[Update: Mary replies to this post here.]
Ben's commentary on Mary Dudziak's NYT piece has generated this reply from Mary, in which she raises several interesting questions. As a general proposition, I agree with her about the utility of the law-and-society perspective on national security law (i.e., the importance of giving due attention to the surrounding cultural, political, and historical circumstances that impact (and in turn are impacted by) the law relevant to national security affairs. And I agree too, under that heading, that presidential rhetoric relating to war can play a part in forming a larger political climate which in turn will impact the prospects for sustaining particular claims of war powers.
If I am reading Mary correctly, however, we might disagree as to the next step. I understand her to be saying that President Obama at an earlier stage embraced a rhetoric of war-in-Afghanistan in particular, as distinct from war-with-al-Qaeda in general, with consequent implications about the scope of associated war powers that he might be claiming. Certainly he has emphasized the large-scale combat operations in Afghanistan, repeatedly criticizing the last administration for diverting resources to Iraq, etc. I do not think, however, that he has ever distanced himself from the proposition that there is an underlying conflict with al Qaeda that is not dependent upon the existence of combat operations in Afghanistan. I've not made a study of his relevant speeches, to be sure, so take this with a grain of salt. But his most relevant speech from early in his presidency is the National Archives address in May 2009. The speech upset some of his supporters insofar as it explicitly envisioned the continuing use of military detention without criminal charge. For present purposes, what matters, I think, is that the speech clearly embraced the proposition that a state of war exists with al Qaeda and its affiliates, and that it did not suggest that this conflict is coextensive with our boots-on-the-ground presence in Afghanistan:
This responsibility is only magnified in an era when an extremist ideology threatens our people, and technology gives a handful of terrorists the potential to do us great harm. We are less than eight years removed from the deadliest attack on American soil in our history. We know that al Qaeda is actively planning to attack us again. We know that this threat will be with us for a long time, and that we must use all elements of our power to defeat it.
Now let me be clear: we are indeed at war with al Qaeda and its affiliates. We do need to update our institutions to deal with this threat. But we must do so with an abiding confidence in the rule of law and due process; in checks and balances and accountability. For reasons that I will explain, the decisions that were made over the last eight years established an ad hoc legal approach for fighting terrorism that was neither effective nor sustainable - a framework that failed to rely on our legal traditions and time-tested institutions; that failed to use our values as a compass. And that is why I took several steps upon taking office to better protect the American people.
As I said, I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture - like other prisoners of war - must be prevented from attacking us again. However, we must recognize that these detention policies cannot be unbounded. That is why my Administration has begun to reshape these standards to ensure they are in line with the rule of law. We must have clear, defensible and lawful standards for those who fall in this category. We must have fair procedures so that we don't make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.
To be fair, there was this line early in the same speech: "For the first time since 2002, we are providing the necessary resources and strategic direction to take the fight to the extremists who attacked us on 9/11 in Afghanistan and Pakistan." Even with that geographically-specific reference, however, I don't think the net impression left by the speech was one in which the state of war with al Qaeda was pitched in geographically-bounded terms.
Even if the President's rhetoric was less clear early on that I've suggested, there is the separate matter of the very-clear (and non-Afghanistan-focused) claims advanced in (i) much-reported major policy speeches by key administration officials like Harold Koh and John Brennan, (ii) the litigation positions advanced by the Justice Department in relation to GTMO habeas cases and one-off suits such as the al-Awlaki suit, (iii) the high-profile media coverage of the administration's actual practice of using force against al Qaeda-related targets in places like Yemen and Somalia, and (iv) Congressional narratives that rarely suggest a geographically-circumscribed conception of the conflict with al Qaeda. These are not examples of presidential rhetoric, of course, yet they too contribute to the formation of the war narratives against which war power claims are made. Indeed, in an age where presidential speeches and press conferences just don't have the same media impact as in generations past, it may be that the net of these sub-presidential contributions may have a larger impact on public perceptions. An interesting possibility, at any rate.
One final thought: the Obama Administration surely perceives that the President has little to gain, both domestically and diplomatically, by spending limited speechmaking bandwith drawing attention to the transnational aspects of conflict with al Qaeda, whereas the opposite may be true when it comes to emphasizes the drawdown of large-footprint combat deployments in Iraq and now Afghanistan. So, to be sure, one should expect to see more presidential airtime devoted to the latter than the former. But I don't think emphasizing the drawdown of large-footprint combat deployments is inconsistent with maintaining the position that conflict with al Qaeda will continue nonetheless. Indeed, my sense is that "drawdown talk" often is accompanied by assurances that SOF units, drones, and the like will remain engaged in kinetic operations against al Qaeda targets to at least some extent.