President Obama’s Tuesday speech was intended to convey that he is taking a more measured approach to counterterrorism, reducing drone strikes and moving toward closure of Guantanamo Bay.
In many ways, the speech is excellent. The president’s effort to put the terrorism threat in context and his argument that the war cannot be unlimited and unending are praiseworthy, as is his mention of ultimately repealing the Authorization for Use of Military Force.
That said, he still claims almost unlimited war powers based on secret legal reasoning. He still has not told us what countries and groups he claims authority to attack in the name of counterterrorism, or his administration’s legal rationale for doing so.
Members of Congress should not rest on the president’s assurance that they have been “briefed on every military action.” Presidents rarely restrain themselves. Congress should limit the president’s power to kill and detain suspected terrorists, starting by providing the legal end date for the war justifying those powers.
Although the President didn’t mention it in the speech, a big policy change accompanying it is likely to be that the standard now governing drone strikes against U.S. citizens will apply to everyone. Reports hold that this new secret guidance will “sharply curtail” or “dramatically ratchet down” strikes outside war zones, ending signature strikes (killing suspicious people with drones when we are not sure who they are). Hopefully that’s right, but it seems dubious. We do not know how restrictive the current standard is—to what extend it lets the president do what he wants. The rules, at least what leaked in February, were not minimum requirements for strikes on U.S. citizens but assurance that current procedures were legal. Nothing publicly released rules out strikes undertaken by some less restrictive process. And, as a bureaucratic procedure, not law, there is no reason that the President cannot change the standard in secret tomorrow or why the next president should use it.