The U.S. president has found himself caught in some old legal traps — while creating new ones of his own.
BY NOAH FELDMAN | SEPTEMBER 3, 2010
After five years of waiting, Omar Khadr was finally slated to go on trial in Guantánamo Bay this summer — and then suddenly, the gears ground to a halt. The problem was not that Khadr was just 15 years old when, according to the charges, he threw a grenade in a 2002 firefight in Afghanistan and killed a U.S. soldier. Nor was Barack Obama’s administration having second thoughts about restarting the military tribunals that had been stopped when he took office. Instead, the problem lay in the criminal charge against Khadr: fighting without a uniform. According to news reports, Harold Koh, the legal advisor to the State Department, pointed out that CIA agents and private contractors who fire missiles from U.S. drones are civilians too. By charging Khadr with a war crime, the United States might be opening its own operators to the same charge.
This week, a judge set a new and theoretically final date for Khadr’s trial, Oct. 18. But the defendant’s long journey to the courtroom perfectly encapsulates the difficulties facing the Obama administration when it comes to the legal war on terror. First there are holdover problems from the previous administration: Guantánamo itself, the detainees held there, and some aggressive but not always well-thought-out legal theories. These are troubling to advocates of international law — some of whom, like Koh, a longtime human rights champion, now work for the government and cannot possibly be happy about, for example, life imprisonment for a crime committed by a 15-year-old child soldier. Then there are new legal challenges associated with the administration’s own national defense strategies — especially the use of drones, which has increased substantially in recent years.
Between the invasion of Iraq, Guantánamo, and the horrors of Abu Ghraib, the United States during the Bush years found itself repeatedly accused of acting unlawfully. The cost of the criticism came in two forms: First, the United States had a harder time finding desperately needed allies in two wars and a worldwide struggle against al Qaeda. Second, being perceived as a lawbreaker hurt America at a time when winning hearts and minds was a security issue, not just a project of soft power.
Obama ran in part on the promise to restore American credibility by complying with domestic and international law — a highly unusual campaign tactic that captured how serious the problems caused by Bush’s policies seemed to be. In the last two years, his administration has tried to change both the reality and the perception of how the U.S. government complies with the law when acting in the interests of national security. Closing Guantánamo, as Obama promised, would have been the best symbol of change. But Congress has made it impossible to transfer the Guantánamo detainees to facilities stateside, so Obama has not been able to fulfill this pledge.
It’s not that the former law professor hasn’t made any progress at all. The first and most successful step in the legal strategy adopted by the Obama team was to back away from its predecessor’s aggressive reliance on the theory of executive power: the idea that the president, as commander in chief, possesses the inherent authority to do anything he deems necessary to protect the country. Instead, in legal memoranda and court filings, Obama has relied primarily on congressional authorization for all national security actions and programs. U.S. courts have for the most part accepted these rationales, and the Obama administration has rarely been held to have violated the Constitution. Today, the question of executive power, so central to the national security law battles of the Bush years, is mostly off the agenda.
Although at first it might appear that this shift is of purely domestic significance — after all, whether the president has complied with the U.S. Constitution is not a question of international law — the impact actually extends much further. By overreaching in its claims of executive power, the Bush administration found itself repeatedly rebuffed by the Supreme Court. Each of these reversals had foreign-policy consequences because each made the Bush administration look like a habitual rule-breaker in both the domestic and foreign spheres. Ending the confrontation between the executive branch and the Supreme Court over executive power at least removed a recurring, public set of embarrassments, even if it had little other purpose internationally.
At the same time, however, Obama’s team has preserved, whether by necessity or choice, many of the controversial programs that brought criticism to Bush. Obama ordered so-called "black sites" closed, but it is difficult for anyone without access to highly classified information to know how much has actually changed about how the intelligence services capture and detain suspected terrorists. The Guantánamo military commissions are beginning again. Some large number of the nearly 200 remaining detainees will not be tried. They will continue to be held as, essentially, prisoners of war, until hostilities between the United States and al Qaeda end — an uncertain, open-ended time frame that many critics consider inadequate. Secret surveillance has not ended, though it is now expressly authorized by Congress.
In each case, the legal basis is substantially firmer than it was under the previous administration. But because the programs are the same, global perceptions of U.S. national security probably have not changed in any significant way, even if what the president is doing is now technically more legal.
Then there is the growing international criticism of unmanned drone strikes, especially those in Pakistan, Yemen, and potentially other locations in sovereign states that are not at war with the United States. The use of drones to target individual figures associated with the Taliban, al Qaeda, or related groups comes out of U.S. counterinsurgency doctrine as it has developed over the last several years. In Iraq after the surge, many close observers, especially those in the military, attributed the relative success of U.S. forces as much to the covert targeting, tagging, and killing of insurgent leaders as to the "clear and hold" operations aimed at making the civilian population feel safer. In Afghanistan, clear and hold has not proved especially successful. In Pakistan, of course, the United States has no clear-and-hold option at all. That leaves targeted strikes as the remaining component of counterinsurgency, and drones offer a highly attractive option.
In March, Koh gave a speech for the American Society of International Law in which he responded to the critique that drone strikes amount to assassination. The choice of Koh to give the speech was significant. Koh (who is a mentor of mine) has a major interest in defending his distinguished record by showing that his employer complies with international law. In his speech, he explained that members of armed groups are belligerents and therefore lawful targets for a country acting in the course of war or in self-defense.
But Koh avoided some of the hardest questions. He did not address the issue of exactly how drone strikes could be justified in places where the United States is not at war — not surprising, as the government has not acknowledged its attacks in Pakistan and Yemen. Traditionally, such attacks could be justified either by the consent of the country attacked or by its unwillingness or inability to pursue the belligerent targets on its own. But the governments involved aren’t likely to want to acknowledge any of these possibilities.
Beyond the difficulty of where the attacks occur are the questions of who is targeted — and by whom. Obama’s lawyers have stated publicly that, unlike their predecessors, they consider the United States to be at war only with those who "materially support" the Taliban or al Qaeda and its associates, not those who offer indirect support. But the U.S. definition of material support is broader than what many international lawyers would consider to be the accepted norm — including such figures as the U.S. citizen and al Qaeda advocate Anwar al-Awlaki, who is reportedly on the American "shoot to kill" list of drone targets. Other reports suggest that drug lords who give money to the Taliban have been considered legitimate targets, again a remarkably aggressive definition of "support." By spreading the net widely, the United States runs the risk of seeming to slight international law.
What’s more, the fact that drone strikes are carried out by CIA civilians raises the possibility that they could be war crimes (if the original theory of the charge against Khadr were right). At the very least, civilian operators are not subject to immunity from prosecution for their battlefield conduct and could in theory be charged with domestic crimes of murder in the country where the attacks occurred or in Virginia. Finally, as special rapporteur Philip Alston pointed out in his May report to the U.N. Human Rights Council on targeted killings, the CIA does not subject itself to any sort of public review or accountability when things go awry, a practice now fairly common for the regular military. According to Alston, the CIA’s unwillingness even to acknowledge its drone strikes render the targeting doubtful as a matter of international law.
On Aug. 10, Omar Khadr’s trial got under way without the war crime charge, on the theory that he killed a U.S. serviceman in violation of a federal statute. Almost immediately his lawyer fell ill, causing further delay. Khadr must be used to it — and his tribunal will not end matters, in any case: The statute under which he was charged was passed after the 2002 firefight, and the courts have yet to review the question of whether the military commission has legitimate jurisdiction to try such a crime. The road to the Supreme Court will be long — but Khadr’s case is headed there, as is the Obama administration itself.