Obama: The Last Year and the Legacy, Part 1

The State of the Union speech is over, but the Obama presidency is not. Barack Obama has one last year in the White House: one last year to finish unfinished business, fix mistakes, and live up to the hopes of the tens of millions of Americans who first swept him into office in 2008. Pundits keep saying it’s time for Obama to focus on his legacy. For once, they’re right.

The president won’t have an easy task. Despite some significant accomplishments — the Iran nuclear deal and the Paris climate change accord, for instance — a majority of Americans disapprove of his overall job performance, and an even larger majority disapproves of his foreign-policy performance. Barring divine intervention, a year isn’t long enough for Obama to bring peace to the Middle East or turn Russia and China into genuine democracies.

But there are still a few important things he can do — if he puts his mind to it. Here are four items Obama can put on his 2016 To-Do List:

Close Guantánamo. No, really. For seven years, the president has claimed that he truly wants to close the detention facility at Guantánamo Bay, but Congress just won’t let him. That’s disingenuous. True, Congress has passed legislation prohibiting the executive branch from using public funds to transfer any Guantánamo detainees to facilities inside the United States — but as Gregory Craig and Cliff Sloan pointed out in a November Washington Post op-ed, “The restriction is plainly unconstitutional.”

On issues from immigration to gun control, Obama has been willing to rely on executive action in the face of an obstructionist Congress. If he’s serious about wanting to close Guantánamo — which would pack a big symbolic punch, despite the small number of current detainees — he should just go ahead and do it: put the remaining detainees on a military plane, fly them to the United States, and close down Guantánamo’s detention facility. The End.

Republicans in Congress will scream, but remember: The screamers will mostly be the very same guys who insisted, during George W. Bush’s administration, that Congress can’t micromanage the president’s commander-in-chief powers.

Repudiate indefinite detention. Symbolism aside, the real problem with Guantánamo isn’t its offshore location, but the fact that though most of the remaining detainees have been held for 14 years, none has been tried or convicted (and most haven’t even been charged with a crime). According to the administration, they can nonetheless be lawfully detained because they’re enemy combatants in an ongoing armed conflict with al Qaeda and its associated forces. But for many of the detainees, this has never been more than a legal fiction — and 14 years after 9/11, with “core” al Qaeda long gone, this rationale no longer passes the smell test. Locking up human beings indefinitely because of their potential future “dangerousness” — as determined in closed proceedings based on secret evidence — is not morally acceptable on a long-term basis.

Forty-five of the remaining Guantánamo detainees have already been deemed by the military to pose no security threat. They should be released, pronto, with resettlement assistance, and the rest of the detainees should be tried — but if they’re not convicted, they too should be released. Congress has no constitutional power to prevent this, and Obama has the ability to make it happen. He should do so.

If he doesn’t, he just leaves the same headache to his successor — and he leaves in place a precedent that conflicts directly with America’s core rule-of-law principles.

Stop playing games with the 2001 Authorization for Use of Military Force. The Obama administration is still claiming that the 2001 Authorization for Use of Military Force (AUMF) makes it OK to use force against the Islamic State in Syria and assorted bad guys in a dozen different countries. But Obama knows this is a stretch. The AUMF, which authorized the use of force against those with responsibility for the 9/11 attacks “in order to prevent any future acts of international terrorism against the United States” by those same groups, clearly was not intended to authorize a forever war against a perpetually changing list of bad guys.

Obama has said repeatedly that he regards the 2001 AUMF as flawed and that he wants it repealed. If he’s serious about that, he needs to tell his lawyers to stop relying on it — and he needs to force Congress to take some responsibility for decisions that risk the lives of both Americans and countless foreigners. He should halt all U.S. airstrikes against the Islamic State and announce that unless and until Congress passes an unambiguous new authorization to use force, he’ll be reserving U.S. military action for situations in which he deems it necessary to ward off an imminent and direct threat to the United States. That might wake Congress up.

Bring an end to secret wars and secret laws. Since coming into office, Obama has presided over several hundred “targeted strikes,” mostly using unmanned aerial vehicles, aka drones. Those strikes have reportedly caused the deaths of several thousand people in half a dozen countries, but administration officials still refuse to acknowledge most of the strikes, offer a public account of the evidence that led to the targeting of specific individuals, or take responsibility for the many unintended deaths that have also ensued. Even the legal rationale behind most of these strikes remains unknown.

This is the Guantánamo indefinite-detention problem, in spades: To put it in the simplest possible terms, the U.S. government has secretly killed a large number of human beings (thousands, not hundreds), for secret reasons, based on secret evidence evaluated by largely anonymous individuals in a secret process. That’s not a legacy any American president should want.

Here, too, Obama has repeatedly expressed his desire to improve oversight and increase transparency and accountability — and here, too, he can make this happen if he’s serious about it. There’s no reason not to make public, at a minimum, the number and general location of U.S. targeted strikes, the number of individuals known to have been killed and their organizational affiliations, and the number and identities of any civilians killed.

There’s also no reason not to publicly release a detailed report explaining the administration’s legal rationale for such targeted killings, under domestic and international law. (This too is one of the minimum requirements of the rule of law: If you’re going to kill people, the least you can do is make public the legal reasoning behind the deaths.) And there’s no reason not to implement one of the many sensible and realistic proposals to improve oversight of such targeted strikes. Obama can make these reforms with Congress or without Congress — but one way or the other, he should make them.

If he doesn’t, he leaves yet another nasty precedent for his successors — with no confidence that they will engage in targeted killings with even half as much restraint.

This isn’t the end of my proposed 2016 To-Do List for Obama. In my next column, I’ll outline a few other challenges the president should tackle in his final year: changing the discourse about national security, risks, and threats; and reforming the National Security Council, the military, and the intelligence establishment.

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