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“Ending the Forever War”: A Progress Report

This past May, President Obama gave an historic speech at the National Defense University framing his counterterrorism strategy.  In that speech, he committed himself to a concept that I had flagged in an Oxford lecture several weeks earlier:  “Ending the Forever War.”  The simple idea of both speeches was that after twelve long years, it is high time to take the United States off a permanent war footing and to end all three conflicts  that President Obama inherited: with Iraq, Afghanistan, and with Al Qaeda, the Taliban and Associated Forces.

But where exactly does this project stand today, five months after Obama’s NDU speech? In Washington, where  the urgent too often drives out the important, the critical project of ending the war with Al Qaeda and its allies has been successively pushed from the headlines by the sequester, Syria, the government shutdown, the debt ceiling fight, and now, the rocky health care rollout.   International lawyers and national security experts have been successively directed to the Kenya Westgate Mall attack, the recent U.S. raids in Libya and Somalia, NSA surveillance, and most recently, the critical NGO and U.N. reports on drones as new proof that Obama has lost his way on counterterrorism.   So is Obama’s effort to end the Forever War with Al Qaeda effectively stalled?

Reading the tea leaves, my impression is that it is not.  Of the three wars the President promised to end, he has now essentially ended the first (Iraq), made progress on the second (Afghanistan), and in his NDU speech, firmly committed himself to the third.  In this progress report, I would argue that all signs show that Obama is making slow but steady progress toward ending this third war:  with Al Qaeda, the Taliban and Associated Forces.  As my Oxford speech suggested, that progress is best measured by his efforts to achieve four goals:  (1)  Disengaging from Afghanistan;  (2) Closing Guantanamo, (3) Disciplining Drones, and (4) Clarifying that Kill and Capture are only small pieces of a much broader “smart power” strategy toward counterterrorism.  I conclude by suggesting how the Administration might respond to renewed pleas for transparency that have followed the latest outpouring of drone reports.

I. Disengaging from Afghanistan: The President’s announced three-part Afghan strategy was: (1) to reduce U.S. military engagement –i.e., ending the U.S. combat mission after December 2014, based on enhanced Afghan military capabilities ; (2) to continue civilian engagement with Afghan civil society; and (3) to expand diplomatic engagement both inside and outside of Afghanistan to build an architecture for a secure, stable Afghanistan.

In pursuit of the first goal, the U.S. military presence in Afghanistan has steadily diminished, with 16,000 of the remaining 60,000 U.S. troops set to leave in February of 2014.  Washington’s hopes that the Afghan National Security Forces (ANSF) might fill the resulting military vacuum was bolstered by a recent report that with this year’s fighting season nearly over, the ANSF had mostly held their own against Taliban attacks.  While the Taliban held their ground in Helmand Province,  maintained their grip on southern Afghanistan, and on October 15, assassinated the provincial governor of eastern Logar Province in a provincial mosque, this fighting season, the ANSF reduced the number of assassinations and largely thwarted the Taliban’s announced goals of making a series of decisive blows against the ANSF.

Tempering that news, however, was a recent prediction by a high-level U.S. military officer in Afghanistan that he expects the Taliban to use this coming winter not to rest and regroup, but to carry out an aggressive offensive in a last-ditch effort to disrupt the crucial presidential elections now set for April 2014. For the U.S. to disengage with credibility, the April 2014 elections must go off as scheduled;  any delay to a later date would only encourage the Taliban to keep disrupting with further attacks.  For the United States to proceed with its plan to disengage by December 2014, it must continue to define and refine the scope of two missions that will determine how many U.S. forces will be left in-country after December 2014: (1) a “train, advise and assist” mission, whereby the U.S. forces continue to support the ANSF in their efforts to pacify the country; and (2) a continuing counterterrorism mission, whereby the two militaries adopt a cooperative framework for intelligence-sharing, joint actions, and pursuit of residual transnational threats.

