(Editor’s Note: This piece is part of Just Security’s ongoing coverage of Executive Order 13928, “Blocking Property of Certain Persons Associated With the International Criminal Court.” For more on this topic, readers can find the full collection here.)
Why did President Donald Trump issue an Executive Order (EO) declaring that the effort by the International Criminal Court (ICC) to investigate U.S. personnel or personnel of U.S. allies who are also not parties to the Rome Statute “constitutes an unusual and extraordinary threat to the national security and foreign policy of the United States?”
As Adam Smith explained in a previous Just Security article, while technically the EO “is likely not illegal,” it is also “possible that nothing happens next. The EO could remain ‘naked’ in perpetuity; there is no obligation for the administration to ever name any entity or individual.”
After Smith’s necessary clarifications, the question is even more important: why did President Trump issue an Order that may never be implemented?
The answer, it seems, is that President Trump is campaigning. He is primarily protecting American soldiers and CIA members from an ongoing ICC investigation and, at the same time, cornering the Democratic Party on this particular set of issues a few months before a hotly contested election.
President Trump reacted in the face of an inherited problem. The alleged crimes committed in Afghanistan by U.S. military personnel and CIA agents under investigation by the ICC occurred under the Bush Administration, and neither the Bush nor the Obama Administration investigated those who authorized the crimes. Indeed, beyond the personalities of the different presidents, there is a constant: the war on terrorism that started in 2001 and is ongoing. The United States’ military-focused national counterterrorism strategy around the world is in open conflict with any independent judicial system, including the U.S. system.
U.S. voters will decide the next president, but the persistent and neglected problem is how to change the U.S. counterterrorism strategy. As Jack Goldsmith has said, “for decades, the US government had officially viewed terrorism as a law enforcement problem,” but it took President Bush just a few minutes on the very morning of 9/11 to decide “that the conflict with Islamist terrorist must be viewed as a war.”
The Obama team had a non-confrontational style to pursue the goal, while the Trump team uses sledgehammers and unilateral attacks but both have the same mission: to protect U.S. operations from any judicial investigation.
The Congress fully endorsed the president’s views and just a few days later adopted a jus ad bellum decision approving almost unanimously the 2001 Authorization to Use Military Forces (AUMF) which remains valid though now applied across several countries and armed groups.
In mid 2010, the American Civil Liberty Union raised its voice against such a policy and evaluated that:
On a range of issues including accountability for torture, detention of terrorism suspects, and use of lethal force against civilians, there is a very real danger that the Obama administration will enshrine permanently within the law policies and practices that were widely considered extreme and unlawful during the Bush administration. There is a real danger, in other words, that the Obama administration will preside over the creation of a “new normal.”
What should the new strategy to deal with international terrorism be? While there is much to be explored in terms of alternative counterterrorism strategies the United States could pursue, this article examines the dynamics of the military-based strategy the country has pursued for the last nineteen years and its relationship to international justice.
Investigations of U.S. Torture under Bush and Obama
Ambassador David Scheffer suggested in a Just Security article that “complementarity” (U.S. domestic accountability) efforts should be employed to stave off any ICC investigation of U.S. activities related to the war in Afghanistan. He proposed investigating “fairly and thoroughly at home.”
That was the promise of U.S. Ambassador John D. Negroponte in 2002 when he stated:
The President of the United States is determined to protect our citizens – soldiers and civilians, peacekeepers and officials – from the International Criminal Court. … We will not permit … the imposition on our citizens of a novel legal system they have never accepted or approved, and which their government has explicitly rejected. … The American system of justice can be trusted to punish crimes, including war crimes or crimes against humanity, committed by an American – and we pledge to do so. (emphasis added)
That was nearly twenty whole years ago. The abuse of prisoners in Abu Ghraib created a scandal, and in May 2004, Secretary of Defense Donald Rumsfeld had to provide explanations to Congress. He promised the thorough investigations suggested by Amb. Scheffer and pledged by Amb. Negroponte, stating to the world: “Watch how a democracy deals with wrongdoing.”
Despite Rumsfeld’s promises, neither a high-ranking member of the Executive Branch, nor a CIA, nor a U.S. Army officer was ever convicted. There were a few convictions against low ranking U.S. Army members for the Abu Ghraib scandal; some of them received three, eight, and ten year prison sentences, but most were lightly punished. For instance, an Army dog handler, found guilty of aggravated assault and unlawfully using his dog to threaten detainees, was sentenced to 90 days hard labor, a reduction of rank, and $600 fine per month for a year.
