Speaking The Law (Introduction), by Kenneth Anderson and Benjamin Wittes

SPEAKING
THE LAW
The Obama Administrations Addresses on
National Security Law
Kenneth Anderson
and
Benjamin Wittes
h o o v e r i n s t i t u t i o n p r e s s
Stanford University | Stanford, California
jean perkins task force on national security and law
18383-WittesAnderson_Speaking.indd iii 2/27/13 12:27 PM
Copyright 2013 by the Board of Trustees of the Leland Stanford Junior University. All rights reserved.
Preface [to come?] vii
Acknowledgments [to come?] 00
Introduction 1
1 An Overview of the Obama Administrations
Canonical Speeches of the First Term 17
2 The Good, the Bad, and the Underdeveloped 81
3 The Presidents NDU Speech and the Pivot
from the First Term to the Second 137
4 The Speeches in Interaction with Other
Branches of Government 185
5 The Framework and Its Discontents 215
Conclusion 257
Contents
18383-WittesAnderson_Speaking.indd v 9/10/14 1:55 PM
W
hen Barack Obama came into offce, the strategic land-
scape facing the United States in its overseas counterter-
rorism operations was undergoing a shift. The public had not yet
noticed the shift. Americans still hotly debated the detention,
interrogation, rendition, and trial of terrorist suspects. Congress
had busied itself with revamping surveillance authorities the pre-
vious year; human rights groups were consumed with the subjects
of waterboarding, CIA prisons, and closing Guantnamo.
Yet the fabric of American counterterrorism was quickly
rendering these issues, if not quite moot, certainly secondary.
Gone were the days when American forces were capturing
enemy fghters in large numbers. Gone were the days too when
policymakers even dreamed of detaining their way to American
safety. While America fought endless legal battles over the
authority to detain and try enemy forces outside of Article III
Introduction
by Kenneth Anderson and Benjamin Wittes
Copyright 2014 by the Board of Trustees of the Leland Stanford Junior
University. All rights reserved. This online publication is a chapter from
Speaking the Law: The Obama Administrations Addresses on National Security
Law, by Kenneth Anderson and Benjamin Wittes (Stanford, CA: Hoover
Institution Press, 2014).
18383-WittesAnderson_Speaking.indd 1 9/10/14 1:55 PM
Introduction
2
courts, the enemy itself no longer fed in bulk into the arms of
U.S. forces or their proxies. It increasingly operated, rather,
from areas in which the United States had no boots on the
groundand no desire to put boots on the ground. Long gone
too were the days of aggressive CIA interrogations. There were
legacy issues to fght over, to be sure, but new detainees were
coming in what outgoing State Department Legal Adviser John
Bellinger called the onesies and twosies.
The action increasingly lay elsewhere. As quickly became
apparent when Obama was sworn in, it lay in drones. It lay in
Special Forces operations. It lay in hundreds of micro-warsin
the ability to project force on a highly targeted basis into spe-
cifc locales where U.S. forces were not deployed. It lay in
scalpels, not machetes. It lay in technology, not detention
facilities. The shift actually began under President Bush, not
under President Obama. But it came to fruition during the
Obama administration, and the public certainly caught on to
the change only after the new president had taken offce. The
result was that Obama and his administration faced acutely the
question of how to talk about its war on terror. What could it
say about the rules and about the law that governed American
conduct of this war? What was the framework in which Ameri-
can operations were taking placeboth legacy operations
Obama had once criticized and these new operations that were
suddenly taking center stage?
At least with respect to Obamas most conspicuous innova-
tionthe widespread use of dronesthe administration had
inherited an awkward silence that became deafening the more
it ramped up the use of drones. The locus of American opera-
tions had shifted from an areadetentionwhere litigation
demanded a signifcant degree of public doctrinal articulation
Introduction
3
to an area in which courts were less willing to tread and which
therefore produced no public law. There were good reasons for
the silence, to be sure. The CIA operated drones as a covert
action; other countries, including the countries on whose soil
the operations took place, did not want their cooperation
known; acknowledging the hand of the United States, even
where it was obvious, would beg questions of those countries
consent and sovereignty. But the more central drones and tar-
geted killing became to American counterterrorism efforts, the
less plausible the silence became.
