President Obama attempted something familiar in his well-crafted speech at National Defense University: he signalled that counterterrorism efforts would change significantly in his second term; and like his predecessor, he avoided mentioning that the forsaken policies were mistakes. Like all presidents, Obama began his tenure with a daunting challenge: a rapid transition from a political campaign to a constant barrage of often intractable, life-and-death decisions. Some were foisted on him by policies already in place; others arose suddenly and unexpectedly. With no experience heading the executive branch, imperfect information, and too little time for reflection, Obama gave orders, all of them filtered through an uncontrollable bureaucracy. Of course he made big mistakes.
Little surprise that he regards his second term as an opportunity for course correction, reining in his inner Dick Cheney just as Bush reined in actual Dick Cheney. With time, on-the-job experience, and the benefit of sharp critiques, Obama gained perspective.
Several changes he announced Thursday are implicit admissions to civil libertarians that the critiques they’ve made and the pressure they exert ought to shape policy going forward. One memorable illustration interrupted the speech itself.
As Obama called on Congress to lift restrictions on Gitmo detainee transfers, Code Pink heckler Medea Benjamin drew attention to a fact that Obama himself imposed a moratorium on repatriating detainees already cleared for release to Yemen. He wasn’t responding to her interjection when he said, moments later, "I am lifting the moratorium on detainee transfers to Yemen." But those words were part of the prepared text thanks in part to sustained pressure from folks like Benjamin who want to close Gitmo. Implementing a step they’ve long called for is tantamount to saying, "You’re right, I’ve been an obstacle."
It it critical to understand that without the sustained dissent of Obama Administration critics, Thursday’s speech might not have occurred; it certainly would’ve lacked certain key concessions. Now civil libertarians can cite Obama’s words as vindication on matters including these:
His assertion that drone strikes target only terrorists "who pose a continuing and imminent threat to the American people" doesn’t accurately describe the actual behavior of the CIA, assuming any reasonable definition of imminence, but is nevertheless a clear rhetorical concession that it is illegitimate to target with drones people who pose no imminent threat to America.
His assertion that "there must be near-certainty that no civilians will be killed or injured" in U.S. drone strikes is at odds with the reality of drone policy, given that hundreds of civilians have been killed. It is still an admission that uncertainty about civilian death makes a drone strike illegitimate.
When Obama states, "I have asked my Administration to review proposals to extend oversight of lethal actions outside of warzones that go beyond our reporting to Congress," he is conceding that present oversight is inadequate and ought to be augmented in some way.
Obama’s statement that "the success of American Muslims, and our determination to guard against any encroachments on their civil liberties, is the ultimate rebuke to those who say we are at war with Islam," strongly suggests that NYPD spying on innocent Muslim Americans, simply due to their religion, has the potential to make us less safe, despite the fact that John Brennan, his top counterterrorism adviser and current CIA director, praised the program.
Obama mentions the need to put "careful constraints" on the State Secrets doctrine, another step civil libertarians have championed, and calls for the creation of "a strong Privacy and Civil Liberties Board."
His statement that "journalists should not be at legal risk for doing their jobs" is an apparent rebuke to DOJ’s decision to accuse James Rosen of violating the law by soliciting classified information from a government employee.
Perhaps most importantly, Obama is on record stating that a failure to end the AUMF that provides the legal basis for the War on Terrorism would do damage to America, though he provides no timeline. His unexpected assurance that "I will not sign laws designed to expand this mandate further" is arguably the most important promise that he made in his speech.
There are, alas, huge caveats to consider. Some concessions, like the change in status for Yemeni prisoners cleared for release, appear to be policy changes that Obama will actually implement. But he has a long record of broken promises and misleading rhetoric on civil liberties, and it would be naive to assume that he’ll follow through on everything he said on Thursday. The speech was an inescapably political maneuver, intended in part to disarm his critics, following the classic Obama pattern of affirming their strongest insights and critiques, but acting as if, having done so, there’s no need to change course in the way those critiques imply.
As Benjamin Wittes put it at Lawfare:
If there was a unifying theme of President Obama’s speech today at the National Defense University, it was an effort to align himself as publicly as possible with the critics of the positions his administration is taking without undermining his administration’s operational flexibility in actual fact. To put it crassly, the president sought to rebuke his own administration for taking the positions it has — but also to make sure that it could continue to do so.
