But the blame is not all Congress’s. On Guantánamo, KSM, and other national security issues, the administration has been reluctant to fight back against its critics. In a dramatic moment during the controversy over where to try KSM, President Obama concluded a meeting devoted to the topic by reading aloud from the sentencing transcript of the civilian criminal trial of Richard Reid, al-Qaeda’s would-be “shoe bomber,” sentenced to life imprisonment in 2003. When Reid claimed, “I am at war with your country,” Judge William Young replied:
There is all too much war talk here…. You are not an enemy combatant. You are a terrorist. You are not a soldier in any war. You are a terrorist. To give you that reference, to call you a soldier gives you far too much stature…. So war talk is way out of line in this court….
We all know that the way we treat you, Mr. Reid, is the measure of our own liberties. Make no mistake, though. It is yet true that we will bear any burden, pay any price, to preserve our freedoms. Look around this courtroom. Mark it well. The world is not going to long remember what you or I say here. Day after tomorrow it will be forgotten. But this, however, will long endure. Here, in this courtroom, and courtrooms all across America, the American people will gather to see that justice, individual justice, justice, not war, individual justice is in fact being done.
When he finished reading, Obama asked, “Why can’t I give that speech?” and left the room. Klaidman never answers the question. It’s obviously easier for a federal judge to make such a speech, as he does not have to stand for reelection. And it’s easier to make such a speech after a terrorist has been convicted in a fair trial and sentenced to life imprisonment than beforehand, when there is always the possibility, however remote in KSM’s case, that the terrorist might go free.
Nonetheless, Obama could give such a speech. In fact, he has already done so. In a May 2009 address at the National Archives, the president insisted, rightly, that in the long run our security rests on fidelity to our constitutional principles: “Time and again, our values have been our best national security asset—in war and peace; in times of ease and in eras of upheaval.” But since that speech, we have had radio silence from the president on the close nexus between security and the rule of law. Perhaps lacking the courage of his convictions, he has been unwilling to take his case to the American people. As a result, he has ceded far too much air and ground to his critics, many of whom have been all too eager to play on fear for political advantage.
In Power and Constraint, Jack Goldsmith attributes Obama’s counterterrorism policy not to indecision but to a national consensus that the status quo he inherited was legitimate. Goldsmith contends that Obama has “continued almost all of his predecessor’s counterterrorism policies,” because by the time he took office, checks and balances had reined in Bush’s worst excesses.
Goldsmith is right that checks and balances, broadly construed to include nongovernmental organizations, the press, foreign pressures, and internal government watchdogs and dissenters, forced Bush to curtail many of his most lawless measures. Goldsmith’s account of how these influences operate to improve accountability in the modern era is perceptive and nuanced. But he abandons that sensitivity to nuance when it comes to his claim that Obama continued Bush’s policies without significant change. For example, he writes that President Obama “sound[ed] very much like George W. Bush” when he said that “my single most important responsibility as President is to keep the American people safe.” But one would be hard-pressed to find a single president in American history who has not said the same thing.
In fact, President Obama has done many things to distinguish his administration’s policies from his predecessor’s. He ended the CIA’s “enhanced interrogation” program, closed the CIA’s secret prisons, and released the previously secret torture memos. He reformed the military commissions, pledged to close Guantánamo, and increased the substantive and procedural standards for detention in Afghanistan. He introduced pro-transparency reforms with respect to Freedom of Information Act requests and declassification reviews, rejected rendition as a means of outsourcing torture, and substituted a more surgical and precise targeting strategy for Bush’s more sweeping “war on terror.” He refused to rely on the “inherent” and unconstrained commander-in-chief authority that Bush infamously invoked, and insists that his authority is limited by statutes, the Constitution, and international law, including the laws of war.
Goldsmith concedes that with respect to legal limits on its power, “the Obama administration seemed to embrace them on its own initiative rather than, as was so often true of its predecessor, under apparent threat of judicial or congressional scrutiny.” But he dismisses this as “prettier wrapping,” when it is in fact the essence of the distinction between Obama and Bush. Bush grudgingly sought authorization from Congress for military commissions only after the Supreme Court declared his unilaterally created commissions unlawful; Obama went to Congress of his own accord in 2009 to make the tribunals more fair (by, for example, prohibiting coerced testimony and restricting hearsay). And when a panel of the US Court of Appeals for the D.C. Circuit ruled that his military detention authority was not limited by the laws of war, President Obama took the extraordinary step of telling the court it had granted him too much power, insisting that his authority to detain is limited by the laws of war. This is not merely “prettier wrapping”; it is the difference between a president who seeks to act within the rule of law and a president who sought to discard it.
