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What the President Could Say in His Speech

Authors: Matthew C. Waxman, Adjunct Senior Fellow for Law and Foreign Policy, and Robert Chesney
May 21, 2013
Lawfare

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On Thursday, President Obama will be giving a major address on national security and counterterrorism, styled as a companion to the 2009 National Archives address. That 2009 speech adopted a pragmatic approach blending a renewed emphasis on criminal prosecution and closure of Guantanamo with an embrace of the continued use of military detention and military commissions (albeit somewhere other than Guantanamo) in those instances in which those tools are both lawful and the best available option.

In that speech and since then, the President has repeatedly emphasized three major elements of a counterterrorism legal-policy agenda, but his administration has not followed through in a serious way: (1) closing Guantanamo; (2) working with Congress to put forceful counterterrorism actions (including detention and targeting) on sound and durable legal footing; and (3) making targeted killing more transparent. If the President intends to use this speech to reinvigorate these initiatives, here is an overview of what he might say:

1. A True Policy, Not Just a Slogan, for Closing Guantanamo

There are now 166 detainees at Guantanamo. Many of them are already approved for transfer or release, some of them are slated to be prosecuted by military commission, and others the President already acknowledged are likely not prosecutable yet are too dangerous to release or transfer.

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