an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Obama's National Security Speech--Eloquence, Yes; Change, Less Certain
President Obama's speech today at the National Defense University represents a renewed effort to frame U.S. national security policy and to impose a sense of order and coherence amid mounting criticism of drone killings and Guantanamo. While the speech could help shift the direction of U.S. counter-terrorism policy, the President's rhetorical eloquence masks deep and unresolved divides.
The President sought to grapple with the related questions of "what war" and "how long." In terms of the former, the President spent considerable time contextualizing the fight against al Qaeda as part of a broader struggle against terrorism and extremist violence. This is important. If the "war on terror" is ever going to end (more on that point below), the U.S. must internalize the reality that terrorist violence comes in many shapes and sizes, and will not cease even if al Qaeda vanished from the Earth tomorrow. The President here wisely underscored that force alone is insufficient to fight terrorism and that other elements of "soft power" must be employed to win what he described as "a battle of wills and ideas."
President Obama also reiterated that the U.S. is not at war with terrorism but only with al Qaeda and associated forces. But while this point may bear repeating, it is not new. The Bush administration took the same position, its rhetoric of a global war on terror aside. The real question has always been--and remains today--how expansive this "limited" war is (and it has expanded under Obama), and how long it will last.
Here, the speech was deliberately vague. Obama sought to portray the conflict as a narrow one, even as he acknowledged its spread from the "hot battlefield" of Afghanistan to countries such as Yemen and Somalia. Based on testimony last week before the Senate Armed Services Committee, Defense Department officials (or at least some of them) believe the conflict's geographic scope is considerably broader--a point the President did not deny. The President instead explained, "Beyond Afghanistan, we must define our effort not as a boundless 'global war on terror'--but rather as a series of persistent, targeted efforts to dismantle specific networks of violent extremists that threaten America." This framing sought to give the appearance that the President was cabining the war without limiting his operational flexibility.
The President also emphasized the need to end what Harold Koh recently described as the "forever war." He noted that "core al Qaeda"--the focus of the 2001 Authorization for Use of Military Force (AUMF)--was "a shell of its former self." But the President gave no indication of when the war might end or what criteria would be used to determine it had terminated, stating only that he "look[ed] forward to engaging with Congress and the American people" on refining and ultimately repealing the AUMF. (Obama did suggest the war would continue as long as "associated" groups such as Al Qaeda in the Arabian Peninsula (AQAP) continued to pose a threat, even if al Qaeda itself were defeated). Obama also made clear that he would not seek to expand the AUMF. But like his discussion of the conflict's geographic scope, this statement had the benefit of signaling restraint without restraining anything, given the latitude the administration currently believes it has to launch drone strikes or conduct other kill or capture operations under the existing law.
On Guantanamo, the President criticized the prison and maintained his desire to close it. But his discussion of Guantanamo was largely devoid of content. Indeed, Guantanamo appeared tacked on to the speech since the renewed attention from the hunger strikes has made it impossible to ignore. I believe that Obama genuinely wants to close Guantanamo. I also believe Obama genuinely believes the prison is unsustainable, as the President stated at a press conference last month. But the speech gave no indication of any concrete plan to close Guantanamo or to address the problem of continued indefinite detention that will remain even if the prisoners were all transferred to the United States tomorrow. (On the latter point, the President's punt here was NFL-worthy: the problem of those "too difficult to try" but "too dangerous to release" will take care of itself "once we commit to a process of closing GTMO").
Only so much detail, to be sure, is appropriate in a speech like the one Obama gave today. But the President should have used this opportunity to make a strong case to the American public at least for transferring the 86 detainees (more than half of the remaining prisoners) whom his own Task Force cleared for release after conducting a careful review four years ago. The President also should have made the argument that the United States must be willing to accept at least some detainees who cannot be transferred to another country if they pose no threat and if resettling them in the U.S. is necessary to shutting Guantanamo.