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Obama’s Blueprint for Fighting Terrorism Collides With Reality in Iraq

Jack Goldsmith
Friday, July 4, 2014, 8:42 AM
That is the title of a NYT story this morning by Landler, Gordon, and Mazzetti.  The “Blueprint” they have in mind is the one the President laid out at West Point, which (in their words) "relies less on American soldiers . . .

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That is the title of a NYT story this morning by Landler, Gordon, and Mazzetti.  The “Blueprint” they have in mind is the one the President laid out at West Point, which (in their words) "relies less on American soldiers . . . and more on training troops in countries where those threats had taken root.”  This “indirect approach,” the NYT says, has “collided with reality when a lethal jihadi insurgency swept across the same Iraqi battlefields where thousands of Americans had lost their lives,” an insurgency “hastened by the collapse of the American-trained Iraqi Army” that has “stunned the White House and has laid bare the limitations of a policy that depends on the cooperation of often balky and overmatched partners.”  (For a broader critique of administration policy long the same lines, see this essay by Sarah Chayes and Frederic Wehrey in Politico a few weeks ago.) The “training” blueprint is not the only blueprint left in tatters by the insurgency in Iraq and Syria.  So too is the broader blueprint of declaring the “war” against jihadists over.  For a while now the administration has sent signals that core al Qaeda is near defeat and that the AUMF-“war” is nearly over.  (I take this to be the import of President Obama’s NDU speech, as well as former DOD/GC Jeh Johnson’s Oxford Speech and former Legal Advisor Harold Koh’s Oxford Speech and recent testimony.)  The hopeful picture in these speeches and in other signals sent by the administration is that the main contest is winding down, leaving only residual terrorist threats that can be dealt with under pre-9/11 authorities – namely, allied forces trained by the United States, U.S. law enforcement and intelligence resources, and an occasional dollop of military force under Article II. The rise of ISIS in Iraq and Syria, the failure of U.S. trained forces in Iraq to maintain ISIS, the continuing and growing threats to the homeland from AQAP in Yemen (see this scary Ken Dilanian story), not to mention rising jihadist forces in many other places, call this hopeful picture into serious question.  Set aside the legal question whether Article II suffices as a basis for needed U.S. counterterrorism operations to meet these threats after the AUMF is declared otiose (an issue I have discussed many times, most recently here.)  The politics of declaring the war to be over seem fraught as well.  Even if core al Qaeda is entirely defeated, AQ-associated forces like AQAP remain robust, and ISIS is now a huge problem, not just in Iraq, but also potentially in the homeland because (see here and here) thousands of westerners have joined the jihadist fight in Syria and Iraq and can return to the West, including the United States, with relative ease.  Declaring the war to be “over,” even declaring the AUMF-war to be over (which I think is hard to do), will now only highlight how little has been accomplished overall in defeating the jihadist threat.  The notion that the main conflict is over and only residual threats remain is entirely contrary to reality, and attempts to repeal the AUMF or to declare it dead will only highlight this fact – as well as the fact that the President is meeting these new and growing extra-AUMF threats mostly if not entirely on the basis of unilateral Article II authorities.

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

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