With that in mind, let’s take a closer look at the most misleading passages in the speech. Some concern descriptions of what Team Obama is supposedly doing already; others pertain to what it purportedly will do.
1) President Obama spoke as if he wants to persuade Congress to end the Authorization to Use Military Force. Wittes notes that "Obama does not need Congress to narrow or repeal the AUMF or to get off of a war footing. He can do it himself, declaring hostilities over in whole or in part." Instead, his administration has been taking steps to institutionalize semi-targeted killing, and Pentagon officials have talked about fighting the enemy for another ten or twenty years. Suffice it to say that the actual course he’ll take for the rest of his term is decidedly unclear.
2) Obama spoke as if Congress is exercising "strong oversight" of his semi-targeted killing program. "After I took office, my Administration began briefing all strikes outside of Iraq and Afghanistan to the appropriate committees of Congress," he said. "Let me repeat that – not only did Congress authorize the use of force, it is briefed on every strike that America takes." Later he says that "the establishment of a special court to evaluate and authorize lethal action," which he opposes, "has the benefit of bringing a third branch of government into the process." This elides the fact that, prior to a drone strike, only the executive branch is part of the process. If Obama were to wrongly kill someone, Congress would only find out after the fact, and even that would be uncertain, because we have no idea what is included in a "briefing." The Obama Administration’s bygone claim that civilian casualties were in the single digits, and Senator Feinstein’s outrageously low estimate of civilian casualties, are both reason to doubt the quality of information being forwarded in those briefings. And the fact that oversight committee members have had to fight hard for information about targeted killing, including basic information like its legal rationale, gives the lie to the fact that oversight is generally "strong."
3) Obama claims that targets of drone strikes are only killed when they present an imminent threat to America. I’ve written at length about how the Obama Administration’s working definition of imminence bears little resemblance to the word’s actual meaning. And the facts bear out the evident problems with the rhetoric. Thousands of people have been killed in drone strikes since Obama took office. It just isn’t credible to argue that all of them constituted an imminent threat. But for drone strikes, how many attacks on Americans are we to believe there would’ve been? The imminence standard was reasserted in the document released Thursday that set forth the criteria for drone strikes going forward. We’ll have to see what "imminence" means in practice.
4) As noted above, the claim that drone strikes only proceed when there is a "near certainty" that no civilians will be killed doesn’t square with credible estimates of hundreds of dead civilians, including children. Also notable is the muddiness surrounding how the Obama Administration defines "civilian." Credible reporting suggests one operational definition is "military-aged males killed in drone strikes." Again, we’ll have to see how "civilians" are defined going forward.
5) Obama states that "I do not believe it would be constitutional for the government to target and kill any U.S. citizen – with a drone, or a shotgun – without due process," then adds, "But when a U.S. citizen goes abroad to wage war against America – and is actively plotting to kill U.S. citizens; and when neither the United States, nor our partners are in a position to capture him before he carries out a plot – his citizenship should no more serve as a shield than a sniper shooting down on an innocent crowd should be protected from a swat team." This elides the core of the controversy: how is it determined that an American citizen falls into the latter category of waging war against America and plotting to kill? Obama believes that the executive branch is empowered to make that determination in secret, using opaque standards. Civil libertarians cite the Constitution’s 5th Amendment and the treason clause to argue otherwise.
6) Though it is widely known that many U.S. drone strikes have been carried out by the CIA, Obama made no mention of the clandestine intelligence agency in his speech, raising the question of whether he is acknowledging and incorporating their actions in his characterization of drone strikes generally, or treating those strikes as classified, which is to say, as if they don’t exist. A failure to talk about the CIA’s role constitutes a significant lack of transparency, for better or worse.
All things considered, Thursday’s developments were an improvement on the status quo. Obama constrained himself rhetorically in ways he hadn’t before, expressed agreement with core civil libertarian critiques, and signalled that future policy will shift in that direction as a result. But talk is cheap, Obama has a history of breaking promises to civil libertarians, and drone strikes remain surrounded in enough secrecy that it will remain difficult to verify what’s going on. Moreover, policies implemented at the president’s prerogative can be changed on his determination too. There remains an urgent need for Congress to step into the breach and constrain the president, even if only in the ways that Obama says that he has constrained himself.