Obamas 5/23 Speech

Obamas Speech vis--vis the Topic

Analysis: Topic Not Broken

To begin, lets look at what Obama did NOT talk about. There are several areas listed for recommendation in the paper that Obama did not cover in his speech: Offensive Cyber Operations (OSOs), CIA Covert Operations, Approval for UN/NATO Actions, Warrantless Wiretapping, & Unilateral Preventative Military Operations. The two areas for recommendation in the paper that Obama did cover: Indefinite Detention & Drone/UAV. He also mentioned eventually repealing or curtailing the AUMF, which is the authorization for many of the Presidential counterterrorism efforts conducted post-9/11. These will be addressed specifically below. In general, the speech does not break the topic and in many ways strengthens it by highlight specific deficiencies in Obamas proposed guidelines, especially drones & Gitmo, which focus those debates. Specifically, while the counterterrorism speech is deemed important and earnest, it is clear that drone strikes will not stop, nor will Gitmo be closed anytime soon. The more cynical commentators believe that the speech was simply platitudes and empty rhetoric and there are other more hopeful commentators that believe this is an excellent starting point but only a starting point. The bottom line is that Obama did not end drone strikes or close Gitmo so there are still many things Congress and/or the courts can do to limit his authority in the area and can still be included in the topic. I think this piece of evidence sums it up nicely: Congressional regulation is needed even after the speech The Atlantic, May 24, 2013
(A Skeptical Celebration of President Obama's Shifty Terrorism Speech, p. http://www.theatlantic.com/politics/archive/2013/05/a-skeptical-celebration-of-president-obamasshifty-terrorism-speech/276205/) All things considered, Thursday's developments were an improvement on the status quo. Obama constrained himself rhetorically in ways he hadn't before, expressed agreement with core civil libertarian critiques, and signalled that future policy will shift in that direction as a result. But talk is cheap, Obama has a history of breaking promises to civil libertarians, and drone strikes remain surrounded in enough secrecy that it will remain difficult to verify what's going on. Moreover, policies implemented at the president's prerogative can be changed on his determination too. There remains an urgent need for Congress to step into the breach and constrain the president , even if only in the ways that Obama says that he has constrained himself.

Analysis: Drone Strikes

Drone strikes: Obamas speech set out guidelines for when the US is going to use drone strikes with accompanying Fact Sheet, which is provided below for your perusal. Since drone strikes have the bulk of the public and medias attention in US current counterterrorism efforts, the bulk of the speech and media response was about drones. The following are the guidelines from the Fact Sheet: White House Office of the Press Secretary, May 24, 2013
(Fact Sheet: U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities, p. http://www.whitehouse.gov/the-pressoffice/2013/05/23/fact-sheet-us-policy-standards-and-procedures-use-force-counterterrorism) Third, the following criteria must be met before lethal action may be taken : Near certainty that the terrorist target is present; Near certainty that non-combatants[1] will not be injured or killed; An assessment that capture is not feasible at the time of the operation; An assessment that the relevant governmental authorities in the country where action is contemplated cannot or will not effectively address the threat to U.S. persons; and An assessment that no other reasonable alternatives exist to effectively address the threat to U.S. persons.
Finally, whenever the United States uses force in foreign territories, international legal principles, including respect for sovereignty and the law of armed conflict, impose important constraints on the ability of the United States to act unilaterally and on the way in which the United States can use force. The United States respects national sovereignty and international law.

Other things surrounding the speech and drones: a preference for the military, and not the CIA, to conduct drone strikes in the future but not a requirement. Obama also mentioned potential FISA-like court oversight of drones but not a requirement. Obama also said certain, unnamed members of Congress would be briefed ex post facto on the strikes, unless it involves a US citizen on foreign soil. In the latter case, the Congressional members would be briefed prior to the strike. Do these new rules substantially change US drone policy? Thats very unclear. First, it is important to keep in mind these standards only apply if the strike is to occur OUTSIDE areas of active hostilities. So, for example, since US troops are actively engaged in military missions in Afghanistan, the new rules dont apply Bellinger, Adjunct Senior Fellow in International and National Security Law at the Council on Foreign Relations, May 23, 2013
(John B. III, The Presidents Speech: The Good, the Bad, and the Ugly, Lawfare, p. http://www.lawfareblog.com/2013/05/the-presidents-speech-the-good-the-bad-and-the-ugly/)

Addendum: I should note that the

restrictive policy standards and procedures set forth in the Fact Sheet apply only to the use of force OUTSIDE areas of active hostilities . Indeed, in his speech, the President notes that in the Afghan war theater, the U.S. will continue to take strikes against high value al Qaeda targets, but also
against forces that are massing to support attacks on coalition forces. Query whether signature strikes against groups in Pakistan would still be permitted under this standard.

Second, a lot of issues are still covert and vague Pillar, visiting professor at Georgetown University for security studies, May 24 , 2013
(Paul R., An Excellent Statement on Terrorism, The National Interest, p. http://nationalinterest.org/blog/paul-pillar/excellent-statement-terrorism-8515) The White House released, as an accompaniment to the speech, a fact sheet describing criteria and procedures to be used in deciding on additional strikes from armed drones. The release is a positive step toward more transparency and gives us the fullest sense yet about the policy and how it is implemented. But the complete policy guidelines remain classified , the fact sheet is vague on several points , and it raises as well as answers questions. For example, it states that the United States
will use lethal force only against a target that poses a continuing, imminent threat to U.S. persons. How can a threat that is continuing also be imminent, except perhaps for a short time before the threat is finally executed? In other places, such as in describing review procedures when a U.S. citizen is involved, the

fact sheet essentially says that things will be done legally without

specifying the legal principles and standards to be applied. In offering assurances that noncombatants will be
protected, a lengthy footnote says that it is not the case that all military-aged males in the vicinity of a target are deemed to be combatants but doesn't really eliminate the possibility that many such males will be so deemed.

Third, it is unclear what the old standards were to begin with Goldsmith, Professor at Harvard Law School, May 24, 2013
(Jack, Reactions to the Presidents Speech, Lawfare, p. http://www.lawfareblog.com/2013/05/reactions-to-the-presidents-speech/) It is very hard to judge the significance of the new targeting standards because we dont really have a firm grasp on how the old standards were applied. Ironically, the new standards accomplish most if we believe some of the broader previous reports about the administrations signature strike policy, and they accomplish much less if we take seriously prior administration speeches about careful legal standards for targeting. The baseline matters and we dont know the baseline .

