Can Obama put the war on terror on a new legal footing?
- By Rosa BrooksRosa Brooks is a law professor at Georgetown University and a Schwartz senior fellow at the New America Foundation. She served as a counselor to the U.S. defense undersecretary for policy from 2009 to 2011 and previously served as a senior advisor at the U.S. State Department.
Yesterday, I posed five questions I hoped President Obama would address in his speech. Here are some quick reactions. (I don’t yet have an "as delivered" transcript, so everything here is subject to correction.)
I’d give the speech an A+ for honesty, style, symbolism, impact, and moral seriousness, and a B+ for precision on the key legal issues. Overall, let’s call it an A-.
Here’s the really important and new stuff:
Start with the non-legalistic, non-nitpicky headlines: It was an excellent speech. The president sounded serious and looked serious. He spoke for 45 minutes — he didn’t make jokes or waste any time; it was a "roll up your sleeves and get to work" kind of speech.
The single most important point he made was this: The drone and special operations war should not and will not last forever — and we need to find concrete ways to bring it to an end, not expand it.
Specifically, the president pledged to engage Congress to refine and ultimately repeal the 2001 Authorization for Use of Military Force (AUMF) and said expressly that he will not sign any laws that seek to expand the existing mandate to use force.
He acknowledged that the threat posed by terrorist groups today — not just the threat posed by "core" al Qaeda, but by terrorists in general — is, while real, not on the 9/11 scale. Today, he said, the threat is more like what it was throughout the 80s and 90s.
He also — for the first time, I think — directly acknowledged the deeper rule-of-law concerns underlying the debate about targeted killing. He took a firm stand against the "all terrorists must be eliminated by force" school of thought, stating that "not every collection of thugs that labels themselves al Qaeda will pose a credible threat to the United States. Unless we discipline our thinking, our definitions, our actions, we may be drawn into more wars we don’t need to fight or continue to grant presidents unbound powers more suited for traditional armed conflicts between nation-states."
Lots of good lines here. For instance, "We have to be mindful of James Madison’s warning that no nation could preserve its freedom in the midst of continual warfare. Neither I nor any president can promise the total defeat of terror. We will never erase the evil that lies in the hearts of some human beings nor stamp out every danger to our open society." And: "To say a military tactic is legal, or even effective, is not to say it is wise or moral in every instance, for the same progress that gives us the technology to strike half a world away also demands the discipline to constrain that power, or risk abusing it."
There’s much more to be said, but I’ll save it for later. For now, let’s gets nitpicky: Did the president answer the questions I posed in this week’s column? Let’s take them one by one.
1) Mr. President, what — if any — limits do you believe the 2001 AUMF imposes on the use of military force, and what basis does Congress (or the public) have for evaluating whether your administration is respecting those limits?
The speech didn’t directly address this question, though by implication, the president’s statement that the AUMF needs to be refined and ultimately repealed rather than expanded suggests that he feels the AUMF creates very few limits — and that as a matter of policy, as well as law, we are at a point where we need to shift away from such effectively unbounded authority.
As for how Congress or the public will know what limits are observed, the president asserted that Congress is briefed on every single drone strike. I wondered: Would members of Congress — or the relevant oversight committees — agree? Every single drone strike, whether carried out by the military or the CIA? As ever, the devil’s in the details. I wonder what level of detail Congress gets and precisely who is briefed.
As for the public, well, we’re still unfortunately stuck in "trust us" mode. And I actually do trust this administration — but I still think "trust us" ain’t good enough. The president said that he has now signed classified policy guidance addressing "clear guidelines, oversight, and accountability" for the use of military force against terrorists. Why no unclassified version of that?
My biggest disappointment: no discussion in the speech of creating any additional external oversight, or increasing transparency.
2) Mr. President, exactly how do you define "associates" of al Qaeda and the Taliban? Is being "affiliated" with al Qaeda enough to make an individual or organization a lawful target under the AUMF, or must that person or organization do something more than merely "affiliating" with al Qaeda to become a lawful target? If so, what’s the "something more"?
In today’s speech, the president didn’t address what constitutes an "associated force," but in some ways it doesn’t matter. He implied that although we remain in an armed conflict with al Qaeda and its associates, the rules governing use of force will, outside of Afghanistan, be the rules associated not with the law of armed conflict but with the international law on self-defense. If that is the case, defining "associates" doesn’t matter that much, because — as the president indicated today — the policy is that mere membership in a group affiliated with al Qaeda or the Taliban is not sufficient to make a person targetable. The focus shifts to "imminent" threat.
