Remarks by the President at the National Defense University
Report of the Constitution Project’s Task Force on Detainee Treatment
Can President Barack Obama end the “war on terror”? As a purely semantic matter, it began in September 2001 when George W. Bush first used those words, and it ended in March 2009, when the Defense Department replaced the term with “Overseas Contingency Operations.” But the latter term has never caught on. The main reason is not that President Bush’s label sells more newspapers, or flows more easily off the tongue, but because the war itself goes on. We continue to fight al-Qaeda, the Taliban, and their ever-morphing “associated forces,” in Afghanistan and beyond. We continue to hold alleged enemy fighters in indefinite detention, effectively as “prisoners of war”—many for more than a decade now. The CIA and the military continue to kill people without hearings or trials, using unmanned drones. And as we have recently learned, the National Security Agency has dramatically expanded its surveillance activities, at home and abroad, in the name of gathering intelligence about our clandestine foes.
The “war on terror” was always a misnomer. Bush claimed that we were fighting all “terrorist organizations of global reach.” Shortly after September 11, at a time of national trauma, he asked Congress for an open-ended license to use military force “to deter and pre-empt any future acts of terrorism or aggression against the United States.” But Congress declined. Instead, it authorized military force against those who carried out the terrorist attacks and those who harbored them—al-Qaeda and the Taliban. Still, the conflict with al-Qaeda has lasted more than twelve years, and when we withdraw from Afghanistan in 2014, al-Qaeda will continue to exist. Even if not quite as limitless as Bush’s proposed war, this conflict is sufficiently ill-defined and endless to justify its still-popular label as the “war on terror.”
Some have suggested that this is a permanent state of affairs, and we might as well get used to it. As al-Qaeda continues to “evolve” and to inspire others to attack, the United States will continue to use military force to respond. Drones in particular can, at relatively low cost, monitor suspects remotely for months and then deliver bombs to execute them with the push of a computer button half a world away. They seem well suited to fighting clandestine, nonstate terrorist groups. When it works, the drone allows for the surgical elimination of threats without risking widespread loss of civilians’ or soldiers’ lives. (The number of civilians killed by drones is a matter of speculation and debate, but drones arguably cause less collateral damage than virtually any other form of warfare.) The pace of drone attacks has slowed in the last year and a half, partly because of increasing recognition of the resentment and backlash they provoke from local populations, but they are still an important weapon. When the US learned in late July of an apparent plan by the Yemen-based al-Qaeda in the Arabian Peninsula (AQAP) to take action against US embassies overseas, the administration launched five drone attacks in Yemen in the course of two weeks.
Military detention also continues, with no apparent termination point. There are still 164 men held at Guantánamo. Many have been “cleared for release,” but Congress has erected substantial barriers to their transfers. The administration said in 2010 that there were forty-eight detainees who were too dangerous to let go but too difficult to try. A hunger strike in the spring brought the detainees renewed attention for a time, but in the past year, the administration has released only two of them.
As for surveillance, now that the NSA has developed the technological capacity and asserted the legal authority to collect, store, and search the “metadata” from all of our phone calls, and to collect and analyze the content of international e-mails, phone calls, and other electronic communications, why would it give that up—particularly as it claims that this has helped disrupt dozens of terror plots? Has the endless threat of terrorism brought us endless war?
Not if you believe what President Obama told the nation on May 23, 2013, when he addressed the subject of fighting terrorism at the National Defense University in Washington, D.C. In what could prove to be the most important speech of his tenure, Obama rejected the notion of “perpetual war,” quoting James Madison’s warning that “no nation could preserve its freedom in the midst of continual warfare.” Obama announced that he intends to bring the war on al-Qaeda and the Taliban to an end. Indeed, he claimed, “our democracy demands” it. Even as he threatens military strikes in Syria, this promise is apparently on his mind, and was reportedly one of the factors that led him to seek congressional authorization before taking action against Syria, thereby avoiding, for now, a resort to force. If Obama can make good on his intention to end the war with al-Qaeda, his Nobel Peace Prize of 2009 may be seen as prescient after all.
What would it take to end the war with al-Qaeda? The first step is conceptual, but may be the most difficult: we must acknowledge our limitations. The end of the war will not be marked by the elimination of terrorism, or even of al-Qaeda. Nor does anyone expect a peace summit. Rather, the war against al-Qaeda will come to a close when whatever threat al-Qaeda continues to pose is manageable through nonmilitary measures. President Obama suggested that we are nearly there:
Today, the core of al-Qaeda in Afghanistan and Pakistan is on the path to defeat. Their remaining operatives spend more time thinking about their own safety than plotting against us. They did not direct the attacks in Benghazi or Boston. They’ve not carried out a successful attack on our homeland since 9/11.
