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Obama and the Laws of War

Interviewee: Matthew C. Waxman, Adjunct Senior Fellow for Law and Foreign Policy
Interviewer: Jonathan Masters, Deputy Editor
May 10, 2012

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As U.S. counterterrorism efforts expand in Yemen (BBC) and the Horn of Africa, the Obama administration continues to articulate the legal principles governing these often controversial operations. White House officials have delivered a series of major policy speeches over the last two years, most recently by counterterrorism chief John Brennan in April 2012, that have tried to explain the particulars as they relate to both targeted killings and detention policy. CFR's Matthew Waxman says the White House has sought "flexible pragmatism" in its counterterrorism policies, and notes the challenge for the administration "has been to strike difficult balances," often between competing imperatives such as the need to preserve intelligence operations and the desire to increase transparency. Despite the administration's goal of closing Guantanamo, Waxman sees "no viable alternative" to the detention facility as long as current restrictions on detainee transfer remain in place.

Is there a common thread that runs through the Obama administration's counterterrorism policies?

There are a few common themes in the administration's detention and targeted killing policies. First is the idea that the United States remains at war with al-Qaeda and its affiliates--a war that Congress has authorized and that courts have recognized--and that the government can therefore wield very potent and coercive powers. Second is the principle that the U.S. government's actions are constrained by domestic and international law, but within those constraints the executive branch should exercise flexible pragmatism in handling specific cases, rather than binding itself to any one option.

So, for example, the administration maintains that it has authority to capture and hold enemy al-Qaeda leaders or fighters under the laws of war without trial. But that authority is also limited by the laws of war defining who may be captured and held, and the administration should also have the option to prosecute such individuals in federal court if doing so makes good sense.

Over the last three-plus years, the administration has laid out its counterterrorism policy in a series of major speeches, most recently the Brennan speech. What, if any, are the big questions still left unanswered?

"Absent a dramatic event like a major terrorist attack or an action-forcing event like a significant court judgment against the government, I wouldn't expect radical reforms from the administration."

The continuing challenge for the Obama administration in this string of speeches has been to strike difficult balances, including asserting broad and geographically expansive war-fighting powers while assuring critics that they are limited; justifying or touting programs that remain covert; and promoting government transparency while protecting sensitive diplomatic relations and intelligence programs.

It's not surprising that some critics feel the Obama administration isn't going far enough in these speeches. For instance, they'd like to hear much more specific detail about the internal processes and standards by which the executive branch makes targeting decisions. And they'd also like to hear clearer articulation of the outer limits to the war against al-Qaeda and who may be targeted.

Do you expect the administration's policies to continue to evolve?

We're in somewhat of an equilibrium in that the administration faces pressure from both the left and right on some issues, like Guantanamo, while the targeting policy seems to have broad bipartisan support. Meanwhile, Congress has blocked some reform efforts like bringing detainees into the United States for trial.

Absent a dramatic event like a major terrorist attack or an action-forcing event like a significant court judgment against the government, I wouldn't expect radical reforms from the administration. Instead, its current policy will continue to evolve incrementally, such as refinement of detainee review procedures or revision of targeting guidelines in various contexts.

How long can the U.S. government rely on the 2001 Authorization for Use of Military Force (AUMF) as the domestic legal basis for its counterterrorism policies?

The AUMF doesn't have an expiration date, and the conflict with al-Qaeda is unlikely to come to a clear end. So debates will continue to rage about its scope: to which al Qaeda-affiliated groups or individuals does it apply, given that al-Qaeda remains a threat, but one that is increasingly dispersed, decentralized, and operationally disconnected from the 9/11 attacks?

Although some members of Congress have sought to update the AUMF, the administration has resisted, insisting that existing authorities are sufficient. That could change in the future were an entirely independent terrorist threat of similar magnitude to arise, or if courts begin to interpret the AUMF to significantly limit its scope going forward.

Are there distinct legal challenges that distinguish the counterterrorism campaign in Yemen (and Horn of Africa nations) from that in Afghanistan and Pakistan? What do the administration attorneys have to worry about in Yemen that they didn't in Pakistan?

The government has generally taken the position that AQAP is sufficiently part of or connected with al-Qaeda, sometimes using the legal term "co-belligerent", that it can rely on the same legal bases to support its actions against it. Against some particular terrorism suspects, the U.S. government may also be relying on a separate "self-defense" legal theory, that its actions are justified to prevent an imminent attack on the United States.

Even if the legal theories are the same as those used in Pakistan, there are special challenges in applying them in Yemen on account of the different factual circumstances. For example, there is the question of whether individuals' suspected conduct places them within the scope of these targeting authorities, and that analysis might look different with respect to Yemen versus Pakistan because of the way groups in each are organized or operate.

There is also the question of sovereignty, and whether the United States can use force against targets inside Yemen's or Pakistan's territory. Typically, the U.S. has sought consent from the respective government or has deemed it unwilling or unable to take sufficient action itself (i.e. the U.S. strike on Osama bin Laden). However, the U.S. government has not spoken publicly on that last question, among other reasons because of the delicate bilateral diplomacy involved.

If there were another major successful AQ-linked attack--for instance, a plane bombing in which several Americans perish--would the administration seek broader counterterrorism authorities, or would existing authorities suffice since the U.S. is already technically at war?

It would depend on the nature of the attack, but in such a case, the government would largely rely on its existing legal authorities, like the current AUMF. A major attack would probably bolster the view within the government and in court that the AUMF should be interpreted broadly, and it could rekindle debates about interrogation and airline security measures, too.

What are your expectations for the Khalid Sheikh Mohammed (NYT) proceedings? From a legal standpoint, what are some things to watch for?

"A major attack would probably bolster the view within the government and in court that the AUMF should be interpreted broadly, and it could rekindle debates about interrogation and airline security measures, too."

This is an opportunity for prosecutors to prove to the world the heinous acts of 9/11 and the key conspirators, but the government must also prove the legitimacy and credibility of the military commissions system. As currently constituted, military commission rules meet American constitutional standards and international standards, but they still face an uphill battle in winning over skeptics. For some critics, military commissions are indelibly associated with the most controversial Bush administration detention and interrogation programs, and the very idea that there would be a separate justice system for accused terrorists is offensive, regardless of whether the procedural and evidentiary rules are fair.

In terms of the KSM trial, it's not entirely clear yet what the defense strategy will be, though the defendants seem already to be trying to discredit the system. Also, watch for the defense to look for every opportunity to focus attention of the suspects' treatment at the hands of the CIA, including waterboarding.

What do you see as the fate for those detainees still uncharged at Guantanamo? And is there a foreseeable path to the facility's closure?

Although the administration maintains its stance that it wants to close Guantanamo, it will almost certainly stay open for the foreseeable future. Congress has blocked transfer of Guantanamo detainees into the United States, and it, as well as instability in some places abroad, has made transferring them home difficult. So long as those two options remain closed off, there is no viable alternative to continued detention there, perhaps combined with military commissions trials for some detainees and court review and periodic administrative review for others.

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