the differences between the two administrations. We already hear that Obama will support the Law of the Sea treaty while Bush did not (in fact, he did), or that Obama will take a climate treaty more seriously than Bush (maybe, but the Bush administration committed itself to greenhouse-gas reductions at Bali). It will be of great interest to see how the Obama administration approaches the International Criminal Court. Here, too, the Bush administration has been willing to work with the institution without signing America up. Will Obama go farther? This will be a key test. The ICC offers little material advantage to the United States unless you subscribe to "international rule of law" arguments that we will all be safer when international legal institutions are stronger. Obama could face a fight from the military and the security agencies, especially if the latter understand that harsh interrogation will continue to occur. Are the speculative gains worth these real political costs, or will Obama's advisors remember Clinton's gays-in-the-military debacle and decide that a better use of Obama's political capital lies elsewhere?

If so, Obama supporters have already prepared themselves with the "second-term" argument (for example, here, but more so in conversation). Obama has his hands full now and will accomplish his spectacularly progressive international law agenda in his second term when he needn't fear electoral sanctions—I mean, when he has built up overwhelming majorities of progressive Democrats in both houses. Maybe. But think about the last few two-term administrations. Bush II, Clinton, and Reagan were all far more ideologically ambitious in their first terms than in their second terms. The second term was, in each case, devoted to damage control and compromise, in large part necessitated by the ideological excesses of the first term. As for Obama, we will have to wait and see.

	[Eric Posner, December 5, 2008 at 3:38pm] Trackbacks Obama and international law Ken Anderson has been working up a head of a steam about the incipient hypocrisy of Democrats who are quietly adopting Bush administration positions, or moderate variants thereof, after having spent eight years calling these very positions idiotic & criminal & similar things—also known as the Orin postulate. I had thought Anderson premature in his outrage—so far, he's pointed mainly to NYT articles and the like which he thinks are setting the stage—but now erstwhile Obama supporters have begun to worry about the same thing, with respect to a range of issues, including torture, international law, and the war in Iraq. The evidence remains slim, but it is growing; it includes the machinations of Democratic senators, signals from the Obama administration about Iraq troop withdrawal, and—most of all—appointments of Clinton-era officials. Virtually everyone has forgotten that the Clinton administration took a pretty casual approach to international law and, while it did not torture people, had little compunction about rendering terrorist suspects to countries where they would likely be tortured. You might think that Clinton was less contemptuous of international law than Bush was (though this is less clear than it might seem), but this is at best a matter of degree, and a clean break, "change," does not seem to be in the cards. Lawyerly talents will be harnessed to the rationalization process—what was illegal under Bush turns out not to be illegal under Obama because of some subtle variation in the structure of the project (which itself will be used to prove that the Obama administration takes the law more seriously—why else, after go to the trouble of rationalizing law-breaking?). Obama defenders will also seize on subtleties in timing and emphasis to inflate the differences between the two administrations. We already hear that Obama will support the Law of the Sea treaty while Bush did not (in fact, he did), or that Obama will take a climate treaty more seriously than Bush (maybe, but the Bush administration committed itself to greenhouse-gas reductions at Bali). It will be of great interest to see how the Obama administration approaches the International Criminal Court. Here, too, the Bush administration has been willing to work with the institution without signing America up. Will Obama go farther? This will be a key test. The ICC offers little material advantage to the United States unless you subscribe to "international rule of law" arguments that we will all be safer when international legal institutions are stronger. Obama could face a fight from the military and the security agencies, especially if the latter understand that harsh interrogation will continue to occur. Are the speculative gains worth these real political costs, or will Obama's advisors remember Clinton's gays-in-the-military debacle and decide that a better use of Obama's political capital lies elsewhere? If so, Obama supporters have already prepared themselves with the "second-term" argument (for example, here, but more so in conversation). Obama has his hands full now and will accomplish his spectacularly progressive international law agenda in his second term when he needn't fear electoral sanctions—I mean, when he has built up overwhelming majorities of progressive Democrats in both houses. Maybe. But think about the last few two-term administrations. Bush II, Clinton, and Reagan were all far more ideologically ambitious in their first terms than in their second terms. The second term was, in each case, devoted to damage control and compromise, in large part necessitated by the ideological excesses of the first term. As for Obama, we will have to wait and see.