Symposium: Koh, Trump, Obama – and Jean Baudrillard (Part 1)

[Kevin Jon Heller is a Professor of Law at the University of Amsterdam. This is the first part of a two-part post. The second part is found here.]

Introduction

It is an honour to be invited to respond to the article version of Harold Koh’s recent Foulston Siefkin Lecture at Washburn Law School, “The Trump Administration and International Law.” I am a great admirer of Harold’s work and an even bigger fan of Harold himself, whom I am proud to call a friend and who has been incredibly supportive of me for a number of years, even though I was never his student.

There are many international-law issues Harold and I disagree passionately about. The Trump administration’s disdain for international law is not one of them. Harold’s wide-ranging analysis of how Trump has made both the US and the world a more dangerous place is spot-on, and I can only hope that the quiet resistance to Trump’s policies within the American government is as strong as Harold believes it to be. The wide circulation of his elegant article should certainly help.

The point of this symposium, however, is not (simply) to sing Harold’s praises. Although I agree completely with his critique of the Trump administration, I think there are two blind spots in the article’s analysis that are worth discussing. The first is retrospective, concerning the supposedly stark contrast between the Obama and Trump administrations concerning respect for international law and human rights. The second is prospective, on whether unilateral humanitarian intervention is or should be legal.

Obama vs. Trump

It is difficult to witness the daily international horrors wrought by the Trump administration and not feel more than a twinge of longing for its predecessor. But as I read Harold’s article, I could not help but think of what Jean Baudrillard, the great French cultural theorist, said about the role Disneyland plays in American culture:

The Disneyland imaginary is neither true nor false: it is a deterrence machine set up in order to rejuvenate in reverse the fiction of the real. Whence the debility, the infantile degeneration of this imaginary. It is meant to be an infantile world, in order to make us believe that the adults are elsewhere, in the “real” world, and to conceal the fact that real childishness is everywhere, particularly among those adults who go there to act the child in order to foster illusions of their real childishness.

The Trump administration, I would suggest, functions as a similar kind of “deterrence machine.” Its almost comical awfulness retroactively burnishes and legitimates the records of the administrations that preceded it, no matter how problematic those records might be in their own right. To see the power of this effect, we need only consider the rapid rehabilitation of George W. Bush since Trump became the nominee, with a baffling 61% of Americans now viewing him favourably, compared to 33% at the time he left office. Even more distressing, the surge in Bush’s popularity has largely been driven by Democrats, who seem to have forgotten, in the face of Trump’s bumbling and absurdly bellicose foreign policy, that Bush is the president who brought us systematic torture and the invasion of Iraq.

The Trump deterrence machine hums along even more smoothly, though, with regard to the Obama administration. Who among us, even my fellow denizens of the far left, wouldn’t be delighted to have a third term of Obama now that we have a President who couldn’t find Ukraine on a map if you pointed him toward the correct continent? Should we lefty international-law types really be spending our limited energies reminding people of Obama’s failures, when we are currently being led by a pathological liar with the emotional maturity and impulse control of a third-grader – someone who would happily start WW III if he thought it would allow him to turn Mar-a-Lago into a survivalist camp for billionaires?

The answer, of course, is “yes.” I unequivocally reject the hard left argument that Obama was just as bad as Trump on foreign policy. But I also think it is important to resist Harold’s admittedly understandable nostalgic longing for the Obama administration, a supposedly halcyon time when international law and respect for human rights mattered. Consider this statement (p. 417):

The inside strategy, which I applied as a government official, I called “Engage–Translate–Leverage,” or simply, using “International Law as Smart Power.” In hindsight, call this “the Obama–Clinton doctrine.” President Barack Obama tried to apply this foreign policy philosophy throughout his presidency. Upon taking office in 2009, President Obama said that “A new era of engagement has begun,” emphasizing that “living our values doesn’t make us weaker. It makes us safer, and it makes us stronger.” That approach was particularly urged upon him by his first Secretary of State, Hillary Rodham Clinton, who argued: “We must use what has been called smart power, the full range of tools at our disposal—diplomatic, economic, military, political, legal, and cultural” to achieve better policy outcomes. Had she been elected President, Secretary Clinton undoubtedly would have continued that approach.

I have no doubt that Harold worked tirelessly behind the scenes to ensure that the Obama administration exercised what he calls “smart power.” As an outsider, though, I still find his description of the Obama administration often unrecognizable. I don’t have time to dwell on all the ways in which the Obama administration proved itself anything but a paragon of respect for international law and human rights, but a few examples are worth mentioning – in no particular order:

[1] Sold more than $100bn in weapons to Saudi Arabia – including fighter jets, attack helicopters, warships, tanks, bombs, and air-to-ground missiles – even after there was no longer any doubt the Saudis were using them to commit unspeakable war crimes in Yemen.

[2] Preached the importance of democracy and human rights in Iran and Syria, while remaining silent about viciously repressive regimes in Bahrain and Saudi Arabia and supporting dictators like Mubarak in Egypt and Ben Ali in Tunisia until it was clear neither would remain in power. (A particularly important point to make, given that Harold rightly condemns (p. 431) the Trump administration’s “blatant, disturbing softness on human rights in the Middle East, particularly with respect to Saudi Arabia, Egypt, Bahrain, and Turkey”).

[3] Used the Security Council resolution authorizing civilian protection in Libya as a pretext for regime change – and then stood idly by as Libya descended into chaos.

[4] Advocated, in the context of “self-defence” against the shadowy Khorasan Group, a view of imminence that denudes the requirement of all meaning. Recall what Pentagon spokesman Rear Adm. John Kirby said about whether the US actually responded to an armed attack by the group: “I don’t know that we can pin that down to a day or month or week or six months…. We can have this debate about whether it was valid to hit them or not, or whether it was too soon or too late… We hit them. And I don’t think we need to throw up a dossier here to prove that these are bad dudes.”

[5] Claimed that Obama was free to violate both conventional and customary international law when authorizing covert actions.

The most problematic aspect of Harold’s argument, however, concerns what he says about torture (p. 431):

Perhaps the most visible proposed human rights rollback was candidate Trump’s statement that “[if I am elected, w]e’ll use waterboarding and a hell of a lot worse than waterboarding.” Shortly after the election, the press leaked a draft national security executive order that called for reinstating the discredited program of interrogation of high-value alien terrorists, to be operated outside the United States, presumably at revived “black sites”—former offshore detention facilities operated by the C.I.A. But campaign statements and draft executive orders are not law. Congress has repeatedly forbidden torture by treaty and statute.

Harold is absolutely right to be appalled by Trump’s enthusiastic embrace of torture. But why shouldn’t Trump embrace it? Despite high-ranking government officials openly confessing to national and international crimes, the Obama administration did nothing – literally nothing – to hold anyone accountable for the systematic torture regime that Bush created. On the contrary, Obama promptly immunized the torturers, justifying impunity with what has to be one of the most profoundly Orwellian excuses in American political history – that he was “looking forwards, not backwards.” Had Obama been willing to look backwards – what we naive types call “criminal prosecution” – Trump might actually see torture as a crime, instead of as merely one policy choice among others.

In short, Harold’s critique of the Trump administration’s approach to international law is both accurate and devastating. But although his hands may be clean, the hands of the administration he worked for are not. Like its predecessors, the Obama administration was more than willing to ignore international law when it proved too limiting and human rights when they proved too inconvenient.

[The second part of Kevin’s post is found here.]