A partial reply to Noah Feldman.
Though we only met once — the summer before I started at NYU Law, when he signed my copy of Divided by God, and then promptly transferred to HLS — I have an immense amount of respect for Professor Feldman, and so disagree reluctantly with his assessment, shared by most of the left, that Obama hasn’t done enough to remedy the prior administration’s truly dismal record on counterterrorism, one characterized by the gleeful and frequently purposeless shirking of community and international norms. As I’ll hope to show, Obama has changed the tone, and in some respects, that’s good enough.
Like me, Professor Feldman accepts the premise that messaging matters. The world observes our conduct of this war with no small degree of attentiveness, and whenever we can fulfill the “good guy” role that we’ve built for ourselves, and disprove al Qaeda’s countervailing narrative, that’s a good thing. It validates the stories we tell about ourselves, and carries the potential to either win allies or influence enemies (this applies to our domestic conduct, too). This is entirely true, and an important reason to make decisions that comport with international expectations.
The problem lies in treating the United States, for this purpose, as a unitary actor. It’s not. The specter of the Bush policies lingers, inspiring an opposition that has in fact intensified, resulting in arguments for dehumanizing our enemies in ways that even Bush himself opposed. Against this, Obama can struggle to do what’s right, but only achieve results within the limits of what’s actually possible, always conscious that going too far, and losing the ability to make the modestly positive decisions he appears capable of, is tantamount to permitting congressional Republicans to repeat their earlier mistakes.
Given this opposition, Obama has staked out controversial positions, implemented them wherever possible, and most importantly, defended his right and duty to see the remainder put into action. If words matter more than, or as much as actions, this is itself a victory, because defending the government’s obligation to try Khalid Sheikh Mohammed as a citizen is as good as actually doing it. If not, he’s doing the best he can, without risking an electoral loss, and the ensuing backslide. Either way, we should trust that the overall improvement of our international profile is noticeable, and as superior as possible to the Republican alternative.
That said, Feldman is right that the administration’s increased reliance on drones should be concerning, but not for the reason he identifies. The reckless use of drones, in situations likely to produce civilian casualties, speaks for itself. Against that, trivial (and surmountable) obstacles to their legality is irrelevant. The UN Rapporteur will notice whether a CIA operative, or a uniformed soldier subject to military discipline, is operating the drones. But the average citizen will not, and our observers will only notice whether drones are used with an eye towards discretion, and to keep safe, rather than endanger, the civilian populations we purport to protect. It is that aspect of their use that must be perfected. Compliance with the niceties of domestic law is secondary to that, although still important. Optics matter in the war on terror, but when assessing how, it’s important to consider the whole picture, and the extent of the artist’s control over it.