Fourth, Obama didnt ban drone strikes they will still continue The Atlantic, May 23, 2013
(No, the War on Terror Isn't Ending, p. http://www.theatlantic.com/international/archive/2013/05/no-the-war-on-terror-isnt-ending/276198/)
The president noted that when it comes to deploying drones, his administration is "insisting upon clear guidelines, oversight, and accountability

structure and process will become the new normal when it comes to drones. And in Afghanistan, after 2014, the "progress we have made against core al Qaeda will reduce the need for unmanned strikes." Reduce, not remove . Outside Afghanistan, "we only target al-Qaeda and
that is now codified in Presidential Policy Guidance." That is, its associated forces. Even then, the use of drones is heavily constrained." So while the president discussed new rules that will govern the evolving war on terror, the

pronouncement of its end remains premature. It may be lighter, but it is not

leaving . As the president himself said, "the conflict with al-Qaeda, like all armed conflict, invites tragedy. But by narrowly targeting our
action against those who want to kill us, and not the people they hide among, we are choosing the course of action least likely to result in the

loss of innocent life." That, for the moment, looks unlikely to change in a war whose wins, as the president noted, "will be measured in parents taking their kids to school; immigrants coming to our shores; fans taking in a ballgame."

In the end, there hasnt been any analysis that shows this is a substantial changes, but rather a codification of best practices. Obama even defended drone use in his speech. Given the vague nature of his Fact Sheet combined with the fact that there are potentially several deficiencies in his policies, e.g., unclear CIA role, doesnt apply to Afghanistan, no mandate of a drone court, etc., drones should still be included in the topic.

Analysis: Gitmo
It is important to be clear that Obama only spoke about Gitmo specifically, not all of indefinite detention for counterterrorism. However, it is true that Gitmo is the most significant aspect of the indefinite detention scheme for counterterrorism. Even before the speech, Obama recently renewed his call to shut down Gitmo. This presents a curious problem for the topic committee since Gitmo is an area where the President is calling for the restriction and Congress is balking. However, it seems that the President has the authority to shut down Gitmo but refuses to act. Thats not to say that Congress didnt make it difficult the first time by blocking transfer of Gitmo prisoners to the US, however, Obama has the authority to do it. Obama could shut down Gitmo if he wants to its just rhetoric New York Times, May 24, 2013
(Obamas Gitmo Problem, p. http://www.nytimes.com/2013/05/25/opinion/nocera-obamas-gitmoproblem.htm) It is my belief, shared by many lawyers who have followed the legal battles over Guantnamo, that the president could have shut down the prison if he had really been determined to do so. One reason innocent detainees cant get out is that the courts have essentially ruled that a president has an absolute right to imprison anyone he wants during a time of war with no second-guessing from either of the other two branches of government. By the same legal logic, a president can also free any prisoner in a time of war. Had the president taken that stance, there would undoubtedly have been a court fight. But so what? Arent some things worth fighting for? Whenever he talks about Guantnamo, the president gives the impression that thats what he believes. The shame his shame is that, for all his soaring rhetoric, he has yet to show that he is willing to act on that belief.

President wont commit to releasing everyone from Gitmo Wittes, Senior Fellow in Governance Studies at the Brookings Institution, May 23, 2013
(Benjamin, The Presidents Speech: A Quick and Dirty ReactionPart 2 (Guantanamo), Lawfare, p. http://www.lawfareblog.com/2013/05/the-presidents-speech-a-quick-and-dirty-reaction-part-2guantanamo/) The trouble is that, as Wells pointed out earlier, Obama proposes nothing nothingconcerning how to deal with those whom his own review task force deemed too dangerous to release but not plausible to bring to trial. The
only thing he could say on that subject was that once we commit to a process of closing GTMO, I am confident that this legacy problem can be resolved, consistent with our commitment to the rule of law. And what basis for confidence could he possibly have on that score? Its not as though these cases have never been reviewed before. There is only one way to resolve this problem other than maintaining a group of people in custody whom one cannot try: That is not maintaing that group of people in custody. But is Obama really going to free Abu Zubaydaagainst whom I have not seen a criminal case materialize? What about Mohammed Qatani, the would-be 9/11 hijacker turned away from this countrys borders in Orlando with Mohammed Atta waiting for him on the other side of customs? What about the

nearly 50

people whom the task force determined could not be tried but who pose real risksand the additional people whom the task force believed could face trial but for whom that assessment proved optimistic? Until the president is willing to

say that he means to set these people free, he should cut out the pieties about what sort of country we are or would be if only a certain group of retrogrades would stop him from closing Guantanamo.

Since the topic is all about curtailing Presidential authorization to conduct counterterrorism, the mere fact that Obama has called for the close of Gitmo shouldnt be enough to prevent indefinite detention from being in the topic. If it doesnt close by January 2017, the next president could rely on Gitmo even more. Given the renewed calls to close Gitmo, there is potentially a robust debate will likely occur in the literature. Also, there are other aspects to indefinite detention other than Gitmo. Thus, indefinite detention should still be included in the topic.

Analysis: AUMF
One of the lesser reported aspects of Obamas speech, but important is his comments about ending the perpetual war on terrorism. In particular, Obama has called for a potential repeal of the Authorization to Use Military Force (AUMF) that was past after 9/11 and is the basis for the ongoing war on terrorism. However, Obama isnt stopping drone strikes, as mentioned above. His calls to narrow or repeal AUMF are empty as of this moment. Obamas actions dont match his rhetoric on AUMF isnt going to stop the war on terrorism Wittes, Senior Fellow in Governance Studies at the Brookings Institution, May 23 , 2013
(Benjamin, The Presidents Speech: A Quick and Dirty ReactionPart 1 (Are We at War?), Lawfare, p. http://www.lawfareblog.com/2013/05/the-presidents-speech-a-quick-and-dirty-reaction-part-1/) In other words, while the Pentagon regards the AUMF as providing the authority it needs to confront the enemy for the next two decades, the president wants to work with Congress to get off the war footing and to secure the documents narrowing, and ultimate repeal. Its a striking contrast, whomever one thinks is right. A striking contrast, that is, unless one does not quite take Obama at face value on this. After all, Obama does not need Congress to narrow or repeal the AUMF or to get off of a war footing. He can do it himself, declaring hostilities over in whole or in part . And Obama, needless to say, did not do anything like that . To the contrary, he promised that we must finish the work of defeating al Qaeda and its associated forces and while he used a lot of nice words about law enforcement and a lot of disparaging words about perpetual states of war, he also promised to continue targeting the enemy with lethal force under the AUMF. In other words, he promisedwithout
quite saying it directly to

keep waging war

Also, Obama is relying more on Article II powers to justify the war on terrorism Goldsmith, Professor at Harvard Law School, May 24, 2013
(Jack, Reactions to the Presidents Speech, Lawfare, p. http://www.lawfareblog.com/2013/05/reactions-to-the-presidents-speech/) One increasingly important element in the Obama administrations counterterrorism philosophy is a growing comfort level with reliance on inherent Article II power to address extra-AUMF threats. Jeh Johnson and Harold Koh were pretty clear about this in their Oxford Speeches, and the Presidents speech implied as much. This is a remarkable development which deserves close scrutiny and on which I will have more to say later.