What does all this mean for our “diplomatic surge?” Having concluded a strategic partnership agreement in April 2012,  three rounds of talks between President Karzai and Secretary of State Kerry have now focused on reaching closure on an Afghan bilateral security agreement.  That agreement, which would provide the legal framework for both missions, has now been under negotiation for eleven months. As anonymous State Department briefers recently described it, the bilateral security agreement is plainly not a mutual defense pact, but rather a “concept of cooperation,” whereby residual U.S. forces would help the Afghans to deal with their internal and external threats, including self-defense measures against the Haqqani Network and other terrorist groups.   Consummation of that deal currently turns on several thorny, but tractable issues, particularly the legal status of any U.S. forces that might remain in Afghanistan past 2014.   In particular, the U.S. government’s lawyers must negotiate what legal jurisdiction would be permitted over any remaining U.S. military personnel, immunities, assurances, guarantees for rights of self-defense, force protection, and other aspects governing status of forces.   But at this writing, these negotiations seem to be progressing and are apparently quite far along.  In the words of one State Department official, “[w]e’ve agreed on language that can be put to the Loya Jirga for their consideration.”  That is optimistic diplomatic language that suggests general bilateral accord on important principles.

The Afghan disengagement strategy has two other diplomatic faces. The first is the diplomatic campaign with allies that Secretary Clinton launched in 2011 to complement  President Obama’s 2009 military surge: using  all available instruments of smart power to support Afghanistan, including  development assistance, private-sector investment, and support for civil society expressed through pledging conferences among supportive national and international organizations  in Istanbul, Bonn, Chicago and Tokyo. Those conferences were designed to send the Taliban the message that the international community would not abandon, but would continue to support, Afghanistan both politically and militarily after 2014.

The second diplomatic challenge is for the Afghans to revive the U.S.-supported negotiations with the Taliban along lines recently pursued from mid -2011 to March 2012.  As proof that this effort may still be viable, the government of Pakistan recently released the Afghan Taliban’s second-in-command Mullah Baradar, supposedly to catalyze the Afghan-Taliban peace process.  Any renewed negotiations would turn on three end-conditions first specified by Secretary Clinton in the fall of 2011, that would require the Talban to renounce violence, abandon al Qaeda, and abide by the constitution of Afghanistan, including its protections for women and minorities.  Following from those principles, as former AfPak Special Representative Marc Grossman recently described, the 2011 U.S. talks with the Taliban aimed at creating  a series of confidence-building measures designed to open the door for Afghans to talk with other Afghans about the future of Afghanistan, including a requirement that the Taliban make a public statement distancing themselves from international terrorism and accepting the need for an Afghan political process, opening a Taliban political office in Doha for the main purpose of facilitating diplomacy, the possible transfer of Taliban prisoners from Guantanamo, and the release of US Army Sergeant Bowe Bergdahl, who has been held by the Taliban since 2009.

While the most likely outcome remains to be seen, “[m]aybe the best outcome,” one unnamed U.S. military officer told the New York Times, “would be the Taliban in villages and the [Kabul] government in the district centers.”  But while the Taliban military commission may want to keep fighting, at least some in the Taliban political commission seem to prefer a negotiated end to the long conflict, which creates  diplomatic space for further discussions.  As In any waning conflict, we may well be entering that paradoxical period where the opposing parties are both fighting and talking at the same time.  But on reflection, in any sustained conflict, such periods are inevitable.   As Secretary Clinton likes to say, it so happens that “[y]ou don’t make peace with your friends.”

II. Closing Guantanamo:  Since the President’s May NDU speech, only two of the 166 detainees have left Guantanamo, fueling a popular perception that the Guantanamo closure effort remains hopelessly stalled. Undeniably, progress has been painfully slow, but there have been several recent, positive steps that could bear fruit, if sufficiently backed by presidential capital.  My Oxford lecture called on the Administration to live up to its overdue commitment to close Guantanamo by taking four steps: (1)  appointing senior officials “with the clout and commitment to actually make Guantanamo closure happen;” and (2) implementing the National Archives Framework announced by the President in May 2009 by transferring those detainees who could be safely transferred; (3) prosecuting those who can be tried, before civilian courts or as a last resort in military commissions; and (4) beginning periodic review of Law of War Detainees to see if any of them can be released.  Although the pace has been agonizingly slow, each of these four steps has in fact finally started to happen.

