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.

But Obama can perhaps be forgiven for not taking on that legislative task, given that the speech commits him to two potential fights with Congress. "I once again call on Congress to lift the restrictions on detainee transfers from GTMO," he said, leaving him free to close the facility. That effort -- one of the first in his administration, stymied by Congressional fear-mongering about terrorists walking away from supermax prisons -- seems to be slated for a new push, with a new senior official devoted to moving detainees to other countries, and a commitment that "we will bring terrorist to justice in our courts and military justice system. And we will insist that judicial review be available for every detainee."

Finally, and in some ways most importantly, he reaffirmed the constitutional basis for the war, and announced his intention to end it. Unlike George W. Bush, Obama has steadily insisted that the war in Afghanistan, and the covert actions and drone strikes taking place in third countries, are not prerogatives of any president who decides that potential enemies need a touch of steel. Every administration defense of its actions abroad has been rooted in the Authorization for the Use of Military Force, passed on September 14, 2001, which allows 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 ... or harbored such organizations or persons." 

So it is significant when Obama said "I look forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the AUMF's mandate." Even more significantly, he said, "I will not sign laws designed to expand this mandate further.  ... [T]his war, like all wars, must end."

If Obama really has committed himself to ending the war, he has taken a course few presidents can be expected to choose. As early as 1787, Americans have noted that war empowers presidents. The Bush Administration quite openly used the aftermath of September 11 to expand presidential authority to the full scope Dick Cheney had always thought it should enjoy. Obama has seemed, over the past five years, reluctant to give too much of that expanded authority back.

But unlike Bush, he has insisted that his power comes largely within a framework of law. If he makes a systematic effort to remove the AUMF, we'll see a president voluntarily laying down not only the nation's arms, but his own.  

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Garrett Epps, a former reporter for The Washington Post, is a novelist and legal scholar. He teaches courses in constitutional law and creative writing for law students at the University of Baltimore and lives in Washington, D.C. His new book is American Epic: Reading the U.S. Constitution.

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