Given Obamas unwillingness to declare the hostilities over and continues to wage war, the calls to narrow or repeal the AUMF alone do not break the topic. If anything, it can spur a better debate as it gets the conversation going in Washington, DC. For example, Rep. Schiff is already preparing legislation to sunset the AUMF when the Afghanistan mission is over in 2014 (see evidence below). This has a potential to provide new solvency mechanisms and create a more robust policy debate.

Obamas Speech Overview

Main Points Addressed In Speech

4 main points of his speech: 1. Closing Gitmo 2. Not fully endorsing court oversight of drone strikes 3. Codifying best practices for drone strikes 4. There is not going to be an ongoing war on terrorism Hudson, National Security reporter at Foreign Policy, May 23 , 2013
(John, The 4 key points of Barack Obama's counterterrorism speech, Foreign Policy, p. http://www.foreignpolicy.com/posts/2013/05/23/the_4_key_points_of_barack_obamas_counterterrori sm_speech)
In advance of Barack Obama's counterterrorism speech at the National Defense University in Washington Thursday, senior White House officials briefed reporters on the meat and potatoes of the president's address. If you don't have the time to watch the entire speech (you can livestream it here), this

is your perfect Cliff Notes guide:

On closing Guantanamo : All those Democratic lawmakers writing letters to the president will be pleased: He's taking their advice. The president will reiterate his call to close the military prison in Guantanamo Bay, Cuba, and take up a number of steps to accelerate this process that were recommended this week. Those include: Designating a location in the United States to conduct military commissions to try Guantanamo detainees, lifting his self-imposed moratorium on detainee transfers to Yemen, and appointing a State Department and Pentagon envoy to personally oversee the transfer of detainees to other countries. "He will reiterate his call
for the closure of Gitmo" and emphasize its "cost to our reputation," said a White House official.

On court oversight of armed drone strikes : The president will not wholly endorse the establishment of new powers for federal courts to oversee drone strikes, but he will tell the public he supports a dialogue about how to constrain the executive branch's ability in this area. Officials specifically mentioned an authority patterned after the Foreign Intelligence and Surveillance Act (FISA), which oversees surveillance of suspected foreign spies. "He will indicate that he is open to working with Congress to review those options," said one White House official. On codifying drone policies : The president is expected to discuss a new policy guidance he signed limiting the use of lethal drone strikes to targets who pose a "continuing, imminent threat to Americans" and cannot otherwise be captured. A drone strike will require "near-certainty" that civilians will not be killed, and the president will convey his preference that the U.S. military carry out drone strikes as opposed to the CIA. When asked how this policy differed from earlier policies, a senior official dodged, saying the administration was simply codifying best practices for drone strikes that have evolved over the years. The end of the war on terrorism : Finally, the president will say that the so-called War on Terror "will come to an end at one point," after the administration's "focused effort" against al Qaeda and its affiliates is won. A White House
official added that the president rejects the notion of a "global war on terror," noting that terrorism is a tactic that can never be completely rid from the world.

Even Obama tried to put the blame on Congress in his speech Slate, May 23, 2013
(Four Moments In His Security Speech When Obama Passed the Buck to Congress, p. http://www.slate.com/blogs/weigel/2013/05/23/four_moments_in_his_security_speech_when_obama _passed_the_buck_to_congress.html)

Maybe that headline's a little unfair. We

have a divided government; Congress holds the purse strings; Congress passed the 2001 Authorization of Force in Iraq. But most discussion of foreign policy focuses on the president, the commander-in-chief. Why didn't he close Gitmo, like he promised? Is he saying he and he alone can kill citizens with drone attacks? At four moments in his speech today, the president pointed at Capitol Hill and asked it to move on or admit its role in the security decisions that have become so controversial. 1. "After I took office, my
Administration began briefing all strikes outside of Iraq and Afghanistan to the appropriate committees of Congress. Let me repeat that not only did Congress authorize the use of force, it is briefed on every strike that America takes. That includes the one instance when we targeted an American citizen: Anwar Awlaki, the chief of external operations for AQAP." Translation: Congress has been

aware of these drone attacks. Its leaders have not leaked. They support the policy. 2. "Over the past decade, we have strengthened
security at our Embassies, and I am implementing every recommendation of the Accountability Review Board which found unacceptable failures in Benghazi. I have called on Congress to fully fund these efforts to bolster security, harden facilities, improve intelligence, and facilitate a quicker response time from our military if a crisis emerges." Translation: That's enough finger-wagging about Benghazi, and I align myself with Democrats who say the real problem was that you guys weren't pouring enough money into the diplomatic budget. 3. "I look

forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the AUMFs mandate. And I will not sign laws designed to expand this mandate further." Translation: Instead of attacking me for whether I use the word "terror" in a speech, if you're actually concerned about the shadow war you can absolutely repeal the authority that lets us fight it. (Rand Paul has talked about doing so.) 4. "Given my Administrations relentless pursuit of al Qaedas
leadership, there is no justification beyond politics for Congress to prevent us from closing a facility that should never have been opened. Today, I once again call on Congress to lift the restrictions on detainee transfers from GTMO." Translation: The

Gitmo debacle is on you. You ground me down in 2009, promising to block funding and locations for prisoner transfers, before turning around and attacking me for breaking a campaign promise.

Speech Was All Rhetoric; No Changes

Congressional regulation is needed even after the speech The Atlantic, May 24, 2013
(A Skeptical Celebration of President Obama's Shifty Terrorism Speech, p. http://www.theatlantic.com/politics/archive/2013/05/a-skeptical-celebration-of-president-obamasshifty-terrorism-speech/276205/) All things considered, Thursday's developments were an improvement on the status quo. Obama constrained himself rhetorically in ways he hadn't before, expressed agreement with core civil libertarian critiques, and signalled that future policy will shift in that direction as a result. But talk is cheap, Obama has a history of breaking promises to civil libertarians, and drone strikes remain surrounded in enough secrecy that it will remain difficult to verify what's going on. Moreover, policies implemented at the president's prerogative can be changed on his determination too. There remains an urgent need for Congress to step into the breach and constrain the president , even if only in the ways that Obama says that he has constrained himself.

