The Briefing

President Obama’s Wartime Address

Monday, June 10, 2013

Rarely has an American president displayed the capacity to carve memorable phrases out of the oak wood of the English language.  Abraham Lincoln was one exception, reared on Shakespeare and the King James Bible, stump-trained through his peregrinating debates with Stephen A. Douglas, and brought to the heights of moral discourse by the challenge of the American Civil War and the bloodbath of Gettysburg.

Barack Obama’s own rise in public life has also turned on his command of the King’s English — as editor of the law review at Harvard, as an autobiographer, and as an electoral candidate with the chops to choose his own words for the campaign trail.  Ted Sorensen and Richard Goodwin wrote the lines that burnished President John Kennedy’s reputation.  But the current resident of the White House has the cadence to write his own stuff.   Even for listeners who find the timbre of his voice a bit thin, the prose can be evocative.

Yet from the beginning, there was a whisper that Mr. Obama was not quite ready for the presidency — a view expressed by some supporters as well as opponents — based on the fact that he had not knocked about the world quite enough, nor dealt with the misshapen and aberrant men and groups who often start foreign conflicts.  It is a regrettable fact that martial opponents do not always respond to a well-turned phrase or an outstretched hand.   At times, a more kinetic language of action and deterrence is required.  This realization may come most reluctantly to people who believe in the power of reason.

Both aspects of this presidency were in evidence in the May 23, 2013, address on war and terrorism delivered at the National Defense University at Fort McNair in Washington, D.C. — a military institution located on a promontory point of the Potomac River, well-situated in the nineteenth century to repel any foreign navy that might be tempted to bombard the nation’s capital.

As the president’s military audience bluntly knew, the continuing fight against al Qaeda and the Taliban in Afghanistan and Pakistan has been costly and difficult to sustain.   We saw no choice when Mullah Omar continued to provide a safe haven in Afghanistan for the al Qaeda terrorist group and its leader Osama bin Laden after the September 11, 2001, attacks against the Pentagon and the World Trade Center towers — attacks that were intended to kill many thousands of people and decapitate the American government.  The ghastly innovation of using fully-fueled civilian jetliners as aerial bombs amounted to a grotesque act of war.   The attacks made plain that the radicalization of thought among insurgent groups, inspired by the nihilistic preaching of the Egyptian writer Sayyid Qutb, was a dreadful and deadly force when combined with the failure of many North African, Middle Eastern and Asian economies to provide employment for young men.   Until then, we had not apprehended the full threat of this explosive combination, seeing terrorist incidents instead as singular and local, rather than as a global movement.  The organizational ingenuity of Osama bin Laden was not acknowledged when we boggled a chance to target him in the late 1990s.

After al Qaeda’s deadly September 11 attacks targeting New York and Washington, the American response cannot be derided as disproportionate.  The terror group’s ambition to obtain weapons of mass destruction for future attacks settles the point.  Nor should the financial challenge that the war effort has posed to our economy be used as any excuse for wishful thinking.  Islam has never been defined as the enemy — only the misbegotten account of Islam that uses the Prophet as an excuse for murder.  Trying to wean a radicalized generation of insurgents away from the siren song of violence is a wearying burden, but there is no justification for declaring victory and closing our eyes when the task is not yet complete.

Hence, one abiding concern about the president’s address last month is the possibility of misinterpretation — the belief that because we are tired, and need to focus on our economic problems, we can afford to wish away the danger of foreign foes.  This is simply wrong.

It is certainly true that before September 11, 2001, the United States government relied more on criminal justice to address the threats of international terrorism.   But that sense of security was a chimera.  The methods of criminal justice are reactive, finding facts after a catastrophe happens.  The wall of bureaucratic separation between criminal justice and national defense was thick and obstructive, radically limiting the sharing of information between federal prosecutors and the intelligence agencies.    Each side played a form of blind man’s buff.   On September 9, 2001, a high-level official opined at an academic gathering that the Justice Department did not wish to share too much criminal information with intelligence agencies because it “would only leak.”  This stove piping was a harbinger of the catastrophe that unfolded two days later.

No person of sensibility wishes to have a permanent state of war, for martial conflict always entails a coarsening of culture and mind and a numbing brutality.  But at a moment in time when Boco Haram is slaughtering civilians in Mali and Northern Nigeria, and jihadists are attacking American diplomatic installations in Libya, no one can suppose that the ‘war against terrorism’ is over, or propose to return to the singular modality of arrest and prosecution.   To assert that all dangers can be met by the accretion of proof to the standard of an American courtroom ignores the law of war itself.  Targeting decisions in an armed conflict should be made on the best available evidence in light of the urgency of the situation, but often cannot linger for proof beyond a reasonable doubt.  The decision to capture a combatant rests on the same basis.  And though the United States should hold itself to a duty to constantly develop and examine exculpatory information concerning a captured combatant, it is captious to suppose that the quality of proof concerning a dangerous combatant will always satisfy the common law ideas of criminal proof.

It is also true that wars vary in length and intensity.  An ‘optional’ foreign engagement may be worth abandoning if its dangers can be cabined as an unnecessary distraction.  But there is no serious voice in the Middle East, Africa or Asia claiming that it will be an easy or short task to counter the uncanny attraction to radical Islamic jihad of a certain group of misbegotten young men.   And in a world of jet travel and internet, the tactics and capabilities of jihadists in any single theatre of conflict can be transferred elsewhere.   Though we are weary of the tasks, the longevity of the conflict is not a matter of our choice.  The Peloponnesian Wars lasted a rather long time, much as the participants may have wished otherwise.

