Editor's Note: Matthew Waxman is Associate Professor at Columbia Law School, and he is also a fellow at the Council on Foreign Relations and member of the Hoover Institution Task Force on National Security and Law.
On Monday, Attorney General Eric Holder delivered a long-anticipated address providing the Obama Administration's legal rationale for targeted killings of certain al Qaeda suspects - even U.S. citizens. Ever since last fall when the it reportedly killed American-born Anwar al-Awlaki - an al Qaeda terrorist plotter and propagandist - with a drone strike in Yemen, the Obama Administration has faced strong pressure to explain its legal basis for such actions.
Holder's remarks are unlikely to satisfy either the most vocal civil libertarians or security-hawks, but they reflect this administration's pragmatic approach toward national security law issues.
Holder's remarks, which also reasserted the administration's need for flexible discretion to use both military and civilian courts to prosecute some al Qaeda suspects, is the latest in a series of public speeches from senior Obama Administration legal and counterterrorism officials (including Defense Department General Counsel Jeh Johnson, White House counterterrorism adviser John Brennan, and State Department legal adviser Harold Koh). A common theme of these presentations is that the United States remains at war with al Qaeda and its allies - a war authorized by Congress in 2001 - but that U.S. war-waging powers such as lethal force, detention, military commissions, and interrogation are bounded by both international and domestic law. Each of these speeches has incrementally provided additional contour to these legal boundaries, which is important to building and sustaining the legitimacy of the counter-terrorism programs - even though the general principles and sparse details are not enough to convince skeptics at home or abroad.
The novel part of Holder's remarks was the discussion of American constitutional rights and how they constrain targeted killings abroad of U.S. citizen-belligerents (although he never mentions al-Awlaki by name, presumably the speech reflects the legal analysis behind operations against him).
The continuing challenge for the Obama Administration in this string of speeches has been to balance or reconcile several sets of opposing imperatives: Asserting broad and geographically expansive war-fighting powers while assuring critics that they are limited; touting and justifying actions that remain covert and officially unacknowledged; promoting government transparency while protecting sensitive intelligence programs and diplomatic relations.
As the 2012 presidential race heats up, expect to hear President Obama criticized on this set of issues from both ends of the political spectrum. Some parts of his liberal base remain disappointed by his continuing use of indefinite wartime detention, military commissions, and targeted killing. Some on the right will attack him for imposing tight restrictions on interrogation and sometimes making use of civilian federal prosecutions against al Qaeda leaders and plotters (even though the Bush administration repeatedly and successfully used civilian prosecutions, too).
In practice, the Obama administration's policies have closely resembled those of the last few years of the George W. Bush administration - after reforms imposed by each of the three branches of government - even if the Obama Administration has pulled back on its predecessor's most aggressive legal views about executive powers.
Regardless of who wins the presidency in 2012, the counterterrorism policies and practices in the next term will look a lot like they do now. A second-term Obama administration will continue its approach of flexible pragmatism, having learned that operational and political constraints rule out radical reforms, but having shown that acknowledging and articulating legal limits strengthens counter-terrorism programs by making them less vulnerable to legal and political challenges and reducing friction with our allies.
Any Republican administration will find it difficult to roll back Obama Administration reforms in the other direction, especially those that reflect legal lines drawn by the Justice Department in recent years. It will also find how valuable the option of civilian criminal prosecutions can be.
The views expressed in this article are solely those of Matthew Waxman.
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