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How Obama Undermined the War on Terror
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How Obama Undermined the War on Terror The President promised not to undercut the rule of law for expedience's sake. He did. Now we face the consequences.

By Photo: Rob Jensen/USAF via Getty Images

In the conflict against Al Qaeda that began in 2001, American military forces have conducted operations in more countries than in any war except World War II. Most of these countries are probably in the Middle East and North Africa, and the number (based on press reports) is likely in the ten to thirty range. But the public doesn't know, because the government hasn't told it. In his "War Powers Resolution" report last December, President Obama said that military forces had engaged Al Qaeda and affiliates in Afghanistan, Somalia, and Yemen, and added that they had conducted additional "sensitive operations in various locations around the world." The names of the additional countries, and the nature of our troops' operations, are presumably in the "classified annex" to the report.

The president's report discussed only military activities, and did not purport to account for the Central Intelligence Agency's initiatives against Al Qaeda and affiliates. The CIA engages in paramilitary activities against these groups, most notably with its infamous fleet of unmanned aerial vehicles, or drones. The public knows about these CIA activities not through official channels, but again through leaks to the press. For the CIA's actions are "covert," which means not just that they are classified, but also that the United States intends its role to be non-apparent and unacknowledged. Only the executive branch and select members of Congress really know what the CIA is doing against Al Qaeda, and where.

The length, the geographical scope, and the elaborate secrecy of the war against Al Qaeda are remarkable. Just as remarkable, and less appreciated, are the unusual institutions fighting the secret war. The CIA is charged primarily with human spying and intelligence analysis, and after the controversies of the 1970s it shied away from covert actions involving lethal force. But since 9/11, and especially during the Obama presidency, it "has become a killing machine, an organization consumed with manhunting," as Mark Mazzetti puts it. The Department of Defense, by contrast, traditionally did little human spying. But since 9/11, and again especially during the Obama presidency, its Joint Special Operations Command (JSOC) "has been dispersed into the dark spaces of American foreign policy, with commando teams running spying missions that Washington would never have dreamed of approving in the years before 9/11." JSOC has also significantly expanded its clandestine lethal operations.

There are many signs that the "military-intelligence complex" is becoming unacceptab-ly controversi-al.

These dual, secretive intelligence-gathering and war-fighting institutions have arisen across two administrations in response to bureaucratic fights, political imperatives, and changing tactical challenges. For over a decade, the United States has conducted a stealth experiment in stealth war-fighting, with profound consequences for our military strategy and our self-governance. Mazzetti's book is a report on "what has emerged from the laboratory." (I worked in the laboratory as a national security lawyer in the Justice and Defense Departments from 2002 to 2004, but was unaware of the matters that Mazzetti reveals and cannot vouch for their accuracy.) And it is a timely report, at least as essential background reading, because there are many signs that the novel "military-intelligence complex" that Mazzetti describes is becoming unacceptably controversial at home and abroad.

 

The CIA started using drones to kill enemy forces because the Department of Defense was too slow. The Agency deployed long-flight surveillance drones in Afghanistan in 2000 in an attempt to find Osama bin Laden. One day, it spotted him at his Tarnak Farms training camp. But the National Security Council called off a requested military strike because the CIA could not guarantee that bin Laden would be there six hours later, which is how long it would have taken the Pentagon to organize and fire a missile from a submarine in the Arabian Sea. "The CIA had only two options," says Mazzetti: "predict bin Laden's whereabouts six hours in advance or find a weapon that could hunt the al Qaeda leader and kill him immediately."

The weapon that the CIA found was a Hellfire missile. When mounted on a drone, it reduced the time between surveillance and lethal fire from hours to seconds. The Agency initially hesitated to deploy the weapon for fear that lethal covert actions might land it in political trouble. But those concerns evaporated after 9/11. By October 2001, the CIA was launching dozens of drone strikes in Afghanistan. It was also dramatically expanding (at the expense of other intelligence tasks) its fledgling Counterterrorist Center in order to coordinate the massive intelligence processing and analysis needed to conduct drone surveillance and strikes, and the other aggressive activities that George W. Bush had authorized the CIA to take against Al Qaeda.

At first, CIA drones were used mostly in Afghanistan, and played second fiddle to its detention and interrogation program. At about the time that program started running into political and legal trouble in 2004, the CIA conducted its first successful lethal drone operation in Pakistan, killing (with the Pakistani government's consent) Nek Muhammad, a Pakistani who harbored Al Qaeda fighters in Waziristan and deployed them in attacks on American bases. The CIA "began to see its future: not as the long-term jailers of America's enemies but as a military organization that could erase them," says Mazzetti. By the last year of the Bush administration, the CIA was effectively out of the detention and interrogation business but was conducting more drone strikes than ever in Afghanistan and Pakistan.

