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Last year, Kenneth Anderson and I published a book entitled, Speaking the Law: The Obama Administration's Addresses on National Security Law, which is a detailed analysis of the Obama Administration's national security law views, as seen through the lens of a body of speeches given by senior administration officials.
The book has not exactly been burning up the best-seller list. It ranks today at a whopping 2,507,071 on Amazon's rankings and has exactly one customer review, albeit a lovely one:
I bring up Speaking the Law today not in an effort to persuade anyone to buy a copy (though you really should) but because a few minutes ago, the White House released a major legal policy document, the previous absence of which constituted the main reason Ken and I wrote the book in the first place. Entitled, "Report on the Legal and Policy Frameworks Guiding the United States' Use of Military Force and Related National Security Operations," the 66-page document offers an overview of the administration's legal and legal policy positions vis a vis a wide array of national security operations. The White House released the document just now along with this accompanying transparency memo and this semi-annual War Powers Resolution letter to Congress.
While it is not quite a comprehensive account of the administration's legal views, it's the closest thing the administration has ever produced. It brings together in one document for the first time major legal positions related both to the use of force overseas and major positions related to such conduct-of-hostilities issues as targeting, interrogation, and detention. The document integrates the administration's domestic and international law positions and thus offers the clearest, most holisitic view yet of the legal framework for American overseas operations. Its publication will help in the process of what Ken and I call in the book "institutionalization" and "institutional settlement" of contested national security legal policy questions.
As the Obama administration gets ready to exit the scene, it is a very welcome addition to the discussion of what legacy President Obama leaves in this area and how much of that legacy will persist. While it cannot in any sense bind Obama's successor, it will make it significantly easier to identify and highlight, for better or worse, changes in legal policy and understanding of the country's legal positions and obligations.
The absence of exactly this sort of document was, as I said, the reason Ken and I began working on Speaking the Law, which we published in serialized form online over the course of a couple of years before finally publishing the hardcover edition. The problem, as we saw it, was, was that the administration had actually said a great deal about the legal framework for overseas counterterrorism—much more than its critics appreciated—but that because it had spoken in piecemeal fashion across many speeches by many different actors in many different contexts, most commentators, including some very sophisticated ones, did not understand that there actually was a holistic framework.
"The first key point," we wrote in our introduction, "is that, viewed together, [the speeches] lay out a broad array of legal and policy positions regarding a large number 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 incremental articulation of new ideas through their progressive delivery, nobody has ever lined up the canonical national security speeches of the Obama administration and examined the aggregate legal policy framework they lay out as a body of work." This was a significant analytical gap in the literature surrounding the administration's legal policy positions. But it also represented a significant failure on the part of the administration. Despite, as we put it, having "actually said a remarkable amount about a surprisingly wide array of contested legal issues at stake in its operations," the administration was receiving a "great deal of criticism for not saying much about the legal framework that governs its conterterrorism operations."
So big was the gap between the transparency of the administration on matters of law and counterterrorism, in fact, and its reputation for operating in secret that a prominent journalist, on reading Ken and my synthesis of the speeches into an overview of what we call the "speeches framework" (in chapter 1 of the book) pronounced himself amazed at the scope and range and cohesive integrity of the administration's legal positions. He had no idea previously that it had said so much or that what it had said connected as it, in fact, does.
Ken and I were not the only ones who urged the administration to put it all down in one place and draw out the connective tissue between the themes of the speeches. In a conversation yesterday, senior national security officials stressed that in their meetings with civil society groups concerned about the administration's positions, the groups urged the publication of a more cohesive, cross-cutting synthesis of the administration's views. The basic idea is simple transparency. There's a lot the administration cannot say about aspects of its positions, and more significantly, the facts that underlie those positions. But there's no good reason for ambiguity or obscurity about those positions which can be elaborated. And there should be a single place of reference for those positions, a place where scholars, activists, journalists, and interested citizens can go to understand what the administration is and is not arguing and can see how—if at all—those positions change with time. It should be possible easily to look up what the administration has said about when it uses force and what legal authorities it invokes and then see directly how that position interacts with, say, its view of the scope of its detention authority and the law and policy surrounding enemy targeting in various locales around the world.
That is what this new document is. As such, there is actually not all that much that's new in it. Most of it is restatement and collation of material presented in the speeches—useful both for bringing that material together in a single document and for an organization that highlights the connectiosn between issues that many observers treat in abstraction from one another.
There are, however, certain areas in which the document presents new material, or to be precise, updates the public record with the administration's most contemporary reading of the facts in interaction with the law. The most important of these areas involves Al-Shabaab. A recent New York Times story disclosed for the first time that the administration now considers the Somali group to be covered by the AUMF, though it had previously regarded only certain figures with the group as coming under the authorization's mandate. A discussion of this change was the subject of this week's Lawfare Podcast:
The report, however, gives some details on the administration's thinking: "this determination was made recently with respect to al-Shabaab because, among other things, al-Shabaab has pledged loyalty to al Qa’ida in its public statements; made clear that it considers the United States one of its enemies; and been responsible for numerous attacks, threats, and plots against U.S. persons and interests in East Africa. In short, al-Shabaab has entered the fight alongside al-Qa’ida and is a cobelligerent with al-Qa’ida in hostilities against the United States, making it an 'associated force' and therefore within the scope of the 2001 AUMF." As an international law matter, the document goes on, "U.S. counterterrorism operations in Somalia, including airstrikes, have been conducted with the consent of the Government of Somalia in support of Somalia’s operations in the context of the armed conflict against al-Shabaab and in furtherance of U.S. national self-defense."