Obamas speech is all rhetoric Reason, May 23, 2013

(Obamas Empty Rhetoric, p. http://reason.com/blog/2013/05/23/obamas-empty-rhetoric) There was much to like in Obama's speech today if you like words, and share the broad worries he outlined above.
And it is surely true that changing policy becomes easier after you make public arguments about changing policy. But the fact is Barack

Obama is the president of the United States, and according to both the Constitution and especially the way executive power has accrued over the past century, Obama actually has quite a bit of latitude to impose his values on the waging of American war. After 52 months in office, it's long since past time to stop judging the man by his words alone.

Congressional Responses to Speech

Rep. Schiff proposing sunsetting the AUMF with the end of the Afghanistan mission Wired, May 23, 2013
(Exclusive: Congressman Preps Bill to End Terror War Authority, p. http://www.wired.com/dangerroom/2013/05/schiff-aumf/)
In the wake of President Obamas big speech about restraining the war on terrorism, a member of the House intelligence committee is working on a bill to undo the basic authorities to wage it. Rep. Adam Schiff (D-Calif.) is

preparing a piece of legislation that would sunset the 2001 Authorization to Use Military Force (AUMF), a foundational law passed in the days after the 9/11. The current AUMF is outdated and straining at the edges to justify the use of force outside the war theater, Schiff tells Danger Room. Repealing the AUMF would be the boldest restriction of presidential war powers since 9/11. Both the Bush and Obama
administrations have relied on the document to authorize everything from the warrantless electronic surveillance of American citizens to drone strikes against al-Qaida offshoots that did not exist on 9/11. Getting rid of it is certain to invite fierce opposition from more bellicose members of Congress, who have repeatedly demagogued efforts to roll back any post-9/11 wartime authority, let alone the most important one. Rep. Barbara Lee (D-Calif.), the only legislator to vote against the authorization in 2001, has long fought unsuccessfully to repeal the AUMF. But Schiff is a moderate, not a firebreathing liberal, and while

sunsetting the AUMF is sure to be a big legislative challenge, even conservative legislators like Rand Paul (R-Ky.) are raising fundamental questions about the merits of a never-ending war. Schiff thinks that the end of the U.S. combat mission in Afghanistan in 2014 ought to occasion the end of the AUMF, and his bill would use the Afghanistan drawdown as a hinge point. He openly
admits to being unsure whether Congress should pass a follow-on piece of legislation allowing the president a limited version of his war powers, or what those post-Afghanistan powers might appropriately be. The U.S.s counterterrorism architecture is becoming increasingly unsustainable, Schiff says, but I have only a less clear idea of what should follow. Schiff, a moderate, is still in the early drafting stage of the bill and doesnt yet have a timeline for introducing it. But the

animating idea behind it is that Obama ought to come back to Congress to outline what war powers are necessary, so legislators can go on record blessing or rejecting the
next phase of the war on terrorism. There has only been one previous effort to reexamine the AUMF. Spoiler alert: It failed. Shortly after the GOP win in the 2010 midterm elections, the incoming chairman of the House Armed Services Committee, Rep. Buck McKeon (R-Calif.), argued that it was time for a new version. Since the short 2001 AUMF only authorizes military action against those responsible for 9/11, McKeon contended, the administration lacked legal authority to combat the contemporary versions of al-Qaida in places like Yemen and East Africa. He noted that only half of his colleagues had served in Congress long enough to ever vote on the open-ended war that two administrations have asked them to support. The Obama administration wasted little time in telling McKeons committee it wasnt interested in revisiting the AUMF. The 2001 AUMF was sufficient to address the existing threats that Ive seen, Jeh Johnson, then the Pentagons senior lawyer, testified in March 2011. Formally, Johnson didnt really explain how a law that was about avenging 9/11 actually allowed Obama to take military action against, say, al-Shebab. But Johnson didnt make the administrations real reasons for opposing the AUMF explicit. It was worried that congressional Republicans would write a bill expanding presidential authority to attack terrorist groups unrelated to al-Qaida, something that would expand a global war that the administration was internally growing skeptical about. Obama made that position explicit in his speech at the National Defense University as well as endorsing, for the first time, the eventual repeal of a law he has relied heavily on throughout his presidency. I look forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the AUMFs mandate, Obama said. And I will not sign laws designed to expand this mandate further. Our systematic effort to dismantle terrorist organizations must continue. But this war, like all wars, must end. Thats a position that may not sit well with the U.S. military. During a Senate hearing last week, generals from the Joint Staff and senior Pentagon civilians argued that the AUMF was a necessary law that should remain in place unchanged. The position satisfied neither Democratic and Independent critics who saw it as a blank check for war nor Republican critics who considered it too restrictive to fight 2013-era terrorism. One of them is McKeon, the first legislator who proposed reexamining the AUMF. Repealing it outright doesnt sit well with him and probably many other congressional Republicans and some Democrats. The chairman is far from convinced thats the direction we need to go, says an aide to McKeons committee. We need to reaffirm our authority with respect to those [al-Qaida+ affiliated groups. Whats more, Obamas willingness to ultimately repeal the AUMF runs right smack into his codification of a more limited counterterrorism war lasting for years. At the National Defense University, Obama simultaneously talked about a longer war and removing his own authorities for waging it. Schiff sees

all this tension on the Hill and within the administration as an opportunity. Theres probably bipartisan support for the idea that the existing AUMF is ill -suited to the nature of the threats we face now, he says. But theres probably bipartisan opposition to what would come after, both from the left and right. Schiff thinks that disagreement means a congressional debate about the future of presidential authority against terrorism is overdue. He intends to kickstart one.

Sens. Rubio & King introduced the Targeted Strike Oversight Reform Act of 2013 Roll Call, May 23, 2013

(Drone Strike Oversight Sought by King, Rubio, p. http://blogs.rollcall.com/wgdb/drone-strikeoversight-sought-angus-king-marco-rubio/)

Just a day after the Justice Department disclosed publicly that four Americans had been killed overseas as a result of targeted drone strikes, two senators are calling for an independent red-strike analysis before launching lethal strikes directed at other Americans. The legislation,

drafted by Sens. Angus King, I-Maine, and Marco Rubio, R-Fla., has clearly been on Kings mind for a while now. The new senator has
taken an interest in the targeted-killings question from his seat on the Intelligence Committee. He had previously floated the idea of a drone court that might be something akin to the FISA Court. Today, I am proud to announce that Senator Marco Rubio and I are introducing a bipartisan bill to

ensure an independent alternative analysis is conducted in the distinctive case of a U.S. person who is engaged in international terrorism against our country. As the President takes steps to shed more
light on these policies, I believe this bill will complement those efforts by providing the framework for an independent review of such consequential decisions, King said in a statement. While the