At the same time that the CIA was morphing into a military organization, the Department of Defense was morphing into a spy agency akin to the CIA. Donald Rumsfeld concluded soon after 9/11 that to find, to confront, and to defeat members of the dispersed Al Qaeda network, his Pentagon would need to engage Al Qaeda globally with targeted clandestine military operations analogous to CIA covert paramilitary actions. JSOC's special operations forces were suited for this task. But they were not organized, trained, or authorized for extensive missions. And the Pentagon was dependent on the CIA for the intensive intelligence information needed to run these operations. 

"Rumsfeld concluded that the only answer was to make the Pentagon more like the CIA," Mazzetti observes. He secured more funding and resources for JSOC. He expanded and consolidated the Pentagon's disparate intelligence-gathering services into a powerful new Office of the Under Secretary of Defense for Intelligence. And in 2004, he interpreted the Defense Department's authorities under the congressional Authorization for the Use of Military Force from September 2001the legal foundation of the war against Al Qaeda to this dayto give JSOC authority to conduct operations in many places, as well as intelligence-gathering missions needed to "prepar[e] ... the battlefield." According to Mazzetti, Rumsfeld's " 'Al Qaeda Network Execute Order' ... expanded the powers of special-operations troops to kill, capture, and spy in more than a dozen countries," including Syria, Somalia, Pakistan, and the Philippines

Over the course of the Bush administration, in short, the CIA and JSOC became parallel spying and war-fighting machines that operated around the globe. JSOC had a wide berth in hot battlefields such as Iraq and Afghanistan, where it got very good at the intelligence-heavy, technologically advanced quick-strike night raids that would become its trademark. It also ran operations in many other places. Mazzetti tells tales of JSOC boots on the ground in Somalia, of JSOC targeted killings in Yemen, and of JSOC spy operations in Iran. 

The CIA had "more expansive authorities" due to its specialty in running covert actions that the government does not acknowledge publicly. Mazzetti says this is why the CIA took the lead in conducting drone strikes in Pakistan beginning in 2004: Pakistani officials insisted that the operations be non-acknowledged. Sometimes, however, the Bush administration would "sheep-dip" JSOC forces into the CIA's command. This legal trick transforms a traditional military activity into a covert action that brings JSOC under the CIA's authorities and makes its troops "the CIA director's armed platoon." Mazzetti reports that sheep-dipped Navy seals entered Pakistan with helicopters in January 2006 in an undetected attempt to nab senior Al Qaeda operatives. That raid would be a precedent for the helicopter raid by Navy seals, under the direction of CIA Director Leon Panetta, to kill Osama bin Laden in Abbottabad, Pakistan, in 2011.

Barack Obama entered office in January 2009 determined to end the expensive heavy deployments and lengthy occupations that characterized the Bush administration's wars in Iraq and Afghanistan. He was also determined to ramp up the fight against Al Qaeda. During the campaign, he derided the Bush administration for not acting "aggressively enough to go after al-Qaeda's leadership," and he promised to "act" in Pakistan and other places against "high-value terrorist targets." In office, Obama followed through. The precise, nimble, light-footprint fighting machines in the CIA and JSOC were perfect for the tasks of finding and killing terrorists scattered among civilian populations in failed or uncooperative statesand they were relatively inexpensive to boot.

Mazzetti gives another reason why Obama would rely so heavily on targeted killing and related operations. The controversy surrounding his elimination of the CIA black sites, and his failed attempt to close the detention facility at Guantanamo Bay, made interrogation and detention "a briar patch for the new administration." To John Rizzo, the carryover general counsel at the CIA, the new administration chose targeted killing because that was "all that was left" once it eliminated the interrogation option. Mazzetti puts the point in political terms. The "political conditions were set for an escalation of the secret wars," he maintains, because interrogation and detention were so controversial, and because no prominent Democrat had opposed drone strikes and the Republicans wouldn't oppose Obama "for fighting too aggressive a campaign against terrorists."

And so Barack Obama greatly expanded the secret war that George W. Bush began. In the fall of 2009, Obama approved a "long list" of new CIA paramilitary operation proposals, as well as CIA requests for more armed drones, more spies, and larger targeting areas in Pakistan. "The CIA gets what it wants," said the president, approving the CIA requests, and conveying what Mazzetti thinks was his first-term attitude toward the Agency. The Department of Defense also got most of what it wanted. Obama approved an initiative by General David Petraeus to expand "military spying activities throughout the Muslim world," and gave special operations forces "even broader authorities to run spying missions across the globe" than they possessed under the Bush administration. 

