President Obama managed to deliver a speech on Thursday in many ways reminiscent of the rhetoric employed by candidate Obama, condemning the recklessness of the previous administration, hailing the rule of law, and citing James Madison’s warning that “No nation could preserve its freedom in the midst of continual warfare.”
But whereas Obama made the right sounds, history shows his words fall far short, and often contradict, his actions as president. When he wasn’t using such rhetoric, he was dodging the truth on issues including drone warfare, Guantanamo Bay and indefinite detention, the AUMF, and how to prevent terrorism so as to not always be fighting it.
The Drone War
According to the president, when the option of “detention and prosecution of terrorists…is foreclosed” because “they take refuge in remote tribal regions” where “the state lacks the capacity or will to take action,” his administration chooses to secretly use drones to bomb targets as opposed to deploying boots on the ground to apprehend the suspects.
We’ve heard this justification for the drone war before, but there are two main problems to start with. First, this explanation simply assumes the validity of the targeting process. It is quite plainly inconsistent with the rule of law for the unchallenged executive branch accusations against mostly unnamed suspects to be sufficient for a death warrant by covert assassination.
As Rosa Brooks, Professor of Law at Georgetown University Law Center, told a Senate committee last month, “When a government claims for itself the unreviewable power to kill anyone, anywhere on earth, at any time, based on secret criteria and secret information discussed in a secret process by largely unnamed individuals, it undermines the rule of law.”
According to reports, of the 3,000-4,000 people killed in drone attacks under Obama, less than 2 percent were described by the government’s own classified documents as senior members of al-Qaeda. The rest were either mid-level operatives, unidentified clumps of people killed in “signature strikes,” or civilians.
Secondly, just because President Obama identifies some logistical obstacles in apprehending mere suspects doesn’t give him the right to bypass the rule of law. What limited legal restrictions on Executive power we do have are not measly options for him to either take or not. They aren’t suggestions. They are the law.
Obama also mentioned his decision this week to declassify the targeted killing of U.S. citizen Anwar al-Awlaki, with the familiar justifications. But he papered over the killing of three other American citizens, including Alwaki’s 16-year old son. He professed respect for due process but didn’t say a word about what kind of accountability he should be subject to for the killings, accidental or otherwise, of four Americans.
The 2001 Authorization for the Use of Military Force
But “America’s actions are legal,” Obama insisted. “We were attacked on 9/11. Within a week, Congress overwhelmingly authorized the use of force. Under domestic law, and international law, the United States is at war with al Qaeda, the Taliban, and their associated forces.”
This is another dubious claim.
The AUMF empowered the president “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.”
In Senate hearings last week, top Pentagon lawyer Robert Taylor kept using the words “associated forces” to justify the legality of the drone war under the 2001 AUMF. Until Senator Angus King of Maine told him those words never appear in the text of the AUMF.
“You guys have invented this term, associated forces, that’s nowhere in this document,” King said. “It’s the justification for everything, and it renders the war powers of Congress null and void.”
Even as Obama used the AUMF to justify his dramatic expansion of the drone war, he warned of its dangers:
The AUMF is now nearly twelve years old. The Afghan War is coming to an end. Core al Qaeda is a shell of its former self. Groups like AQAP must be dealt with, but in the years to come, not every collection of thugs that labels themselves al Qaeda will pose a credible threat to the United States. Unless we discipline our thinking and our actions, we may be drawn into more wars we don’t need to fight, or continue to grant Presidents unbound powers more suited for traditional armed conflicts between nation states. So I look forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate. And I will not sign laws designed to expand this mandate further. Our systematic effort to dismantle terrorist organizations must continue. But this war, like all wars, must end. That’s what history advises. That’s what our democracy demands.
I don’t think the President can have it both ways here. Either the AUMF is an overly expansive blank check for perpetual war, or it is the foremost legal instrument of the completely lawful drone war. Which is it?
It will be interesting to see in the near future if President Obama follows up on his pledge to “refine, and ultimately repeal, the AUMF’s mandate,” or whether it will become another unfulfilled promise, like closing Guantanamo Bay within one year of his election in 2009.
