Speaking the Law (Chapter 3), by Kenneth Anderson and Benjamin Wittes

7/27/2019 Speaking the Law (Chapter 3), by Kenneth Anderson and Benjamin Wittes

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SPEAKING

THE LAWThe Obama Administrations Addresses on

National Security Law

Kenneth AndersonandBenjamin Wittes

h o o v e r i n s t i t u t i o n p r e s s

Stanford University | Stanford, California

jean perkins task force on national security and law


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On May 23, 2013, President Obama delivered a major address

on counterterrorism policy at the National Deense Univer-

sity in Washington, D.C.the frst major national security speech

o his second term. Billed as a comprehensive statement o policy,

it represented a crucial pivot in the Obama administrations

understanding o long-term counterterrorism policy. The frst-

term speeches, as we have seen, mostly involved eorts to

explainand thereby shore upthe public legitimacy o existing

counterterrorism policies. The stance o the speeches was chiey

explanatory and thus inevitably somewhat deensive. The frst-

term speeches put on the record a great deal more than criticshave been willing to grant. But the appetite grows with the eating,

and the clamor or the administration to say more about what it

was doingand under what legal authoritieshad only expanded.

CHAPTER 3

The Presidents NDU Speech and thePivot rom the First Term to the Second

by Kenneth Anderson and Benjamin Wittes

Copyright 2013 by the Board o Trustees o the Leland Stanord Junior

University. All rights reserved. This online publication is a chapter romSpeaking the Law: The Obama Administrations Addresses on National SecurityLaw, by Kenneth Anderson and Benjamin Wittes (Stanord, CA: HooverInstitution Press, 2013).

Copyright 2013 by the Board of Trustees of the Leland Stanford Junior University. All rights reserved.


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SPEAKING THE LAW138

This speech was dierent. With it, the administration

pivoted sharply away rom simply seeking to declare and jus-tiy existing policy and moved to describing the uture direc-

tion o counterterrorismand the law and policy that, in the

presidents view, should govern it in the long term. The speech

was ambitious in scope and, in some areas at least, marked a

signifcant departure rom the ramework laid out during the

frst term.

We turn, thereore, to a close analysis o the presidentsNDU speech, examining it or both continuity and change

rom the frst term with respect to the categories we have set

out in chapters 1 and 2. We look here both at the speech itsel

and at its accompanying documents, and try to address the

good, the bad, and the unanswered in the presidents words.

In broad strokes, the NDU speech was a work o both

signifcant virtues and signifcant vicesand signifcant con-

tradictions. It deended robust actions under the Authorization

or the Use o Military Force (AUMF) even as the president

emphatically insisted that they must end. It deended drone

strikesand promised new limits on them. It promised, once

again, the closure o Guantnamo and the end o non-criminal

detentionwithout giving any sense o what would happen tothose held at Guantnamo who could not plausibly ace trial

but or whom release remains unthinkable.

On the positive side o the ledger, the speech elaborated

on then-Department o Deense General Counsel Jeh Johnsons

November 30, 2012, Oxord Union address on the end o the

conict (The Conict against Al Qaeda and Its Afliates:

How Will It End?). It tried to imagine a post-AUMF world

one in which some degree o return to normalcy coexists with

a maintenance o counterterrorism-on-oense and the capacity



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The Presidents NDU Speech 139

to deny terrorists sae havens in ungoverned spaces in which

to regroup and rebuild. This vision represents a potentiallyimportant basis or long-term operational exibility in a post-

AUMF world and seeks to propose stages by which to get

there. But it also signifes a post-AUMF, post-armed-conict

world that uses the tools o belligerency and conduct o hostili-

ties, and the laws that govern their use, rather more than some

o the present wars critics understand in the term peace.

On the more negative side, however, the presidents pre-sentation promised in key areas more end to the conict than

Obama is likely to be able to deliver. In important respects, he

both sided with his critics in delegitimizing his own policies

and cut o policy options that ought to be on the table or long-

term institutional settlement o contested counterterrorism

authorities. Whether one sees mostly virtue or mostly vice in

the speech largely hinges on how one interprets passages that

are legitimatelyand probably intentionallyamenable to di-

erent readings. It probably also depends on what specifc pas-

sages o the speech one ocuses on. As we look here at the

speech in its entirety, our account is necessarily mixed.

Indeed, the positive and the negative aspects o the speech

are more than simply the sum o good policy points and bad.The speech ran the risknot just in its policies, but in its modes

o raming and justiying themo wanting to have everything

all ways. It is not obvious at all that the Guantnamo policies

can be squared, or example, with the legal implications o the

end-o-the-conict policies. In sliding over glaring contradic-

tions, the speech seemed to want to have its cake and eat it,

too. Some o the contradictions might be bridged by time. As

we explain below, the speech can be read as proposing one

targeting policy or the duration o the AUMF conict, another



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SPEAKING THE LAW140

or the post-AUMF peace, and a third during some period o

transition between them. But or some areasparticularlythose where the president appeared to embrace, even wrap

himsel in, the arguments o his critics, while nonetheless

reaching policies that appear quite inimical under those criti-

cismsthe speech gave a sense o believing that a clever orm

o words can make the harsh antinomies o the real world dis-

appear. Perhaps clever words can do thatbut only or a time.

There is much that is praiseworthy in this speech, but we can-not dismiss our ear that it hides the day o reckoning when the

proound contradictions o policy must fnally end in tears.

As the speech was clearly intended to make varying points

to a variety o constituencies, its political background is crucial

to understanding the various ways it can be reasonably read.

The Political Background to the NDU Speech

The NDU speech responded to a near-perect storm o politi-

cal conditions that came together or the administration in the

spring o 2013. That hurricane had several constituent storms,

each o which created signifcant pressure on the president to

move the ball orward rom what his administration had saidduring his frst term.

The frst o these was the need to explain signifcant devel-

opments and policy shits within the administration with

respect to drones and targeted killing. The 2012 election had

created new stresses on the permanency o the nations coun-

terterrorism structures, precipitating a long set o bureaucratic

processes toward ormalization o certain rules that had been

previously more ad hoc. The administrations senior ofcials,

according to news accounts, had become increasingly nervous



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about the prospect o Mitt Romney winning the 2012 election

and inheriting tools o counterterrorism, such as drone strikes,whose use was essentially discretionary within the very broad

legal limits o the AUMF.1 The Obama administration trusted

itsel with these authorities, but the prospect o someone else

wielding themparticularly someone who might revive some o

the executive power enthusiasms o the Bush administration

kept ofcials up at night.

The result was a conuence o two distinct motivations orseeking a more permanent and legitimate basis or oensive

counterterrorism actions into the uture: on the one hand, a

genuine institutional belie in long-run codifcation o policy

or uture presidents, and, on the other hand, a particularly

political belie in limiting the discretionary use by Republicans

o such things as drones. Mixed motivations notwithstanding,

the impulse toward codifcation o principles o both permis-

sion and limitation was a sound one. And by the beginning o

its second term, the administration was ar along in the cre-

ation o a ormal set o policiesknown as the playbook

which was designed to institutionalize the rules or drone

strikes and to enshrine certain policy limitations that go beyond

the legal limits on targeting authority. By May 2013, these poli-cies were ready or the presidents signatureand the admin-

istration wanted to announce them.

Other independent political developments were also com-

ing to a head. One was a mass hunger strike at Guantnamo,

which threatened the legitimacyespecially abroado the

1. See, or example, Scott Shane, Election Spurred a Move to CodiyU.S. Drone Policy, New York Times, November 24, 2012, available athttp://www.nytimes.com/2012/11/25/world/white-house-presses-or-drone-rule-book.html?pagewanted=all&_r=0.