If there is a desire to have American criminal justice do more of the work in this task — rather than military and intelligence methods — a president may also wish to ask whether substantive and procedural criminal law can be better adapted.   Here we may be startled by some of the practices of our European neighbors.

In the continental legal system, for example, hearsay evidence is admitted in trial — what someone heard rather than directly saw — on the surmise that an experienced fact-finder will know how to assess its lesser reliability.   The modern American conception of a right to keep silent is not fully accepted even by our English cousins.  The British allow a criminal jury to draw an adverse inference against a defendant who has failed to explain his activities to a policeman or to the jury directly.   Not least, the American belief that the state must be prepared to go to trial immediately is rather different in continental justice.  A French “juge d’instruction” — a form of investigating magistrate — has been able to detain a criminal suspect for long periods of interrogation and investigation before filing charges, and could require the targeted defendant to answer questions outside the presence of his attorney.  Even now, the American “exclusionary rule” — which forbids a jury from considering probative and reliable evidence seized without a required search warrant — has virtually no admirers in the rest of the world.  Our friends believe that there are better ways to deter police misbehavior than depriving a jury of the best evidence.

To be sure, these views will sound odd to an American ear.  The reform of American criminal procedure over the last 60 years has been accomplished through new readings of the Bill of Rights, in key cases that arose amidst the civil rights revolution, with the ambition of assuring equal protection to all Americans regardless of race and no matter the city and state in which they live.  Thus, changes were typically based on constitutional language, rather than through the alternative modality of a model statute or set of principles (such as the American Law Institute or the Uniform State Law Commissioners might have crafted).   We take appropriate pride in Supreme Court jurisprudence as crafted during the tenures of Chief Justices Earl Warren, Warren Burger, William Rehnquist and John Roberts.  But we may not even realize that other civilized countries do things quite differently.   And it is well to see why other countries are surprised at our difficulty in making do with purely civilian approaches.

The other rebuke to any assumption that American criminal law is the answer to all problems acknowledges the traditions of the law of armed conflict.  The law of war is designed to be reciprocal, and countries have agreed to its standards without knowing which side of the transaction they might be on.   What is bracing is to see how the balance struck between safety and liberty is rather different from that in criminal law, even in the standards approved by the International Committee of the Red Cross.  For example, the text of the 1949 Fourth Geneva Convention, which governs wartime occupation of enemy territory, has allowed an enemy civilian to be detained for repetitive periods of six months based upon nothing more than an occupying power’s “definite suspicion” that the person posed a threat.  This is not the language of the Warren Court, or indeed of modern human rights law. But the law of armed conflict was framed in harsher circumstances when survival was seen as an urgent task.

In his speech at the National Defense University, the president noted that sooner or later, “every war has come to an end.”   With the demise of Osama bin Laden, it may be hoped that the arc of violent jihad will indeed diminish, at least in some quarters of the globe.  But it is beyond anyone’s capacity to say how and when this may happen — and wishing has no place in serious business.  A recent Republican president was roundly chided for landing on an aircraft carrier festooned with the banner “Mission Accomplished.”   Mr. Obama should take the same lesson, for wish does not easily become fact.

One more aspect of Mr. Obama’s speech that warrants comment is its odd turn toward a form of isolationism.   The United States has indeed been the indispensable nation in most operations that the United Nations undertakes.   During the Cold War, the United States provided the rallying point for other states in alliances of collective security.

But in the NDU address, the president hints that our allies and friends may have to handle their problems alone.  This is an odd thing to say, and not especially helpful, except to give solace to a domestic audience.  Isolationism has been a bugbear of American foreign policy from time immemorial, and in the first half of the twentieth century, we sometimes failed to provide the deterrence that might have fended off more serious conflict.   The two world wars, ultimately won through American power, provide examples of this reluctance to join the fray.

The president notes that we must “dismantle networks that pose a direct danger to us” — and chides that “we must define our effort not as a boundless ‘global war on terror,’ but rather as a series of persistent, targeted efforts to dismantle specific networks of violent extremist that threaten America.”   (Emphasis added.)  America’s allies and some other observers may hope this is simply a pledge of prudence for a gaunt and weary audience.   The core of America’s role abroad for more than seven decades has been to act as the foundation stone of a community of United Nations, rather than taking a narrow view of its self-interest.

Finally, in his pledge to close Guantanamo, Mr. Obama may not yet see some of the difficulties that would await him.  Combatants returned to Yemen not infrequently escape through the back door of Yemeni jails — and in a terrain so barren that the United States has felt it necessary to use drone strikes, the activities of such fighters cannot easily be monitored.  Transfer of combatants to a Supermax prison in the United States is hardly a favor, since the conditions of confinement in such facilities are extremely severe — with prisoners staying in isolation for 23 hours a day.  The prospect of Khalid Sheik Mohammed recruiting other domestic prisoners known for their violence is hardly edifying.   And European human rights jurisprudence tends to disapprove of life sentences of any kind, so the term of their confinement will still be contested.

It’s not easy to be president.   The ability to explain one’s reasons with eloquence is a great gift.   But the battle-rattle of experience is also a necessary ingredient, along with the willingness to change course.