The pressure to say something substantial on the wars
legal framework began earlyand from politically diverse
quarters. By the spring of 2009, one of the present authors was
writing, The United States would be best served if the Obama
administration did that exceedingly rare thing in international
law and diplomacy: getting the United States out in front of the
issue by making plain the American position [on targeted kill-
ing], rather than merely reacting in surprise when its sovereign
prerogatives are challenged by the international soft-law
community.
1
U.N. Special Rapporteur Philip Alston released
a report in May 2009 decrying the U.S. governments lack of
accountability.
2
The American Civil Liberties Union, similarly,
1. Kenneth Anderson, Targeted Killing in U.S. Counterterrorism Strategy
and Law, Series on Counterterrorism and American Statutory Law, The
Brookings Institution, Georgetown University Law center, and the Hoover
Institution, May 11, 2009. This paper was later adapted for the book Leg-
islating the War on Terror: An Agenda for Reform, Benjamin Wittes, ed.
(Washington, DC: Brookings Institution Press, 2009), pp.346400.
2. Report of the Special Rapporteur on extrajudicial, summary or arbitrary
executions, Philip Alston, on his mission to the United States of America,
May 28, 2009. Available at http://www2.ohchr.org/english/bodies/hrcouncil/
docs/11session/A.H RC.11.2.Add.5.pdf
Introduction
4
was calling for greater transparency in the legal theory behind
the drone strikes and by January 2010 had fled a Freedom of
Information Act request for details about the governments tar-
geted killing program.
3
Over time, these pressures grew, along-
side the strategic importance of the strikes.
There were other pressures pushing the administration to
articulate the legal framework of its war on Al Qaeda. The
administration had a strong instinct to distinguish itself legally
from its predecessor, particularly as it adopted positions that
struck many observers as largely consistent with the positions
of the Bush administration. It also quickly developed poison-
ous relations with Congress over such questions as the closure
of Guantnamo and the use of federal courts as a trial forum.
It had the political Right to fend off on its formal abandonment
of the CIA interrogation and detention program. And it had to
contend also with the political Leftsand the international
communityssense of disappointment, even betrayal, at its
unwillingness to abandon the war paradigm altogether. Even
before the rise of drones necessitated the articulation of legal
doctrine, the Obama administration had to explain itself: what
3. See Nahal Zamani, UN Special Rapporteur Calls for Transparency
and Accountability, June 5, 2009, available at http://www.aclu.org/blog/
capital-punishment-human-rights-national-security/un-special-rapporteur-
calls-transparency-and and UN Expert on Extrajudicial Killings Calls for
Special Prosecutor, May 29, 2009, available at http://www.aclu.org/human
-rights/un-expert-extrajudicial-killings-calls-special-prosecutor. For more
on the ACLUs FOIA request, see Jonathan Manes, ACLU FOIA Request
Seeks Info on President Obamas Use of Drones, January 13, 2010, available
at http://www.aclu.org/blog/national-security/aclu-foia-request-seeks-info
-president-obamas-use-drones. The FOIA request is available at http://www
.aclu.org/fles/assets/20101-13-PredatorDroneFOIARequest.pdf.
Introduction
5
kind of war was it fghting, if indeed it was fghting a war at all?
What did it see as its powers within that confict? What would
it do to protect America and go on the offensive against the
enemy? What would it never do? Who was the enemy, exactly?
And how did the authorities the administration claimed inter-
act with civilian law enforcement powers, international law,
and the U.S. Constitution?
The Obama administration surely never made any kind of
overarching strategic decision to address these questions in a
series of speeches given by a diverse range of offcials in a shift-
ing legal and policy landscape over the course of several years. It
is, therefore, a little artifcial to treat the body of these speeches
as refecting some kind of cohesive Obama doctrine of the con-
fict. The speeches, rather, just happened as the administration
and the individual offcials in questionperceived the need to
address certain matters offcially and in public.