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SPEAKING THE LAW142

already uneasy truce between the president and Congress over

detention policy at Guantnamo. Obama had never reallyaccepted this truce, anywaya truce under which Guant-

namo remained open, detainees could not be transerred rom

it, but the government brought no new detainees there either

and the administration maintained a public posture o seeking

the acilitys closure. The hunger strike, and then the orced

eeding o detainees, put the question o indefnite detention

without charges or trial squarely back on the political table.Though, legally speaking, nothing had changed, activists were

talking about a crisis at Guantnamo, and the administration

was eeling considerable heat.

This problem dovetailed with increasing talk o the end o

the conictthe subject about which Jeh Johnson had spoken

the previous December. Johnsons speech had given hope to the

nongovernmental organization community, which saw in the

end o the conict, at once, an end to the lawul right to detain

terrorists as a legal incident o warare, a mechanism to bring

about the closure o Guantnamo, and an endor at least a

radical constrictiono kinetic military operations overseas.

This vision on the part o the activists gelled nicely with aspects

o the presidents own sel-image; Obama, ater all, has longseen himsel as the man who has sought to bring to a close the

American military actions in Iraq and Aghanistan that he inher-

ited rom his predecessor. The idea o bringing about an end to

the AUMF conict, and thereby bringing about a true restora-

tion o peace, clearly has internal resonance or him as well.

Also pushing the administration to speak were the eects

o the concerted NGO and journalistic eorts to challenge the

administrations claims o minimal, occasionally even near-

zero, civilian casualties in drone strikes. In one inamous epi-



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sode, John Brennan (at the time Obamas top counterterrorism

adviser) had made the mistake o advancing the rankly absurdproposition that there had been nothat is to say, zerocivil-

ian collateral deaths rom drone strikes in 2011.2 Activists had

responded to the evident absurdity o that claim with question-

able estimates o civilian harm o their own, ones that surely

overstated civilian deaths.3 Ater a period o several years o

debate over civilian casualties, the issue had become a potent

source o attack on the administrations policies.Finally, there was the emergence o a new group o critics

on the political right: the libertarian wing o the Republican

Party, led by Senator Rand Paul (R-KY). In a peculiar merger

o the civil libertarian language o the Let and the Rights own

opposition to regulatory excess and governmental power, this

group brandished the ideological claim that Obama had cre-

ated an imperial presidency that ruled by decree, administra-

tive rule-making, and executive order both in the domestic

sphere and in oreign aairs and national security. It also

adopted ACLU-like anxieties about the drone strike against

Anwar al-Awlaki, the American citizen, executedon this

viewby the president on his sole say-so ollowing his denomi-

nation as a terrorist solely by the executive and blown up witha missile without a judicial hearing. Leave aside the actual acts

o the al-Awlaki case, the mans operational role in some o the

2. Scott Shane, C.I.A. is Disputed on Civilian Toll in Drone Strikes,New York Times, August 11, 2011, available at http://www.nytimes.com/2011/08/12/world/asia/12drones.html.

3. For an excellent overview o civilian deaths in drone strikes and thecontroversy over it, see Ritika Singh, A Meta-Study o Drone Strike Casual-ties, Laware, July 22, 2013, available at http://www.lawareblog.com/2013/07/a-meta-study-o-drone-strike-casualties/.



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SPEAKING THE LAW144

worst terrorist near-misses o the previous several years, and

the implausibility o his capture. Al-Awlaki was oered purelyas an abstraction. From this, the claim broadened to encom-

pass the possibility o drone strikes, as Senator Ted Cruz

(R-TX) put it, against a US citizen on US soil who is not ying

a plane into a building, who is not robbing a bank, who is not

pointing a bazooka at the Pentagon, but who is simply sitting

quietly at a cae, peaceably enjoying breakast.4 What law, in

other words, stops the imperial president rom secretly namingsome citizen a terrorist and blowing him up with a drone strike

on US soil?

This strain o thought exploded onto the publics radar

screen in Senator Pauls amous thirteen-hour flibuster on the

Senate oor on March 6, 2013. Pauls impassioned rhetoric

and demands or simple answers to questions about when and

where American citizens could be targeted reached directly to

anxieties elt by Americans on the right, as well as many on the

let. The anxiety about legitimacy and the absence o judicial

process was genuine and real, even i inchoate and not neces-

sarily ocused on anything that, in light o the acts, even made

much rational sense. Pauls flibuster came in the context o

the confrmation o Brennan to head the CIA in March 2013.Brennan was confrmed, but not without acing a rat o hostile

questions and not beore he had promised more speeches rom

the administration on counterterrorism.

4. Senator Cruzs statement took place at the outset o the Rand Paul

flibuster, a ull transcript o which is available at Raaela Wakeman,Senator Pauls Filibuster: Get Yer Transcript and Video Here! Laware,March 7, 2013, available at http://www.lawareblog.com/2013/03/senator-pauls-flibuster-get-yer-transcript-and-video-here/.



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All o this ormed the political backdrop as the president

took the podium at NDU. This backdrop collectively amountedto a multiaceted and intensiying argument over the legitimacy

o counterterrorism-on-oense, continuing detention, and the

undamental building blocks o the presidents light-ootprint

strategy. The presidents speech was accompanied by two writ-

ten documents, each issued within a day o the speech itsel:

a Fact Sheet released by the White House under the heading,

U.S. Policy Standards and Procedures or the Use o Force inCounterterrorism Operations Outside the United States and

Areas o Active Hostilities; and a letter rom Attorney General

Eric Holder to Senator Patrick Leahy, chairman o the Senate

Judiciary Committee. The letter principally addressed, in

greater detail than had prior statements, the circumstances and

intelligence at issue in the al-Awlaki case and declassifed

inormation both about the strike itsel and about three other

Americans (including al-Awlakis 16-year-old son) who had

been killed in drone strikes aimed at others.

Taking the three together, the NDU speech constituted

the most comprehensive single statement to date o the US

governments present and uture policies or counterterrorism.

And it laid out a vision that in some ways built upon the visionthe speeches described during the frst term but that in some

ways was dissonant with that vision.

The Fundamental Nature o the Confict

and its End

With respect to the immediate present, the president afrmed

in all signifcant respects the undamental view o the conict

that has lain at the heart o the legal ramework or the Bush



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SPEAKING THE LAW146

administration and the Obama administration alike: rom Sep-

tember 11, 2001, down to today, the United States has beenat war. Under both domestic law, and international law, the

president reiterated, the United States is at war with Al Qaeda,

the Taliban, and their associated orces. In saying this, he

reafrmed the undamental view o his administration, laid out

in the frst-term speeches, that the administration is entitled to

lethally target the enemy and, when it captures enemy orces,

detain enemy fghters and operatives or the duration ohostilities.

The presidents speech also reafrmed the undamental

US legal view that armed conict does not have a predeter-

mined legal geography. The United States is legally entitled

to pursue and target the enemy wherever it goes, though lim-

ited by the legal rights o neutral sovereign states, who also

have legal obligations as conditions o their neutrality. The

president emphasized that America cannot take [drone]

strikes wherever we choose; our actions are bound by consul-

tations with partners and respect or state sovereignty. But

Obama also reafrmed the US view that where oreign gov-

ernments cannot or will not eectively stop terrorism in their

territory, then the United States reserves the right to act ontheir soil.

So ar, there is no daylight between this speech and the

ones that came beore it.

But new in the NDU speech was a clear statement that,

notwithstanding these legal authorities, as a matter o policy

not law as such, and thus revisable according to circumstances

the United States will now limit its conduct o hostilities in

places beyond the existing zones o active conventional combat.

