On Thursday, President Obama will be giving a major address on counterterrorism policy. Here are three major questions Obama needs to adequately address:
What Is The Legal Authority For Targeted Killings?
The first question Obama should clearly answer is where the administration derives the authority to engage in drone strikes against enemy combatants. The "white paper" outlining administration policy uncovered by Michael Isikoff was ambiguous, citing both the 2001 Authorization to Use Military Force (AUMF) against Al-Qaeda and the president's inherent Article II powers. It is important to clarify the nature of the asserted power, particularly given the highly elastic definition of "imminent threat" the administration seems to be using. (Nobody disputes that Article II gives the president the authority to respond to genuinely imminent security threats, but it does not give the president the authority to kill people in pre-emptive response to speculative ones.) Admittedly, in the short term the specific legal basis cited by the administration will make no difference on the ground, since Congress has shown no inclination to revise the AUMF or otherwise constrain the president's authority to order extrajudicial killings of suspected terrorists abroad. But in the longer term, the source of authority claimed by the president matters. The Obama administration needs to clearly repudiate the Bush administration's excessively broad assertions of unilateral executive power.
What's the Process?
The most disturbing aspect of the extrajudicial killings that have been used frequently by the Obama administration as an antiterrorism tactic is the lack of transparency and due process. On a traditional battlefield, this is less problematic because the status of enemy combatants is clearly identified. But in the murkier world of counterterrorism—which has some elements of military policy when suspected terrorirts are beyond the reach of state authorities but retains many elements of ordinary policing—the lack of due process is much more disturbing. The leaked white paper described at least some of the underlying theory, but a great deal of the process remains unclear. How is enemy combatant status determined? How can it be challenged? What are the circumstances in which extrajuridical killings are justified? And, most importantly, how can a process without judicial checks not create an unacceptable risk of errors? It should also be emphasized that Obama needs to adequately address not just questions of legal process but of policy process as well. Even if we assume for the sake of argument that the existing system successfully identifies genuine security threats and targeting them is legally justified, this doesn't mean that particular target killings represent a wise course of action. One of the many defects of the Bush administration's excessively militarized counterterrorism policies is that they seemed premised on the idea that there were a finite number of terrorist threats and the threat could therefore be ended by military action. The reality is more complex: military action leads to opposition that might breed two or three terrorists for every one killed, as well as making states less willing to work with the American government in other areas. There is at least some reason to believe that the drone strikes are generating increased hostility to the United States that might ultimately undermine national security. The Obama administration has avoided a foreign-policy catastrophe on the scale of Iraq, but its excessive faith in the efficacy of military force has regrettable similarities with the previous administration's thinking. Obama's speech needs to face these questions head-on, and hopefully will announce a shift away from the use of military attacks to right terrorism.
What's the deal with Gitmo?
There is a lot to be said in favor of the Obama administration's approach to arbitrary detention. Obama has stopped arbitrarily detaining terrorist suspects and stopped torture. And the question of what to do with the prisoners still being detained at Gitmo isn't an easy one. The shoddiness of the Bush administration's process makes it difficult to determine the threat posed by individual detainees. The Yemeni nationality of many of the remaining prisoners makes it difficult to find places to viable send detainees. And Congress had acted to tie Obama's hands when he tried to act on this ongoing human-rights disgrace.
Despite these roadblocks, there are still things that the president can do. The recent hunger strike at Gitmo should add additional impetus to take the political risks inherent in releasing every prisoner possible.
The hunger strike has lead to some encouraging responses from President Obama. Hopefully Thursday's speech will indicate further steps towards ending a situation Obama concedes is "not sustainable."