Yet beginning in the spring of 2009 and throughout the
remainder of Obamas frst term, the administrations senior
offcialsfrom the president himself down to an assistant attor-
ney general, the State Department legal adviser, and the general
counsels of several agencieslaid out a huge array of legal
policy doctrine in the form of addresses to various bodies. And
in May 2013, President Obama gave a speech that sharply
shifted the landscape. These speeches, many of them covered
extensively in the press at the time of their delivery, cumula-
tively represent the fullest articulation and explication since
September 11, 2001, of the administrations view of the confict
and the legal rules that govern it.
In some areas, the doctrine they refect is spelled out in
more detail in legal briefs; the speeches thus serve as a kind of
summary of the governments litigating positions. In some
Introduction
6
areas, by contrast, the speeches themselves represent the most
developed doctrine the administration has offcially spelled out
in public.
The frst key point is that, viewed together, they lay out a
broad array of legal and policy positions regarding a large num-
ber of principles currently contested at both the domestic and
international levels.
The other key point is that the speeches almost never are
viewed together. While the press has had a sense of the incre-
mental articulation of new ideas through their progressive deliv-
ery, nobody has ever lined up the canonical national security
speeches of the Obama administration and examined the aggre-
gate legal policy framework they lay out as a body of work. With
the president in his second term shifting the ground beneath
our feet as we write, that is our purpose in this volume.
The Obama administration has received a great deal of
criticism for not saying much about the legal framework that
governs its counterterrorism operations.
4
The criticism is
largely unfair. The administration has actually said a remark-
able amount about a surprisingly wide array of contested legal
issues at stake in its operations. Viewed together, the speeches,
4. See, for example, Editorial, Too Much Power for a President, New
York Times, May 30, 2012, available at http://www.nytimes.com/2012/05/31/
opinion/too-much-power-for-a-president.html?ref=world; Editorial, The
Power to Kill, New York Times, March 10, 2012, available at http://www
.nytimes.com/2012/03/11/opinion/sunday/the-power-to-kill.html; Editorial,
The CIA and Drone Strikes, New York Times, August 13, 2011, available
at http://www.nytimes.com/2011/08/14/opinion/sunday/the-cia-and-drone
-strikes.html; and Editorial, Lethal Force Under Law, New York Times,
October 9, 2010, available at http://www.nytimes.com/2010/10/10/
opinion/10sun1.html.
Introduction
7
in fact, offer a fairly holisticif high-altitude and ultimately
shiftingaccount of how the administration views the confict
and its authorities to confront the enemy. While the govern-
ment has expanded upon some of these positions in briefs, no
other body of offcial statements communicates as thoroughly
the scope and range of administration views of its authorities
and constraints. In other words, to understand the administra-
tions view of the law of the confict, the canonical speeches
represent the richest and most complete explication we have.
As such, the speechesat least with respect to interna-
tional lawrepresent something else well worth highlighting:
in some important parts, they represent the opinio juris of the
United States. The speeches, in other words, are the consid-
ered, publicly articulated legal views of the most important
actor in the international community about what it will and will
not do with respect to waging war against non-state enemies as
a matter of international law. To constitute opinio juris in inter-
national law, a state must convey that it actsor refrains from
actingout of a sense of legal obligation, a belief that the act
is not merely policy, diplomacy, prudence, or the representation
of an aspiration for what the law should be, but an expression
of belief in an existing legal obligation. In some matters, the
speeches express such a belief in an existing legal obligation; in
other matters, the speeches appear to express an aspiration to
which the administration believes the law should move, without
necessarily claiming that the law has already done so; and in still
others, the speeches represent policies that the administration
regards as plausible and defensible interpretations of interna-
tional law. Finally, the speeches also articulate policies of the
U.S. government in areas in which international law is silent,
Introduction
8
as well as the U.S. governments assessment of the strategic
landscape that confronts it, as a descriptive condition for deter-
mining which fundamental paradigms of lawarmed confict
or law enforcement, for exampleapply to different issues.