Brennan had hinted at this position in his April 30, 2012, Wilson



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Center speech (The Ethics and Efcacy o the Presidents

Counterterrorism Strategy) with his suggestion that the UnitedStates does not target all o those whom it could hit lawully. But

the presidents NDU speech and, particularly, the Fact Sheet,

whose very title suggests dierent policy choices Outside [o]

Areas o Active Hostilities, went urther. They made it clear that

an entirely dierent set o targeting rules governs US orces

outside o theaters in which orce protection remains a matter

o high salience.In principle, such policy choices are no dierent rom

when the US military limits its combat activities in any place

o active hostilitiesadopting more restrictive rules o engage-

ment, or example, as part o a campaign to win hearts and

minds in a counterinsurgency setting. In the course o a ar-

ung counterterrorism campaign, policy and strategic consid-

erations may include many actors that might reasonably cause

the United States to adopt more restrictive rules than the law

would demand. As the president noted, we cannot use orce

everywhere.

But talking about such policy choices in the context o a

speech ocused on winding down the war gives them a dier-

ent sheen. Indeed, where the NDU speech really broke newground was in articulating the architecture o counterterrorism

beyond the current AUMF armed conictor, at least, in

beginning to do so. Apart rom Johnsons Oxord Union speech

in November 2012, the NDU speech was the frst serious pub-

lic consideration o when this war will fnally be over and how

the United States will pursue counterterrorism as a matter o

law and policy beyond the AUMF conict. Whats more, unlike

Johnsons speech, the presidents NDU speech oered a win-

dow into the time rame or the conicts end.



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SPEAKING THE LAW148

The window was more a matter o hints and tea leaves than

clear signaling. But the president seemed to attach signifcanceto the withdrawal rom Aghanistan in 2014, and he talked

about the conicts end as a matter o urgency both in general

terms and with respect to detention. The most direct signaling

occurred near the speechs end, when he said that he looked

orward to engaging Congress and the American people in

eorts to refne, and ultimately repeal, the AUMFs mandate.

He added that he would not sign laws designed to expand thismandate urther. I this is so, it appears likely that, under the

ramework o the NDU speech and the Fact Sheet, the AUMF

would be retired in stages.

The president made our undamental assertions regarding

the end o the conict: frst, that America cannot live with

permanent war; second, that threats today look increasingly

similar to those rom beore September 11, 2001; third, that it

is time to recognize criteria or the end o the AUMF conict,

narrow the AUMF, and put it on a path toward repeal; and,

ourth, that we should make a transition to legal policies or

drone warare and other sel-deense actions suited to a post-

conict regime. Each o these propositions is controversial and

contested, and we examine each in turn.Obama began with the almost philosophical ideaat once

abstract and emotionally suggestivethat the American

republic cannot live with permanent war. He quoted James

Madisons warning: No nation could preserve its reedom in

the midst o continual warare.5 Ater a dozen years o war, he

said, America is at a crossroads and we must defne the

nature and scope o this struggle, or else it will defne us.

5. James Madison, Political Observations, April 20, 1795.



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In raming the issue thus, the president solidly allied him-

sel with the Lets critics o his administrations policies. Hav-ing waged the war or our years, the president was now warning

about the dangers o continuing to do so. It is hard to quarrel

with Obamas aspiration here; nobody wants a perpetual armed

conict. The trouble is that the United States is not the only

party to the conict with a vote on its nature. America can

defne the struggle however it likes, but the realism o that

defnition also depends on how its terrorist adversaries rameit and how able they are to make a reality o their understand-

ing. Mere orms o words do not vanquish hard threats, and

winning is more than a matter o verbal defnition. Put a dier-

ent way, it is possible that while America may no longer be

interested in war, war remains interested in America. And the

aspiration does not answer the question o how war powers

whose use may remain necessaryfgure into a post-conict

legal ramework.

Obamas second point was an eort to respond preemp-

tively to this realist critique. Granted, the president said, our

nation is still threatened by terrorists . . . but we have to rec-

ognize that the threat has shited and evolved rom the one that

came to our shores on 9/11. Ater ten years o experience indealing with heightened security eorts at home and war

abroad, this is the moment to ask ourselves hard questions

about the nature o todays threats and how we should conront

them. As a defnition o victory in this war, no president can

promise the total deeat o terror, he said. Our enemies are

groups and networks o groups, and the meaning o victory and

deeat must correspond to what they are. Today, the president

continued, the core o Al Qaeda in Aghanistan and Pakistan

is on the path to deeat. Their remaining operatives spend more



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SPEAKING THE LAW150

time thinking about their own saety than plotting against us.

They did not direct the attacks in either Benghazi or Boston.Theyve not carried out a successul attack on our homeland

since 9/11. While preserving the caution that the core o

Al Qaeda is on the path to deeat, the president emphasized

that the threat today is more diuse in terms o groups, terror-

ist networks, and afliates, and in terms o geography.

The NDU speech didnt sot-pedal the dangers o these

diuse groups. The president singled out Al Qaeda in the Ara-bian Peninsulathe Al Qaeda afliate which counted Anwar

al-Awlaki as an operational leaderas the most active in plot-

ting against the US homeland. At the same time, he noted,

extremists have gained a oothold in countries like Libya and

Syria, but the ability o these groups to ocus and reach beyond

those countries and regions where they are based is limited.

The result is likely to be more localized threats to Western

interests, including to business interests and to allied govern-

ments seeking to battle these groups in their own territories.

Further, Obama said, there is a real threat rom radicalized

individuals here in the United States. The current, direct

threats to the United States and its people, then, according to

the president, are lethal yet less capable Al Qaeda afliates;threats to diplomatic acilities and businesses abroad; home-

grown extremists. This is the uture o terrorism.

And this, the president said, is all but enough to declare

victory in the armed conict. Indeed, the president, in arguing

or moving toward the conicts ormal legal end, declared that

the scale o this threat closely resembles the types o attacks

we aced beore 9/11.

Again, its hard to ault the aspiration. But the presidents

vision o victorypredicated as it is on the threat pictures



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resemblance to the pre-9/11 eradoes not obviously support

his conclusion. It would be o scant comort to those whowould use the tools o warare to deal with overseas terrorists

to learn that the president would be satisfed with having

merely wound back the threats to those o the pre-9/11 era and

thus concluded that we can now saely return to the thinking,

planning, and responses o the years preceding that day. Ater

all, it was precisely because we did not adequately contem-

plate, by September 10, the emergence o groups that couldcarry out a 9/11-like attack that the attack was successul. We

ailed to anticipate such events and, as a result, we ailed to

take the kinds o orcible actions in the 1990s that might have

rendered much less sae and usable the sae havens where the

terrorist groups were able to plan and execute a highly complex,

years-long enterprise.

Obamas third proposition was something o a response to

this concern. For Obama clearly didnt mean to embrace such

an abandonment o military options in conronting emergent,

incipient, and ongoing terrorist threats. He appeared to imag-

ine something more intermediate: maintaining key aspects o

counterterrorism-on-oense, while yet calling it peace.