new proposal stops short of judicial review, an official from outside the part of the intelligence community that wants to launch the strike would helm the red-team tasked with reviewing the request. This legislation provides a new layer of accountability and ensures the
American people are informed through prompt notification to the congressional intelligence committees. In no way does this bill tie the presidents hands to defend the nation or impede operators from targeting terrorists knowingly engaged in acts of international terrorism against the United States who happen to be U.S. persons, Rubio said. The legislation comes the same day that a White House official says that President Barack Obama will speak directly to the question of drone killings during a speech at National Defense University. The official said that Obama would outline the legal rationale for the targeted killings. Heres

a brief summary of the bill provided by Kings office: The Targeted Strike Oversight Reform Act of 2013 would ensure independent oversight of cases where the head of a U.S. intelligence agency has determined that a U.S. person is engaged in international terrorism against the U.S., and the government is considering the legality or the use of targeted lethal force against that individual. In such cases, the TSOR Act would trigger several notifications and independent reviews , including: Notification to the Director of National Intelligence (DNI) Requirement that the DNI establish an independent red-team, led by an individual who does not report to the intelligence agency making the determination, to conduct an alternative analysis and report its findings within 15 days Notification to the Inspector General of the Intelligence Community Notification to the congressional intelligence committees regarding the identity of the U.S. person and the results of the red-team alternative analysis.

Drones

Official Codified Drone Policies

Official White House Fact Sheet on the Use of Counterterrorism Force: White House Office of the Press Secretary, May 24, 2013
(Fact Sheet: U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities, p. http://www.whitehouse.gov/the-pressoffice/2013/05/23/fact-sheet-us-policy-standards-and-procedures-use-force-counterterrorism)
Since his first day in office, President Obama has been clear that the United States will use all available tools of national power to protect the American people from the terrorist threat posed by al-Qaida and its associated forces. The President has also made clear that, in carrying on this fight, we will uphold our laws and values and will share as much information as possible with the American people and the Congress, consistent with our national security needs and the proper functioning of the Executive Branch. To these ends, the

President has approved, and senior members of the Executive Branch have briefed to the Congress, written policy standards and procedures that formalize and strengthen the Administrations rigorous process for reviewing and approving operations to capture or employ lethal force against terrorist targets outside the United States and outside areas of active hostilities. Additionally, the President has decided to share, in this document, certain key elements of these standards and procedures with
the American people so that they can make informed judgments and hold the Executive Branch accountable. This document provides information regarding counterterrorism policy standards and procedures that are either already in place or will be transitioned into place over time. As Administration officials have stated publicly on numerous occasions, we are continually working to refine, clarify, and strengthen our standards and processes for using force to keep the nation safe from the terrorist threat.

One constant is our commitment to conducting counterterrorism operations lawfully. In addition, we consider the separate question of whether force should be
used as a matter of policy. The most important policy consideration, particularly when the United States contemplates using lethal force, is whether our actions protect American lives.

Preference for Capture The policy of the United States is not to use lethal force when it is feasible to capture a terrorist suspect, because capturing a terrorist offers the best opportunity to gather meaningful intelligence and to mitigate and disrupt terrorist
plots. Capture operations are conducted only against suspects who may lawfully be captured or otherwise taken into custody by the United States and only when the operation can be conducted in accordance with all applicable law and consistent with our obligations to other sovereign states.

Standards for the Use of Lethal Force

Any decision to use force abroad even when our adversaries are terrorists dedicated to killing American citizens is a significant one.

Lethal force will not be proposed or pursued as punishment or as a substitute for prosecuting a terrorist suspect in a civilian court or a military commission. Lethal force will be used only to prevent or stop attacks against U.S. persons, and even then, only when capture is not feasible and no other reasonable alternatives exist to address the threat effectively. In particular, lethal force will be used outside areas of active hostilities only when the following preconditions are met: First, there must be a legal basis for using lethal force, whether
it is against a senior operational leader of a terrorist organization or the forces that organization is using or intends to use to conduct terrorist attacks. Second,

the United States will use lethal force only against a target that poses a continuing, imminent threat to U.S. persons. It is simply not the case that all terrorists pose a continuing, imminent threat to U.S. persons; if a terrorist does not pose such a threat, the United States will not use lethal force. Third, the following criteria must be met before lethal action may be taken : Near certainty that the terrorist target is present; Near certainty that non-combatants[1] will not be injured or killed; An assessment that capture is not feasible at the time of the operation; An assessment that the relevant governmental authorities in the country where action is contemplated cannot or will not effectively address the threat to U.S. persons; and An assessment that no other reasonable alternatives exist to effectively address the threat to U.S. persons.

Finally, whenever the United States uses force in foreign territories, international legal principles, including respect for sovereignty and the law of armed conflict, impose important constraints on the ability of the United States to act unilaterally and on the way in which the United States can use force. The United States respects national sovereignty and international law.

U.S. Government Coordination and Review Decisions to capture or otherwise use force against individual terrorists outside the United States and areas of active hostilities are made at the most senior levels of the U.S. Government, informed by departments and agencies with relevant
expertise and institutional roles. Senior national security officials including the deputies and heads of key departments and agencies will consider proposals to make sure that our policy standards are met, and attorneys including the senior lawyers of key departments and agencies will review and determine the legality of proposals. These decisions will be informed by a broad analysis of an intended targets current and past role in plots threatening U.S. persons; relevant intelligence information the individual could provide; and the potential impact of the operation on ongoing terrorism plotting, on the capabilities of terrorist organizations, on U.S. foreign relations, and on U.S. intelligence

Such analysis will inform consideration of whether the individual meets both the legal and policy standards for the operation. Other Key Elements U.S. Persons. If the United States considers an operation against a terrorist identified as a U.S. person, the Department of Justice will conduct an additional legal analysis to ensure that such action may be conducted against the individual consistent with the Constitution and laws of the United States. Reservation of Authority . These new standards and procedures do not limit the Presidents
collection.

authority to take action in extraordinary circumstances when doing so is both lawful and necessary to protect the United States or its allies. Congressional Notification . Since entering office, the President has made certain that the appropriate Members of Congress have
been kept fully informed about our counterterrorism operations. Consistent with this strong and continuing commitment to congressional oversight, appropriate

Members of the Congress will be regularly provided with updates identifying any individuals against whom lethal force has been approved. In addition, the appropriate committees of Congress will be notified whenever a counterterrorism operation covered by these standards and procedures has been conducted.