The speeches themselves are not law. They are, however, a
mode of articulation of law, much of which has been made
neither by courts nor by the legislature but within the executive
branch itself. In some of the most contested areas, the speeches
represent the only modeother than leaksof articulation of
law that largely takes the form of internal executive memoranda
and argumentation that is mostly secret. They thus constitute a
signifcant body of expression not merely of the Obama admin-
istrations views, but of the nations positions more generally. It
would be quite unfair to dismiss them merely as clumsy public
relations efforts by the administrations lawyers.
One important feature of each speech is that it does not
merely represent the views of the individual who gives the
speech. As Rebecca Ingber, a veteran of the State Department
Legal Advisers Offce, wrote:
While the speechmaker and her offce may hold the pen,
this does not necessitate ultimate decision-making authority
over what is said or revealed publicly. Instead, coordination
and consensus are often critical.
. . . Though internal assumptions and norms about coor-
dination and clearance are mutable, the greater the coordina-
tion in vetting the speech ex ante, the greater the likelihood
the speech will create internal precedent going forward. This
is true in part because . . . cleared language tends to be recy-
cled in other written product addressing the same issues.
Introduction
9
In addition, because speechmaking inherently tends to
implicate high-level public offcials, coordination of the
governments position will necessarily involve the high-
level speechmaker and will likely be vetted among col-
leagues of an equal stature to that offcial throughout the
interagency.
5
Indeed, one of the features of these speeches that makes
them canonical is precisely the degree of interagency clearance
that goes into vetting them. With the possible exception of the
presidents own speeches, all have gone through at least some
interagency clearance process that makes them, in some mean-
ingful sense, refective of the views of the government as a whole.
As such, the speeches should not be understood simply as
a statement of the views of a single Democratic administration.
Its certainly possible for a subsequent administration to come
into offce and reverse manyeven allof the doctrinal stands
these positions refect, and Obama himself has pivoted signif-
cantly since the outset of his second term. But the inertial
quality of government decision-making and desire for institu-
tional stability make it far more likely that the most important
decisions on legal doctrineonce taken, announced publicly,
and justifed in publicbecome institutional views of the fed-
eral government itself, resistant to change by future adminis-
trations. The tendency will be toward evolution, both across
different administrations and within them. From the stand-
5. Rebecca Ingber, Interpretation Catalysts and Executive Lawmaking,
Yale Journal of International Law (forthcoming, 2013), available at http://
papers.ssrn.com/so13/papers.cfm?abstract_id=2201199.
Introduction
10
point of America over the long run, this is a good thingrather
than a sharp see-sawing back and forth as administrations
change.
We propose, therefore, to look at these speeches as a major
part of the Obama administrations legacy in the national secu-
rity area, an articulation of what aims to be a lasting framework
for aggressive action against non-state enemies of the United
States that will likely form the basis of future administrations
approaches.
That approach necessarily raises profound normative ques-
tions. If one treats the speeches as cumulatively laying out a
legal framework for counterterrorism actions, is the framework
a strong one or a weak one? Is it durable or fragile? Does it
honor the rule of law or do violence to it? Does it refect our
values domestically and globally or does it amount to an asser-
tion of raw power?
Our modest thesis in these pages is that the Obama admin-
istration has gotten a tremendous amount right in this body
of work. The framework, we will argue, remains incomplete in
certain areas and is in some considerable fux in the second
term. Its institutionalization in statutory and case law is erratic
and may be, as a consequence, unstable in some respects.
There are some things that we believe the administration has
gotten wrong. In some areas, moreover, the administration has
been less imaginative and forward-looking than in others. But
by and large, the speeches lay out in considerable detail a devel-
oping legal framework that moves the country considerably and
constructively toward institutional settlement of contested
questions. As such, we shall argue, while the speeches leave
some questions unanswered and while aspects of the frame-
Introduction
11
work require more work and development, they constitute a
major step forwarda sound platform on which future admin-
istrations can build.