It is true that, much to the dismay of many human rights groups, President Obama has continued military detention without charge and military commissions. But these are not “Bush policies”; they both have a well-established place in wartime that extends far back at least to the nation’s founding. Even most human rights and civil liberties organizations acknowledge that an armed conflict exists in Afghanistan with al-Qaeda and the Taliban. Wars routinely involve detention of the enemy without charge, and often involve military trials for war crimes.
There are, to be sure, disputes about the proper scope of the battle and the proper procedures for military commissions. But the main reason that military detention and commissions were controversial was the way Bush implemented them—detaining large numbers of people without any process and on the basis of dubious evidence, subjecting them to brutal and inhuman interrogation practices, and asserting the power to try them in kangaroo courts. Obama has unequivocally repudiated those practices, and has sought instead to conform his counterterrorism policy to law. This is an important and welcome change.
No tactic has been more controversial under President Obama’s tenure than drone strikes. He has not merely continued, but radically expanded, the Bush administration’s use of unmanned missiles to kill suspected leaders and members of al-Qaeda, the Taliban, and “associated forces.” From 2004 to 2008, for example, there were forty-five drone strikes in Pakistan; from 2009 to June 2012, there have been 255. Bush authorized one drone strike in Yemen in eight years; Obama has authorized thirty-eight in three and a half years.
Some, including Charles Krauthammer and John Bellinger, Bush’s State Department legal adviser, have railed at what they see as a double standard, contrasting the harsh criticism leveled at President Bush for approving the waterboarding of a few al-Qaeda suspects with the relatively muted criticism Obama has received for authorizing the killing of hundreds without trial by remote control. But there is a basic difference: torture and cruel treatment of detainees are absolutely prohibited during war and peace alike; indeed, they are war crimes. Killing enemy fighters in wartime is not a crime, but a necessary evil. There is no moral equivalence between what we did to KSM and to Osama bin Laden.
That said, there are many serious questions about Obama’s targeted killing campaign. It is one thing to kill the enemy on the battlefield during an armed conflict, and the border regions of Pakistan where the Taliban and al-Qaeda have holed up almost certainly qualify as the battlefield. And when the enemy hides among the civilian population, but continues to organize and plan attacks, as Osama bin Laden did for years, killing outside the conventional battlefield may be justified where capture is impossible. But it is another matter to kill people who are not clearly part of al-Qaeda or the Taliban, far from any battlefield, in countries with which we are not at war.
The drone, a tool that allows CIA experts to kill someone halfway across the world by pushing a button, without exposing a single US life to danger, raises complex ethical and moral issues that as yet have been barely explored. Drones make warfare deceptively “cheap.” The use of ground troops and conventional bombing missions can be avoided, and we can engage in small-scale military interventions while short-circuiting the limits on warmaking in the Constitution and the UN Charter. For the time being, we have a virtual monopoly on this tactic, but drones have become the focus of the new arms race, and a world in which every nation is as free to execute its “enemies” across borders as we seem to think we are is not in our—or anyone’s—interest.
These questions make it all the more disturbing that the targeted killing program has been largely shrouded in secrecy. The Obama administration refuses to confirm or deny the strikes, even though they are routinely reported on front pages here and abroad, and even when President Obama held a news conference to announce, in the passive voice, that American Anwar al-Awlaki, a leader of al-Qaeda in the Arabian Peninsula, “was killed in Yemen.” Over time, the administration has pursued some measure of transparency by authorizing administration spokespersons to give official speeches about the general outlines of the program, as well as by apparently tolerating leaks to journalists about the process. Ironically, it has been the administration officials that Klaidman identifies as the most sensitive to civil liberties—Harold Koh, Eric Holder, and John Brennan, Obama’s counterterrorism adviser—who have made the speeches defending the practice. Cynics might dismiss this as a sophisticated public relations ploy, but inside accounts suggest that it may also be because these men pressed the hardest for a public accounting.
But even with all the official speeches and barely official leaks, too many questions remain. The administration takes the position that it can kill, either pursuant to the Authorization to Use Military Force, or as an act of self-defense, when: (1) it identifies an individual who is part of al-Qaeda, the Taliban, or associated forces; (2) the individual poses an imminent threat to American interests at home or abroad; and (3) his capture is infeasible. But the administration has reportedly defined “imminent” capaciously, reasoning that because al-Qaeda and its affiliates want to strike us whenever they get the chance, they always pose an imminent threat. On that reading, imminence fails to serve its purpose, which is to ensure that the use of force in self-defense is reserved for the last resort. Absent a truly imminent attack, one can—and should—wait, as even if capture is infeasible now, it may become feasible later. Without real imminence, killing is not truly the last resort.