This would be a peace o unusual military muscularity, onethat may well not satisy the Lets critics who share the presi-

dents vision o the conicts end, but or whom this military

(and CIA paramilitary) muscularity would represent a contra-

diction, even hypocrisy. One way to imagine this peace is as

analogous to the peace o the Cold War, in which a struggle

was indeed underway, but only a hot conict in dribs and drabs

over the course o sixty years. More oten, it took the orm o

proxy wars ought on the ringes o the great powers, with

military or paramilitary intelligence orces used in small-scale



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SPEAKING THE LAW152

belligerent actions short o ull-on war. Another way to under-

stand it as peace is simply to look to the past 150 years oAmerican history; the number o years in which, even during

times generally regarded as peacetime by most people, the

United States was not engaged in orms o belligerency and the

use o hostilities short o ull-scale war by its orces abroad is

very small.6 Small-scale military or paramilitary actions using

tools o hostilities have been a eature o American peacetime

or most o its history, and the same is true o many other greatpowers. The idea o an absolute binary in international or

domestic law, between armed conicts conceived as ull-on

war and all other extraterritorial situations being necessarily

governed by human rights law and law enorcement tools, is by

ar the historical novelty, not the norm. This fgures as part o

the deep architecture o the presidents speech, because its

conception o a return to normalcy contemplates a return to

this historical norm; the president clearly did not regard the

speechs repeated reerences to using drones and other orms

o hostilities even in time o peace as inventing anything new

but, instead, as part o the ordinary, realistic conditions o

peace. He was not wrong about that.

This deep architecture about what normal uses o orce areneeded even in peacetime inorms how Obama ramed the

6. Mary L. Dudziak, in War Time: An Idea, Its History, Its Consequences(New York: Oxord University Press, 2012), provides a useul timeline (inits appendix) o US uses o military orce over its history, as shown by itsaward o campaign medals, along with a discussion o how much a continu-ous part o American history military operations are even in times under-

stood as peace. See the book reviews by Samuel Moyn, May 24, 2012,on Laware, available at http://www.lawareblog.com/2012/05/war-time-an-idea-its-history-its-consequences/, and Kenneth Anderson, Time Out oJoint, 91 Texas Law Review 859 (May 2013).



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conditions or what it means or the conict to be overwhich

he ramed in terms o a reduction in the general threat levelagainst the homeland and the American people to levels more

closely associated with pre-9/11 conditions. But since those

responses were lacking in crucial respects, the conditions or

the end o the conict also implicitly include some permanent

inrastructure or addressing threats in the orm o plots, indi-

viduals, groups, and networks o groupsan architecture that

is maniestly not just a robust orm o law enorcement or thecriminal law. We have learned rom bitter experience, the presi-

dent said, that let unchecked, these threats can grow. And

we have learned that i dealt with smartly and proportionally,

these threats need not rise to the level that we saw on the eve

o 9/11. The president was not talking about just the FBI here.

In other words, even as Obama insisted that this war, like

all wars, must end, he also declared in the same sentence that

our systematic eort to dismantle terrorist organizations must

continue. Even as he quoted Madison on the dangers o per-

petual warare, he also declared that American policy should

aim to dismantle networks that pose a direct danger and make

it less likely or new groups to gain a oothold, all while main-

taining the reedoms and ideals that we deend. Even as hepromised to bring combat operations in Aghanistan to an end,

he also promised a series o persistent, targeted eorts to dis-

mantle specifc networks o violent extremists that threaten

America.

To put it simply, the conditions o the end o the conict,

in Obamas ormulation, seem to mean the reduction o threat

to levels that can be managed without large-scale warare and,

crucially, without need or the legal appellation o armed con-

ict. They do not appear to involve the abandonment o



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SPEAKING THE LAW154

instrumentalities o military action. Rather, the president

appeared to be describing ongoing belligerent actionsusingmilitary or paramilitary orcesconducted under the laws o

armed conict, in national sel-deense, whether as a continu-

ing response to a continuing terrorist threat or as a response to

newly arising threats.

But this ormulation, and the long-run paradigm or the

peacetime use o belligerent or covert intelligence orces that

it proposes, raises issues o its own. The critic will instantlyobject, and with no small justice, that giving up the legal rame-

work o armed conict has genuine legal consequences. For

example, it is quite unclear, as we discuss below, how the

United States can continue to detain people under the laws o

war whom it cannot easily set ree in practice to the extent it

considers itsel at peace. More undamentally, giving up the

legal claim to armed conict also makes much less clear the

basis on which the United States can conduct even limited

hostilities, such as drone strikes or Joint Special Operations

Command raids, against the various groups that the president

insists on dismantling or against new groups that arise and

count themselves the children or grandchildren o Al Qaeda.

Against some o these groups, at least, it seems neither legallyrequired nor actually supported to believe that the conditions

o victory have been met in the ordinary sense o destroying

and dismantling the enemy and its ability to conduct hostile

terrorist acts against the United States. Why give up legal

authorities, in both international law and domestic law, that

continue to be legally and actually warranted?

The NDU speech didnt straightorwardly address this

question. It rested, rather, on the actual characterization o a

threat reduced to manageable levels combined with the norma-



21/50


tive claim that a republics moral nature is threatened by per-

manent warare. Together, these yield the conclusion that,where the reduced threat permits, a state o war should end

even i that means giving up certain legal privileges associated

with war. Conservative critics will tend to question the actual

and normative premise. But the criticism rom the presidents

let may end up being just as sharp. Whats the dierence

between war and peace, anyway, i peacetime entails some-

thing that looks remarkably like the conduct o hostilities? Inone sense, critics on both the let and the right will be asking

the same question o the Obama administration: what is the

cash-out in real terms or giving up the legal ramework o an

armed conict under the AUMF? The Right ears it gives up

too much; the Let ears it gives up too little.

The president had an answer to this critique, but he laid it

out only very elliptically in his speech. The answer is that the

sort o ongoing but occasional use o orce he described can be

justifed legally as a matter o sel-deenseand that this

authority is actually robust enough to keep enemy groups at bay

and incapable o projecting orce against the United States.

Military or paramilitary means can be small scale, discrete, and

limited and can be conducted according to the terms o thelaws o armed conict. The United States has done so since

the beginning o the age o international terrorism. It has a

long-developed international law jurisprudence that provides

the ramework or doing this sort o thing, even outside o the

AUMF armed conict. There might be many issues to be

worked out as to the proper standards or invoking rights o

national sel-deense, not to mention issues related to when it

is appropriate to look to Congress or to the presidents own

authorities in domestic law or such operations. But the basic



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SPEAKING THE LAW156

proposition o orcible belligerent responses to international

terrorism in particular, outside o and beyond those o thehuman rights and law enorcement paradigms, has not been an

issue legally or the United States at least since the 1980s.

Hostilities with an intensity short o armed conict in the legal

sense might still be very intenseintense enough, Obama

seemed to be saying, to stay on oense against the groups he

wants the latitude to dismantle.

At the same time, however, the NDU speech recognizedthat there exists a meaningul dierence between wartime

under the AUMF and peacetime. The return to peace thus

imposes greater restrictions on when, where, and against whom

the tools o wardrone strikes, most obviouslymay be

deployed. These specifc policies, mostly related to targeted

killing and drone strikes, constituted the ourth point made by

the president in describing the end o the conict: specifc new

rules and policies or the use o orce as the AUMF conict

winds down.

We turn then to consider the new policies that the NDU

speech and the accompanying White House Fact Sheet

announced.

Targeted Killings and Drone Strikes:

A Strong Deenseand New Restrictions

Although the NDU speech was billed as comprehensive, its

central core addressed targeted killing and drone wararepar-

ticularly in light o the accompanying White House Fact Sheet

and Attorney General Holders letter to Senator Leahy on the

targeting o US citizens abroad.



23/50


The speech is noteworthy on this score frst or the presi-

dents strong deense o drone strikes as ethical, eective, andlegal. To some degree, this aspect o the speech simply

rehashed ground that Brennan had covered earlier in his Wil-

son Center speech. But it was notable this time or coming

rom the presidents own lips. Ater describing sometimes

alternative, sometimes complementary, means o achieving

counterterrorism aims, Obama acknowledged candidly that

despite a strong preerence or the detention and prosecutiono terrorists, sometimes this approach is oreclosed. The ter-

rorists ee to some o the most distant and unorgiving places

on earth. . . . In some o these placessuch as parts o Somalia

and Yementhe state lacks the capacity or will to take action.

