War on Terror

  • May 30, 2013

    by Jeremy Leaming

    President Obama’s address to the National Defense University was quickly embraced by many high-profile pundits as evidence the 44th president would actually and finally offer change one could believe in. Specifically, change from the way his predecessor presided over a never-ending war on terror.

    As noted here, during his May 23 speech the president provided some lofty rhetoric suggesting significant change was underway to counter intensifying criticism from civil libertarians and human rights advocates that the Obama administration is trampling fundamental constitutional principles and values while waging the so-called war on terror.

    The New York Times editorial board lauded Obama’s speech as “the most important statement on counterterrorism policy since the 2001 attacks, a momentous turning point in post 9/11 America. For the first time a president stated clearly and equivocally the state of perpetual warfare that began nearly 12 years ago is unsustainable for a democracy and must come to an end in the not-too-distant future.”

    Many other pundits also heralded the speech as a major shift in policy, while others, such as Alex Pareene warned that those concerned about human rights and civil liberties would likely be seriously disappointed.

    Today, The Times reported that Pakistani officials said a CIA drone strike had supposedly “killed a top member of the Pakistani Taliban, an attack that illustrated the continued murkiness of the rules that govern the United States’ targeted killing operations.” Before his much-trumpeted counterterrorism speech, The Times reported that the administration would start shifting control of the drone strikes from the CIA to the military.

    Obama’s speech received a lukewarm response from the ACLU, which has fought to obtain more information about the administration’s drone warfare. This blog also noted that a mere speech without action would not squelch criticism of counterterrorism efforts that violate U.S. and international law. The president declared early in his first term that we must protect fundamental values, such as due process under the law, as vigilantly as we wage war against terrorists. But such talk has too often proven hollow.

    In a piece for The Guardian, Glenn Greenwald scored the president for a trend of advancing rhetoric that doesn’t reflect reality. Greenwald wrote, “what should be beyond dispute at this point is that Obama’s speeches have very little to do with Obama’s actions, except to the extent that they often signal what he intends not to do. How many times does Obama have to deliver a speech embracing a set of values and policies, only to watch as he then proceeds to do the opposite, before one ceases to view his public proclamations as predictive of his future choices?”

  • May 29, 2013
    Guest Post

    by Sam Kleiner, a law student at Yale Law School and member of the ACS Yale Law School Chapter.

    In his widely-noted speech at the Oxford Union, Harold Koh (pictured) invited us to imagine a different response to September 11. It's easy to think that the path taken by the Bush administration was driven by a pre-destined sense of necessity, and Koh's invocation of a President Gore (a timely counter-factual with Justice Sandra Day O'Connor's musings on that election and the Supreme Court’s involvement), offers an alternative/hypothetical response in the time-tested law enforcement approach.

    At Lawfare, Ben Wittes defends the Bush administration’s record as oriented on a law enforcement approach. Koh argued that the Obama administration's approach "combined a Law of War approach with Law Enforcement and other approaches to bring all available tools to bear against Al Qaeda" and Wittes countered that this description fit the Bush administration's approach. 

    Contrary to Wittes’ attempt to frame the Bush administration as focused on law enforcement, President Bush specifically rejected this approach and attacked candidate John Kerry for suggesting this path forward. In 2004, when Kerry emphasized his background as a prosecutor and urged that terrorism be considered through a law enforcement lens until it became a "nuisance," Bush attacked him vehemently. Kerry argued for an approach that was, "less of a military operation and far more of an intelligence-gathering law enforcement operation." Bush responded: "I disagree -- strongly disagree. … After the chaos and carnage of September the 11th, it is not enough to serve our enemies with legal papers. With those attacks, the terrorists and their supporters declared war on the United States of America, and war is what they got." Wittes boasts of a more restrained argument from the Bush administration and he cites a 2006 speech by John Bellinger and a Bush administration brief filed in Boumediene (after losing hugely in RasulHamdi and Hamdan), of a more restrained vision of the war on terrorism. Bush did move away from the GWOT framing in his second term largely because he had been thwarted by the courts and Congress. What Koh invites us to ponder -  and Wittes fails to comprehend - is that you could have had a response to 9/11 that started with a deeply powerful law and order framework rather than heading down the rabbit hole by making outlandish claims of unilateral executive power that threatened constitutional order. By 2006, it was too little too late.