Mazzetti describes Obama's souped-up secret war as "the way of the knife," a reference to Obama counterterrorism czar (and now CIA director) John Brennan's claim that the administration had replaced the "hammer" of large deployments with the "scalpel" of secret pinpoint missions. Its most famous use was the Abbottabad raid to kill bin Laden. But its most enduring legacy is Obama's significant expansion of the CIA and JSOC drone-strike campaign against Al Qaeda and affiliates, especially in Pakistan and Yemen. In 2009, the Obama administration conducted more drone strikes in those countries than the Bush administration had done in the seven years after 9/11; and to date, it has conducted almost nine times more drone strikes there than its predecessor.

The administration's most controversial drone strike came against an American citizen, Anwar al-Awlaki, a leader of Al Qaeda in the Arabian Peninsula, the Yemeni organization responsible for the failed Detroit "underwear bomb" attack on Christmas in 2009 and other attempted attacks against the United States. Government lawyers gave the green light to kill al-Awlaki in 2010, but the administration had no idea where in Yemen he was. By 2011, the CIA and JSOC both had spies on the ground in Yemen and were "running two distinct drone wars," with different targeting lists, from bases in Saudi Arabia (for the CIA) and Ethiopia and Djibouti (for JSOC). In the fall of 2011, in part because of prior JSOC targeting mistakes and in part because of the CIA's extraordinary successes in Pakistan, Obama tasked the CIA alone with finding and killing al-Awlaki. On September 30, a CIA Reaper drone fired on a convoy near the Saudi Arabian desert and completed the mission.

 

At the end of president Obama's first term, Mazzetti remarks, Americans seemed "little concerned about their government's escalation of clandestine warfare." By that point Obama's way of the knife had both decimated the senior leadership of Al Qaeda and reversed the Republicans' traditional advantage on national security. "Ask Osama bin Laden and the 22 out of 30 top Al Qaeda leaders who have been taken off the field whether I engage in appeasement," said the boastful president in December 2011, flicking away Republican charges that he was soft on terrorism. "Or whoever is left out there, ask them about that," he added. 

But in the last few months the Obama administration's secret warand especially its drone programhave come under attack on multiple fronts. In 2011, The Washington Post reported the CIA's counterterrorism chief bragging of his Al Qaeda strikes that "we are killing these sons of bitches faster than they can grow them now." It is unclear whether this statement is true today. The core Al Qaeda organization appears debilitated. But its affiliate organizations are operating in Somalia, Yemen, and Iraq. And powerful new affiliates appear to be springing up elsewhere, including Al Qaeda in the Islamic Maghreb in post-Qaddafi North Africa, and the Al Nusra Front in revolutionary Syria.

Secrecy is the essence of the type of war that Obama has chosen to fight.

In this light, questions about the strategic success of Obama's drone campaign, and his secret war more generally, are growing. "We cannot kill our way to victory," former Congresswoman Jane Harman, who was a member of the House Intelligence Committee, testified in a counterterrorism hearing last month. General Stanley McChrystal, who presided over JSOC from 2003 to 2008, made a similar point in a recent interview in Foreign Affairs. The "danger of special operating forces," he noted, is that "you get this sense that it is satisfying, it's clean, it's low risk, it's the cure for most ills." But history provides no example of "a covert fix that solved a complex problem," he continued, adding that a too-heavy reliance on drone strikes is also "problematic" because "it's not a strategy in itself; it's a short-term tactic." 

One reason McChrystal questions the strategic efficacy of heavy reliance on drones is that "inhabitants of that area and the world have significant problems watching Western forces, particularly Americans, conduct drone strikes inside the terrain of another country." Last summer, Pew Research reported "considerable opposition" in "nearly all countries," and especially in predominantly Muslim countries, to Obama's drone program. It also found that Lebanon, Egypt, Jordan, and Pakistan now had a less favorable attitude toward the United States than at the end of the Bush administration. And a Gallup poll in February found that 92 percent of the people in Pakistan disapprove of the American leadership and 4 percent approvehistorically bad numbers for the United States that are largely attributable to the way of the knife. 