Moreover, he said, it is also not possible or America to simply

deploy a team o Special Forces to capture every terrorist. . . .

[T]here are places where it would pose proound risks to our

troops and local civilianswhere a terrorist compound cannot

be breached without triggering a frefght with surrounding

tribal communities. In these cases, the local communities

pose no threat to the United States; in other cases, putting US

boots on the ground may trigger a major international crisis,

the president said, and he oered the Osama bin Laden raidin Pakistan as an example. The act that we did not fnd our-

selves conronted with civilian casualties, or embroiled in an

extended frefght, was a testament to the meticulous planning

and proessionalism o our Special Forces, but it also depended

on some luck, he noted.

It is in this context, Obama said, that the United States has

adopted the methods o drone warare. And while he acknowl-

edged that this orm o warare raises proound questions, he



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SPEAKING THE LAW158

didnt apologize or it. As to eectiveness, the president pointed

to terrorist communications ound in the bin Laden compoundlamenting the eectiveness o the drones. As a matter o legal-

ity, he invoked armed conict under the AUMF and later

reerred to sel-deense.

The president then oered a deense o the ethics o drone

strikes, describing them as the tool o war least harmul to civil-

ians in many circumstances. There is a wide gap, he said,

between US assessments o such casualties and nongovern-mental reports. He acknowledged as a hard act that US

strikes have resulted in civilian casualties, a risk that exists in

every war. And or the amilies o those civilians, no words or

legal constructlike lawul collateral damage, or example

can justiy their loss. But he then asked what the ethical point

o comparison should be; heartbreaking tragedies must be

weighed against the alternatives. To do nothing in the ace o

terrorist networks would invite ar more civilian casualties, not

just among Americans, but in the very places like Sanaa and

Kabul and Mogadishu where terrorists seek a oothold. . . .

[T]he terrorists we are ater target civilians, and the death toll

rom their acts o terrorism against Muslims dwars any esti-

mate o civilian casualties rom drone strikes. So doing noth-ing is not an option.

This is an important moral assertion by the president. The

unstated premise o many critics o drone strikes is that the

proper moral comparison or drone strikes is against the policy

o no use o military orce at all. The speech insisted that this

is a red herring. The real alternative is the use o other weapons

systems or orms o kinetic military activity. Conventional air-

power or missiles, Obama said, are ar less precise than drones,

and are likely to cause more civilian casualties and more local



25/50


outrage. And invasions o those territories lead us to be viewed

as occupying armies. In other words, the value o dronesrequires not merely understanding their tactical value in a

particular attack, but an assessment o their strategic value

compared to other means that might have worse geopolitical

consequences.

Obama acknowledged the limits o what drones can do and

the problems o the global resentment and blowback they can

induce. But he nonetheless declared that they requently pro-vide the most ethical and eective tool o war. Neither con-

ventional military action nor waiting or attacks to occur oers

moral sae harbor, he concluded. And neither does a sole

reliance on law enorcement in territories that have no unc-

tioning police or security servicesand indeed have no unc-

tioning law.7 It was the strongest deense o the administrations

7. In this part o the speech, President Obamaprobably coinciden-tallychanneled themes that the present two authors developed the previousmonth in a debate at the Oxord Union. Compare the presidents comments,quoted above, to the arguments on the subject delivered by both o the presentauthors at the April 25, 2013, Oxord Union debate over the ollowing resolu-tion: This House Believes Drone Warare is Ethical and Eective. Wittes

concluded:Now rom the other side youre going to hear a lot o talk about civiliancasualties, and I want to be candid about this up ront. Any weaponssystem that you useweapons are dangerous things. And when youtarget people, people make mistakes, and that produces civilian deaths.And drones are not dierent rom other weapons in that regardexceptin one sense, which is that they give you more opportunity to do less othat. Thats not to say there are not civilian casualties. There are.

Now one thing you willnot hear the other side talk about, I suspect, withrespect to the civilian casualties is the question o the null hypothesisthat is to say, what the alternatives are. What i you didnt use a drone inthis situation? What would you do instead? Now oten, drone opponents



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SPEAKING THE LAW160

posture on drones given yetand all the more important com-

ing rom the president himsel.But having deended drone strikes energetically, the presi-

dent also announced that he was reining them in. Obama did

not immediately alter the hard legal ramework and authorities

under which drone strikes take place. But he did, in promising

an end to the AUMF conict, suggest that a change in legal

ramework was inevitably coming down the pike. And he also

adopted new policies or strikesat least outside o activecombat theatersthat anticipate these changes. These poli-

cies or targeted drone strikes, applied in the current AUMF

conict, represent a signifcant policy determination not to

have recourse to the more capacious existing legal authority to

hit lawul targets beyond zones o active hostilities.

The United States recognizes the legitimate concerns that

many people have regarding a perceived ability to strike with

drones across borders at discrete targets with potentially little

attribution, transparency, or risk. It recognizes this both in the

legal context o the existing AUMF armed conict, on the one

operate with a sort o assumptionI think its a lazy assumptionthat

the null hypothesis is some lesser use o violence or maybe no use oviolence at all. Maybe it would be law enorcement. Maybe i you didntuse a drone in a particular situation, wed have peace. Wed have nothing.I think this is very, very rarely the case. And I want to be very candid withyou about what I think the null hypothesis is, which is oten greater useso violence. The alternative to drone use in many instances is air strikes,on-the-ground human interventions, and Tomahawk cruise missilesallo which have less capacity or discrimination, or proportionality, andmore capacity or civilian deaths than do drones.

Video o the debate is available at Benjamin Wittes, Oxord Union Debate onDrone Warare, Laware, May 3, 2013, available at http://www.lawareblog.com/2013/05/oxord-union-debate-on-drone-warare/.



27/50


hand, and in the post-AUMF conict setting, on the other. It

has thereore announced policies to govern its targeting withdrones, both those attacks undertaken beyond areas o active

hostilities in the current AUMF armed conict and attacks in

the uture, post-AUMF conictthus merging to some degree

the AUMF conict with whatever will succeed it.

These policies were described in the NDU speech, but

were laid out with greater specifcity and organization in the

Fact Sheet. The Fact Sheet stated that these are counterter-rorism policy standards and procedures that are either already

in place or will be transitioned into place over time.

These policies are something less than law; the law remains,

at least or now, the targeting rules o the law o armed conict.

The policies are subject to change; the Fact Sheet added that

ofcials are continually working to refne, clariy, and

strengthen our standards and processes or using orce. They

are also subject to waiver; the Fact Sheet noted that they do

not limit the presidents authority to take action in extraordi-

nary circumstances when doing so is both lawul and necessary

to protect the United States or its allies. That said, they are

clearly more than just a discretionary policy declaration. They

are intended to establish a basic ramework grounded in lawand policy together, one that can and will evolve over time,

within a basic legal paradigm o both international and domes-

tic law. They are a ramework meant to create a bridge between

targeting under the AUMF and targeting under the sel-deense

ramework o the regime to which Obama aspires to move.

One important implication o designing policy in this ash-

ion is that the passage rom wartime to peacetime is a tran-

sitional and gradual one, legally and in act. The policies or

drone strikes are now largely the same or the AUMF armed



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SPEAKING THE LAW162

conictoutside o Aghanistan and Pakistanas they will be

or addressing the transitional threats that remain and thesame as they will be or sel-deense actions even once the con-

ict as such is deemed over. This is, we suspect, how the

administration squares the circle between the assertion that this

war, like all wars, must end and the promise that our system-

atic eorts to dismantle terrorist organizations must continue

including with drone strikes. Analytically, the NDU speech and

the Fact Sheet preserved a transitional period under the AUMFconict in which recourse to the legal authorities o the current

armed conict are still available, though in gradually diminishing

ways, as existing, ongoing enemy terrorist groups presumably

lose their capacities to conront America as a result o the con-

tinuing degradation caused by drone strikes and other Ameri-

can measures.