The U.S. Army and the CIA Inspector General launched inquiries, and Congress conducted investigations and produced reports — first in December 2008 by the Senate Armed Services Committee led by Sen. Carl Levin and Sen. John McCain, and then in December 2012 by the Senate Intelligence Committee led by Sen. Dianne Feinstein in the form of a confidential report. It would take two years to wrench a redacted report for the public to read in December 2014.
These inquiries demonstrated significant evidence that U.S. personnel engaged in acts of torture, which informs the work of the ICC Office of the Prosecutor which stepped in to scrutinize the conflict in Afghanistan, a state party of the Rome Statute that provided jurisdiction to the ICC from May 1, 2003, onwards. (Afghanistan is the sovereign that Brian Cox’s article is missing.)
Despite these facts President Obama did not follow Amb. Scheffer’s advice.
President Obama recognized that “we tortured some folks,” but since the beginning of his term had “a belief that we need to look forward as opposed to looking backward.” He wanted to make sure that CIA people, “who are working very hard to keep Americans safe,” should not spend “all their time looking over their shoulders.”
What’s more, the Obama Administration also made efforts to control foreign investigations against CIA personnel. In July 2013, at the request of Italian authorities, police in Panama detained former CIA Milan station chief Robert Lady, who allegedly participated in the abduction of Osama Mustafa Hassan Nasr, known as Abu Omar, in Italy in February 2003. The Obama Administration negotiated with Panamanian authorities, and on July 19, 2013, Lady “was released and was en route to the U.S.” a State Department spokeswoman said.
Protecting U.S. Personnel from the Excesses of the War on Terror
The U.S. War on Terror demands loyalty to the United States as a principal value, and President Trump has to face an ICC investigation while seeking reelection. He took the opportunity; he rewards loyalty to those who participated in the current strategy to protect America, rather than loyalty to the law. Trump has even neutralized investigations within the U.S. justice involving military personnel. He pardoned two Army Officers charged with war crimes and restored the rank of a Navy Seal officer previously acquitted by a military jury on all but a minor count. At a November 2019 political rally, Trump brought two of the men on stage, claiming that he had “stuck up for three great warriors against the deep state.”
Obama is a fundamentally different character than Trump; however, during his tenure he refused to investigate crimes allegedly committed by U.S. personnel, and, like Trump, also rewarded loyalty to the war on terrorism.
President Trump knows that the Democratic Party will pay a political price if its members defend the ICC. During the 2004 elections, President Bush presented the ICC as a threat to American soldiers. Democratic candidate John Kerry, following the advice of party experts, remained silent on the matter.
The Need for New Strategies on Counterterrorism and International Justice
Trump’s recent EO targeting the Court is just the most recent manifestation of his strategy of opposition. In the near term, Trump’s primary goal appears to be to take advantage of U.S. patriotism during the electoral campaign and stoke debates on the ICC and its investigations that could negatively affect the Democrats and help him gain politically.
There is, however, one constant that has remained regardless of who serves as president: U.S. strategies of addressing international terrorism that are in open confrontation with any independent judicial scrutiny. The Obama team had a non-confrontational style to pursue the goal, while the Trump team uses sledgehammers and unilateral attacks but both have the same mission: to protect U.S. operations from any judicial investigation.
This is not a discussion of the laws that apply in combat. It is about the consequence of the United States’ decision to use a sustained campaign of military force as the country’s primary national security tool. Goldsmith in 2012 largely agreed with the ACLU’s analysis and explained that the strategy to confront terrorism as war and not as a crime created the “new normal.” In addition, the forever war on terrorism, is not just creating problems with judicial investigation, it is also multiplying the terrorism problem rather than reducing it.
In 2015, Stephen Walt denounced a massive, collective failure of the entire U.S. foreign-policy establishment, including Democrats and Republicans, to propose new strategies to deal with international terrorism in the Middle East.
In December 2018, President Trump announced his intention to withdraw all American troops from Syria and half of the force in Afghanistan, uniting large swaths of the U.S. left and right against his plan but receiving no practical, alternative suggestions.
The U.S. election will not solve the overarching problems created by a permanent war on terrorism and, in the meantime, U.S. presidents have to refuse acceptance of any independent judicial system meaningfully reviewing military and CIA operations abroad. The ICC is just the most recent and high-profile judicial body that has sought to engage in such a review.
It is urgent to discuss a fundamentally different US strategy to confront international terrorism. Whoever is elected in the November election will need one.
Based on excerpts of Luis Moreno Ocampo’s forthcoming book with Oxford University Press, War and Justice in the 21st Century.