These are discouraging numbers for a president who hoped to diminish the terrorism threat by establishing "a new beginning between the United States and Muslims ... based upon mutual interest and mutual respect," as Obama said in Cairo in 2009. The president added in that speech that the United States during the Bush era had acted "contrary to our ideals," and he pledged to "change course." But as the polls abroad show, Obama's change of course has not made the world think better of American ideals. Ben Emmerson, a United Nations special rapporteur on counter-terrorism and human rights, recently suggested that some American drone attacks might be war crimes. Since he launched an investigation in January, he has noted that most nations "heavily disput[e]" the legal theory underlying Obama's stealth wars, and concluded that American drone strikes violate Pakistan's sovereignty, contrary to international law. 

 

Most Americans are little interested in the popularity abroad of the way of the knife. To date, they very strongly support what they know about the president's drone campaign against foreign terrorist suspects. Support for targeting American citizens such as Anwar al-Awlaki, however, has dropped, and the focus on American citizens is affecting other elements of the way of the knife. In large part this has resulted from the administration's stilted explanations about the legal limits on killing Americans and the secret processes for placing American suspects on target lists. When a less-than-convincing Justice Department white paper on the topic leaked to the press in February, it stoked suspicions that the administration had big plans and something to hide. 

Questions grew when the administration continued to withhold legal memos from Congress, and when John Brennan danced around the issue during his confirmation hearings to be director of the CIA. Senator Rand Paul then cleverly asked Brennan whether the president could order a drone to kill a terrorist suspect inside the United States. When Brennan and Attorney General Eric Holder seemed to prevaricate, Paul conducted his now-famous filibuster. "I cannot sit at my desk quietly and let the president say that he will kill Americans on American soil who are not actively attacking the country," Paul proclaimed. The president never said, or suggested, any such thing. But with trust in Obama falling fast, Paul was remarkably successful in painting the secret wars abroad as a Constitution-defying threat to American citizens at home.

Paul's filibuster attracted attention to the issue of drone attacks on Americans in the homeland. A more serious challenge to the president comes from growing concerns, including within his own party, about the legal integrity of his secret wars abroad. Anne-Marie Slaughter, a former senior official in Obama's State Department, recently gainsaid "the idea that this president would leave office having dramatically expanded the use of dronesincluding [against] American citizenswithout any public standards and no checks and balances."

Many in Congress want to increase the transparency of the processes and legal standards for placing a suspect (especially an American) on a targeting list, to tighten those legal standards (perhaps by recourse to a "drone court"), and to establish a more open accounting of the consequences (including civilian casualties) from the strikes. "This is now out in the public arena, and now it has to be addressed," Senator Dianne Feinstein, a Democrat, recently said.

Others in Congress worry about the obsolescence of the legal foundation for the way of the knife: the congressional authorization, in 2001, of force against Al Qaeda. "I don't believe many, if any, of us believed when we voted for [the authorization] that we were voting for the longest war in the history of the United States and putting a stamp of approval on a war policy against terrorism that, 10 years plus later, we're still using," said Senator Richard Durbin, also a Democrat, in a Wall Street Journal interview. "What are the checks and balances of the system?" he asked. Senator John McCain, who led bipartisan efforts against what he saw as Bush-era legal excesses, is now focusing similar attention on Obama. "I believe that we need to revisit this whole issue of the use of drones, who uses them, whether the CIA should become their own air force, what the oversight is, [and] what the legal and political foundations [are] for this kind of conflict," he said last month.

 

These are unhappy developments for the president who in his first inaugural address pledged with supercilious confidence that, unlike his predecessor, he would not expend the "rule of law" for "expedience's sake." Obama reportedly bristles at the legal and political questions about his secret war, and the lack of presidential trust that they imply. "This is not Dick Cheney we're talking about here," he recently pleaded to Democratic senators who complained about his administration's excessive secrecy on drones, according to Politico. And yet the president has ended up in this position because he committed the same sins that led Cheney and the administration in which he served to a similar place.

The first sin is an extraordinary institutional secrecy that Obama has long promised to reduce but has failed to. In part this results from any White House's inevitable tendency to seek maximum protection for its institutional privileges and prerogatives. The administration's disappointing resistance to sharing secret legal opinions about the secret war with even a small subset of Congress falls into this category. 

Much of what the administrat-ion says about its secret war seems incomplete, self-serving, and ultimately non-credible.

But the point goes deeper, for secrecy is the essence of the type of war that Obama has chosen to fight. The intelligence-gathering in foreign countries needed for successful drone strikes there cannot be conducted openly. Nor can lethal operations in foreign countries easily be acknowledged. Foreign leaders usually insist on non-acknowledgment as a condition of allowing American operations in their territories. And in any event, an official American confirmation of the operations might spark controversies in those countries that would render the operations infeasible. The impossible-to-deny bin Laden raid was a necessary exception to these principles, and the United States is still living with the fallout in Pakistan.