Drones Aff Evidence

Codified Drone Policies Vague/Fail

The drone guidelines are vague or secret Pillar, visiting professor at Georgetown University for security studies, May 24 , 2013
(Paul R., An Excellent Statement on Terrorism, The National Interest, p. http://nationalinterest.org/blog/paul-pillar/excellent-statement-terrorism-8515) The White House released, as an accompaniment to the speech, a fact sheet describing criteria and procedures to be used in deciding on additional strikes from armed drones. The release is a positive step toward more transparency and gives us the fullest sense yet about the policy and how it is implemented. But the complete policy guidelines remain classified , the fact sheet is vague on several points , and it raises as well as answers questions. For example, it states that the United States
will use lethal force only against a target that poses a continuing, imminent threat to U.S. persons. How can a threat that is continuing also be imminent, except perhaps for a short time before the threat is finally executed? In other places, such as in describing review procedures when a U.S. citizen is involved, the

fact sheet essentially says that things will be done legally without

specifying the legal principles and standards to be applied. In offering assurances that noncombatants will be
protected, a lengthy footnote says that it is not the case that all military-aged males in the vicinity of a target are deemed to be combatants but doesn't really eliminate the possibility that many such males will be so deemed.

Dont know the baseline to judge Goldsmith, Professor at Harvard Law School, May 24, 2013
(Jack, Reactions to the Presidents Speech, Lawfare, p. http://www.lawfareblog.com/2013/05/reactions-to-the-presidents-speech/) It is very hard to judge the significance of the new targeting standards because we dont really have a firm grasp on how the old standards were applied. Ironically, the new standards accomplish most if we believe some of the broader previous reports about the administrations signature strike policy, and they accomplish much less if we take seriously prior administration speeches about careful legal standards for targeting. The baseline matters and we dont know the baseline .

Unclear if the drone statement makes any real changes to US policy Wittes, Senior Fellow in Governance Studies at the Brookings Institution, May 23 , 2013
(Benjamin, The Presidents Speech: A Quick and Dirty ReactionPart 3 (Did the President Narrow the Targeting Criteria for Drone Strikes?), Lawfare, p. http://www.lawfareblog.com/2013/05/thepresidents-speech-a-quick-and-dirty-reaction-part-3-did-the-president-narrow-the-targeting-criteria-fordrone-strikes/) To put the matter simply, I cant tell at this stage whether theres really been a substantial narrowing that is, whether there are people whom the US used to target whom it is, as a matter of new policy, no longer targeting because the President regards the AUMF conflict as winding down and in its end phase. To be sure, the number of drone strikes in Pakistan has fallen sharply, but I had taken that to be a function largely of sovereign pressure. This question strikes me as an area ripe for additional clarification from the administration.

Speech Actually Expanded Targets for Drone Strikes

Obama actually laid the groundwork to increase drone strike targets McClatchy, May 23, 2013
(Obama speech suggests possible expansion of drone killings, p. http://www.mcclatchydc.com/2013/05/23/192081/obama-promises-anew-to-transfer.html) President Barack Obama on Thursday defended his administrations use of drone strikes to kill terrorists as effective, lawful and heavily constrained, but he also appeared to be laying groundwork for an expansion of the controversial targeted killings . In remarks at the National Defense University in Washington, Obama cast the use of such operations as a necessary part of an
overall national defense strategy, even as he acknowledged targeted killings risk creating new enemies and could lead a president and his team to view drone strikes as a cure-all for terrorism. He said the U.S. is at a crossroads of national security issues with a diffuse array of terrorist threats that require a recasting of a war on terror. Neither I, nor any president, can promise the total defeat of terror, Obama said, contending that the threat of large-scale attacks like the Sept. 11 2001, terrorist attacks has faded as al Qaida has been weakened, but that threats like the Boston Marathon bombing and attacks in Benghazi remain. What we can do what we must do is dismantle networks that pose a direct danger, and make it less likely for new groups to gain a foothold, all while maintaining the freedoms and ideals that we defend. As part of that, he renewed a first term campaign promise to close the detention center at Guantanamo Bay, announcing that hed lift a ban on detainee transfers to Yemen homeland of half of the 166 captives at the detention facility. The speech served to counter critics who say the drone program has been bathed in secrecy, as Obama offered more details on when the U.S. will deploy drone strikes. But Obamas

speech appeared to expand those who are targeted in drone strikes and other undisclosed lethal actions in apparent anticipation of an overhaul of the 2001 congressional resolution authorizing the use of force against al Qaida and allied groups that supported the 9/11 attacks on the United States. In every previous speech, interview and congressional testimony, Obama and his top aides have said that drone strikes are restricted to killing confirmed senior operational leaders of al Qaida and associated forces plotting imminent violent attacks against the United States. But Obama dropped that wording Thursday, making no reference at all to senior operational leaders. While saying that the United States is at
war with al Qaida and its associated forces, he used a variety of descriptions of potential targets, from those who want to kill us and terrorists who pose a continuing and imminent threat to all potential terrorist targets. The

previous wording also was

absent from a fact sheet distributed by the White House. Targeted killings outside of areas of active hostilities, it said,
could be used against a senior operational leader of a terrorist organization or the forces that organization is using or in tends to use to conduct terrorist attacks. The preconditions for targeted killings set out by Obama and the fact sheet appear to correspond to the findings of a McClatchy review published in April of U.S. intelligence reports that showed the CIA killed hundreds of lower-level suspected Afghan, Pakistani and unidentified other militants in scores of drone attacks in Pakistans tribal are during the height of the operations in 2010-11. Nearly 4,000 people are estimated to have died in U.S. drone strikes since 2004, the vast majority if them conducted by the CIA in Pakistans tribal area bordering Afghanistan. The

fact sheet also said that those who can be killed must pose a continuing and imminent threat to U.S. persons, setting no geographic limits. Previous administration statements have referred to imminent threats to the United States the homeland or its interests. They appear to be broadening the potential target set, said Christopher Swift, an international legal expert who teaches national security studies at Georgetown University and closely follows the targeted killing issue. At the same time, new presidential guidance on
targeted killings that Obama signed Wednesday appeared designed to address charges by some legal scholars and civil and human rights groups that the administration has relied on an overly broad definition of imminent that exceeds the international legal standard. In his speech, Obama introduced the phrase continuing and imminent in what Swift saw as an effort to better define when the U.S. government can use lethal force. The standard for the use of force appears to be narrowing because theyve introduced the standard of imminent and continuing, Swift said. Imminent means that the threat poses clear, credible and immediate risk of violence. Swift said he still has serious problems with the administrations criteria for targeted killing because it has yet to publicly identify beyond the Afghan Taliban and al Qaidas regional affiliates the groups that it considers associated forces of the terrorist network and the criteria it uses to define them. Several

other experts said they also remained troubled because Obama continued to keep secret details of the procedures that the administration uses in deciding who can be targeted in drone strikes and other lethal operations off traditional battlefields. I dont think anyone should feel reassured by anything that President Obama
said about the use of lethal force, said Zeke Johnson of Amnesty International.

