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).
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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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The Presidents NDU Speech 141
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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The Presidents NDU Speech 143
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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The Presidents NDU Speech 145
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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The Presidents NDU Speech 147
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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The Presidents NDU Speech 149
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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The Presidents NDU Speech 151
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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The Presidents NDU Speech 153
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-
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The Presidents NDU Speech 155
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.
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The Presidents NDU Speech 157
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
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The Presidents NDU Speech 159
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/.
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The Presidents NDU Speech 161
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.
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The Presidents NDU Speech 163
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
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The Presidents NDU Speech 165
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
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The Presidents NDU Speech 167
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-
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The Presidents NDU Speech 169
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
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The Presidents NDU Speech 171
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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The Presidents NDU Speech 173
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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The Presidents NDU Speech 175
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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The Presidents NDU Speech 177
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
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