  • December 20, 2011
    Guest Post

    By Sahar Aziz, an associate professor of law at Texas Wesleyan University School of Law and a fellow at the Institute for Social Policy and Understanding. This is a cross-post from The Huffington Post.

    On the same day that Rep. Peter King held the fourth "homegrown terrorism" hearing focused exclusively on Muslims, the White House released its Strategic Implementation Plan for Empowering Local Partners to Prevent Violent Extremism in the United States. Despite the White House's seemingly benign approach to counterterrorism, its implementation produces adverse effects similar to Mr. King's confrontational tactics.

    The White House Strategy proclaims, "Law enforcement and government officials for decades have understood the critical importance of building relationships, based on trust, with the communities they serve. Partnerships are vital to address a range of challenges and must have as their foundation a genuine commitment on the part of law enforcement and government to address community needs and concerns, including protecting rights and public safety."

    To someone unfamiliar with the history of community outreach to American Muslims, the strategy sounds ideal. However, the Obama Administration has sabotaged its own high-minded public position by adopting the Bush Administration's counterterrorism model that punishes the broad Muslim community rather than targeting genuine threats. Thus, the Administration's actual practices conform all-too-closely to Peter King's vision of terrorism being synonymous with Islam.

    While preventing terrorism before it happens is a legitimate strategy, the way in which it is currently implemented comes at a high price to a vulnerable minority -- Muslims in America.

  • December 1, 2011
    Humanity's Law
    Ruti Teitel

    By Ruti Teitel, the Ernst C. Stiefel Professor of Comparative Law at New York Law School and Visiting Professor at London School of Economics. The following an excerpt from her new book, Humanity's Law, reprinted with permission from Oxford University Press, Inc. 

    We are living in a time of destabilizing political and legal changes. Often, it seems difficult to know whether we are at war or at peace; to determine what sort of conflict is at stake in a given situation; and, relatedly, to decide how best to address the conflict and to protect the persons, peoples, and/or states that it threatens. While both the end of polarized relations and the advent of globalization have their appeal, the renewed engagement has frequently seemed to mean that we see the possibility of intervention, but that hope is too often thwarted. Yet the closer we look, the more one can see that this situation has too frequently been viewed from a twentieth-century, state-centered perspective. Recently, there have been profound changes in the nature of interstate relations and conflict — all of which have pointed in the direction of the paradigm shift toward humanity law and, to some extent, away from interstate international law, that is identified here.

    After I finished my first book Transitional Justice, which explored legal and political responses to the transitions characterizing the end of the twentieth century, it became apparent that — despite lurches toward liberal democratic peace — conflict and violence not only were here to stay, but in some regard were ever more conspicuous, at least insofar as they were having a vivid impact on civilians. Indeed, it seemed that it was precisely during fragile transitions — that is, moments of weakness — that states were at their most vulnerable.

  • November 10, 2011
    The Detachment
    Barry Eisler

    By Barry Eisler, an award-winning author of bestselling thrillers. Eisler spent three years in a covert position with the CIA's Directorate of Operations and has worked as a technology lawyer. Eisler also blogs on torture, civil liberties and the rule of law.

    Writing The Detachment was a joy. How could it not be? I got to parachute my half-Japanese, half-American assassin John Rain into the corrupt universe I established in Fault Line and continued in Inside Out; partner him with characters from all my books; and pit him against a formidable and unfamiliar enemy plotting a coup in the United States. The result is some of the most intricate plotting, complex character behavior, and hard-core action I’ve ever done, all set against the biggest canvas I’ve ever painted: rolling terror attacks across America; presidential speeches and Oval Office brinksmanship; a game whose stakes will be measured not just in tens of thousands of lives at risk, but in the consequences to my characters’ psyches and souls.

    As much as the story depends for its thrills on character, action, and plot, though, it depends also on realism. Realism of setting (as always, I traveled to every location that appears in the book, including Tokyo, Los Angeles, Las Vegas, Vienna, and Washington, D.C.); realism of operator tools and tactics (everything I depict is in accordance with my CIA training and experience); and realism of action (I have a black belt in judo and consult with experts to make sure I’m nailing the nuances of the combat sequences). But the realism that interests me most in any thriller, especially my own, is that of the story’s circumstances.