The threat of terror certainly continues, as this summer’s closure of twenty-two US embassies in the Middle East and North Africa reminded us. The important point is that the continued existence of a threat, and occasional violence, do not necessitate a war. As Obama put it:
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…. We must be humble in our expectations that we can quickly resolve deep-rooted problems like poverty and sectarian hatred.
Humility has never come easily to the United States or its presidents. But that humility is the foundation of peace.
Terrorism is sometimes referred to as the price of living in an open society. But it is more fundamental than that: it is simply impossible to eliminate all terrorist threats, no matter what sacrifices we make. As Obama conceded in his NDU remarks, “Force alone cannot make us safe.”
Instead, we must learn to manage the risk of terrorism, just as we manage other unavoidable risks, including natural disasters, economic catastrophes, violent crime, and traffic accidents. It means arresting and trying terrorists, not simply killing them—as we must do with serial killers, rapists, and would-be assassins. It involves intelligence-gathering, diplomacy, foreign aid, and working to alleviate the underlying grievances that drive human beings to kill innocent people for political ends. As Malise Ruthven recently wrote in these pages, for example, these grievances may include those of traditional tribal groups on the periphery of the Arab world who feel that their ways of life are threatened.1 A multifaceted policy that sought to prevent terrorism through law enforcement, intelligence gathering, and diplomatic measures would not mean renouncing the use of force altogether, but limiting it to situations where it is truly necessary.
The second step in resuming a peacetime footing is more tangible. It would require forgoing certain kinds of tactics that are available in an armed conflict, but not in peacetime—in particular, preventive detention and killing based on status. In wartime, an enemy fighter can be detained or killed merely because he is a member of the enemy’s fighting force, regardless of his conduct. In peacetime, by contrast, preventive detention is sharply restricted, and intentional killing is forbidden except in limited circumstances where necessary to prevent the loss of life or serious harm to another.
Thus, were President Obama to end the war with al-Qaeda, he would need a plan for closing Guantánamo and a more restrictive drone policy. Prisoners of war need not be released the day the war ends, but the justification for detention of anyone not charged with a crime would no longer exist, so a transition to release would be required. And while the US could still use drones in situations of true “self-defense,” it could not use them with anything like the frequency with which they have been deployed in recent years.
President Obama’s May 23 speech suggested that he is already moving in this direction. He reaffirmed his commitment to closing Guantánamo—not just formulaically, but in the strongest terms:
I know the politics are hard. But history will cast a harsh judgment on this aspect of our fight against terrorism and those of us who fail to end it. Imagine a future—ten years from now or twenty years from now—when the United States of America is still holding people who have been charged with no crime on a piece of land that is not part of our country. Look at the current situation, where we are force-feeding detainees who are being held on a hunger strike…. Is this who we are? Is that something our Founders foresaw? Is that the America we want to leave our children? Our sense of justice is stronger than that.
But of course he has wanted to close Guantánamo from the outset of his presidency and has not managed to do so. Obama has now taken some concrete steps, including lifting his own moratorium on repatriating detainees to Yemen, which was put in place after the foiled Christmas Day underwear bombing plot in 2009. Fifty-six of the eighty-four detainees already “cleared for release” at Guantánamo are from Yemen, as are many of those not yet cleared. The presence of AQAP in Yemen undoubtedly complicates the matter. But if we can support Yemen’s capacity to contain the threat that the detainees might pose upon return, a large portion of the Guantánamo population could be freed.
The president has appointed Cliff Sloan, a highly respected and able Washington lawyer, to coordinate detainee transfer for the State Department. But it’s no easy task. Other countries are understandably not lining up to take Guantánamo detainees off our hands, and Congress has imposed unrealistic restrictions on transfers, requiring assurances of no future harm that are extremely difficult to make.
The biggest challenge, however, is not Congress, or finding other countries to take detainees, but what to do about the forty-eight men whom the Obama administration identified as too dangerous to release but too difficult to try. In his speech, Obama expressed confidence that their cases could be resolved, but offered no specifics. Some may be subject to prosecution in other countries. Others may have become less dangerous. But if they can’t be convicted of criminal activity, we must release them when the war with al-Qaeda is declared to have ended. We must then live with the risk their freedom poses. Obama will not find it easy to take that risk. But prisoner-of-war detention must end with the war.