Obama Will Still Use Drones

Doesnt end drone use The Atlantic, May 23, 2013
(No, the War on Terror Isn't Ending, p. http://www.theatlantic.com/international/archive/2013/05/no-the-war-on-terror-isnt-ending/276198/)
The president noted that when it comes to deploying drones, his administration is "insisting upon clear guidelines, oversight, and accountability

structure and process will become the new normal when it comes to drones. And in Afghanistan, after 2014, the "progress we have made against core al Qaeda will reduce the need for unmanned strikes." Reduce, not remove . Outside Afghanistan, "we only target al-Qaeda and
that is now codified in Presidential Policy Guidance." That is, its associated forces. Even then, the use of drones is heavily constrained." So while the president discussed new rules that will govern the evolving war on terror, the

pronouncement of its end remains premature. It may be lighter, but it is not

leaving . As the president himself said, "the conflict with al-Qaeda, like all armed conflict, invites tragedy. But by narrowly targeting our
action against those who want to kill us, and not the people they hide among, we are choosing the course of action least likely to result in the loss of innocent life." That, for the moment, looks unlikely to change in a war whose wins, as the president noted, "will be measured in parents taking their kids to school; immigrants coming to our shores; fans taking in a ballgame."

End CIA Strikes Issues

CIA still involved in carrying out strikes The Economist, May 24, 2013
(Droning On, Democracy in America, p. http://www.economist.com/blogs/democracyinamerica/2013/05/war-and-law?) Disappointingly, while suggesting that it would be preferable for the majority of drone strikes to be carried out by the armed forces with their clear chain of command and consequent accountability, he did not announce the ending of the CIAs role in the drone campaign . It would be better for the agency and its traditional role in gathering and analysing intelligence, if it were to wean itself of the predilection for paramilitary action that developed during the Bush administration.

New directive doesnt ban the CIA from using drones Washington Post, May 23, 2013
(Obama: U.S. at crossroads in fight against terrorism, p. http://www.washingtonpost.com/politics/obama-outlines-new-rules-fordrones/2013/05/23/1b5918e6-c3cb-11e2-914f-a7aba60512a7_story.html) The officials said the classified directive also establishes a preference for the military to take the lead in drone operations, which are conducted by the armed forces and the CIA. That language suggests a change in course for the CIA, which has carried out hundreds of drone strikes in Pakistan and Yemen, killing an estimated 3,000 militants and civilians. But the guidance appeared to stop well short of ending the CIAs drone program, leaving enough room for the agency to continue using a controversial targeting practice known as signature strikes in Pakistan. The Obama administration, like that of President George W. Bush, has long considered Pakistans tribal areas part of the war theater. The carve-out presumably enables the CIA to continue hitting groups in Pakistan that are not part of
al-Qaeda but regularly attack U.S. forces across the Afghanistan border.

Obama didnt address CIA drone strikes in his speech The Atlantic, May 24, 2013
(A Skeptical Celebration of President Obama's Shifty Terrorism Speech, p. http://www.theatlantic.com/politics/archive/2013/05/a-skeptical-celebration-of-president-obamasshifty-terrorism-speech/276205/) Though it is widely known that many U.S. drone strikes have been carried out by the CIA, Obama made no mention of the clandestine intelligence agency in his speech, raising the question of whether he is acknowledging and incorporating their actions in his characterization of drone strikes generally, or treating those strikes as classified, which is to say, as if they don't exist. A failure to talk about the CIA's role constitutes a significant lack of transparency, for better or worse.

Drone Court Issues

Obama will not support a drone court Wittes, Senior Fellow in Governance Studies at the Brookings Institution, May 23 , 2013
(Benjamin, The Presidents Speech: A Quick and Dirty ReactionPart 4 (Hedging on the Drone Court), p. http://www.lawfareblog.com/2013/05/the-presidents-speech-a-quick-and-dirty-reaction-part-4hedging-on-the-drone-court/) Notice here what the president is not promising. He is not promising to support a drone court. He is not promising to support proposals like Neal Katyals or Jen Daskals for an enhanced, court-like internal executive review mechanism. He is only promising to have his administration review [such] proposals and saying that he will actively engag*ing+ with Congress to explore such ideas. Nobody can possibly object to this, and I certainly dont, but it is notable that the president nowhere hints what sort of outcome he expects from his engagement. This is a way of signaling respect for the ideasand the underlying idea that he needs to be on the side of increased oversight without actually committing his administration to doing anything concrete.

No American/non-American Distinction Issues

Same standards apply for Americans and non-Americans in drone strikes overseas Pildes, Professor of Constitutional Law Security at NYU School of Law, May 23 , 2013
(Rick, The Obama Speech: The Same Standards for Targeted Killings Apply to Non-Citizens as to Citizens, Lawfare, p. http://www.lawfareblog.com/2013/05/the-obama-speech-the-same-standardsfor-targeted-killings-apply-to-non-citizens-as-to-citizens/)
There are many important strands to President Obamas national-security speech, but I want to focus on just one particularly noteworthy element. In clear terms, President Obama

announced today that the same substantive standards apply to targeted killings operations against non-American enemy combatants overseas as apply to American enemy combatants overseas. Here is what the Presidents text says: But the high threshold that we have set for taking lethal action
applies to all potential terrorist targets, regardless of whether or not they are American citizens. This threshold respects the inherent dignity of every human life When American citizens are involved, the President made clear that different procedures might be used (such as informing the Department of Justice in advance). But in

terms of when the use of lethal force overseas is justified, the same substantive standards will govern. This judgment, announced for the first time clearly in this speech, arguably is in some tension
with, or resolves ambiguity in, the prior legal and policy pronouncement on targeted killings of Attorney General Holder. In the AGs Northwestern speech, he indicated that force would be used as a last resort against American enemy combatants overseas, because the Constitution required that result when American lives were at issue. Today, the

President announced the same constraint applies when non-American lives are at issue (without, understandably, going further and saying whether this equal
treatment was required by international law, or by prudential policy judgments, or by more general moral considerations).

Outside Active Theater Issues

New rules on drones only outside active warzones Bellinger, Adjunct Senior Fellow in International and National Security Law at the Council on Foreign Relations, May 23, 2013
(John B. III, The Presidents Speech: The Good, the Bad, and the Ugly, Lawfare, p. http://www.lawfareblog.com/2013/05/the-presidents-speech-the-good-the-bad-and-the-ugly/) Addendum: I should note that the restrictive policy standards and procedures set forth in the Fact Sheet apply only to the use of force OUTSIDE areas of active hostilities . Indeed, in his speech, the President notes that in the Afghan war theater, the U.S. will continue to take strikes against high value al Qaeda targets , but also
against forces that are massing to support attacks on coalition forces. Query whether signature strikes against groups in Pakistan would still be permitted under this standard.

