Editor’s note: Over the course of President Obama's first term in office, the president and senior officials of his administration have given a series of major speeches on the legal framework for confronting terrorists overseas. The speeches collectively represent the fullest statement the administration has given of the law of drones, targeted killing, and the larger approach to the war against Al Qaeda and its allies. In the new e-book Speaking the Law, Kenneth Anderson and Benjamin Wittes, members of the Hoover Task Force on National Security, dissect the Obama administration's major speeches on national security law. Below is an excerpt of the first chapter of the book. You may read the introduction of the book here.
Let us begin with a simple effort to summarize and reconstruct what the Obama administration has actually said in its speeches on national security legal policy to date—keeping in mind that President Obama’s reelection likely means that this body of statements will not represent an exhaustive account of the administration’s views of these subjects. Here we offer, initially without much greater ambition, an overview of official statements on the wide range of issues the administration has addressed.
Our aim here is not to offer analysis, praise, or critique. Rather, we strive to weave the speeches together around the topics that seem most important in establishing the administration’s national security legal doctrine and to construct a synthetic policy document that brings all of the major policy threads together in one place. In doing so, we necessarily make some editorial decisions about what parts to include and exclude and how to intertwine them as a single statement and voice.
We do this knowing that officials gave these speeches at different times and under different circumstances across the last four years, and we specifically organize the summary thematically, not temporally. The exercise gives a sense of just how comprehensively the administration has, in fact, addressed a set of issues on which critics often accuse it of obfuscation and silence. We begin with those issues that frame the nature of the conflict at its deepest level.
The Fundamental Nature of the Conflict and the Law Governing It
The speeches at their most fundamental are an effort to characterize legally the struggle against transnational terrorism by non-state groups and the powers the United States government has deployed to wage this fight. The speakers seek both to declare and to expound upon the US government’s exercise of national security powers in counterterrorism operations at home and abroad; at the same time, they seek to establish and maintain the legal and political legitimacy of those operations among the American people and, to the extent possible, in the wider world.
One of the striking features of the speeches is their consistent acknowledgment that international law meaningfully limits the American exercise of these powers. After the Bush administration, which very publicly—at least at first—denied legal constraints in general, and international legal constraints in particular, this is not a foregone conclusion in the construction of the US position.
Yet other countries have access, or soon will have access, to the kinds of methods and means of counterterrorism that the United States deploys. And, perhaps with that fact in mind, as a matter of general principle the speeches acknowledge that the principles we apply to ourselves—principles of both permission and limitation in confronting transnational terrorist adversaries—we must grant to other sovereign states in similar situations.
President Obama acknowledged this point directly in his December 10, 2009, Nobel Peace Prize Lecture in Oslo:
[A]ll nations—strong and weak alike—must adhere to standards that govern the use of force. I—like any head of state— reserve the right to act unilaterally if necessary to defend my nation. Nevertheless, I am convinced that adhering to standards, international standards, strengthens those who do and isolates and weakens those who don’t. . . . Furthermore, America [cannot insist] . . . that others follow the rules of the road if we refuse to follow them ourselves. For when we don’t, our actions appear arbitrary and undercut the legitimacy of future interventions, no matter how justified.
This high-altitude principle infuses a great deal of the rhetoric and persuasive ambition of many of the speeches. And its acknowledgment represents an important starting place. It’s also a comforting one for many who ache to see the United States embrace international legal standards.
But it leaves open the question of what fundamental paradigm of international law actually governs the activities that constitute the American confrontation with international terrorists. Is the fundamental legal paradigm one of the laws of war and armed conflict, on the one hand, or is it extraterritorial law enforcement as limited by international human rights law, on the other—or perhaps some mixture of these distinct legal authorities?
The differences here are not academic; they can yield radically different answers to questions concerning the use of force and its conduct, starting with whether there is an obligation to seek to arrest and detain someone before striking with lethal force. They also guide questions of how one detains and tries suspects for crimes.
The Obama administration’s answer to this fundamental question is far less comforting to those who seek a kinder, gentler American counterterrorism. The administration has decisively rejected the widespread expectation that Obama’s election heralded a return to a purely—or more purely—law enforcement approach, at least insofar as that expectation included in the short term a law enforcement–dominated approach outside of the United States itself.
From the beginning, the administration has emphasized a kind of bifurcated nature of the conflict, in which law enforcement dominated domestically while war dominated beyond US shores. The speeches disclaim, at least as a policy matter, any intention to use law-of-war powers here at home and fiercely defend the criminal justice apparatus as a means of dealing with both US citizens captured abroad and anyone captured state-side. On the other hand, they also emphasize that the fundamental relationship between the United States and the enemy groups it confronts is one of armed conflict, as a matter of international as well as domestic law. Let’s consider these points in turn.
As early as May 21, 2009, President Obama himself insisted that warfare lay at the heart of the relationship in his address at the National Archives in Washington, D.C., saying, “Now let me be clear: we are indeed at war with Al Qaeda and its affiliates.” The administration has since consistently maintained both that the current conflict is authorized by domestic law—specifically by the Authorization for the Use of Military Force (AUMF) and by the president’s inherent constitutional power to defend the nation—and that these authorities are consistent with international law.
As Attorney General Eric Holder put it on March 5, 2012, in his address at Northwestern University School of Law:
[T]here are instances where our government has the clear authority—and, I would argue, the responsibility—to defend the United States through the appropriate and lawful use of lethal force.
This principle has long been established under both US and international law. In response to the attacks perpetrated—and the continuing threat posed—by Al Qaeda, the Taliban, and associated forces, Congress has authorized the president to use all necessary and appropriate force against those groups. Because the United States is in an armed conflict, we are authorized to take action against enemy belligerents under international law. The Constitution empowers the president to protect the nation from any imminent threat of violent attack. And international law recognizes the inherent right of national self-defense. None of this is changed by the fact that we are not in a conventional war.
The insistence that the United States is in an armed conflict with Al Qaeda and its affiliates, or associated forces, is unwavering across all the speeches. The nature of this conflict, it bears emphasis, involves actual war—not war as a metaphor for policy seriousness, but armed conflict in the strict legal sense. This is the US government’s position even though the enemy is not a state. In the parlance of international law, the United States considers itself as fighting a “non-international armed conflict”—that is, an armed conflict against something other than another sovereign state. To continue reading this chapter at no charge, please click here.