First, the President tasked Lisa Monaco, his Deputy National Security Adviser for Counterterrorism, to drive the interagency process from the White House.  Among senior White House officials, there seems to be a renewed conviction that the best way to bring down the detainee numbers is to reduce particular “buckets” of detainees to create renewed momentum for Guantanamo closure. To replace the admirable Dan Fried, Secretary Kerry appointed a talented Washington lawyer and former Associate White House Counsel’s office, Cliff Sloan, as his Special State Department Envoy for Guantanamo Closure. Sloan is energetic, talented and dedicated, and has already recruited an outstanding staff from the State Department and elsewhere.  Showing that it can be done, Sloan also successfully completed the negotiation of the long-delayed transfer of the two Algerians.

Better late than never, the Defense Department has now finally appointed its own Special Envoy, who will start November 1:  Paul Lewis, former Minority Counsel of the House Armed Services Committee. The Office of Detainee Affairs at DOD formerly headed by Bill Lietzau has been reorganized so that its key operations–particularly its able deputy, Alan Liotta –will work under Lewis’s direction.  And while Lewis is not a former 2 or 3-star general accustomed to wringing results out of the Defense bureaucracy, he should have helpful legislative experience and insight on how to certify Guantanamo transfers in a way that would meet congressional scrutiny.  In that effort, he will need help from the new DOD General Counsel, Stephen Preston, who is familiar with these issues from his more than four years as General Counsel of the CIA.

Second, the best way to break the logjam is bring the numbers down on Guantanamo by identifying and then reducing distinctive “buckets” of detainees.   If the Administration commits itself to transferring those in the “non-Yemeni transfer bucket” in the first instance, it could notify and transfer off between 25-30 detainees before the end of this calendar year.  Obama’s NDU speech also lifted his own self-imposed ban against repatriation of some 56 Yemeni detainees who previously had been cleared for transfer by the interagency transfer task force that operated at the start of his administration.  Yemenis constitute the largest group of detainees on Guantanamo, more than 90 in all, a group that currently straddles three buckets:  (1) the “transfer bucket;” (2) “conditional detainees,” whose return turns on conditions in Yemen; and (3) some 24 continuing Law of War detainees not currently slated for transfer in the near future under any circumstance.   The hopeful new development in this area came this past August, when the Washington Post reported that Yemeni President Hadi visited the White House to discuss repatriation efforts and declared that he intended to start “an extremist rehabilitation program.”  What this meant, the report suggested, is that Sloan “is negotiating the terms of prisoner repatriation to Yemen to determine how the government intends to prevent their return to the battlefield,” including  “a short-term detention on return, regular monitoring, or participation in a reintegration program [of a kind], which has proven successful in Saudi Arabia and Kuwait.”  More recently, there are reports that a United Nations steering group advised by a retired U.S. general knowledgeable about Afghan detention is finally moving toward helping to establish a Yemen rehabilitation facility.  Should these Yemeni efforts bear fruit, it may be possible for the Administration to cut the Guantanamo population nearly in half by negotiating the block transfer, to a local rehabilitation facility, of those Yemeni detainees who were cleared for transfer.

U.S. courts represent a third “off-ramp” from Guantanamo.  The D.C. Circuit’s en banc review of the Al Bahlul case –whose oral argument was recently post mortemed on this blog–has cast considerable uncertainty over what kinds of charges may validly be brought before a Military Commission. Yet at the same time, civilian trials against terrorist suspects, which elsewhere in the world would likely be seen as a more credible form of justice, seem to be moving forward in Article III courts. As others have noted, the recent Article III criminal prosecutions of bin Laden’s son-in-law Abu Ghaith, the Somali operative Warsame, the al Qaeda operative Harun (extradited from Italy to United States last year), and the recent binding over of the Libyan al-Libi to the Southern District of New York all suggest  renewed possibilities for trying terrorist  suspects in civilian courts, where federal prosecutors have enjoyed extraordinary success.