Eventually, this will give way to actions taken entirely under

what the US government understands to be its inherent sover-

eign right o sel-deense in international law. Those rights o

inherent sel-deense include, in the US view, the lawulness in

some circumstances o using military and paramilitary orce

against non-state adversaries.

The NDU speech and Fact Sheet thus appeared to addressthree conceptually distinct legal periods: the current AUMF

conict prior to the end o combat operations in Aghanistan;

the post-AUMF conict o peacetime (but which will continue

to have ongoing and new threats); and a transitional period

between withdrawal rom Aghanistan and the ull lapsing or

repeal o the AUMFin which the government might use orce,

depending on the acts o the situation, based on the AUMF,

sel-deense, or both.



29/50


Targeting in Transition:

Continuing, Imminent Threats

At least as ar as drone targeting outside o areas o active hos-

tilities is concerned, the NDU speech announced a simple

device or harmonizing the rules o targeting as a matter o

policy through this transition rom war to sel-deense in peace-

time. That is to say, the rules will be the same or all three

periods, whether the legal authority is the current armed con-ict, any transitional period, or post-conict sel-deense.

Since the rules or the post-conict period o ormal peace are,

legally speaking, the most restrictive, the device works by

applying those rules as a policy matter to restrict conduct in

the earlier periods.

As a matter o both international and domestic constitu-tional law, inherent national sel-deense entitles the president

to target people with lethal orce, including with drones, in

situations o imminent attack. So the speech limited targeting

outside o active combat theaters to situations o continuing,

imminent threats; the speech and the Fact Sheet also used

the phrases continuing, imminent, as well as continuing and

imminent. This appears to tighten up the criteria or usingorce in any given situation as long as the armed conict con-

tinues. Remember, the administrations earlier statementsin

the frst-term speecheshad reserved the right to act in the

ace o continuing andsignifcant threats. But while Brennan

had mentioned in his September 16, 2011, Harvard speech

(Strengthening Our Security by Adhering to Our Values and

Laws) that there was a convergence between the US view

and an increasingly exible allied notion o imminence, he



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SPEAKING THE LAW164

had acknowledged that a gap remained. And the United

States had not previously restricted itsel to drone strikes onlyin situations oimminent attackexcept, notably, with regard

to US citizens. Now, however, imminence has become part

o the ormulaalbeit as a matter o policy, not yet law. As

Obama put it, not every collection o thugs that labels them-

selves Al Qaeda will pose a credible threat to the United States.

The Fact Sheet adds that it is simply not the case that all ter-

rorists pose a continuing, imminent threat to US persons; i aterrorist does not pose such a threat, the United States will not

use lethal orce.

How big a change this is depends on how one reads the

phrases continuing, imminent threat and continuing and

imminent threatparticularly in relation to the earlier stan-

dard o continuing and signifcant threat. The correct read-

ing o this language remains a matter o considerable opacity

both in the speech and in the Fact Sheet. Do these phrases

mean that a threat must be both continuingand imminent

with imminence urther restricted by a requirement that the

imminent threat be continuing, not evanescent? Or do these

two words denote distinct categories, with lethal orce lawul

against both continuing threats and imminent threats? Or,in a third alternative, is this a way o saying that an immi-

nent threat can also be a continuing one, in which the

concept o continuing broadens the notion o imminence

such that a threat is imminent in a continuous ashion? Or,

fnally, is continuing and imminent some kind o collective

term o art?

In our view, the position most plausibly intended by the

administration here is that targeting is lawul against a threat

that is continuing on the part o some actor, and could result in



31/50


an attack at any particular point in timeand thereore is

continuously imminent with respect to that actor, whether thatactor is a group, network, individual, or, or that matter, a state.

We believe this in part because the NDU speech and the Fact

Sheet reerred not just to plots or even to individuals, but

instead to groups and networks. The president said that the

United States would target, with persistence, networks over

time; in that case, the imminent threat is posed over time by

the group, given evidence o its nature, aims, and past behav-iors. Moreover, as we discussed in the prior two chapters, ear-

lier statements by the administration with respect to drone

strikes in general and to al-Awlaki in particular describe a ex-

ible, non-temporal sense o the word imminent. In particular,

they describe a sense o imminence that permits the United

States to go on oense and pick its own moments to strike

certainly not being confned, as many o the speeches have

said, to a reactive posture o having to wait or threats to ripen

beore striking. As the president urther declared in the NDU

speech, merely waiting or attacks to occur, or holding o a

response until the perceived last moment in order to demon-

strate a threats imminence beore responding to it with orce,

oers no moral sae harbor.In other words, the current language likely reects an

incremental narrowing o the previous continuing and signif-

cant threat language used by Brennan at Harvard, something

that brings the United States still closer to allied countries

increasingly exible conceptions o imminence. The exact con-

tours o the shit, however, remain unclear. And this analytic

gloss on the administrations view may not be correct. This is

an area that cries out or greater clarifcation rom the admin-

istration in the wake o the NDU speech.



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SPEAKING THE LAW166

The speech and its accompanying documents laid out other

limits on drone strikes as well. The Fact Sheet said, as an initialmatter, that it is the policy o the United States not to use

lethal orce when it is easible to capture a terrorist suspect.

This seems to go urther than previous statements that it is the

unqualifed preerence o the United States to capture, rather

than kill. Rather, the language sounds increasingly like the ea-

sibility language that Holder used in his March 5, 2012, speech

at Northwestern University and that the Department o Justices2011 white paper used with respect to the targeting o US citi-

zens: that orce would only be authorized when capture was not

easible. Indeed, Obama made it clear at NDU that under the

new playbook, the high threshold that we have set or taking

lethal action applies to all potential terrorist targets, regardless

o whether or not they are American citizens.

Yet the president also made it clear that easible is not a

standard easily or requently met, and that the easibility analy-

sis includes both the risk to US orces and the risk to civilians

o attempting to capture the target. It also includes broader

strategic concerns such as those raised by the president about

putting US orces on the ground in countries like Pakistan and

thereby risking a major international crisis. In other words,easible does not mean easible in the technical sense o accom-

plishable. It means, rather, accomplishable without undue harm

to other intereststactical, strategic, and political.

The Fact Sheet outlined a set o other preconditions or

undertaking a drone strike:

Near certainty that the terrorist target is present

Near certainty that non-combatants will not be injured

or killed



33/50


An assessment that the relevant governmental authori-

ties in the country where action is contemplated cannotor will not eectively address the threat to US persons

An assessment that no other reasonable alternatives

exist to eectively address the threat to US persons

These conditions are striking in that they appear to contem-

plate the evolution rom the ull availability o armed conict

targeting rules to something much more restricted. That said,it is hard to believe that the second near certaintythat non-

combatants will not be injured or killedcan be a workable

ormula, even in the context o peacetime sel-deense opera-

tions. Kinetic military operations always carry risks to civilians.

And setting the bar or actions unrealistically high runs the risk

o raising expectations o perection in targeting that simply

cannot be achieved. This risks, in turn, undermining the cred-

ibility o an otherwise ethically and legally deensible structure

when the reality inevitably alls short o the stated policy.

