President Obama

by Jeremy Leaming

President Obama’s address to the National Defense University was quickly embraced by many high-profile pundits as evidence the 44th president would actually and finally offer change one could believe in. Specifically, change from the way his predecessor presided over a never-ending war on terror.

As noted here, during his May 23 speech the president provided some lofty rhetoric suggesting significant change was underway to counter intensifying criticism from civil libertarians and human rights advocates that the Obama administration is trampling fundamental constitutional principles and values while waging the so-called war on terror.

The New York Times editorial board lauded Obama’s speech as “the most important statement on counterterrorism policy since the 2001 attacks, a momentous turning point in post 9/11 America. For the first time a president stated clearly and equivocally the state of perpetual warfare that began nearly 12 years ago is unsustainable for a democracy and must come to an end in the not-too-distant future.”

Many other pundits also heralded the speech as a major shift in policy, while others, such as Alex Pareene warned that those concerned about human rights and civil liberties would likely be seriously disappointed.

Today, The Times reported that Pakistani officials said a CIA drone strike had supposedly “killed a top member of the Pakistani Taliban, an attack that illustrated the continued murkiness of the rules that govern the United States’ targeted killing operations.” Before his much-trumpeted counterterrorism speech, The Times reported that the administration would start shifting control of the drone strikes from the CIA to the military.

Obama’s speech received a lukewarm response from the ACLU, which has fought to obtain more information about the administration’s drone warfare. This blog also noted that a mere speech without action would not squelch criticism of counterterrorism efforts that violate U.S. and international law. The president declared early in his first term that we must protect fundamental values, such as due process under the law, as vigilantly as we wage war against terrorists. But such talk has too often proven hollow.

In a piece for The Guardian, Glenn Greenwald scored the president for a trend of advancing rhetoric that doesn’t reflect reality. Greenwald wrote, “what should be beyond dispute at this point is that Obama’s speeches have very little to do with Obama’s actions, except to the extent that they often signal what he intends not to do. How many times does Obama have to deliver a speech embracing a set of values and policies, only to watch as he then proceeds to do the opposite, before one ceases to view his public proclamations as predictive of his future choices?”

by Sam Kleiner, a law student at Yale Law School and member of the ACS Yale Law School Chapter.

In his widely-noted speech at the Oxford Union, Harold Koh (pictured) invited us to imagine a different response to September 11. It's easy to think that the path taken by the Bush administration was driven by a pre-destined sense of necessity, and Koh's invocation of a President Gore (a timely counter-factual with Justice Sandra Day O'Connor's musings on that election and the Supreme Court’s involvement), offers an alternative/hypothetical response in the time-tested law enforcement approach.

At Lawfare, Ben Wittes defends the Bush administration’s record as oriented on a law enforcement approach. Koh argued that the Obama administration's approach "combined a Law of War approach with Law Enforcement and other approaches to bring all available tools to bear against Al Qaeda" and Wittes countered that this description fit the Bush administration's approach. 

Contrary to Wittes’ attempt to frame the Bush administration as focused on law enforcement, President Bush specifically rejected this approach and attacked candidate John Kerry for suggesting this path forward. In 2004, when Kerry emphasized his background as a prosecutor and urged that terrorism be considered through a law enforcement lens until it became a "nuisance," Bush attacked him vehemently. Kerry argued for an approach that was, "less of a military operation and far more of an intelligence-gathering law enforcement operation." Bush responded: "I disagree -- strongly disagree. … After the chaos and carnage of September the 11th, it is not enough to serve our enemies with legal papers. With those attacks, the terrorists and their supporters declared war on the United States of America, and war is what they got." Wittes boasts of a more restrained argument from the Bush administration and he cites a 2006 speech by John Bellinger and a Bush administration brief filed in Boumediene (after losing hugely in Rasul, Hamdi and Hamdan), of a more restrained vision of the war on terrorism. Bush did move away from the GWOT framing in his second term largely because he had been thwarted by the courts and Congress. What Koh invites us to ponder -  and Wittes fails to comprehend - is that you could have had a response to 9/11 that started with a deeply powerful law and order framework rather than heading down the rabbit hole by making outlandish claims of unilateral executive power that threatened constitutional order. By 2006, it was too little too late.