President Obama to give speech on counterterrorism policy, drones, and GMTO

President Obama is scheduled to deliver a speech on Thursday at the National Defence University on the administration’s counterterrorism policies, and how it intends to bring those policies in line with his long-standing pledge to honor the rule of law.

According to a White House official, speaking anonymously to the Washington Post Saturday, President Obama will “discuss our broad counterterrorism policy, including our military, diplomatic, intelligence and legal efforts.”

“He will review the state of the threats we face, particularly as the al-Qaeda core has weakened but new dangers have emerged,” the official said. “He will discuss the policy and legal framework under which we take action against terrorist threats, including the use of drones. And he will review our detention policy and efforts to close the detention facility at Guantanamo Bay.”

This speech could go some way toward fulfilling the promise that President Obama made in his 2013 State of the Union address, in which he proclaimed that his new administration would “ensure not only that our targeting, detention and prosecution of terrorists remains consistent with our laws and system of checks and balances, but that our efforts are even more transparent to the American people and to the world.” Many, including myself, have been disappointed with the level of transparency the administration has maintained regarding national security efforts over the last 4 years or so. 

The speech comes at a time of increasing unrest in the national security arena. Indeed, it has already been delayed due to the hunger strike at the Guantanamo Bay Detention Facility and the brouhaha over the Justice Department’s subpoena of the AP’s phone records. While the events at Guantanamo Bay can to some degree be attributed to the policies of the Bush administration (in opening the prison) and to Congress (in refusing to allow it to close), the AP seizure is something that rests firmly in Obama’s lap, and is indicative of his Justice Department’s approach in general. Rather than increasing transparency, Obama’s Justice Department has been ruthless in suppressing leaks and punishing leakers.

While I have no sympathy for the likes of Bradley Manning, the number of prosecutions related to national security leaks has been higher under Obama than his predecessors, with at least some chilling effect on the “unofficial transparency” that leaks tend to serve. And while Obama has recently pushed for a new Federal shield law to protect reporters’ sources, his downright schizophrenic approach to transparency has been a bitter disappointment. Hopefully, Thursday’s speech will help to alleviate that disappointment.

 

 

DOJ Targeted Killing White Paper

On Monday, NBC obtained an unsigned Justice Department white paper outlining the Obama administration’s legal position on circumstances under which the United States could lawfully kill a U.S. citizen in a counter-terror operation.  Unfortunately, the 16-page document is not the full OLC memo that has been requested by several members of Congress, but an abbreviated version of it that was provided last summer to members of the Senate Intelligence and Judiciary committees.

The white paper expressly limits its scope to those citizens who are a senior al-Qaeda member or an “associated force” in a foreign country, outside an area of active hostilities. In brief, it asserts it would be legal to use lethal force against a U.S. citizen in such cases if three conditions are met:

1) an informed, high-level government official has determined that the targeted individual poses an imminent threat to the U.S.;

2) capture is infeasible; and

3) the operation complied with applicable laws of war.

The while this white paper is as yet the most detailed public account of the Obama administration’s legal justification for the targeted killing of Americans, it is unfortunately short on details of the decision-making process. As pointed out by Steve Vladeck at Lawfare, most Americans understand that there may be occasions in which U.S. citizens who engage in terrorist activities must be targeted in the same way that foreign terrorists are. What matters is the process for coming to that decision. We have due process protections because we are concerned no only about government overreach, but also to adequately protect us from erroneous determinations and unnecessary reliance on force. This helps ensure that, for example, they really are an active member of al Qaeda, that they cannot they be arrested, and that we cannot simply wait until capture is feasible.

The criteria listed above clearly attempt to ensure that these issues are addressed, but this is not nearly enough. A constitutional lawyer like President Obama should not need reminding that unchecked executive power is very dangerous to liberty. And there is nothing in this white paper to suggest that any outside check or review has been placed on the Executive’s ability to conduct these lethal operations against its own citizens.

In fact, it suggests that judicial review is inappropriate. Its reasoning for this is that it would require ex ante review of targeting decisions, which are inherently predictive and not amenable to judicial determination. This would be quite astute, were it true. However, most critics who have called for judicial involvement in targeted killing decisions, myself included, have clearly stipulated that the courts review the governments actions ex post, and at least partly ex parte.

Additionally, as Steve points out, the white paper’s suggestion that targeted killing decisions are non-justiciable political questions is absurd. These determinations are in many ways no different than those made in law enforcement situations, as when a sniper shoots a hostage-taker. Such cases are often reviewed (ex post) by the courts. Even in those ways in which they are different, the courts have already been involved, as with the spate of recent habeas litigation.

It is because of these issues that the white paper does nothing to satisfy the concerns over executive power. Many have claimed that this document displays the Obama administration’s backslid into something resembling the “Bush Doctrine.” But rather than the nitpicking over the legal conclusions of the white paper as many analysts have (Mary Ellen O’Connell is still ranting about “zones” of conflict—see my analysis), it is this refusal to allow any review of the decision-making process that raises the most severe concerns over President Obama’s targeted killing program.

Paul Taylor, Senior Research Fellow

Center for Policy & Research