Another significant judicial development, again little noticed by the media, came in early October when Judge Royce Lamberth granted the unopposed petition for the writ of habeas corpus by Ibrahim Idris, a Sudanese detainee whose lawyers claimed that his mental illness was too significant to render him a continuing threat.  To my knowledge, DOJ  has only conceded the writ twice before: in the case of Uighurs, where the U.S. government abandoned its defense of their detention in Fall 2008, and in the case of Jawad, an Afghan child soldier who was released on habeas in 2009 by Judge Ellen Huvelle after the Justice Department dropped its argument that he was detainable under the Authorization for Use of Military Force (AUMF).   Thus, the Idris ruling is doubly significant: first, because it signals that there may be a “medical bucket,” a group of Guantanamo detainees whose medical condition after long-term detention may lead the U.S. to acquiesce in their release; and second, because it confirms that the Justice Department can facilitate releases from Guantanamo simply by conceding the writ in cases where there is no current reason to hold a detainee.

All of these cases raise the question whether the Administration should create a “plea bargain” bucket, by offering current Guantanamo detainees plea bargains either in military commissions or in U.S. civilian courts cases in where they have been or can be charged with Title 18 criminal offenses.  Many Guantanamo detainees have now been held without charges for eleven years or more. If they were now brought into the U.S. and offered say, twelve-  or thirteen-year plea bargain terms, wouldn’t there be more than a few takers? Admittedly, Congress might object that restrictions under the National Defense Authorization Act prevent such detainees from being brought onto American soil even for the purpose of taking brief plea bargains.  But what plausible threat to U.S. national security would result from a brief plea hearing that led to a detainee’s swift transition into federal criminal custody?  In any event, this is precisely the kind of issue that shows how overly limiting the NDAA’s current restrictions are, and could therefore be negotiated by the Special Envoys with the relevant congressional committees, if it proved helpful in speeding the movement of more detainees out of Guantanamo.

Fourth, after long delays, Periodic Review Boards (PRBs) have finally begun for Guantanamo detainees. This process, which may end up bearing some resemblance to parole boards, creates yet another possibility: a “PRB Bucket,” whereby Periodic Review Boards could support the goal of closing Guantanamo by reviewing and revisiting prior detention determinations in light of the current circumstances and intelligence, to determine  whether particular additional detainees may be designated for transfer from Guantanamo.

In sum, if the Administration could put together some or all of these pieces, it could finally begin to make steady progress on emptying the various “buckets” of detainees on Guantanamo.  That progress would in turn build momentum and foster a collective impression that Guantanamo closure is indeed possible.  In time, that impression could become a self-fulfilling prophecy. If by the end of the President’s term, the numbers are substantially reduced, he would have the option of one last “big bang,” where he could clear the prison as he left office, and keep his promise to close Guantanamo.

Of course, the wild card in this whole process remains Congress.  Yet here too, after the shutdown debacle, there are many possibilities. In his NDU speech, President Obama proposed to “refine and ultimately repeal his existing authority” under the 2001 AUMF.  Congressman Adam Schiff’s proposal  to sunset the 2001 AUMF after the end of 2014 was defeated in the House, but it could easily be reintroduced, especially because it has the appeal of linking the end of the war against Al Qaeda, the Taliban and Associated Forces to the December 2014 end of U.S. combat operations in Afghanistan.  The resumption of negotiations with the Taliban would set the stage for release of the Afghan Taliban detainees on Guantanamo, creating yet another “bucket” among the existing pool of detainees.  Moreover, ending the war with Al Qaeda and the Taliban would eliminate the Administration’s legal authority to hold law of war detainees on Guantanamo going forward based solely on their Al Qaeda membership.

With respect to the next iteration of the National Defense Authorization Acts, the Senate Armed Services Committee (SASC) version of the bill is currently more favorable to the Administration, for example, permitting removal of Guantanamo detainees to the U.S. for medical treatment. Typically, the current House Armed Services Committee version is more restrictive.  But if President Obama is serious about closing Guantanamo, he should draw from his recent experience during the shutdown and start signaling early that he will veto any version of the NDAA that makes it more difficult for him to carry out his announced objective of closing Guantanamo.  In this time of fiscal consciousness, the Administration should also underscore loudly the budget considerations that cut against keeping Guantanamo open.  Incredibly, each Guantanamo detainee currently costs the United States an annual cost of $903,614 per prisoner, 15 times what it costs to hold the average super-max prisoner and more than 30 times what it costs to hold a federal prisoner for the same period of time!

