Ahmed Said: No, Obama is not too soft on anything, but he needs more time to sort our his agenda list to reach better decisions. 

Tobias P. Fella : I agree with Ahmed. Obama is no too soft on anything concerning the national security of the United States. He just made the statement, that the Bush-administration undermined US-ideals, when going to war against international extremism (rule of law, human rights, the adherence of the Geneva Conventions and so on). Obama wants to set a new cours to restablish the liberal hegemony of the United States. He wants Washington to act as benign hegemon again, because that was the strategy which made the US a strong and attractive global power. To achieve this Obama takes a step back to multilateralism, the usage of soft power and also to cooperation.

Despite of that Obama surely isn't selling out the security of the United States. My assumption is based on various arguments. I just want to name a few: First even for the new president there is a war on terror, which has to be fought with military power, and not by the police and domestic law. He wants the terrorists to be judged by military commissions, not by federal courts. Further, he continues with the practice of preventive detention. Of course he has forbidden torture and wants to close Guantanamo, but he proceeds with the so called "rendition", the transfer of accused to countries without high huming rights standards. And at last he instructed the army and intelligence to go on with targeted killing. So where is Mr Obama too soft when dealing with international terrorism?

Me: I agree that Obama has clearly used force in dealing with terrorism. Indeed, he has used more of it than many of his more liberal supporters probably expected or desired. My point is that by his placing "international law" on such a pedestal that it gives the impression of being sacrosanct despite it not being updated to address contemporary security challenges, indicates an embrace of abstract theorizing suitable for scholars, not suitable for policymakers. Obama "appears" weak. If that appearance persists long enough then it will become conventional wisdom. Once that happens, the validity of what legitimate actions he takes will matter little, the appearance will be all important. President Obama should make the American people feel he will stop at nothing to prevent terrorist acts on American soil. That is how President Bush got reelected in 2004 despite much antipathy towards him from a great number of Americans. Obama's cerebral take on his role as Commander in Chief appeals to intellectuals, it does not appeal to main street Americans. For better and for worse, the Ameeican character and psychological profile must be taken into account in order for an American leader to be a success. President Obama is treading dangerous ground here politically and, if his legal instincts win out over his leadership instincts, he may well discover belatedly the flaw of such "intellectualizing."

Samir Awwad: Dear Greg,

was it "intellectualizing" that defined the change as American voters appeared to be fed up with easy answers and traffic-light style security warnings, wasn`t it?

I don`t agree that the law for conducting battles is to be changed in any dimension. Al-Qaida choose a tactic of camouflaged attacks on primarily civilian targets. And as we know attacking civilians is a war-crime and not wearing a uniform but a weapon is valid for summary execution under international law.

The question of international law firstly appeared with the Iraq invasion and the matter of civil rights under the light of increased security measures at the home front.

Public opinion turned against Guantanamo when people asked if the inmates are really non-uniformed combatants or eventually innocent and who judges over this.

I think Obama is aware that those "terrorists" usually (under international convention) should be executed immediately after they are caught.

Or if we look at what happened in Guantanamo maybe should ask the cynic question if they not preferred to be shot at the end of the day.

In my opinion we should be happy with international law, as it allows us to treat Al-Qaida as combatants as long they are hosted by governments ( Afghanistan) or in the Yemeni outback (as foreign non-uniformed combatants). What if we had to treat them in accordance to the law of their countries origins?

Me: Samir-

I appreciate the comment. I completely concur that there are not easy answers to the issue of terrorism and even made it clear that it is not possible to prevent all possible terrorist acts.

That said, I am not certain that President Obama does believe, as you state, that "'terrorists' (under international convention) should be executed immediately after they are caught."

If that were the case, why have a civilian trial with KSM under U.S. criminal law?

Now I will return to the Stratfor argument I referred to in my inital comment, which I find persuasive (I apologize for the length, but I think all of these sections are highly relevant)

Here is the link to the Stratfor piece,


" International law is actually not particularly ambiguous about the status of the members of al Qaeda. The Geneva Conventions do not apply to them because they have not adhered to a fundamental requirement of the Geneva Conventions, namely, identifying themselves as soldiers of an army. Doing so does not mean they must wear a uniform. The postwar Geneva Conventions make room for partisans, something older versions of the conventions did not. A partisan is not a uniformed fighter, but he must wear some form of insignia identifying himself as a soldier to enjoy the conventions’ protections. As Article 4.1.6 puts it, prisoners of war include “Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.” The Geneva Conventions of 1949 does not mention, nor provide protection to, civilians attacking foreign countries without openly carrying arms.

The reasoning behind this is important. During the Franco-Prussian war, French franc-tireurs fired on Prussian soldiers. Ununiformed and without insignia, they melded into the crowd. It was impossible for the Prussians to distinguish between civilians and soldiers, so they fired on both, and civilian casualties resulted. The framers of the Geneva Conventions held the franc-tireurs, not the Prussian soldiers, responsible for the casualties. Their failure to be in uniform forced the Prussians to defend themselves at the cost of civilian lives. The franc-tireurs were seen as using civilians as camouflage. This was regarded as outside the rules of war, and those who carried out such acts were seen as not protected by the conventions. They were not soldiers, and were not to be treated as such.

