The Briefing

The Briefing, Part II

Monday, June 10, 2013

On May 23, President Obama gave the first major speech on national security of his second term.  His purpose was to review his administration’s achievements in dealing with the war that al Qaeda launched against the United States on Sept. 11, 2001; to lay out a second term agenda to combat the transnational terrorists who continue to pursue violent jihad against the United States; and to acknowledge where his administration has fallen short.

The president covered considerable ground.  He affirmed his commitment to bedrock constitutional principles in waging war and preserving peace.  He recognized that the Sept. 11 attacks reflected an untraditional kind of war, conducted by terrorists who do not fight in uniform and who attack civilians and civilian infrastructure.  He stressed our success in degrading al Qaeda in Afghanistan even as he recognized that al Qaeda branches and offshoots have sprung up throughout the Arab world and continue to represent a serious threat.  He announced his determination to formulate a “comprehensive counterterrorism strategy,” which would involve targeted action including the use of drones; expansion of partnerships with friends and allies; and enhancement of diplomatic activities including the prudent use of foreign aid to promote democratic transitions, bolster security, feed the hungry, and improve education.  He declared that it was America’s policy to work with the Muslim-American community to identify radicalization early and intervene to prevent the production of homegrown terrorists.  And in a significant if understated change from his days as a senator when he repeatedly contended in criticism of the Bush administration that there was no tension between our security and our values, the president soberly proclaimed that “in the years to come, we will have to keep working hard to strike the appropriate balance between our need for security and preserving those freedoms that make us who we are.”

The president also expressed regret that he has been unable to close the detention facility at Guantanamo Bay, Cuba.  Despite the executive order he issued on January 22, 2009, two days after his inauguration, directing that the facility be shuttered within a year, there is no obvious end in sight to its operation as a holding site for transnational terrorists who are too dangerous to release but cannot be prosecuted effectively in American courts.

But is closing Guantanamo an urgent matter of national security?  The essays that follow, written by members of the Hoover Institution’s Jean Perkins Task Force on National Security and Law, powerfully suggest that the president has inflated Guantanamo’s significance.  In doing so, he has obscured his own administration’s progress in the work, initiated by the Bush administration, of designing proper laws for the detention, interrogation, and prosecution of transnational terrorists.  The exaggeration of this one facility’s significance also distracts from the challenges ahead.

My task force colleagues’ essays concentrate on bringing into focus those challenges. While coming at the matter from a variety of angles, task force members converge in their assessment: Dealing effectively with the threat posed by transnational terrorists — who seek, among other things, to wreak havoc by using weapons of mass destruction against American military targets and civilians and civilian infrastructure — necessitates that the president and Congress cooperate to complete the construction of a durable, flexible, and constitutionally sound legal regime.

Peter Berkowitz is the Tad and Dianne Taube Senior Fellow at the Hoover Institution, Stanford University, where he chairs the Jean Perkins Task Force on National Security and Law.  He is the author, most recently, of Constitutional Conservatism: Liberty, Self-Government, and Political Moderation.