I got the sense that Obama’s been anxious to make this speech for some time and to make the terms of debate over targeted attacks from unmanned aircraft — ‘drones’ — public. The speech itself came after U.S. attorney general Eric Holder admitted in a letter for the first time that U.S. drones killed Anwar al-Awlaki in Yemen, as well as three other U.S. citizens accidentally. It’s important to recall, furthermore, that Obama only first publicly acknowledged the drone strikes in Pakistan last year during an online chat.
It’s far beyond my blog’s realm to delve far into the speech in specificity — Benjamin Wittes has already done that in a series of blog posts (here and here) at Lawfare that are more articulate than anything I could produce in such a short time frame. But when the president of the United States delivers a wide-ranging address on the U.S. war on terror, it has so many effects on world politics that it’s impossible not to think about how policy may change in the remaining years of the Obama administration.
Those policy decisions are incredibly relevant to international law and politics, but also in the domestic politics of two dozen countries — Pakistan, Yemen, Iraq, Afghanistan, Somalia, and so on.
What I do have, however, are a lot of questions that remain following the speech — perhaps even more than I had before I watched the speech.
- Associated forces. Obama mentioned al-Qaeda’s ‘associated forces’ four times, but what exactly is an associated force? The lack of any meaningful definition lingered awkwardly with every mention. In many ways, this goes to the heart of the legal issue with the drone strikes in places like Yemen and Somalia, and whether they’re even authorized under the Authorization to Use Military Force (AUMF). Al-Qaeda in the Arab Peninsula (AQAP) and al-Qaeda in the Islamic Maghreb (AQIM) share a name, and key links, but it’s really difficult for me to believe that impoverished radical Yemenis or Tuaregs are really so associated with the original iteration of al-Qaeda that Osama bin Laden led in 2001. Somalia’s al-Shabab is often described as a home-grown al-Qaeda, but is it an associated person? It’s even more doubtful than AQAP and AQIM. Hamas and al-Qaeda are certainly mutually sympathetic and may well have mutual ties over the past two decades, but does that make Hamas an associated force? In the same way, the Taliban in Afghanistan is not affiliated with the Tehrek-e-Taliban Pakistan (i.e., the Pakistani Taliban), but they’ve been a particular target of the Obama administration’s drone strikes in Pakistan — so much so that drone strikes were a top issue in Pakistan’s recent national elections. So there’s a real question as to whether those actions legal — if those targets aren’t associated forces, the targets aren’t subject to the use of military force under the AUMF.
- The precision of future drone strikes. Obama has committed to more judicial use of drone strikes that have, as Obama admitted, killed civilians in the past, and though he didn’t exactly outline it in his speech, it’s reported that the U.S. military will take over some of the role that the Central Intelligence Agency has played in the drone strikes in recent years. Nonetheless, the CIA has been reported to have used so-called ‘signature strikes,’ which target young men who live in areas known to be dominated by radical terrorist groups, though the strikes aren’t based on specific identification or intelligence that ties the targets to clear engagement against the United States. Obama didn’t mention ‘signature strikes’ today. But he argued that the use of drones is ‘heavily constrained’ and further bound ‘by consultations with partners’ and ‘respect for state sovereignty,’ and that drone strikes are only waged against terrorists ‘who pose a continuing and imminent threat’ when there are not other governments ‘capable of addressing’ that threat,’ and only when there’s a ‘near-certainty that no civilians will be killed or injured.’ That’s a much higher standard than what’s been reported in the past. So was Obama describing past policy on drone strikes or future policy? What do assurances of more precision in the future mean when we don’t know the level of care with which the drone strikes have been effected in the past?
- The oversight of future drone strikes. It’s also unclear how the Obama administration believes oversight should be handled. Obama, in his speech, noted that he’s asked his administration to review proposals for extending oversight on drone strikes, and he outlined several options, including something similar to the FISA courts that authorize electronic surveillance of U.S. citizens in the fight against terrorism. But he’s in year five of his administration — shouldn’t this be something that his administration has already considered? Will his administration be able to enact a system in time for Obama’s successor? Will it even be based in statute so that it’s binding on future administrations? All of this is unclear.
