Counterterrorism Legal Policy in Obama’s Second Term

By Jack Goldsmith
Friday, November 9, 2012, 8:31 AM

One important consequence of President Obama’s re-election will be the further entrenchment, and legitimation, of the basic counterterrorism policies that Obama continued, with tweaks, from the late Bush administration.  We will have four more years of a Democratic president presiding over military detention without trial, military commission trials (at least for the 9/11 conspirators, if not for more), broad warrantless surveillance, drone strikes around the globe, and covert war more generally.  These policies will of course be scrutinized by the many watchers of the presidency.  But they will receive less pushback than they would have received under a republican president.  Not only does the public generally trust the former constitutional law professor and civil liberties champion more than a republican president to carry out these policies (this is the Nixon going to China phenomenon).  But in addition, many on the left (in Congress and the NGO community, and perhaps the press) who might otherwise be uncomfortable with these policies will give President Obama a freer hand than they would a republican president.  The paradoxical bottom line: aggressive counterterrorism policies will, as a general matter, become more entrenched as a result of Obama’s election, compared to a Romney presidency.

One objection to this conclusion is that President Obama – more focused on his historical legacy, freed from re-election worries, and less concerned about negative political consequences of counterterrorism policies he deems appropriate – will seek to change course on counterterrorism policy.  He is already getting pressure to do so from various quarters.  But I doubt that these pressures will lead to large changes in policy.

As I have argued before, these pressures might well lead President Obama to release as many GTMO detainees as possible (e.g. the Yemenis technically cleared for transfer), when (and if) the security situation permits.  Whether his administration will continue to push (in the face of congressional opposition) to close GTMO and ramp up civilian trials of GTMO detainees is a harder call, I think.  I am sure it wants to do this, all things equal.  But I don’t think Congress is going to back down in its opposition to these initiatives, I don’t think the President is going to disregard congressional restrictions in this area, and I don’t think that a large-scale fight on this issue with Congress will be consistent with the administration’s other political goals.  That said, the President clearly wants to avoid responsibility for GTMO remaining open after eight years in the oval office, so I think he will continue to disagree with Congress nominally on the issue so that he can later say that he tried his best.

Change could also come on two other issues in the second term.  The first is the drone program.  By all accounts the U.S. government continues to ramp up reliance on drone intelligence and fire to control terrorist threats around the globe.  As John Bellinger has documented, political and legal opposition to this program from around the globe, sometimes strident, is growing.  It will be interesting to see how the Obama administration deals with this.  Will it tone down reliance on drones in response to these pressures?  Will drones become Obama’s GTMO?  If the administration tones down its drone use (which I doubt it will do), what will it substitute to control terrorist threats?

The second issue concerns extra-AUMF threats.  As we have often discussed on this blog, and as Bobby has best documented, terrorist organizations that threaten the United States are increasingly difficult to fit under the AUMF rubric.  This raises the question whether the President needs renewed and expanded AUMF authority, and what that authority might look like.  I expect the Obama administration is of two minds about this.  On the one hand it is increasingly bumping up against the limits of the AUMF and coming to the point where it will need to rely on less certain (and legally less attractive) Article II authorities to keep the country safe.  On the other hand it does not want the legacy of seeking and signing a new AUMF that puts the “war on terror” on a broader and more permanent foundation.  I am not at all sure how this will turn out.  The answer will likely depend on whether the new threats successfully attack U.S. interests.