We Need Better International Legal Frameworks

So Obama and Cheney gave a little talk on detainees today... It was interesting, and usually something I would avoid on the blog, except I see the way Obama is moving forward on detainees as part of a larger problem how we deal with international bad guys when by policy the US is dedicated to taking multi-national approaches. From Esquire.

President Obama's decision to stick with a modified version these tribunals — "an appropriate venue for trying detainees," as he called them today — seriously undermines his campaign pledge to turn the page on Bush-Cheney's deeply flawed approach to terrorism. No matter how many times he enumerates the "swift changes" by his administration to ditch its predecessor's out-of-thin-air concepts — "war on terror," "enhanced interrogation methods," "unlawful enemy combatants" — Obama continues to promote Bush-Cheney's isolating notion that detainees should be tried in a special, U.S.-executive-branch-controlled system of alternative justice that lies outside of two proven pillars of traditional justice: the military's ever-effective courts martial and our civilian court system, which is held in place by the same safeguards of the Constitution that Obama invoked so many times this morning.

Beyond the rhetoric, then, Obama has told the world that America's definitions of terror remain its own. He says it's not a reversal? It is. The president has reminded the world of a Cheney-ism: We know terrorism when we see it, and when we see it, we'll let you know.

Which leads to the point.

So the president's invocation of "decisions based on fear rather than foresight" may have been aimed as much at his own party as at the man following his speech, but the political wrangling, the Guantanamo funding votes, and even Obama's promises of more procedural safeguards for defendants at his commissions all miss the larger point: America continues to ignore the utility of building up case law with regard to terrorism — either within our own military/civilian systems or across the international system as a whole, where the International Criminal Court remains a wholly untested option.

The challenges on the legal side of piracy are very similar to the legal challenges we see with the detainee issue, which is why I appreciate the suggestions the article provides in the end.

If the National Defense Policy and Foreign Policy of the United States is to work with allies and partners to deal with transnational actors who are attacking the international community, and the National Defense Policy and National Security Policy of the United States is for military forces and law enforcement to work with international partners to meet this challenge, then it only makes sense that on the enforcement side an international legal framework will be required when US law isn't sufficient to the issue. We aren't the only country who needs the international criminal court system to step up and deal with international bad guys, the Dutch could use it today regarding pirates.

This goes for terrorists, pirates, folks who are engaged in genocide and other crimes against humanity. How is it possible that in both law enforcement and defense, the United States is taking multinational approaches to transnational threats then thinks it makes sense when we come up with unilateral legal solutions to what are also multinational legal problems? Seems to me that the legal enforcement for an international approach must also include an international legal solution (sounds like a no brainer!), otherwise our rule sets end up out of balance and do not develop working international institutions necessary to make international cooperation for security viable long term.

I'm not a huge fan of the International Courts in general, but it does seem to me to be the way ahead for dealing with international terrorists and criminals that our own criminal court system cannot handle. While it is entirely possible that terrorists and criminals who are caught will likely go free, that is part of the price paid for the multi-national approach to security. It isn't like the release program for detainees in the past has been much better, just ask the top Al Qaeda dude in Yemen.