Finally, the president made a brie, passing reerence to

what are called in the press signature strikesthe practice o

targeting groups o people based not on individual identifca-

tion but on broader patterns o behavior indicative o belliger-ency. He reerred to the gradual transition out o the Aghanistan

war and the need to protect US and coalition orces in that

transition rom attacks in their counterinsurgency war. In the

Aghan war theater, he said, we must . . . and will continue

to support our troops. (It is likely that the phrase Aghan war

theater in this phraseology is intended to include border areas

o Pakistan and targets engaged in counterinsurgency opera-

tions operating over the Pakistani border.) This means, contin-

ued the president, that US orces will continue to take strikes



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SPEAKING THE LAW168

against high value Al Qaeda targets, but also against orces that

are massing to support attacks on coalition orces. These strikesare, he added, intended to wind down as the counterinsur-

gency war winds down.

This passage did not address, however, the use o signature

strikes in places such as Yemen, that is, outside o what the

Obama administration has acknowledged as active combat the-

aters. So it is not clear whether the same criteria that apply to

individuated strikes outside o hot battlefelds also apply tosignature strikes, although that seems to us unlikely. This

question is important because while the United States has not

admitted as much, it appears to have been all but acting as a

cobelligerent o the Yemen government in its civil war against

a common enemyusing mostly airpower and, in a conven-

tional way, targeting groups o hostile enemy orces. The presi-

dent came closer to stating this directly than has any other

ofcial on the record, saying in this speech that in Yemen, we

are supporting security orces that have reclaimed territory

rom AQAPreclaimed, that is, an area the size o Maryland

with 1.2 million people held and governed by the insurgent

orces or nearly a year. The president went on to note this

same role in assisting a coalition o Arican nations pushing thegroup al-Shabaab out o its strongholds and, even more nota-

bly, using drones and other assets to assist France in driving

Al Qaeda groups out o their strongholds in Mali.

It is not clear rom the speech and its accompanying mate-

rials how the president means to continue using drone strikes

in such settings. It is plausible to believe, however, that in

circumstances where the purpose o the strike is part oin

military support oan allied governments counterinsurgency

campaign against terrorist and insurgent orces, the adminis-



35/50


tration will regard it as outside the ramework the president

articulated altogether and simply view it as conventional war-are. On the other hand, its plausible also to believe that the

new criteria are centrally about Yemen and Arica. This is also

an area that is critical or the administration to esh out urther

in the uture.

Targeting o US Nationals:Deending the al-Awlaki Killing

As we noted above, the claim that Obama played judge, jury,

and executioner in killing the radical cleric Anwar al-Awlaki in

a drone strike has been a potent driver o anger and angst on

both the political right and the political let. Targeted killing has

been at the center o a well-organized and increasingly vocaladvocacy campaign against drone warare. The strength and

persistence o this campaignand an awareness o its potential

to reshape public perception over timeled Obama to address

the al-Awlaki strike directly in his NDU speech and led Holder

to do so in his letter to Leahy the day beore.

The president actually said nothing that went beyond

what Holder had earlier said in his Northwestern Universityspeech as ar as legal standards were concerned. What the

president did at NDU, however, was to announce that he was

declassiying the act o the drone strike against al-Awlaki, as

well as the act o the deaths o three other Americans in

drone strikes, in order to acilitate transparency and debate.

And the president and Holder robustly set out the practical,

and quite damning, acts o al-Awlakis actively plotting to

kill US citizens, including with respect to the 2009 Detroit

plot and the 2010 plot to bring down US-bound cargo planes



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SPEAKING THE LAW170

thus moving the discussion o the purely abstract question

o due process or an American citizen. Holders letter con-tained more details about al-Awlakis role and reiterated the

legal standard the attorney general laid out in his Northwest-

ern speech. The letter also notedadding to the presidents

speechthat o the our US citizens known to have been

killed during the Obama administration by drone strikes in

targeted killing operations outside o areas o active hostili-

ties, only al-Awlaki was specifcally targeted. Holder said theother three, including al-Awlakis son, were not specifcally

targeted by the United States.

Yet even as Obama strongly deended the al-Awlaki killing,

he simultaneously and quite paradoxically sought to ally him-

sel with his critics. So while he deended his actions, he also

acknowledged dierent ways in which oversight might be made

more robust, including more detailed congressional briefngs,

an independent review board or drone strikes, or even judicial

review. On the latter two, the president was gently skeptical,

raising both constitutional and practical concerns:

Going orward, Ive asked my administration to review pro-

posals to extend oversight o lethal actions outside o war-zones that go beyond our reporting to Congress. Each option

has virtues in theory, but poses difculties in practice. For

example, the establishment o a special court to evaluate and

authorize lethal action has the beneft o bringing a third

branch o government into the process, but raises serious

constitutional issues about presidential and judicial author-

ity. Another idea thats been suggestedthe establishment

o an independent oversight board in the executive branch



37/50


avoids those problems, but may introduce a layer o bureau-

cracy into national security decision-making withoutinspiring additional public confdence in the process. But

despite these challenges, I look orward to actively engaging

Congress to explore these and other options or increased

oversight.

The president hereas with his discussion o the end o the

conictwas trying at once to represent his own policies andto align himsel with his critics. The trouble is that Obama has

not at all changed his substantive viewsthat al-Awlaki was a

lawul target and that it required no court order to kill him

and he is not, in act, riendly to proposals to judicialize or

bureaucratize targeting decisions. He is willing to engage

such ideas and review them, but probably not to embrace

them or, were Congress to pass them, sign them into law. So

at the end o the day, he is signaling opennesssort oto

something to which he is not, in act, open so as to emphasize

a values afnity with a political base alienated rom him on

targeting questions. But the dance is unpersuasive. And by and

large, the Let is unpersuaded.

Also in the ear-alleviating vein, the president addressed,almost in passing, another point o increasing angst on both the

let and the right: the targeting o US citizens on US soil. This

was the subject o the Paul flibuster, ater all. And the presi-

dent attempted to dispense with it once and or all. For the

record, he said, and to dismiss some o the more outlandish

claims that have been made concerning drone strikes on US

territory, I do not believe it would be constitutional or the

government to target and kill any US citizenwith a drone, or



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SPEAKING THE LAW172

with a shotgunwithout due process, nor should any presi-

dent deploy armed drones over US soil.The central aim o this statement is clear, althoughas we

noted in chapter 2in many situations o ordinary law enorce-

ment, US citizens are targeted and killed withoutjudicial due

process. Moreover, the presidents should was less than an

ironclad commitmentneverto deploy armed drones over US

soil on behal o himsel and uture presidents. Just as no presi-

dent would ever orswear the possibility o using tanks onAmerican soil, Obama was rightly careul not to preclude the

possibility, senators Paul and Cruz notwithstanding.8

Denial o Territory to Terrorist Groups

Occupying a considerable space in the NDU speech was adiscussion by the president o strategies or working with allied

governments in Arica and elsewhere to ensure that radical

Islamist insurgents do not take control o entire political spaces.

Almost entirely ignored by the commentary on the speech, this

territorial denial aspect o counterterrorism is emerging as

among the new centerpieces o US counterterrorism-on-

oense. Drone warare must be understood as part o a series

8. For an explanation o why no president can entirely exclude the pos-sibility o drone use on US soil, see Jack Goldsmith, O Course PresidentObama Has Authority, Under Some Circumstances, to Order Lethal ForceAgainst a U.S. Citizen on U.S. Soil (and a Free Drat Response to SenatorPaul or John Brennan), Laware, February 23, 2013, available at http://

www.lawareblog.com/2013/02/o-course-president-obama-has-authority-under-some-circumstances-to-order-lethal-orce-against-a-u-s-citizen-on-u-s-soil-and-a-ree-drat-response-to-senator-paul-or-john-brennan/.