III.Disciplining Drones:  Perhaps the most overlooked phrase in the President’s NDU Speech was his announcement that “over the last four years, my administration has worked vigorously to establish a [legal and policy] framework that governs our use of force against terrorists –- insisting upon clear guidelines, oversight and accountability that is now codified in Presidential Policy Guidance that I signed” on May 22, 2013 (emphasis added).   The cryptic fact sheet that accompanied the speech apparently summarizes that Presidential Policy Guidance by stating the following standards:

Standards for the Use of Lethal Force:

Any decision to use force abroad – even when our adversaries are terrorists dedicated to killing American citizens – is a significant one.  Lethal force will not be proposed or pursued as punishment or as a substitute for prosecuting a terrorist suspect in a civilian court or a military commission.  Lethal force will be used only to prevent or stop attacks against U.S. persons, and even then, only when capture is not feasible and no other reasonable alternatives exist to address the threat effectively.  In particular, lethal force will be used outside areas of active hostilities only when the following preconditions are met:

First, there must be a legal basis for using lethal force, whether it is against a senior operational leader of a terrorist organization or the forces that organization is using or intends to use to conduct terrorist attacks.

Second, the United States will use lethal force only against a target that poses a continuing, imminent threat to U.S. persons.  It is simply not the case that all terrorists pose a continuing, imminent threat to U.S. persons; if a terrorist does not pose such a threat, the United States will not use lethal force.

Third, the following criteria must be met before lethal action may be taken:

  1. Near certainty that the terrorist target is present;
  2. Near certainty that non-combatants will not be injured or killed.  [The appended footnote further clarifies that  “Non-combatants are individuals who may not be made the object of attack under applicable international law.  The term “non-combatant” does not include an individual who is part of a belligerent party to an armed conflict, an individual who is taking a direct part in hostilities, or an individual who is targetable in the exercise of national self-defense.  Males of military age may be non-combatants; it is not the case that all military-aged males in the vicinity of a target are deemed to be combatants.”]
  3. An assessment that capture is not feasible at the time of the operation;
  4. An assessment that the relevant governmental authorities in the country where action is contemplated cannot or will not effectively address the threat to U.S. persons; and
  5. An assessment that no other reasonable alternatives exist to effectively address the threat to U.S. persons.

Finally, whenever the United States uses force in foreign territories, international legal principles, including respect for sovereignty and the law of armed conflict, impose important constraints on the ability of the United States to act unilaterally – and on the way in which the United States can use force. The United States respects national sovereignty and international law.

These are serious and welcome standards.  They obviously encapsulate many classified pages of Presidential Policy Guidance.  Now that the United States government finally has clearly stated standards that reflect and govern its own executive practice,  this would be a good time –as after Congress passed the Foreign Corrupt Practices Act regulating foreign payments by U.S. corporations—for the United States to lead a “race to the top” by engaging Congress and our allies in a more public effort to state and publicize global standards regarding targeting practices.

While some suggest that recent events show that the United States does not follow its own rules,  the successful capture of al Libi in Libya and the truncated attempt to capture Al Shababb leader Ikrimah in southern Somalia in fact suggest the opposite. As Mary DeRosa and Marty Lederman demonstrated in their well-crafted post on that subject, the al Libi operations closely followed five points of the blueprint laid out in the President’s NDU speech and accompanying briefings: (1) the primacy of  capture over kill operations; (2) the strict requirement of near certainty of avoiding civilian casualties; (3) the preference for Article III trials; (4) the focus on targeting Al Qaeda under the AUMF, rather than engaging  in a Global War on Terror (GWOT) based on unenumerated constitutional powers; (4) the focus on preventing future threats to U.S persons; and (5) a clearly stated preference for military over covert operations.

