Three Questions Left Unanswered by Obama’s Counterterrorism Speech

In the midst of his carefully scripted counterterrorism address Thursday at National Defense University in Washington, D.C., President Obama encountered an unexpected speed bump in the form of Medea Benjamin, the highly animated 60-year-old co-founder of anti-war group Code Pink whose track record for crashing high-profile political events and heckling speakers has earned her the reputation of being the country’s most disruptive protester.

As Obama shifted the focus of his wide-ranging remarks from drone attacks to the detention center at Guantanamo Bay, attempting to craft a new and more transparent legal framework for the war on terror and promising an ultimate end to it, Benjamin shouted, “You are commander in chief. You can close Guantanamo today!”

Obama tried to quiet Benjamin, but she persisted, demanding to know with regard to the use of drones if the president valued Muslim lives as much as American ones, and if he would apologize to “the thousands of Muslims that you have killed?” Finally, Benjamin was escorted from the auditorium by a security detail, yelling as she left, “Abide by the rule of law. You’re a constitutional lawyer.”

Although the major media thus far have treated Benjamin’s antics as an amusing sideshow, the questions she raised about the legal basis for the administration’s policies are anything but funny or anywhere close to being resolved. Indeed, far from succeeding as a reassuring second-term milestone, the president’s speech left at least three core issues in the war on terror entirely unsettled:

When Will Guantanamo Close?

There are 166 detainees left at Gitmo, many in the throes of a desperate hunger strike. The prison is, by any measure of decency, an international embarrassment and a continuing source of anger and resentment abroad.

In his speech, Obama reiterated his desire to close the facility, urging Congress to lift legal restrictions on repatriating those prisoners who have been cleared by the Defense Department to be returned to their homelands. He promised to bring the remainder to trial, either before civilian courts or military commissions.

As for how he might accomplish any of these goals, however, the president offered nary a clue, saying only that “ … once we commit to a process of closing Gitmo, I am confident that this legacy problem can be resolved, consistent with our commitment to the rule of law.”

With no concrete plan for overcoming Republican opposition to closing Guantanamo — the president’s speech has been denounced as a “victory” for terrorists by GOP Sen. Saxby Chambliss of Georgia, the ranking member of the Senate Intelligence Committee — and a court system that has thus far allowed Gitmo to withstand legal challenges, the nation and the world can expect the prison, as Chambliss puts it, to “stay open for business” indefinitely.

Who Will Oversee Future Drone Attacks?

In the Justice Department’s white paper on targeted killing that was leaked to NBC News in February, the administration laid out a specious justification for the president or other unspecified “informed, high-level” administration officials to order the execution of U.S. citizens abroad — and possibly within U.S. territory — deemed to be senior operational leaders of al-Qaida or forces “associated” with the terrorist network. Because America is at war, all that was needed for a kill order to proceed was evidence that a targeted individual was “continually involved in planning terrorist attacks against the United States.” The paper stressed that an attack need not be imminent or immediate, and the supporting evidence need never be made public. In Thursday’s speech, Obama defended past drone attacks, but backed away from the earlier white paper, declaring that he did not “believe it would be constitutional for the government to target and kill any U.S. citizen — with a drone or with a shotgun — without due process.” He also offered assurances that no president should ever deploy armed drones over U.S. soil, and indicated that principal management of drone operations would be shifted from the CIA to the Defense Department.

Left entirely unresolved by the speech, however, are the issues of exactly who would be authorized to give a kill order, how the administration will define an immediate threat, and, most important, how anyone targeted for a drone strike could be afforded due process, a term with a well-established meaning in constitutional law, embracing concepts of advance notice of pending charges and the opportunity to be heard.

In the address, Obama offered the possibility of creating a “drone court” to screen kill requests, after the fashion of the Foreign Intelligence Surveillance Court, which oversees government wiretap applications. That court, however, has proven remarkably one sided, rejecting a grand total of 11 government applications from 1978-2012, while approving more than 20,000.

Those hoping for more specifics on the administration’s new standards and processes for approving the use of lethal force in the war on terror will have to look beyond the president’s speech to Attorney General Eric Holder’s May 22 letter to Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., which alludes to yet another administration memo that will be provided to Congress. The memo, unfortunately, will remain classified and off-limits for the public at large.

When Will Surveillance of the Press End?

Unless or until the administration declassifies the new drone warfare memo, the best hope for learning further details about the government’s redrafted counterterrorism policies will rest with investigative journalists like the AP reporters whose phone records for April and May 2012 were seized by means of subpoenas issued without judicial oversight over leaked information about a foiled terror plot in Yemen.

But any enterprising journalist nosing into the subject of drone warfare should be forewarned: Nothing in the president’s speech will insulate you from potential criminal liability should you go too far in your reporting.

To be sure, in an apparent attempt to mollify critics of the AP investigation and move beyond what could prove to be the most damaging political scandal of his career, Obama in his speech Thursday declared his support for a federal media shield law to “guard against government overreach.” He even went so far as to announce that Holder had scheduled a meeting with media organizations to re-examine government guidelines for conducting investigations involving the press.

But the president did not apologize for the AP investigation, or characterize it as an instance of overreach or back down in any manner from his commitment to “enforce consequences for those who break the law and breach their commitment to protect classified information.”

As a veteran constitutional lawyer, Obama knows the law, as Code Pink’s Benjamin insisted while being led away from the assembly. But as incredible as it may seem, the law applicable to the AP investigation is actually slanted on the administration’s side, courtesy of the Supreme Court’s 1979 decision in Smith v. Maryland, which held that the Constitution’s ban on unreasonable searches and seizures does not apply to records of the calls telephone users make and receive.

The war on terror, Obama grandly declared near the end of his address, “like all wars, must end. That’s what history advises. That’s what our democracy demands.” It’s beyond sad that it took a heckler to point out the speech’s failure to make good on those demands.