On Tuesday, President Obama made the case in his final national security speech that staying true to American values is not a weakness, but the country’s greatest strength in the fight against terrorism. He argued that transparency and accountability serve American’s national security interests, including by allowing for a more informed public debate and serving as a potential check on unfettered executive power. It was in that spirit that he directed the release of a report that memorializes the current parameters of the use of war authorities for fighting terrorism in one official document.
The report is a culmination of the significant efforts over the last decade to define the current conflicts, to bring U.S. operations into better alignment with international law and U.S. values, and to avoid the corrosive effects of perpetual war. These efforts, however, were scattered across speeches and congressional testimony by national security officials, court filings, and other documents and public statements that, when viewed piecemeal, failed to quash the competing false narratives that the United States is engaged in an unbounded global war on terror and that the President was unduly tying the hands of the military.
For a long time, Human Rights First has been calling on the executive branch (see, e.g., here, here, here, here, and here) to release a report like this one, arguing that synthesizing the parameters into one cohesive framework was important for pushing back against these false narratives and ensuring that the administration was leaving to the next President clearly defined wars and set of guidelines for when the U.S. believes war authorities may be used in the counterterrorism context.
This report goes a long way towards doing that. The administration is to be commended for instituting this effort, which, as Ben Wittes notes over at Lawfare, clearly required significant work over a period of several months. What is most notable about this report is that it reflects the efforts and views of the many agencies and departments tasked with keeping this nation safe. The report is the product of the Departments of State, the Treasury, Defense, Justice, and Homeland Security, the Office of the Director of National Intelligence, and the Central Intelligence Agency.
The result of this national security focused and directed effort is a framework that many human rights and international law experts, including those at Human Rights First, have rightly criticized in several respects over the years (see, e.g., here). There is indeed still more work to be done to ensure that U.S. counterterrorism policies respect human rights.
Nevertheless, the new report is a powerful reflection of the growing, bipartisan consensus, which began to emerge in the later Bush years and has grown stronger in the years since, that respect for human rights and the rule of law is essential for our national security, even in times of war. That consensus is reflected in the country’s commitment to humane detainee treatment, respect for international law, and promotion of a values-based national security approach.
Marty Lederman has already posted a detailed analysis of key sections of the report, Lawfare has posted a useful summary, Ben Wittes has discussed the value and likely impact of the report going forward into the next administration in light of the requirement that the report be reviewed and updated annually, and others have rightly critiqued certain aspects of the report and the framework it describes (see, e.g., the folks at Columbia here and Human Rights Watch here). I highly recommend these analyses, but also recommend reading the report in its entirety to those who have not done so already. It is a tremendous resource for scholars, practitioners, advocates, students, government critics, and the American public alike.
Image: President Obama makes remarks at MacDill Air Force Base, Dec. 6, 2016 – Official White House Photo by Pete Souza