While some have questioned whether the U.S. has in fact followed its final stated principle regarding respect for sovereignty, recent media revelations indicate: (1)  that the Libyan government in fact consented to the al-Libi raid, (2) that a secret agreement with Yemen gave the U.S. broad authority to carry out lethal missions in Yemen, and (3) that “[d]espite repeatedly denouncing the CIA’s drone campaign, top officials in Pakistan’s government have for years secretly endorsed the program and routine received classified briefings on strikes and casualty counts.”  The Libya and Somalia operations also show that this Administration has not treated the conflict with Al Qaeda as an either-or option in which the U.S. Government uses either only Law of War or only Law Enforcement tools.  Instead, it has combined a Law of War approach with Law Enforcement and other approaches to bring all available tools to bear against Al Qaeda. This mixed approach is well illustrated by al-Libi’s case, where once he was captured, his interrogation bifurcated into a forward-looking and backward-looking phase that served two quite different purposes.   The initial phase of interrogating al-Libi as a Law of War detainee was not designed to get information regarding his past criminal activity.  Indeed, the federal prosecutor had already sealed a criminal file against al-Libi, based upon a decade-old indictment.  Thus, the goal of the initial interrogation phase was not to lead to a criminal prosecution in the SDNY; it was to lead to a change of our force posture to prevent future attacks on U.S. targets. The kinds of questions likely asked in the first phase were: “What is your network? What are they planning? What are their capabilities? How can this information protect American citizens against future attacks? “ But once al-Libi stopped giving such future-oriented information, the interrogators stopped treating him as a Law of War detainee and moved to a second, criminal interrogation phase — where they presumably took a break, gave al-Libi access to the International Committee of the Red Cross, switched to an FBI clean team, gave him his Miranda warnings and access to a lawyer if he wanted one, then began to ask him questions about past federal crimes for which he could be charged before the US District Court for the Southern District of New York.

With regard to disciplining drones, the recent capture operations clarified two other issues. First, are United States forces in fact applying the President’s announced rigorous standard of “[n]ear certainty that non-combatants will not be injured or killed [with the clarification that] it is not the case that all military-aged males in the vicinity of a target are deemed to be combatants?”  The recent Somalia raid to capture Ikrimah illustrated the President’s “near certainty of no-civilian-casualties” standard in action. Indeed, one American official briefed on the Ikrimah operation said the SEALs withdrew from the firefight precisely because they were not certain that they could avoid civilian casualties.

Second,  “who is an “Associated Force” that is a co-belligerent with Al Qaeda?”  Ikrimah, the target of the raid, was a Kenyan who was apparently deemed legally targetable for capture because he was part of the Al Shababb faction clearly associated with Al Qaeda, and thus fell within the lawful authority to target Al Qaeda or Forces granted by Congress in the Sept. 18, 2001 Authorization for Use of Military Force (AUMF) .  Media accounts stressed that Ikrimah was also one of Al Shababb’s “top planners for attacks beyond its base in Somalia, along with Abdi Godane, Al Shababb’s No. 1 (in whose villa he was pursued) who along with Ikrimah has been two of the most notorious Al Shababb leaders for many years.   But in its War Powers Reports to Congress, the Administration has taken pains to specify that “[i]n Somalia, the U.S. military has worked to counter the terrorist threat posed by al-Qa’ida and al-Qa’ida-associated elements of al-Shabaab. In a limited number of cases, the U.S. military has taken direct action in Somalia against members of al-Qa’ida, including those who are also members of al-Shabaab, who are engaged in efforts to carry out terrorist attacks against the United States and our interests.” (emphasis added) Ikrimah met this strict legal standard.  Crucially, to say that Ikrimah is part of Al Qaeda is not to say that all of Al Shababb is a co-belligerent of Al Qaeda, defined as “(1) an organized, armed group that (2) has actually entered the fight alongside Al Qaeda against the United States, thereby becoming (3) a co-belligerent with Al Qaeda in its hostilities against America.”  While Ikrimah meets the rigorous test for co-belligerency, as my Oxford speech pointed out, “if we are too loose in who we consider to be ‘part of’ or ‘associated with’ Al Qaeda going forward, then we will always have new enemies, and the Forever War will continue forever.”

