President Obama attempted something familiar in his well-crafted speech at National Defense University: he signalled that counterterrorism efforts would change significantly in his second term; and like his predecessor, he avoided mentioning that the forsaken policies were mistakes.
Like all presidents, Obama began his tenure with a daunting challenge: a rapid transition from a political campaign to a constant barrage of often intractable, life-and-death decisions. Some were foisted on him by policies already in place; others arose suddenly and unexpectedly. With no experience heading the executive branch, imperfect information, and too little time for reflection, Obama gave orders, all of them filtered through an uncontrollable bureaucracy. Of course he made big mistakes. Little surprise that he regards his second term as an opportunity for course correction, reining in his inner Dick Cheney just as Bush reined in actual Dick Cheney. With time, on-the-job experience, and the benefit of sharp critiques, Obama gained perspective.
Several changes he announced Thursday are implicit admissions to civil libertarians that the critiques they've made and the pressure they exert ought to shape policy going forward. One memorable illustration interrupted the speech itself. As Obama called on Congress to lift restrictions on Gitmo detainee transfers, Code Pink heckler Medea Benjamin drew attention to a fact that Obama himself imposed a moratorium on repatriating detainees already cleared for release to Yemen. He wasn't responding to her interjection when he said, moments later, "I am lifting the moratorium on detainee transfers to Yemen." But those words were part of the prepared text thanks in part to sustained pressure from folks like Benjamin who want to close Gitmo. Implementing a step they've long called for is tantamount to saying, "You're right, I've been an obstacle."
It it critical to understand that without the sustained dissent of Obama Administration critics, Thursday's speech might not have occurred; it certainly would've lacked certain key concessions. Now civil libertarians can cite Obama's words as vindication on matters including these:
- His assertion that drone strikes target only terrorists "who pose a continuing and imminent threat to the American people" doesn't accurately describe the actual behavior of the CIA, assuming any reasonable definition of imminence, but is nevertheless a clear rhetorical concession that it is illegitimate to target with drones people who pose no imminent threat to America.
- His assertion that "there must be near-certainty that no civilians will be killed or injured" in U.S. drone strikes is at odds with the reality of drone policy, given that hundreds of civilians have been killed. It is still an admission that uncertainty about civilian death makes a drone strike illegitimate.
- When Obama states, "I have asked my Administration to review proposals to extend oversight of lethal actions outside of warzones that go beyond our reporting to Congress," he is conceding that present oversight is inadequate and ought to be augmented in some way.
- Obama's statement that "the success of American Muslims, and our determination to guard against any encroachments on their civil liberties, is the ultimate rebuke to those who say we are at war with Islam," strongly suggests that NYPD spying on innocent Muslim Americans, simply due to their religion, has the potential to make us less safe, despite the fact that John Brennan, his top counterterrorism adviser and current CIA director, praised the program.
- Obama mentions the need to put "careful constraints" on the State Secrets doctrine, another step civil libertarians have championed, and calls for the creation of "a strong Privacy and Civil Liberties Board."
- His statement that "journalists should not be at legal risk for doing their jobs" is an apparent rebuke to DOJ's decision to accuse James Rosen of violating the law by soliciting classified information from a government employee.
- Perhaps most importantly, Obama is on record stating that a failure to end the AUMF that provides the legal basis for the War on Terrorism would do damage to America, though he provides no timeline. His unexpected assurance that "I will not sign laws designed to expand this mandate further" is arguably the most important promise that he made in his speech.
There are, alas, huge caveats to consider. Some concessions, like the change in status for Yemeni prisoners cleared for release, appear to be policy changes that Obama will actually implement. But he has a long record of broken promises and misleading rhetoric on civil liberties, and it would be naive to assume that he'll follow through on everything he said on Thursday. The speech was an inescapably political maneuver, intended in part to disarm his critics, following the classic Obama pattern of affirming their strongest insights and critiques, but acting as if, having done so, there's no need to change course in the way those critiques imply.
As Benjamin Wittes put it at Lawfare:
If there was a unifying theme of President Obama's speech today at the National Defense University, it was an effort to align himself as publicly as possible with the critics of the positions his administration is taking without undermining his administration's operational flexibility in actual fact. To put it crassly, the president sought to rebuke his own administration for taking the positions it has -- but also to make sure that it could continue to do so.
With that in mind, let's take a closer look at the most misleading passages in the speech. Some concern descriptions of what Team Obama is supposedly doing already; others pertain to what it purportedly will do.