Two central difficulties plague U.S. counterterrorism policy. The first is a Bush-era legacy: the conundrum of what to do with Guantánamo Bay detainees. The second is Obama’s creation. In reaction to his predecessor’s expensive heavy-footprint wars and politically and legally controversial interrogation and detention policy, Obama has unilaterally steered the country toward nimbler secret warfare, characterized by ramped-up clandestine Special Forces operations and significantly enhanced targeted killing, primarily by drones, in countries such as Pakistan, Somalia, and Yemen. In recent months, the President’s stealth war has come under broad attack as illegal, unduly secretive, and strategically counterproductive, since it provokes blowback from nations whose sovereignty the United States violates and whose innocent civilians it kills.
Obama addressed both difficulties at length in his speech, but nothing he said will bring a major change in policy.
Obama reiterated his old case for closing Guantánamo Bay and again urged Congress to lift its restrictions on transferring the facility’s detainees. And he proposed, once more, the idea of putting some detainees in a maximum-security or military prison in the United States. But he offered no plan to make these things happen, other than a pledge to work with Congress — the same pledge he made, with no results, in a major speech on counterterrorism policy in May 2009, and that he repeated, again with no results, five months ago in his State of the Union address. Against this background, it is hard to judge this latest pledge as anything other than empty rhetoric. (The only concrete step the President announced was a reversal of the moratorium that he imposed years ago on transferring Yemeni detainees who have already been cleared for release. But even if he lets all the Yemenis go, a hundred or so detainees would remain.)
In many respects, the debate about closing Guantánamo Bay masks the real challenge that Obama faces: what to do about the dozens of men whom the Obama team concluded four years ago were incapable of being tried but were too dangerous to release. If Guantánamo Bay closes, these men would be brought to the United States and held in super-secure and less comfortable conditions than they are now. It is hard to see how that would erase the black eye of Guantánamo Bay. But on the crucial issue of how to resolve the problem of military detainees, Obama said only that “once we commit to a process of closing Guantánamo Bay, I am confident that this legacy problem can be resolved, consistent with our commitment to the rule of law.” In other words, he has no plan worth mentioning.
In contrast to his approach to the legacy Guantánamo Bay problem, Obama did announce small changes to his stealth war policy. He says that his administration will heighten the secret standards it previously employed for killing non-U.S. terrorists abroad, although lawyers are already debating exactly how much change this will amount to in practice, and the public will likely never know. He also announced a new classified Presidential Policy Guidance to codify guidelines and oversight for his drone and other use-of-force policies. It is impossible to assess the significance of the guidance, which replaces one set of secret policies and procedures with another, and which Obama could alter at any moment, also in secret. Obama’s announced changes might assuage some critics. But because they are unilateral changes made in secret, they will not fix his transparency problem. And, even construed charitably, they will not change the war’s essential nature.
There was also little of substance in Obama’s statements about ending the war against al Qaeda and its associates. He said, again without announcing a plan, that he wants to work with Congress to “refine, and ultimately repeal” the September 2001 congressional Authorization for the Use of Military Force (AUMF) that is the foundation for his global stealth war. This is not a serious proposal. Obama knows that the more belligerent Congress will not repeal this law. He also knows that he does not need Congress’ approval to end the war. He could do so tomorrow, or next year, or on the last day of his presidency. The reason that he does not is the same reason that Congress will not and is the same reason that Obama codified and bureaucratized his stealth war guidelines and robustly defended drone warfare: the threat from al Qaeda affiliates persists, and the United States, as Obama said, will continue to use military force to “finish the work of defeating” them.
Obama also acknowledged that “our systematic effort to dismantle terrorist organizations must continue” even when the 2001 law is gone or no longer relevant. What he failed to say is that, in the absence of an update to the AUMF, he and future presidents will rely instead on their inherent constitutional power to authorize force in self-defense of the nation. When Obama says that he wants to end “the war,” he is not saying that there are no more significant threats from terrorist organizations or that he will stop using military force against them. Rather, he is saying that he wants to end the AUMF-directed war and rely on his own military authorities to defend the nation. This is a far cry from ending war.
Despite the mismatch between rhetoric and reality in his speech, there is no reason to doubt that Obama genuinely wants to close Guantánamo Bay, put the stealth war on a more legitimate legal foundation, and end it as soon as possible. But since the dawn of his presidency, two obstacles have blocked his path. The first is the reality of the national security threat, which, as Obama says, has changed and in some ways diminished, but which still persists. The reality of that threat prevents him from taking steps within his power to release Guantánamo Bay detainees, keeps him on a military posture toward terrorists, and forces him to act with extensive secrecy that is anathema to legitimacy in a democracy.
The second reality is Congress. Without its cooperation, Obama cannot resolve the Guantánamo Bay problem. And unless Congress weighs in on and actively approves the very different type of stealth war that is being waged today compared with the one it authorized in 2001, Obama will not resolve the transparency and related legitimacy problems associated with that war. Obama should truly engage Congress on both issues. But despite yesterday’s pledges, it is doubtful that he can or will do so successfully.
This is understandable, in part: Congress has different views from Obama, and has shown little interest in working with him on these issues. But Obama is not blameless: he has always seemed to be wary that Congress will lead him to a worse place by, for example, officially expanding the war. He has never displayed leadership (by making concrete proposals and pushing hard for them) or the capacity to make the compromises on these issues that would be necessary for any chance of getting Congress on board. Like his predecessor, but for different reasons, Obama has preferred to go it alone. But going it alone has left Guantánamo Bay even more entrenched today than it was in 2009 — and it is precisely why he faces a legitimacy problem caused by his dramatic unilateral expansion of stealth war.
Yesterday’s speech did nothing to address these admittedly intractable problems. This raises the question of why Obama gave a high-profile speech that he must have known would amount to little. The most likely answer is that he is thinking of his legacy. His statements on Guantánamo Bay again signaled his desire to address the problem and his belief that Congress is to blame for the lack of progress. And his stealth war pronouncements aimed to buck up his rule-of-law bona fides and to give him breathing room to meet the threat for three more years, running out the clock on his national security responsibilities and passing to his successor the quandary of how to legitimize permanent secret war.
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Jack Goldsmith teaches at Harvard Law School and served as an assistant attorney general in the George W. Bush administration. He is a member of the Hoover Institution’s Task Force on National Security and Law. Foreign Affairs. Copyright © 2002-2012 by the Council on Foreign Relations, Inc.