IV. Clarifying The Broader “Smart Power” Strategy: In sum, since May, the Administration has made reasonable progress in achieving the three goals of disengaging from Afghanistan, closing Guantanamo,  and clarifying its drone standards.  But where President Obama has been notably less successful has been in persuading the interested publics– our allies, Congress, and the media (particularly the blogosphere)—that he has the counterterrorism situation well in hand.   The most recent wave of drone reports –by NGOs Human Rights Watch and Amnesty International, and United Nations Special Rapporteur on counter-terrorism and human rights Ben Emmerson, and United Nations Special Rapporteur on Extrajudicial Killings Christof Heyns—have challenged whether the stated U.S. standards have in fact been applied in practice in Yemen, Pakistan and elsewhere.   As Sarah Knuckey has detailed, the NGO reports do not seek to assess the total number or rate of civilian casualties for all U.S. drone strikes. Nor do they say that all U.S. targeted killings are illegal.   They do, however, claim that dozens of civilians have been killed, and that the U.S. may be misinterpreting and misapplying existing law by applying broader notions of targetability and imminence than international law permits.

These are serious charges that deserve serious responses from our government.  The most important part of the President’s NDU speech was his recognition that:

America is at a crossroads.  We must define the nature and scope of this struggle, or else it will define us.  We have to be mindful of James Madison’s warning that “No nation could preserve its freedom in the midst of continual warfare.”  Neither I, nor any President, can promise the total defeat of terror.  We will never erase the evil that lies in the hearts of some human beings, nor stamp out every danger to our open society.  But what we can do – what we must do – is dismantle networks that pose a direct danger to us, and make it less likely for new groups to gain a foothold, all the while maintaining the freedoms and ideals that we defend.  And to define that strategy, we have to make decisions based not on fear, but on hard-earned wisdom.

There is still time for the President is to win back the hearts and minds of his citizens and his allies for the challenging task of ending the Forever War with Al Qaeda. But to do so, he must return public focus to  his broader “smart power” approach to counterterrorism.  He should make clear that drones are his tool, not his strategy.  In the short term, he should make clear, the limited and constrained use of drones is only one of many tools deployed within a much broader strategy of public and private diplomacy, consultation, and standard-setting.   In the long run, our goal is to persuade potential terrorists that they have far more to gain by cooperating with us, than by bombing us.

To support these goals, my Oxford speech urged four steps that remain pressing today: (1) that President Obama should make his legal standards governing drone use public and transparent;(2)  that the Administration “should make public its full legal explanation for why and when it is consistent with due process of law to target American citizens and residents;” (3) that the U.S. should “clarify its method of counting civilian casualties, and why that method is consistent with international humanitarian law standards;”  and (4) that where factual disputes exist about the threat level against which past drone strikes were directed, the Administration should release the factual record,” explain why it believed particular threats were imminent, what called for the immediate exercise of self-defense, and how sovereignty concerns about consent were satisfied.  The Administration has not done so, to its own growing detriment.  Especially if the Administration believes that claims of civilian casualties are inflated, it needs to state what its own civilian casualty numbers are and clarify its methodology for evaluating civilian casualties.

More broadly, this is a moment not just for transparency, but for consultation and standard-setting with both Congress and our allies.   It may well be that greater transparency will cause trouble with some allies, but as the NSA surveillance contretemps shows, this Administration needs to work aggressively on transparency and candor, if only to get its allies back onside.  Public commentaries daily show confusion about both what Obama’s broader strategy is, and where particular tools fit within that strategy.  The Obama Administration’s own continuing lack of transparency, consultation, and public standard-setting has only furthered a cycle of public revelation and outrage that has fed this unfortunate confusion.

The recent drone reports have thrown down a challenge, but it is one that this President should treat as an opportunity.  The President should clarify that his goal is not to use drones, the AUMF, or an elastic concept of “Associated Forces” to prolong a twelve-year war.  To do so would let the means pervert the end.  Instead, he should stay the course, and accelerate it.  He should carry out his announced goal of ending the Forever War by explaining how the tools he is using are in fact combining to bring that war to an end.  He should make clear that, slowly but surely, he is carrying out the smart-power strategy he outlined in May: disengaging from Afghanistan, closing Guantanamo, and using drones according to transparent and rigorous standards.  Having explained to the public his strategy, he should now offer standards and  facts: reasons to believe that he is sticking by his announced standards, that  he is in fact rigorously targeting only combatants, and that  although there will always be terrorism, our Nation’s concerted efforts are diminishing the threat of Al Qaeda and associated forces sufficiently that we may soon be responsibly able to declare the Forever War over.

 

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About the Author

is Sterling Professor of International Law at Yale Law School.