Counterterrorism Under Obama: the Rule of Law by Fits & Starts

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.



  1. Its more then drones. Warrant-less surveillance is still going on, and this Administration still seeks to defend telecoms from punitive legal action. The Obama camp also ignored numerous court orders to release inmates at Gitmo, and continues to insist that indefinite detention is a “right” of the Commander in Chief. Mr. Obama has also failed to prosecute those who violated our laws (including those on war crimes). Sorry to say the drone “perception issue” is a red herring – and I’m surprised you’ve fallen for it.

  2. Warrantless surveillance goes on under a scheme ratified by the Congress, and produced by a legitimate process; Bagram is distinguishable from Gitmo; and I’m not aware of any orders to release inmates that’ve been disobeyed. The first two may be wrong on policy, but they’re right on process. Until we have a better alternative, that too may be the beset we can hope for.

    1. Really? Then why are Chinese Uighars still in custoday, almost a year after the court told the Administration to release them? Answer – if we send them home the Chinese will most likely tortur ethem, but if we release them here, we have “terrorists” running amok in our society, and no third country has taken them. Ditto for certain Yemmeni’s still in custody.

      And no, Bagram is not distinguishable from Gitmo – its a “prison” run by U.S. Personnel fo rthe xpress purpose of detaining foreign nationals (and anyone else deemed an “enemy”) extra-territorially and thus extra judicially. The process to produce warrantless wiretapping was never done legitimately – Congressional ratification out of cowardess not withstanding – and considering that 98% of FISA warrants were/are granted, was also completely unnecessary except as a means of restricting freedom.

  3. Enough of the Uighurs I know have been repatriated — in fact, I thought all of them had, to the Bahamas, until a country was found to take them permanently.

    FISA is probably a necessary evil. The 98% grant rate is staggering, but indicates only an implementation problem, if anything. The warrantless wiretapping scheme, too, fills a void in FISA. FISA permits only source-by-source tapping, while the TSP was (and is now) used for information gathering en masse. That ought to be troubling and I don’t think it’s something we should be happy about. But it’s a real imporvement from an intellgience perspective, and doing it through Congress, until a more permanent solution is found, is good practice.

    Finally, there’s a historic and legal difference between battlefields temporarily under American control (Bagram) and foreign lands under near-permanent American control (Guantanamo). Historically, the writ runs to the latter but never the former. This should make practical sense if you think about it. Bagram will become a problem if that status is abused — as in, if it starts to shade into a permanently occupied base, or if you put non-battlefield detainees there purposefully beyond the reach of the writ — but there’s been no indication of that. Yet.

    1. So what’s your take on the 9th Circuit’s decision yesterday about using the state secrets priviledge to protect private contractors from legal scrutiny for rendering suspects to be tortured? I have my own thoughts posted this AM on my blog, but I’m no lawyer . . .

    2. I can’t make any apology for the continued use of the state secrets defense. It’s deeply disappointing.

  4. ” If not, he’s doing the best he can, without risking an electoral loss, and the ensuing backslide.”

    His best has turned out to be weak tea, and voter apathy is going to cost him as many votes as strong opposition to strong policy ever would have. Seriously, look at the voter turn-out numbers. He’s not liberal OR progressive at this point, and thus both hard-lefties and moderates aren’t dying to pull the lever for him as they did in ’08.

    Your blog’s mission, heck it’s very name, is being consistently undercut by your passion for carrying water for the Democratic Party. Bagram is as large a stain on America’s honor as Bush ever did. And as far as we know, Bush didn’t order the execution of American citizens ACCUSED BUT NOT CONVICTED OF ANY CRIME away from the battlefield, as the current President has done.

    Anyway, the proof is in the pudding and Obama’s polling numbers in the Middle East are fast approaching Bush’s worst. His actions, his words… whatever they’re factoring in over there it certainly isn’t working.

    1. This is the problem of governing. I think we have to keep in mind what he CAN do, and I’m honestly not convinced that he’s doing less than the most he can.

      Bagram is bad if you think the problem is indefinite detention. That’s *a* problem. The larger problem is patently unlawful indefinite detention. Bagram’s location makes detention there lawful as a forward battlefield base, which is a considerable step in the right direction.

      1. See, here’s the thing. It would not be *impossible* to charge and arrest these people, or else treat them like prisoners of war. It would, however, be *hard*. Doing the hard thing is what leadership is supposed to be about.

        And by the by, I know there’s a lot of talk flying around but you didn’t explain away execution orders of accused-but-not-convicted American citizens. Why does that HAVE to happen? That’s not making the best of a bad situation, that’s making a situation bad.

      2. I’m actually not familiar with that at all. What is it?

        1. As reported in numerous new outlets for several months . . . the President has apparently/allegedly ordered the use of drones to kill an American born Muslim cleric who, while no longer in the U.S. hasn’t renounced his citizenship but has made a number of anti-American statements and supports some of what Al Qaeda does. Said cleric has never been captured or even seen on a legitimate battle field, and is not reported to be affiliated with any actual terrorist group. There has been no trial, no death sentence, just the president saying we need to kill this guy.

          1. What he said. It’s not alleged, by the by, the cleric’s name is on the approved list of murder targets (I <3 that we have one of those :( ) and his family is actually suing on his behalf to try and get this decision over-turned.

            Fun times: in order for legal representation to be acquired for him, the Federal government required that a license be granted by … er, I forget the agency off the top of my head. Try that one on, counselor – the Feds are inserting themselves between a citizen and his right to representation. When THAT matter was about to be litigated, they simply granted the license so as to concede the battle without facing the war. USA! USA!

            (yes, I'm feeling a scooch betrayed.)

  5. This I have to concede. I’m not comfortable with that use of drones. I’m not bothered by the fact that the operators are civilians not subject to military justice, but this is an improper use of the technology.

    1. The drones are the least of the problem. Let’s be clear: constitutionally there is no difference between you and Anwar Awlaki. None. So, for fun, rethink this as “ACG has been accused of ties to terrorism, and is currently slated to be assassinated just as soon as they can put a scope on him, no matter where he is or what he’s doing. Whether ACG is guilty of the charges he is being accused of is of no matter since despite being a citizen of the United States he has not been tried, never mind found guilty, for said charges.

      In other news, the patently ridiculous movie ‘Starship Troopers’ just got a little less ridiculous since citizenship in the United States now comes in both ‘basic’ and ‘awesome’ levels. Enrollment in the ‘awesome’ program ensures due process and freedom of speech. Stay tuned for details on how to order…”

      1. Concur! It’s not how the target is killed or by whom that is the issue – it’s that he’s and American citizen and is for all intents and purposes sentenced to death without due process. By a Democrat. Who also supports warrantless wiretapping. And indefinite detention. How much more do we have to conceed in the name of “security?”

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