The use of speeches to express opinio juris or to declare
international legal views, interpretations of law, or policies that
the government believes fulfll its international law obligations
is not new. On the contrary, law and diplomacy have tradition-
ally fused the two together in high-level addresses and state-
ments given by statesmen, diplomats, and government
leaderssome of them in the form of statements directly to
foreign governments and others as statements by the executive
to Congress. The Monroe Doctrine, for example, fused policy
and legal views of the United States, consistent with practices
of the time, and it was frst delivered as part of President James
Monroes Message to Congress in 1823. Secretaries of state
have delivered the international legal views of the United States
in many forms, ranging from speeches to exchanges of diplo-
matic letters, since the earliest days of the republic. With the
rise of multilateral diplomacy over the last sixty yearsand not
merely state-to-state bilateral relationsstatements or speeches
addressed to whole groups of states have become a more impor-
tant mechanism for conveying the nations legal views, tending
to replace the exchange of bilateral diplomatic notes or letters.
But an administration, over the course of two terms, gives
a great many speeches. A project analyzing the doctrine laid
out in those speeches thus necessarily faces a problem of selec-
tion: which to include, which to leave out. The relevant set of
speeches, in our view, includes those given by either White
House offcials or Senate-confrmed lawyers which articulate the
legal authorities claimed by the administration in prosecuting
Introduction
12
the confict. Viewed in combination with one another, and
supplemented where necessary by more detailed statements in
litigation or policy documents, these speeches represent the
closest thing to a doctrine of the confict the administration has
givenone that is, in fact, signifcantly more elaborated than
many people seem to imagine.
For purposes of this discussion, we treat the following ff-
teen speeches as canonical. The relevant portions of each are
included as an appendix:
President Barack Obama, Remarks by the President on
National Security, The National Archives, Washington,
D.C., May 21, 2009
President Barack Obama, A Just and Lasting Peace,
the 2009 Nobel Peace Prize Lecture, Oslo, Norway,
December 10, 2009
President Barack Obama, remarks at the National
Defense University, Fort McNair, Washington, DC,
May 23, 2013
President Barack Obama, Remarks by the President on
Review of Signals Intelligence, Department of Justice,
Washington, DC, January 17, 2014
Harold H. Koh, legal adviser to the Department of State,
The Obama Administration and International Law,
address to the American Society of International Law,
Washington, D.C., March 25, 2010
Harold H. Koh, legal adviser to the Department of State,
International Law in Cyberspace, address to the
USCYBERCOM Inter-Agency Legal Conference, Fort
Meade, Maryland, September 18, 2012
David Kris, assistant attorney general for national secu-
rity, Law Enforcement as a Counterterrorism Tool,
Introduction
13
address at the Brookings Institution, Washington, D.C.,
June 11, 2010
Jeh C. Johnson, general counsel, Department of
Defense, U.S. Terrorist Suspect Detention Policy,
speech to the Heritage Foundation, Washington, D.C.,
October 18, 2011
Jeh C. Johnson, general counsel, Department of Defense,
National Security Law, Lawyers, and Lawyering in the
Obama Administration, address at Yale Law School,
New Haven, Connecticut, February 22, 2012
Jeh C. Johnson, general counsel, Department of Defense,
The Confict against Al Qaeda and Its Affliates: How
Will It End? Oxford Union, Oxford University, Novem-
ber 30, 2012
Eric Holder, attorney general, Department of Justice,
address at Northwestern University School of Law, Chi-
cago, Illinois, March 5, 2012
Stephen W. Preston, general counsel, Central Intelligence
Agency, CIA and the Rule of Law, address at Harvard
Law School, Cambridge, Massachusetts, April 10, 2012
John O. Brennan, assistant to the president for home-
land security and counterterrorism, Strengthening Our
Security by Adhering to Our Values and Laws, address
at Harvard Law School, Cambridge, Massachusetts,
September 16, 2011
land security and counterterrorism, The Ethics and
Effcacy of the Presidents Counterterrorism Strategy,
Woodrow Wilson International Center for Scholars,
Washington, D.C., April 30, 2012
land security and counterterrorism, U.S. Policy toward
Introduction
14
Yemen, Council on Foreign Relations, New York City,
August 8, 2012
Robert S. Litt, general counsel with the Offce of the
Director of National Intelligence, Privacy, Technology,
and National Security: An Overview of Intelligence
Collection, address at the Brookings Institution, Wash-
ington, D.C., July 19, 2013.
