Reactions to the President’s Speech

My reactions to the President’s speech can be found in this essay at the CFR page.  The headline writers gave it the title of Obama Passes the Buck: The President's Empty Rhetoric on Counterterrorism.  The subtitle captures the basic thrust of the essay, which is a pretty cynical reaction to the President’s speech grounded mostly in my cynicism about the President’s pledges to work with Congress on counterterrorism policy. A few additional reactions beyond what I say in the essay:

• One increasingly important element in the Obama administration’s counterterrorism philosophy is a growing comfort level with reliance on inherent Article II power to address extra-AUMF threats.  Jeh Johnson and Harold Koh were pretty clear about this in their Oxford Speeches, and the President’s speech implied as much.  This is a remarkable development which deserves close scrutiny and on which I will have more to say later.

• As Spencer Ackerman notes, a lurking contradiction in the President’s speech is that he says he prefers capturing detainees to killing them, but he has no good plan for detention.  I think that civilian trials and military commissions can achieve more than Ackerman does, but I agree that they are not complete solutions.

• Speaking of Commissions, one of the most consequential elements of the President's speech was his support for Commissions.  He thrice mentioned them as important tools.  And his direction that DOD designate a site for Commissions inside the United States implied that they should be normalized into the USG’s set of available counterterrorism tools, even if confined to a narrow law of war jurisdiction alongside, and with review by, civilian courts.  This might not seem like a big deal, but inside the Executive branch this vote of confidence by the President is enormously important.

• I thought the President gave a strong defense of the use of drones.  As for his drone policies, Joe Pappalardo notes that a remarkable aspect of the speech was its criticism of the very policies that the President himself designed and presided over.  “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,” said the President.  “It can also lead a President and his team to view drone strikes as a cure-all for terrorism,” he added.  The President’s announcement of enhanced internal procedures and heightened targeting standards was a response to this self-criticism.

• It is very hard to judge the significance of the new targeting standards because we don’t really have a firm grasp on how the old standards were applied.  Ironically, the new standards accomplish most if we believe some of the broader previous reports about the administration’s signature strike policy, and they accomplish much less if we take seriously prior administration speeches about careful legal standards for targeting.  The baseline matters and we don’t know the baseline.

• This was a rich statement from the President whose administration has gone after national security journalists so aggressively:  “Journalists should not be at legal risk for doing their jobs.  Our focus must be on those who break the law.”  It was a strong statement as well – depending on what it means for journalists to do their jobs, and what “break the law” means.