I don’t know if this is a change from previous policy or simply the first clear statement of existing policy, but it’s an important clarification. In his speech, the president agreed that we will strike only those who "pose a continuing and imminent threat." A fact sheet distributed today by the White House was more explicit: "[T]he United States will use lethal force only against a target that poses a continuing, imminent threat to U.S. persons. It is simply not the case that all terrorists pose a continuing, imminent threat to U.S. persons; if a terrorist does not pose such a threat, the United States will not use lethal force."
Here again, I have one remaining concern, which is that the word "imminent" needs to be defined (ditto the word "threat"). The November 2011 Justice Department white paper on targeted killing appeared to suggest that all "operational leaders" of al Qaeda and its associates present imminent threats by definition. If that logic still operates, then it’s not clear how much of a narrowing this really is. Nevertheless, the statement that not every terrorist is targetable appears to be an important clarification or shift.
3) Mr. President, if Congress amended the 2001 AUMF tomorrow to apply only to actions taken inside the borders of Afghanistan, do you believe you would still have the inherent constitutional power (and right under international law) to use military force to protect the United States against terrorist threats? If so, why do you need the AUMF? What, if any, uses of military force are you currently undertaking that you believe are lawful under the existing AUMF but would not be lawful if they were premised only on your inherent constitutional powers?
The White House fact sheet makes it clear that the president believes he retains inherent powers to use force in self-defense
: "These new standards and procedures do not limit the president’s authority to take action in extraordinary circumstances when doing so is both lawful and necessary to protect the United States or its allies." This is legally uncontroversial.
As for the AUMF, the president’s implication today is that once we end combat operations in Afghanistan, we may not need the AUMF, as he intends to limit the use of military force to those who can be targeted on the basis of posing an imminent threat. This is the right thing to do, and, assuming I am correctly interpreting the speech and fact sheet, it’s an important new step.
4) Mr. President, exactly how will transferring drone strikes to the U.S. military ensure greater oversight and transparency? Are you willing to accept some external review of targeted killings, by a court or an independent commission?
This didn’t come up! Despite a great deal of pre-speech reporting that this was going to be the big announcement today, it didn’t happen. As I said, I’m not sure it makes much difference; the big issue isn’t who carries out strikes but the legal basis and the accountability mechanisms.
5) Mr. President, what are the international effects of U.S. drone policy, and what steps are you taking to evaluate and address those effects? Specifically, are U.S. drone strikes in Pakistan, Yemen, and elsewhere decreasing or increasing anti-American sentiment and the long-term risk of terrorism and anti-U.S. extremism? Is targeted-killing policy jeopardizing counterterrorism cooperation from allies and setting a dangerous precedent for adversaries?
The president acknowledged at least some of these issues today, albeit only by implication. He highlighted the importance of intelligence sharing and the devastating costs to the United States of actions that alienate partner governments and populations. He noted that the raid that killed Osama bin Laden damaged relations with Pakistan: "[T]he cost to our relationship with Pakistan and the backlash among the Pakistani public over encroachment on their territory was so severe that we are just now beginning to rebuild this important partnership." What’s more, "Any U.S. military action in foreign lands risks creating more enemies and impacts public opinion overseas…. The very precision of drone strikes… can also lead a president and his team to view drone strikes as a cure-all for terrorism."
Bottom line: I’d still like a bit more legal precision, more transparency, and more external oversight of past and future strikes. But the president today laid down some important markers. As he put it, "We must define the nature and scope of this struggle, or else it will define us." Today’s speech was a major first step.
UPDATE: Whoops — I overlooked this paragraph on the first go-round! Maybe it came during the Medea Benjamin excitement, during which — because I was practically sitting on Benjamin’s lap back there in press section purgatory — I missed a few things. (I was surrounded by Secret Service agents and trying to avoid becoming collateral damage in the Great Code Pink Heckling Episode of 2013). Anyway, another good and important paragraph. I hope we see concrete steps forward on this as well:
"Going forward, I have asked my Administration to review proposals to extend oversight of lethal actions outside of warzones that go beyond our reporting to Congress. Each option has virtues in theory, but poses difficulties in practice. For example, the establishment of a special court to evaluate and authorize lethal action has the benefit of bringing a third branch of government into the process, but raises serious constitutional issues about presidential and judicial authority. Another idea that’s been suggested — the establishment of an independent oversight board in the executive branch — avoids those problems, but may introduce a layer of bureaucracy into national-security decision-making, without inspiring additional public confidence in the process. Despite these challenges, I look forward to actively engaging Congress to explore these — and other — options for increased oversight."