Our examination of the speeches begins with a look at the
speeches of Obamas frst term. In chapter 1, we give a descrip-
tion of the framework they laid out. In this chapter, we
describebut largely refrain from analyzingwhat the Obama
administration said in its frst four years about the legal frame-
work in which it is operating with respect to such questions as
the nature of the confict, the use of drones and targeted kill-
ings, detention, trial by military commission and in federal
courts, interrogation, and the end of the confict. The purpose
of this chapter is to synthesize the various speeches into a
single doctrinal statement that describes in holistic terms the
administrations frst-term approach in legal policy to the
confict.
Chapter 2 attempts to analyze this framework and exam-
ine the stresses upon it. We ask whether the framework is, in
the main, the right one. Where did the administration get
matters right and where wrong? Where is the framework
under developed? In general, we argue, the administration
articulated a strong basis for institutional settlement of con-
tested questionsone that gives future administrations a use-
ful set of doctrinal positions on which to build as the confict
continues to morph. Important questions remain open, how-
Introduction
15
ever, and the framework will require further refnement by
both the administration and the legislature.
Chapter 3 looks at the disruption to this framework pre-
sented by the president in his frst speech on national security
legal issues of his second term. This speech offered virtually no
changes in legal view but signifcant shifts in policy and aspira-
tion for the law. We look at the state of the framework in light
of these shifts.
The legal framework laid out by the speeches involves a
complex interaction between executive branch lawmaking and
lawmaking by both the courts and the Congress. In chapter 4,
we examine this interactionthe involvement of the judiciary
in defning detention authority, its non-involvement in target-
ing matters, Congresss involvement in defning the rules for
military commissions, its authorization for detention in the
National Defense Authorization Act of 2012, and its restric-
tions on detainee transfers in that legislation. Both congres-
sional actions and judicial involvement in the developing
framework, we argue, have shaped the institutional settlement
the speeches describe in signifcant respectsallowing the
administration to speak often on behalf of, or with the blessing
of, more than one branch of government.
The framework described in the speeches has come under
fre from multiple quarters. In chapter 5, we engageand largely
rejectboth the critique of the political Right, which sees the
framework as weak, overly legalistic, and insuffciently military
in character, and the critique of the political Left and much of
the international community, which sees it as lawless and viola-
tive of both international legal norms and constitutional princi-
ples of civil liberties.
Introduction
16
Finally, in chapter 6, we offer concluding thoughts and sug-
gest certain reforms to the framework for the administration
and Congress to consider.
A brief note is in order regarding the unorthodox manner in
which we are publishing this volume. Normally, we know, one
waits to publish a book until one has written its constituent
chapters. But the speeches of the Obama administration on
national security legal issues are a matter of ongoing contro-
versy, dialogue, discussion, and debate. We thought, as a con-
sequence, it might be valuable to publish these essays as we
complete them, thus contributing to the debate in something
closer to real time and reserving the right to beneft from that
debate by making changes to these pages before fnal publica-
tion. We do not consider these chapters to be drafts. Rather, we
think of them as stand-alone essays we will publish as we com-
plete themto be published together when all are fnished.
This form of publication is something of an experiment, one
which we are grateful that the Hoover Task Force on National
Security and the Law has agreed to facilitate and support.
Copyright 2014 Board of Trustees of the Leland Stanford Junior
University. This publication is for educational and private, noncommercial
use only. No part of this publication may be reprinted, reproduced, or trans-
mitted in electronic, digital, mechanical, photostatic, recording, or other
means without the written permission of the copyright holder.
The preferred citation for this publication is
Kenneth Anderson and Benjamin Wittes, Introduction, in Speaking the
Law: The Obama Administrations Addresses on National Security Law, by
Kenneth Anderson and Benjamin Wittes (Stanford, CA: Hoover Institution,
2014).

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