Interrupting President Obama’s May 23 speech at the National Defense University as he began to address the issue of Guantanamo, a Code Pink activist shouted out: “There are 102 people on a hunger strike. These are desperate people.” In his off-script response, the president acknowledged the ongoing force-feeding of strikers. “Is this who we are? he asked. Is that something our Founders foresaw? Is that the America we want to leave our children? Our sense of justice is stronger than that.”
Yet the president failed to declare an end to the force feeding. He deplored the Guantanamo prison, which he said has become “a symbol around the world for an America that flouts the rule of law.” Yet he failed to announce a plan to close it. He called for an end to a “boundless global war on terror.” At the same time, he condoned a continuing “war” on al Qaeda, the Taliban and their associated forces.”
Throughout the speech, the president vacillated. On the one hand he expressed a mea culpa for civilian casualties, indefinite detention and a continued reliance on drone strikes. On the other, he determined to inflict drones strikes anywhere against terrorists — including American citizens — perceived as a threat. Disregarding contrary opinions of independent legal experts, he insisted that his actions comply with both domestic and international law.
The speech revealed a conflicted Obama, a Hamlet at once fearful of renewed attacks on the homeland and at the same time conscious of his limits in preventing them. Behind this new and welcome soul-searching, however, lies a continuing beguilement of words — soft words that mask ugly realities.
In opting for the “war” terminology, Bush set in motion (and Obama continued) law by deception: the use of labels that have undermined the rule of law.
With “war” as their justification, successive administrations have used clever labels to justify actions that would have been unthinkable only a decade and a half ago. Here are some examples:
• Preemptive Strike: United Nations Charter Article 51 limits self-defense by a member state to cases of “armed attack” until the Security Council “has taken measures necessary to maintain international peace and security.” Nevertheless, Congress in October 2002 authorized the use of military force against Iraq in the absence of an Iraqi threat. By the U.N. standard, it is difficult to view the “shock and awe” strike of 2003 as other than unjustified aggression.
• “Harsh Interrogation” and “Extraordinary Rendition: In its recent report, a nonpartisan panel led by former congressmen Asa Hutchinson (R) and James R. Jones (D) found that waterboarding, slamming prisoners into walls and chaining them in stress positions for hours amounted to torture. It also concluded that “enforced disappearance” and “secret detentions” violated international treaty obligations, including the International Convention Against Torture.
• Enemy Combatant: This term was used to justify the incarceration of non-military suspected terrorists “for the duration of hostilities.” For those without POW status or the protections of U.S. law, Guantanamo offered a legal black hole, where even the fundamental right of habeas corpus could be denied indefinitely. Human rights organizations argue that such treatment violates both international humanitarian law and human rights law.
In his speech, the president called for an end to continued warfare, asserting that “force alone cannot make us safe.” He acknowledged past compromises of “our basic values;” he imposed selective limits on drone strikes, allowing exceptions in undefined “extraordinary circumstances”; and he announced modest steps toward releasing some Guantanamo detainees. All worthy declarations.
Responding to his dissenter in the audience, President Obama allowed that these are “tough issues” that warrant “a larger discussion” on counterterrorism strategy.
Yet his repeated reference to “war”, “detainee” and “detention,” reflect Obama’s continuing dependence on soft words and deceptive labels. His professed respect for the rule of law is belied by actions that many, if not most, legal experts regard as blatantly illegal.
Hager is co-founder and former director general of the International Development Law Organization, Rome, Italy.