More generally, the document spells out more usefully and clearly than anything I have read before exactly where the United States is operating and under what legal authorities. As such, it identifies all of the groups the government currently contends to be AUMF-covered: "the U.S. military is currently taking direct action against solely the following individuals and groups under the authority of the 2001 AUMF: al-Qa’ida; the Taliban; certain other terrorist or insurgent groups affiliated with al-Qa’ida or the Taliban in Afghanistan; AQAP; al-Shabaab; individuals who are part of al-Qa’ida in Libya; al-Qa’ida in Syria; and ISIL." And it usefully ticks through the various operating theaters of U.S. activity to explain the authority under both domestic and international law for operations there (See pp. 15-18). It also clarifies that the administration regards the area around Sirte in Libya as one of active hostilities for purposes of the PPG.
It is, quite simply, the most comprehensive and up-to-date elucidation of the administration's understanding of the scope and coverage of the AUMF that's available.
Similarly, the second half of the document represents the fullest articulation the administration has yet managed of its views of such jus in bello matters as targeting, detention, and interrogation, and it contains as well a discussion of criminal process and the circumstances in which the administration will and will not transfer captives to foreign custody. Again, there's not that much in here that the administration has not said before, but the document is striking for laying it all out in a systematic fashion.
It just is not possible to read this document and not come away with a sense that the administration has endeavored to think through the range of issues it confronts in overseas terrorism operations in a systematic fashion and to make the framework it has developed as public as possible.
This strikes me as the document's major importance. You can read it and decide what you think of it, and there are many aspects of it with which reasonable minds will disagree. But you can't read it and come away thinking the administration lacks a legal framework for its thinking or is being lawless in its counterterrorism approach. It's therefore first and foremost a document of public accountability.
The timing of its release will inevitably raise questions about whether it is intended to put pressure on the next administration not to deviate too much from current administration legal thinking. The officials I spoke with yesterday stressed that this is not the purpose, that the document has been in the works for many months, and that publicly ventilating the current administration's legal thinking in any event cannot bind the next president. That last point is certainly true. And in looking at this material, I am confident it was not hastily thrown together in the weeks since the election. A document of this type takes many rounds of interagency vetting and simply has to be the result of a long process. So I think we should not understand it as an effort to pressure the Trump administration to keep towing the current administration's legal line.
That said, it may well have some useful effects in that department, in a fashion that could either serve to check the incoming administration or to serve to protect and shield it—or maybe both at the same time. By ventilating the current administration's positions, it will make unjustified deviations from those positions very naked, not by any means impossible, but more difficult to do without exposure. To the extent those deviations are on questions of policy, it will be very obvious whose policy was whose. And to the extent those deviations involve points of law, it will be very obvious where the Trump administration is taking positions the Obama administration regarded as unlawful.
Conversely, however, the document will also provide a significant degree of protection for a Trump administration suddenly criticized for positions that mysteriously raised fewer hackles under its predecessor. These are actually 43 pages of robust claims of counterterrorism authority, and President Trump—without deviating from any of it—can thus claim a great deal of latitude. Moreover, there areas, in my view, where deviation is certainly appropriate. So there might be areas where a new administration finds a clear statement of the prior administration's positions a useful sounding board off of which to articulate views of its own.
The result seems to me healthy whichever way it plays. If it protects Trump in areas where he is doing no more than Obama has done, that's a salutary reminder that what's sauce for the goose is sauce for the gander. If it serves to remind the Trump administration of where the boundaries of the legal policy consensus lie, that's healthy too. And if it serves to give President Trump a foil off of which to articulate his own legal policies in counterterrorism, so much the better. The document, in short, will one way or another provide a useful benchmark against which to measure the law and policy positions of the new administration with respect to its predecessor.
For this reason, the following suggestion in Obama's foreward to the document is particularly worth noting: "in conjunction with the release of this report, I am issuing a Presidential Memorandum that encourages future Administrations to build on this report and carry forward the principles of transparency it represents. In particular, the memorandum states that the National Security Council staff shall be asked, as appropriate, to update the report at least on an annual basis and to arrange for the report to be released to the public."
It will, of course, be up to President Trump whether or not to follow through on this request. But it strikes me as very worthy one. As our legal policy in counterterrorism changes, it would be great if this document could change in public so that people can assess the changes and decide for themselves whether on both legal and policy grounds those changes seems wise or justified. It will be very interesting to compare the December 2016 version of the document to the first annual update in December 2017; we might learn a great deal about what a Trump presidency will mean in the national security space by examining the differences.
One final note, the document has important limations. It is only about military force and related national security operations. It thus does not deal with surveillance or cyber operations. And as an unclassified document, it also does not purport to be truly comprehensive with respect to the factual bases of many positions it articulates.
We will publish a detailed summary of the document shortly.