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o activities aimed at denying radical Islamist terrorist groups

territory rom which to operate. The presidents speech con-tained many statements pointing to the need to deny these

groups sae haven. The president spent considerable time

describing the strategies by which the United States and other

Western allies are working with governments in Arica and

elsewhere, embracing them as allies in a common fght against

these terrorist groups.

Some emerging threats arise, said the president, romgroups that are collections o local militias interested in seiz-

ing territory. Some o them might be content with that

though the destabilizing eects o radical Islamist groups

seizing territory within already ragile and lightly governed

spaces cannot be written o as a geopolitical matter indepen-

dent o anything else. While we are vigilant or signs that these

groups may pose a transnational threat, most are ocused on

operating in the countries and regions where they are based.

In that case, the US response will be partly one o assessing

the conventional geopolitical risks o instability. The United

States might subsequently provide aid ranging rom security

assistance to economic and development help to prevent these

groups rom growing stronger.Obama also talked about addressing underlying grievances

and conicts that eed extremismrom North Arica to South

Asia. Many critics will see this as a reexive invocation o the

root causes thesis about terrorist groupspresumably a debate

that ended on 9/11that served as something between a justi-

fcation or terrorist violence and a reason not to undertake

robust counterterrorism. The criticism is not unreasonable. But

in context, the best way to understand the presidents comments



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SPEAKING THE LAW174

probably relates closely to this idea o territorial denial. Obama

reerred to the act that the revolts in Arab countries have cre-ated openings or both political and social reorm, but also open-

ings or radical Islamist groups. These changes in the Arab world

touch on every aspect o US interests, rom geopolitics to coun-

terterrorism, and policymakers will have to take all o those into

account. Some places will undergo chaotic change beore things

get better. In all these places, however, the geopolitical interests

o the United States are intertwined with the counterterrorismstrategies, and they intertwine with all the elements o national

power to win a battle o wills, a battle o ideas, including eco-

nomic and development aid and eorts to assist countries and

societies in transition.

Obama in the NDU speech used the word territory in two

subtly distinct ways. First, the president reerred to remote

parts o Yemen, Somalia, and Aghanistan ater the end o the

US combat mission there, among other places, and said that

America has an interest in ensuring that Al Qaeda can never

again establish a sae haven to launch attacks in these nearly

unreachable placesremote places where terrorists are able to

train, regroup, and plot. Territory in this sense means small bits

o land, oten inaccessible to the United States and even to thenotional sovereign states, where transnational terrorists hide.

Oten, as the president explained, drones are the only easible

tool or reaching them. Terrorist groups must be denied haven

in this sensewhether by using drones or, preerably, by using

drones and simultaneously strengthening the sovereign state

and its ability and will to control its own territory.

But a second strategic meaning o territory has emerged

in counterterrorism and has taken center stage in recent years.



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This is the case in which a sovereign government aces an insur-

gency by an extremist group that has aspirations not just tocontrol a tiny bit o territory or terrorist camps, but instead to

take political control o whole territories, perhaps even an entire

country. These groups orm internal insurgencies with regional

or larger sympathies. They might have terrorist wings o their

own, or might be hospitable to oreign terrorist groups joining

them with transnational aims. The president said that the

United States acts, and will continue to act, in partnershipswith other countries on this rontpushing back against

Islamist insurgencies seeking to control territory and play host

to terrorists. The president specifcally ramed this as terri-

toryas reclaimed territory rom AQAP in Yemen, or exam-

ple. The United States is helping a coalition o Arican nations

push al-Shabaab out o its strongholds, he said; US military

aid, including drones, helped French-led intervention to push

back Al Qaeda in the Maghreb, and help[ed] the people o Mali

reclaim their uture.

The strategic aim here is clear, and it is the most important

area o growth in US counterterrorism-on-oense: locating

drones as part o a unifed geopolitical strategy that puts emphasis

on ensuring that terrorist groups and Islamist insurgencies do notseize whole political territories, put entire populations under their

brutal rule, and create country-size sae havens or transnational

terrorist groups.

Detention Policy and the Future o Guantnamo

Obamas discussions o drones and targeting, and the uture o

the conict and its end, all had much to recommend them



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SPEAKING THE LAW176

though they had weaknesses too and raised plenty o questions,

as we have seen. But there were parts o the speech that werejust plain badpolitical, nave, and counterproductive.

Obama indulged most amboyantly his broader tendency in

the speech to align himsel with critics o his own administrations

policies when he spoke about detentions at Guantnamo Baya

subject on which the NDU speech simply lacked candor and

seriousness. This subject represented the speechs low point.

Obamas justifed rustration with congressional intererence inhis eorts to close the detention acility has led him in this direc-

tion beore. Only a ew weeks beore the NDU speech, he had

vented at a press conerence that:

. . . the notion that were going to continue to keep over one

hundred individuals in a no-mans land in perpetuity, even

at a time when weve wound down the war in Iraq, were

winding down the war in Aghanistan, and were having suc-

cess deeating Al Qaedas core, weve kept the pressure up

on all these transnational terrorist networks. When we trans-

er detention authority in Aghanistan, the idea that we

would still maintain orever a group o individuals who have

not been tried, that is contrary to who we are. It is contraryto our interests and it needs to stop.

. . .

I think all o us should reect on why exactly are we doing

this. Why are we doing this? I mean, weve got a whole

bunch o individuals who have been tried who are currently

in maximum security prisons around the country. Nothings

happened to them. Justice has been served. Its been done

in a way thats consistent with our Constitution; consistent



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with due process; consistent with rule o law; consistent

with our traditions.9

The presidents comments here were bewildering, because his

own policies had given rise to the vast majority o the concerns

about which he so earnestly spoke. Remember that Obama

himsel had imposed the moratorium on repatriating people

to Yemen. And Obama himsel had insisted that nearly fty

detainees at Guantnamo could neither be tried nor trans-erred. To be sure, Obama would hold such people in a domes-

tic acility, rather than at Guantnamo Bay. But that does not

seem like a dierence that makes detention at Guantnamo

inconsistent with our Constitution, due process, the rule o

law, or our traditions.

In the NDU speech, Obama once again draped himsel in

the rhetoric o his let-wing critics while neither acing his own

role in perpetuating non-criminal detention nor proposing a

viable means o ending it. Ater oering legal, diplomatic, and

budgetary arguments against the acility, he declared that I

have tried to close GTMO. I transerred sixty-seven detainees

to other countries beore Congress imposed restrictions to

eectively prevent us rom either transerring detainees to othercountries, or imprisoning them in the United States. He com-

plainedrightlyabout the transer restrictions and he then

thumped his bin Laden-killing chest a bit: Given my adminis-

trations relentless pursuit o Al Qaedas leadership, there is no

9. Barack Obama, News Conerence by the President, April 30, 2013,http:/ /www.whitehouse.gov/the-press-oice/2013/04/30/news-conerence-president.



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SPEAKING THE LAW178

justifcation beyond politics or Congress to prevent us rom

closing a acility that should never have been opened. He thenannounced that he was liting the moratorium on transers to

Yemen and that he was reappointing envoys to acilitate detainee

transers.

Had he stopped there, Obama would merely have reiter-

ated his long-standing case or doing detention somewhere

other than Guantnamoa position with which reasonable

people might disagree but which surely represents a matter olong-standing administration (and campaign) commitment.

But Obama then went urther to make an in-principle case

against the sort o detention his administration has never, in

act, promised to end:

. . . history will cast a harsh judgment on this aspect o our

fght against terrorism and those o us who ail to end it.

Imagine a utureten years rom now or twenty years rom

nowwhen the United States o America is still holding

people who have been charged with no crime on a piece o

land that is not part o our country. Look at the current situ-

ation, where we are orce-eedin

Documents

Speaking the Law (Chapter 3), by Kenneth Anderson and Benjamin Wittes