Posted by on June 04, 2013 in Blog

On Thur., May 23rd, President Obama delivered a major speech at the National Defense University in Washington laying out his vision for the future of American counterterrorism policy. Since 9/11, much of American foreign policy has been consumed by the fight against al Qaeda and Islamic extremism more generally, and terrorism concerns have provided the rationale for two wars (Iraq and Afghanistan), smaller incursions into other countries (Yemen, Somalia and Pakistan) as well as countless changes to federal law in areas as diverse as immigration, electronic surveillance and detainee policy. The federal government has spent staggering amounts of money on these new programs, creating an infrastructure that provides economic stimulus for certain parts of the country (especially the DC metro area) and makes it difficult to roll back the justification for the increased spending. So it is to President Obama’s tremendous credit that he was willing to publicly begin a discussion about whether a perpetual war on terrorism is compatible with the economic, moral and political goals of the US. As Obama said in the speech, “[w]e must define the nature and scope of this struggle, or else it will define us.”

With this goal in mind, it will be helpful to examine some of the specific policy proposals in the President’s speech. Many involve cooperation from Congress, a difficult prospect given the gridlock on Capitol Hill and the Republican tendency to reject any proposal from the President, much less one that would trim programs most Republicans embrace.

1) The New Face of Terrorism

President Obama sought to use the NDU speech to reframe out image of the enemy in this struggle. Using as examples the attacks in Beghazi and Boston, he argued convincingly that the threat from al Qaeda core in Afghanistan and Pakistan is much reduced, and that al Qaeda franchises in Yemen and North Africa. In addition to these groups, the US also faces threats from domestic attackers, like the two young men accused of carrying out the attacks in Boston. Though the President cited examples of both Islamic and non-Islamic domestic attacks, he overstated the influence of Islamic attacks, a trend mirrored by federal agencies like the Department of Homeland Security, which spends vastly more money on combatting Islamic terrorism than threats from other domestic sources. Indeed, vastly more Americans have been killed in the years since 9/11 by far-right wing groups than Islamic terrorists.

2) Drone Policy

Drones have been by far the most controversial and arguably most effective component of the Obama Administration’s counterterrorism policies, and the President’s comments on the drone program were the most anticipated part of his address. He started by arguing that in certain circumstances, drone strikes are the only way to address a terrorist threat. These cases include when terrorist suspects are in remote areas in which the relevant central government has little control and an attempt to use American special forces would involve unacceptable risks to the safety of those troops. Obama went on to defend the drone program as legal under the 2001 Authorization for the Use of Military Force (more on that later) passed by Congress. To his credit, he went on to argue that “[t]o say a military tactic is legal, or even effective, is not to say it is wise or moral in every instance.” This acknowledges a central argument of critics of the drone program: that the value in killing al Qaeda operatives is outweighed by the cost in increased anti-Americanism in Pakistan, Yemen, and the broader Islamic world.

Many of the most consequential shifts in drone policy were revealed in leaks in the days before the speech. In a very positive development, control of the drone fleet will be shifted from the CIA to the Pentagon. Though the transfer will likely not be completely implemented until after American troops leave Afghanistan in 2014, the move will allow both the CIA and military to focus on the missions they are actually intended to pursue.

President Obama used the speech to outline a new standard for drone strikes on suspected terrorists. He set out three requirements for a drone strike: 1) the target must pose a continuing and imminent threat to the American people, 2) there must be no other government capable of capturing the suspect, and 3) there must be near-certainty that no civilians will be killed or injured. He also said that his Administration had sought and received oversight by Congress through briefings of the House and Senate Intelligence Committees, and in the case of drone targets that are American citizens, like Anwar al-Awlaki, had provided evidence of their guilt to the Department of Justice. Finally, he expressed interest in a “drone court” or executive branch panel that could provide oversight and review of the drone program to prevent abuse.

For an administration that had previously refused to even acknowledge the existence of the drone program, Obama’s attempt to publicly outline the justifications behind it is comparably admirable. Unfortunately, even this drone framework has very serious flaws. First, the word imminent does a lot of heavy lifting in the administration’s definition of a legitimate target. As we learned in February from a leaked white paper, imminent doesn’t really mean imminent: “[imminence] does not require the US to have clear evidence that a specific attack on US persons will take place in the immediate future.”

Second, the briefings to Congressional Intelligence Committees that the President cited as evidence of oversight of the drone program provide no such thing. For one, the briefings are post-facto, meaning that by the time the Committees are informed, the strike(s) have already occurred. The Intelligence Committees also work in intense secrecy, often even barring staffers from closed briefings. The idea that informing a small, select group of lawmakers, in secret, about a strike that has already happened can provide meaningful oversight of a program that is itself secret is laughable.

