Brian Anderson is an assistant professor of law at Ohio Northern University.Brian Anderson
ADA, Ohio — With protests at airports, emergency court hearings, and Democrats, Republicans, and even the pope coming together to denounce President Donald Trump’s immigration plan, we lost sight of another harbinger of doom last weekend. We can’t be blamed. There’s only so much that the media (and social media) can keep up with, and the new administration is doing everything it can — including attacks on the press rarely seen in a vibrant democracy — to distract the American public from questioning the administration’s motives.
On Sept. 28, President Donald Trump issued a memorandum plan to defeat the Islamic State. In principle, we shouldn’t be surprised. This was a hallmark of President Trump’s campaign for president, and his sounding call against “radical Islamic terrorism.”
The memorandum directs that the plan shall include “recommended changes to any United States rules of engagement and other United States policy restrictions that exceed the requirements of international law regarding the use of force against ISIS.”
We know President Trump made comments that week supporting the use of torture, claiming that members of the intelligence community told him it “absolutely” works.
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In combination with the memorandum, it would suggest that President Trump is signaling a return to the use of torture — or enhanced interrogation. Such a move would undoubtedly receive wide condemnation from the international community, and likely be a violation of the U.N. Convention Against Torture.
This posturing will also frustrate international cooperation fighting terrorism, as Article 3 of the Convention prohibits extradition of those who would be in danger of suffering torture. With the current administration’s actions already, other nations should strongly consider whether they are sending a suspect to the United States who could be subject to torture.
What is more alarming is the memorandum in light of President Trump’s additional statement in his Jan. 25 ABC News interview that “we have to fight fire with fire.”
Terrorists by their very nature operate outside the norms of international law. As nonstate actors, they are not constrained by the Geneva Conventions on the Law of War or any other international instruments.
The United States, however, is. We are bound by rules to avoid civilian casualties. We are bound by rules to act proportionally in acts of war. We are bound to refrain from the threat or use of force against other nations without legal authorization or justification to do so.
Fighting “fire with fire” suggests that Mr. Trump is willing to ignore our many agreements to abide by international law and, instead, play by terrorists’ rules. (Not to be forgotten: Mr. Trump’s statements the prior week about “another chance” at Iraq’s oil during his speech at CIA headquarters also implies a violation of the Geneva Conventions.)
This should be alarming to many, and definitely raises questions deserving front-page headlines. So, even with the executive order on immigration, how did this generally get missed in the media?
Likely because White House strategist Steve Bannon replaced the director of national intelligence and the chairman of the Joint Chiefs of Staff on the Principals Committee of the National Security Council. Yes, it’s worth noting that Bannon, who only months ago was the head of a far-right ‘media’ outlet, is not only directing political activity of the White House but is now a principal in meetings related to national security decisions.
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Nonetheless, we have to be asking what this presidential memorandum means from a legal perspective, and how it further threatens the rule of law in the United States and internationally.
Whether this is saber-rattling to excite his political base, testing the waters of foreign policy, or the president actually means these things, the international community is listening. These types of statements put at risk our peace and stability, and just like many of Mr. Trump’s actions in the last two weeks, shouldn’t be accepted by the American public.
Brian Anderson is an assistant professor of law and the assistant director of the Master of Laws Program in Democratic Governance and Rule of Law at Ohio Northern University.
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