- The administration’s standard for taking lethal action against U.S. citizens. It was heartening as an attorney to see Obama defend the due process rights of U.S. citizens: ‘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.’ And, in an impassioned defense of the killing of al-Awlaki, he argued that his administration notified the Department of Justice and Congress before killing al-Awlaki in Yemen, and he spoke of the high threshold that his administration has for taking lethal action. But he never said what that threshold is, which remains highly problematic from a due process perspective. The standard outlined in a Justice Department memo to Congress that was leaked in February 2013 requires that the target must be an imminent threat (which, by the way, need not require evidence of any specific attack in the immediate future). Is that the Obama administration’s current position? And if it’s al-Awlaki really did pose an imminent threat and could not be captured, what was that imminent threat? Or is that really just a fig leaf for ‘shoot now, ask questions later’?
- Whether the al-Awlaki killing is constitutional under Hamdi. Furthermore, the U.S. Supreme Court ruled nine years ago in Hamdi v. Rumsfeld that the U.S. government must respect the due process rights of a citizen captured as an enemy combatant in a war theater. The case involves the Louisiana-born Yaser Esam Hamdi, who was doing relief work in Afghanistan when he was captured by the Northern Alliance, which in turn handed him over to U.S. forces, which classified him as an enemy combatant, detained him in Afghanistan and sent him to Guantánamo in 2002. The Supreme Court ruled, however, that Hamdi, as a U.S. citizen, still retained due process rights and so could not be detained indefinitely as an enemy combatant, but was subject to the constitutional and court protections of any U.S. citizen. I’d like to know how Obama thinks the al-Awlaki killing falls, as a legal matter, within the Hamdi framework. Yemen, unlike Afghanistan, isn’t even a theater of war, in the conventional sense, and there’s an outset question of whether AQAP is an ‘associated force’ of al-Qaeda. Let’s assume that it is. You can argue that Hamdi applies only to captured combatants, not to combatants who present an imminent threat in real-time. But that makes the need for a clear standard all the more important under constitutional law.
- What about those other three Americans? One of the omissions of the speech was any further detail about the three other Americans that the drone strikes killed by accident, including al-Awlaki’s 16-year-old son, Abdulrahman al-Awlaki, who was reportedly killed in a separate drone attack a couple of weeks after his father’s killing. Was the ‘accident’ that he was a collateral victim of a drone strike on other suspected combatants? Or did the administration ‘accidentally’ target his son not realizing that he wasn’t a combatant? The answer really ought to inform how to avoid more ‘accidents’ in the future, and a 25% accuracy rate for U.S. citizens killed by drone strikes doesn’t inspire a lot of confidence (and though we’ll never know for sure, I shudder to think about the kill rate of non-U.S. civilians). We don’t have any further details from the administration about what went wrong, and moreover, we have no indication as to how the U.S. government will avoid accidentally killing U.S. citizens in the future.
- Guantánamo. Aside from Obama’s announcement that he would lift the moratorium on transfers of prisoners back to Yemen, what exactly does Obama propose to do to close the prison at Guantánamo Bay that varies from what he could have done on January 20, 2009? More military commissions? Sending them to indefinite detention in U.S. prisons? Releasing them all to Yemen? If, as Obama said, ‘force-feeding detainees who are holding a hunger strike’ is not the ‘America we want to leave to our children,’ why has the administration been doing it for years?
- Congress’s role. Dave Weigel at Slate points to four ways in which Obama shifted responsibility to the U.S. Congress, but can Obama actually believe that the Congress is in the driver’s seat on executing the ‘war on terror’? Is it really Congress’s fault that the U.S. ambassador to Libya had insufficient security when he was killed in Benghazi on Sept. 11, 2012? Is it really up to Congress to determine when to end the ‘war on terror’ by deauthorizing the AUMF that was enacted on Sept. 14, 2001? Is it really Congress’s fault that the administration hasn’t transferred prisoners at Guantánamo back to Yemen or Bosnia or wherever?
- Winding down the AUMF. Moreover, when Obama calls to wind down the wind down the AUMF, it’s something that, as Wittes writes, the Obama administration could do tomorrow by essentially declaring victory and saying that al Qaeda has been by and large defeated. Yet just last week, top Pentagon officials were arguing that AUMF could be used for a decade or two in the future. Moreover, the Obama administration’s authorization to use military force isn’t a commandment. Andrew Sullivan is hopeful that Obama intends to wind down the AUMF by the end of his second term, but Obama’s committed to nothing beyond vague platitudes opposing perpetual warfare.
None of these questions are, of course, easy, and two administrations of two different political parties, have agonized over where to draw the legal and ethical lines for 12 years. But they’re arguably the most important questions at the forefront of the U.S. foreign policy issue that today has the most effect on the world — and, in particular, the Muslim world.