The solution the President suggested to this problem, the creation of a drone court or a panel within the executive branch that would evaluate the evidence for a given drone strike, was vaguely-worded and would require Congressional action. Though both models would be better than nothing, the drone court is clearly a better option because of its independence. It also would provide due process if the target is an American citizen, allowing a representative of the accused to examine and dispute the evidence against the suspect. Though Obama deserves credit for raising the idea, he should not interpret Congress’ likely inaction as an endorsement of the current policy, in which American citizens like al Awlaki are denied due process.

Overall, President Obama deserves partial credit for talking openly about the drone program and acknowledging some of the program’s shortcomings. However, his broad definition of targets, the lack of real oversight over the program, and the drone programs wide popularity with Congress (especially Republicans) mean that the fundamental problems with this powerful new technology are unlikely to be resolved soon.

3) Addressing Underlying Grievances

As part of the speech’s emphasis on a shift away from a military response to terrorism, Obama spent part of his speech exploring ways that the US can address the grievances that fuel anti-Americanism around the world. He asked Congress to increase funding for foreign aid, an unlikely prospect given the atmosphere in Congress, and to allocate more money for embassy security, a proposal more likely to succeed given Republicans post-Benghazi affection for our diplomats. Even if neither of those proposals make it through Congress, Obama is right to point to non-violent engagement as the best way to combat these problems in the long-term.

4) Homegrown Terrorism

The section of the President’s speech that dealt with homegrown terrorism was the most disappointing of all, an instance in which the gulf between his rhetoric and his deeds was too wide to wish away. He opened with elegant words about the need to work with the American Muslim community to combat terrorism and to safeguard the civil liberties of Muslims: “...[t]he success of American Muslims and our determination to guard against any encroachments on their civil liberties is the ultimate rebuke to those who say we’re at war with Islam.” Unfortunately, Obama has failed to uphold this principle. As the Associated Press has made clear, the NYPD has spent more than six years conducting surveillance against restaurants, places of worship, schools and businesses frequented by American Muslims with no evidence of any criminality. The only strand that ties together the communities surveilled, among them Arabs, South Asians, Africans, Balkans and African Americans, is their religion. More damning for Obama is the clear evidence of CIA collaboration in the program; the CIA loaned officers and provided training to NYPD personnel, and John Brennan, a close Obama advisor who now heads the CIA, publicly backed the spying program. The NYPD’s justification for these wholesale violations of civil liberties is that the information collected may one day be useful in thwarting a terrorist attack, even though the Department admits that the program has generated no leads or arrests. Even if the program had been effective, it would remain counter to both American values and American law, something that President Obama, a former professor of constitutional law, should understand. After his administration’s embrace of religious profiling in New York, it’s difficult to believe the President’s rhetoric about the civil liberties of American Muslims.

5) Repealing the AUMF

Perhaps the most consequential moment of Obama’s speech came when he called on Congress, in carefully calibrated language, to eventually repeal the 2001 Authorization for the Use of Military Force (AUMF), the measure that has formed the legal basis for the so-called War on Terrorism. Though repealing the AUMF seems unlikely in this Congress, given instant Republican opposition, Obama’s words made an important statement that this war cannot be permitted to continue indefinitely. He should continue to press Congress to restrict and eventually repeal the AUMF.

6) Guantanamo and Detainee Policy

Obama’s words on Guantanamo and terrorist detention were the most anticipated beforehand. Before he was interrupted by a protester urging him to close the prison camp, he made effective moral and financial arguments against Guantanamo. He announced that he would name officials at the Departments of State and Defense with responsibility for transferring prisoners out of Guantanamo. He signaled that he would lift the moratorium on detainee transfers to Yemen and ask the Secretary of Defense to designate a military or civilian prison in the US that could hold military commissions for Guantanamo detainees. Having gone as far as he could alone, he called on Congress, appealing to their sense of justice to resolve the untenable situation at Guantanamo. Obama certainly deserves some credit for raising the profile on this issue, but as we’ve seen in the past, nothing presents opportunities for demagoguery like transferring Guantanamo detainees to the US.

Aside from the obstacles presented by Congressional opposition, Obama has only himself to blame for failing to address the fundamental problem of detainees at Guantanamo. The hardest group of detainees to deal with will be those considered too dangerous to be released, but could only be prosecuted using evidence that is irredeemably tainted by the use of torture. Obama’s mantra on torture has been that he wants to “look forward, not backwards,” but the plight of these detainees is a reminder that his failure to address the Bush Administration’s use of torture merely makes every other problem harder to solve. Since torture is illegal under both federal law and international treaty, admitting in a federal court that US forces had used it would require the Administration to conduct a thorough investigation and punish those responsible for giving the orders: namely, his predecessor. Until he addresses this uncomfortable truth, the most difficult cases at Guantanamo will remain in legal limbo and the deescalation of the war on terrorism that Obama outlined at the NDU will remain unfinished.

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