Extending protections to partisans following World War II was seen as a major concession. It was done with concerns that it not be extended so far that combatants of irregular forces could legally operate using their ability to blend in with surrounding civilians, and hence a requirement of wearing armbands. The status of purely covert operatives remained unchanged: They were not protected under the Geneva Conventions. Their status remained ambiguous.

During World War II, it was U.S. Army practice to hold perfunctory trials followed by executions. During the Battle of the Bulge, German commandos captured wearing U.S. uniforms — in violation of the Geneva Conventions — were summarily tried in field courts-martial and executed. The idea that such individuals were to be handed over to civilian courts was never considered. The actions of al Qaeda simply were not anticipated in the Geneva Conventions. And to the extent they were expected, they violated the conventions.

Holder’s decision to transfer Khalid Sheikh Mohammed to federal court makes it clear that Mohammed was not a soldier acting in time of war, but a criminal. While during times of war spies are tried as criminals, their status is precarious, particularly if they are members of an enemy army. Enemy soldiers out of uniform carrying out reconnaissance or espionage are subject to military, not civilian, justice, and frequently are executed. A spy captured in the course of collecting information is a civilian, particularly in peacetime, and normally is tried as a criminal with rules of evidence.

Which was Mohammed? Under the Geneva Conventions, his actions in organizing the Sept. 11 attacks, which were carried out without uniforms or other badges of a combatant, denies him status and protection as a POW. Logically, he is therefore a criminal, but if he is, consider the consequences...

The fact is that international law has not evolved to deal with persons like Mohammed. Or more precisely, most legal discussion under international law is moving counter to the Geneva Conventions’ intent, which was to treat the franc-tireurs as unworthy of legal protection because they were not soldiers and were violating the rules of war. International law wants to push Mohammed into a category where he doesn’t fit, providing protections that are not apparent under the Geneva Conventions. The United States has shoved him into U.S. criminal law, where he doesn’t fit either, unless the United States is prepared to accept reciprocal liability for CIA personnel based in the United States planning and supporting operations in third countries. The United States has never claimed, for example, that the KGB planners who operated agents in the United States on behalf of the Soviet Union were themselves subject to criminal prosecution.

A new variety of warfare has emerged in which treatment as a traditional POW doesn’t apply and criminal law doesn’t work. Criminal law creates liabilities the United States doesn’t want to incur, and it is not geared to deal with a terrorist like Mohammed. U.S. criminal law assumes that capture is in the hands of law enforcement officials. Rights are prescribed and demanded, including having lawyers present and so forth. Such protections are practically and theoretically absurd in this case: Mohammed is not a soldier and he is not a suspected criminal presumed innocent until proven guilty. Law enforcement is not a practical counter to al Qaeda in Afghanistan and Pakistan. A nation cannot move from the rules of counterterrorism to an American courtroom; they are incompatible modes of operation. Nor can a nation use the code of criminal procedures against a terrorist organization operating transnationally. Instead, they must be stopped before they commit their action, and issuing search warrants and allowing attorneys present at questioning is not an option...

The real problem here is international law, which does not address acts of war committed by non-state actors out of uniform. Or more precisely, it does, but leaves them deliberately in a state of legal limbo, with captors left free to deal with them as they wish. If the international legal community does not like the latter, it is time they did the hard work of defining precisely how a nation deals with an act of war carried out under these circumstances.

The international legal community has been quite vocal in condemning American treatment of POWs after 9/11, but it hasn’t evolved international law, even theoretically, to cope with this. Sept. 11 is not a crime in the proper sense of the term, and prosecuting the guilty is not the goal. Instead, it was an act of war carried out outside the confines of the Geneva Conventions."

It would seem that the response is to push for a more tailored international legal approach- namely that acts such as those by KSM or the "Christmas Bomber" should be explicitly considered acts of war by non-uniformed actors and not subject Geneva Covention protections at which point the target nation is given the explicit authority to deal with them according to whatever mechanism they choose.

Subsequently, Obama would be wise to not afford such actors the protections of the U.S. civilian court system, but exclusively utilize military tribunals.

Not pushing along both of these avenues will keep Obama mired in limbo and stuck with a label that he will never shed."

As I reflect further, I also believe it will continue to be important for the U.S. to refine our ability to "connect the dots" from discrete pieces of intelligence.  President Obama is claiming that he is moving in this direction.  Time will tell if this will turn out to be the case.  The bottom line is that President Obama is developing a credibility gap on this issue.  He does have the opportunity to rectify this.  The question is will he do so or will he think too much like a lawyer and not a commander in chief responsible for millions of lives?

I do think that for international law to really be taken seriously on this subject and be something more meaningful than a feel good pose for people to strike who have no responsibility, it will need to be modified along the lines I suggested in my last comment.  If not, then there will continue to be pious finger wagging by activists, but little more.  Indeed, Obama must come to grips with reality and substance vs. image and rhetoric.