For official secrecy abroad to work, the secrets must be kept at home as well. In speeches, interviews, and leaks, Obama's team has tried to explain why its operations abroad are lawful and prudent. But to comply with rules of classified information and covert action, the explanations are conveyed in limited, abstract, and often awkward terms. They usually raise more questions than they answerand secrecy rules often preclude the administration from responding to follow-up questions, criticisms, and charges. 

As a result, much of what the administration says about its secret warabout civilian casualties, or the validity of its legal analysis, or the quality of its internal deliberationsseems incomplete, self-serving, and ultimately non-credible. These trust-destroying tendencies are exacerbated by its persistent resistance to transparency demands from Congress, from the press, and from organizations such as the aclu that have sought to know more about the way of the knife through Freedom of Information Act requests.

A related sin is the Obama administration's surprising failure to secure formal congressional support. Nearly every element of Obama's secret war rests on lawsespecially the congressional authorization of force (2001) and the covert action statute (1991)designed for different tasks. The administration could have worked with Congress to update these laws, thereby forcing members of Congress to accept responsibility and take a stand, and putting the secret war on a firmer political and legal foundation. But doing so would have required extended political efforts, public argument, and the possibility that Congress might not give the president precisely what he wants.

The administration that embraced the way of the knife in order to lower the political costs of counterterrorism abroad found it easier to avoid political costs at home as well. But this choice deprived it of the many benefits of public argumentation and congressional support. What Donald Rumsfeld said self-critically of Bush-era unilateralism applies to Obama's unilateralism as well: it fails to "take fully into account the broader picturethe complete set of strategic considerations of a president fighting a protracted, unprecedented and unfamiliar war for which he would need sustained domestic and international support." 

Instead of seeking contemporary congressional support, the administration has relied mostly on government lawyers' secret interpretive extensions of the old laws to authorize new operations against new enemies in more and more countries. The administration has great self-confidence in the quality of its stealth legal judgments. But as the Bush administration learned, secret legal interpretations are invariably more persuasive within the dark circle of executive branch secrecy than when exposed to public sunlight. On issues ranging from proper targeting standards, to the legality of killing American citizens, to what counts as an "imminent" attack warranting self-defensive measures, these secret legal interpretationsso reminiscent of the Bushian sin of unilateral legalismhave been less convincing in public, further contributing to presidential mistrust.

 

Feeling the heat from these developments, President Obama promised in his recent State of the Union address "to engage with Congress to ensure not only that our targeting, detention, and prosecution of terrorists remains consistent with our laws and system of checks and balances, but that our efforts are even more transparent to the American people and to the world." So far, this promise, like similar previous ones, remains unfulfilled. 

The administration has floated the idea of "[shifting] the CIA's lethal targeting program to the Defense Department," as The Daily Beast reported last month. Among other potential virtues, this move might allow greater public transparency about the way of the knife to the extent that it would eliminate the covert action bar to public discussion. But JSOC's non-covert targeted killing program is no less secretive than the CIA's, and its congressional oversight is, if anything, less robust. 

A bigger problem with this proposed fix is that it contemplates executive branch reorganization followed, in a best-case scenario, by more executive branch speeches and testimony about what it is doing in its stealth war. The proposal fails to grapple altogether with the growing mistrust of the administration's oblique representations about secret war. The president cannot establish trust in the way of the knife through internal moves and more words. Rather, he must take advantage of the separation of powers. Military detention, military commissions, and warrantless surveillance became more legitimate and less controversial during the Bush era because adversarial branches of government assessed the president's policies before altering and then approving them. President Obama should ask Congress to do the same with the way of the knife, even if it means that secret war abroad is harder to conduct.

Administration officials resist this route because they worry about the outcome of the public debate, and because the president is, as The Washington Post recently reported, "seen as reluctant to have the legislative expansion of another [war] added to his legacy." But the administration can influence the outcome of the debate only by engaging it. And as Mazzetti makes plain, the president's legacy already includes the dramatic and unprecedented unilateral expansion of secret war. What the president should be worried about for legacy purposes is that this form of warfare, for which he alone is today responsible, is increasingly viewed as illegitimate.

Jack Goldsmith teaches at Harvard Law School and is a member of the Hoover Institution Task Force on National Security and Law. He is the author , most recently, of Power and Constraint.

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