The President's NDU Speech and the Pivot from the First Term to the Second (Chapter 3)

Abstract

"The President's NDU Speech" is the third chapter of a book, "Speaking the Law," which analyzes the speeches of the Obama administration on national security law and policy. The book is being published online by the Hoover Institution, Stanford University on its website, chapter by chapter as they are completed. Once all chapters are done (end of 2013), the full book will be published by Hoover Institution Press in hard copy.

Chapter 3 (the earlier chapters are available for open source download at the Hoover Institution website or through links at the Lawfare national security site) provides a close analysis of the speech delivered by President Obama on May 23, 2013 at the National Defense University, Washington DC - a speech at the beginning of President Obama's second term and billed as a comprehensive, forward-looking examination of US counterterrorism policy. The speech covered issues as diverse as conditions that would define "end of the conflict" under the 2001 AUMF; targeting, drone warfare, and what the authors call "counterterrorism-on-offense"; Guantanamo and detentions; secrecy and leaks of classified information; and the two documents provided along with the President's text - a White House release on drone targeting policies outside of conventional active zones of hostilities and a letter from the Attorney General addressing the targeting of a radical Yemeni-American cleric, Anwar Al-Awlaki, a senior operational commander of an Al-Qaeda associated force under the AUMF, with a drone strike.

The authors integrate this speech with the earlier speeches delivered by top administration officials and lawyers, and evaluate it to identify the good and the bad, the unaddressed and the flat-out contradictory. The best parts address targeting and drone warfare, where the president offers a persuasive defense on moral and policy grounds, and a defense of the Awlaki killing - a drone strike against an American citizen, on grounds of his being a senior operational commander of an associated force under the AUMF, Al Qaeda in the Arabian Peninsula. Another bright feature addresses the administration's understanding that counterterrorism policy must deny "territory" to terrorist groups, and political or "governance" territory to Islamist insurgent groups allied with or hosts to terrorist groups and what this means as a matter of legal policy and strategy. The worst parts deal with Guantanamo and detention, and the gap between what the administration says and what it actually does.

The overall premise of "Speaking the Law" is that the speeches of the Obama administration collectively are more than simply the public relations statements that many journalists, academics, and others reflexively assume them to be. They offer an evolving, but still relatively coherent and articulated, framework of legal policy for counterterrorism - one that is seeking to find institutional settlement, legitimate settlement, of basic terms of US counterterrorism policy on a stable, long-run basis. Whether that institutional settlement will, in fact, be achieved by the end of President Obama's second term, no one can say; whether it is, on balance, a reasonable or just or lawful settlement, and not merely a short term, politically expedient one depends on one's political and ideological priors. However one sees those issues, the authors' view is that the speeches analyzed in this book provide the skeleton of US national security law and policy; they are not merely a public relations add-on after the fact.

Keywords: Obama, National Defense University, counterterrorism, drones, targeted killing, kill list, targeting, laws of war, armed conflict, self defense, Guantanamo, AUMF, Al Qaeda, AQAP, CIA, special operators, JSOC, end of the conflict, Department of Defense, secrecy, leaks

JEL Classification: K10, K33