Obama the Idealist vs. Obama the Terrorist Killer

In a historic speech, the president suggests it's time to limit executive ability to use lethal force against alleged extremists.

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President Obama pauses during his speech at the National Defense University. (Larry Downing/Reuters)

"Our laws constrain the power of the President, even during wartime, and I have taken an oath to defend the Constitution of the United States," President Obama said in a speech Thursday at the National Defense University. Obama's role as defender of the Constitution has been subject to justified criticism recently, with the rise of the secretive drone war in Pakistan and elsewhere. Obama took belated steps to address those concerns. And he did more: He committed himself to a legal path to ending the current "war" with the Taliban, and vowed not to allow Congress to expand it.

There seem to be two Obamas: the public idealist who seeks to harness and fulfill American ideals, and the tight-lipped commander in chief who asks the nation to trust him. The two dueled uneasily in the speech, but the advantage goes to the idealist.

In his discussion of the "drone war," the speech rates a B. Because the administration has stonewalled on the law and the policy behind the use of drones, the president found himself forced to make the following disavowal: "For the record, I do not believe it would be constitutional for the government to target and kill any U.S. citizen -- with a drone, or a shotgun -- without due process." 

This issue was always a red herring. The NDU speech identified the real problem with drones: "The very precision of drones strikes, and the necessary secrecy involved in such actions, can end up shielding our government from the public scrutiny that a troop deployment invites," he acknowledged. But there was no commitment that I can see to opening the drone war to public scrutiny. Instead, Obama offered the standard defense of the policy -- it is effective, aimed against only those terrorist targets who cannot be captured, and conducted to minimize civilian casualties -- in even more truncated form than that given months ago by figures like former State Department Legal Adviser Harold Koh and Attorney General Eric Holder.   

Further, he said, all drone strikes outside battlefield areas are already being reported to "the appropriate committees of Congress" and have been since 2009.   He announced that he had  signed on Wednesday a "Presidential Policy Guidance" document to codify "a framework that governs our use of force against terrorists - insisting upon clear guidelines, oversight, and accountability." Again, we do not know what the policy consists of; nor was there any suggestion that the "accountability" would be to the public. Accountability after the fact--investigation and reporting of whether a given strike was successful and justified--has never been part of the Administration's vocabulary. 

The president gave a distant nod to the proposals recently floated for a more formal review of specific strikes. A special "drone court" would "brin[g] a third branch of government into the process, but raises serious constitutional issues about presidential and judicial authority."  An independent oversight body in the executive branch "avoids those problems, but may introduce a layer of bureaucracy into national-security decision-making, without inspiring additional public confidence in the process." Obama indicated no preference for either measure, or indeed for any statutory limit on the drone war at all, simply committing himself to "actively engaging" Congress on options for "increased oversight." In the Washington we live in, that means there will be no statutory mechanism for a good long while, leaving the secret policy document as the final word.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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