AT: Congress Has Oversight on Drones

Congress does not have oversight over drones The Atlantic, May 24, 2013
(A Skeptical Celebration of President Obama's Shifty Terrorism Speech, p. http://www.theatlantic.com/politics/archive/2013/05/a-skeptical-celebration-of-president-obamasshifty-terrorism-speech/276205/) Obama spoke as if Congress is exercising "strong oversight" of his semi-targeted killing program. "After I
took office, my Administration began briefing all strikes outside of Iraq and Afghanistan to the appropriate committees of Congress," he said. "Let me repeat that - not only did Congress authorize the use of force, it is briefed on every strike that America takes." Later he says that "the establishment of a special court to evaluate and authorize lethal action," which he opposes, "has the benefit of bringing a third branch of government into the process." This

elides the fact that, prior to a drone strike, only the executive branch is part of the process. If Obama were to wrongly kill someone, Congress would only find out after the fact, and even that would be uncertain, because we have no idea what is included in a "briefing." The Obama Administration's bygone claim that civilian casualties were in the single digits, and Senator Feinstein's outrageously low estimate of civilian casualties, are both reason to doubt the quality of information being forwarded in those briefings. And the fact that oversight committee members have had to fight hard for information about targeted killing, including basic information like its legal rationale, gives the lie to the fact that oversight is generally "strong."

New Rules Non-Unique Terrorism Disad

New rules help shield terrorists Anderson, professor of law at American University, May 24, 2013
(Kenneth, You Are an Operational Commander of AQAP Reading the White House Fact Sheet, Lawfare, p. http://www.lawfareblog.com/2013/05/you-are-an-operational-commander-of-aqap-reading-thewhite-house-fact-sheet/)
Imagine for a moment that you are an operational commander in al Qaeda or one of its associated forces Al Qaeda in the Arabian Peninsula, for example. You are working on ways to attack the United States, its allies, or interests; perhaps you are working with AQAPs key bombmaker, the same who came up with the Detroit Christmas bombers underwear bomb and the xerox printer cartridge bomb. Imagine that he has managed to come up with a way to implant explosives in a persons body, and you are working on a way to deploy this operationally. You know that you are a possible, indeed likely, target of a drone strike. But you have just read President Obamas speech carefully, and you have also just read the White House Fact Sheet. What would your rational course of action be, given your aims? Readers are invited to state what their course of action would be if they were the AQAP commander in this scenario. I

dont want to suggest that the transparency of standards contained in the Fact Sheet is necessarily a mistake. (Although I incline at first blush
to agree with Kevin Jon Heller at Opinio Juris that setting so high a standard was a substantive mistake, in part because it is so far from the actual law of war requirements and because it is unlikely that attacks of the kind that this and future administrations will carry out could meet such a standard each and every time, even allowing for reasonable mistakes about near certainty.) I have been calling for g reater transparency about targeting processes and criteria, certainly. But it should be pointed out that (as this thought experiment presumably reveals) transparency

about standards such as these involves a not-inconsiderable tradeoff . The public

presumably has greater confidence that there is a morally and legally defensible policy in place, on the one hand, because a standard has been publicly stated and it is a high one. But the

terrorist leader has equally greater confidence of what conditions will ensure that he is not targeted, on the other. Is the tradeoff worth it? Is it the right one? People can debate that, but it seems clear
there is a tradeoff. Yet it should be pointed out that this tradeoff is illustrates a key difference between parties at war and a society at peace. In conditions of peace that is to say, within a settled society with a legitimate domestic legal order the rule of law calls for clear and transparent rules and standards, as a matter of justice as well as stability and predictability. Unfettered discretion on the part of legal authority is essentially arbitrary and contrary to the rule of law; even apart from justice, it is often socially inefficient because it raises the transaction costs of having to anticipate and prepare for contingencies. In

war, however, uncertainty, unpredictability, and unclarity are often key and desirable characteristics. They are strategically valuable to one side, because it forces the other side to absorb the costs of preparing for uncertain contingencies. It is often one of the chief
advantages of being on offense in war. The tradeoff made by the Fact Sheet radically decreases the uncertainties and contingencies faced by the other side, however. It

gives a path to avoid precisely the outcome that our side seeks to deliver . And it does so by inviting further illegality under the laws of war, such as using children as human shields , and
effectively rewards strategies of illegal shielding. Or so a critic of this kind of transparency might argue. Is the tradeoff in public transparency worth it? Readers are invited to comment.

New standard helps terrorists Heller, Associate Professor at Melbourne Law School, May 24 . 2013
(Kevin Jon, Two Problems with the Near Certainty Standard, Opinio Juris, p. http://opiniojuris.org/2013/05/24/a-thought-experiment-concerning-the-near-certainty-standard/) Second, and perhaps more importantly, Obama should not enforce the standard, because it is fundamentally inconsistent with
his obligation with any Presidents obligation to protect the US. However skeptical of American power we may be, we have to acknowledge that there

are, in fact, times when it is important for a President to use lethal force even though he or she knows innocent civilians will die in the process. The bin Laden hypothetical is one example; another
is a situation in which a suicide bomber uses a small child as a human shield while approaching his target. Would we really want a President to refuse to kill the suicide bomber because he or she knows with absolute certainty that the child will die in the attack? The

principle of proportionality, for all its subjectivity, exists for a reason: because no matter how attractive objective standards like near certainty may seem, anticipated civilian damage does, in fact, have to be balanced against the military advantage of an attack. The loss of innocent civilian life, though regrettable, is not always unjustified.

Drones Neg Evidence

Obama Curbed Drone Authority

Obama put limits on drone strikes The Economist, May 24, 2013
(Droning On, Democracy in America, p. http://www.economist.com/blogs/democracyinamerica/2013/05/war-and-law?) More specifically, the president outlined new legal curbs on the use of armed drones against terrorist suspects, signalled a renewed attempt to close the Guantnamo Bay detention centre and said the administration would resume the
transfer of prisoners held there to Yemen. He promised to strike a better balance between preserving the civil liberties that make us who we are and the need for security. Perhaps inevitably, the part of the long speech made at the National Defence University in Washington that attracted most attention was Mr Obamas

attempt to meet some of the concerns that have grown over the use of drones for the assassination of Americas enemies in far-way places, a campaign he inherited from George Bush but ruthlessly expanded, to the horror of many liberals. He is likely only partially to have succeeded, though much of what he said did bring greater transparency and accountability to the deployment of drones. In the first place, he was
unrepentant about their use. Drones, with their precision and ability to discriminate between targets were greatly preferable to the use of special forces or conventional air power. They had been instrumental in bringing core al-Qaeda in Pakistans tribal areas to its knees, but he implicitly acknowledged that there had been too high a cost in terms of civilian deaths that had become a damaging symbol of overweening American power. From now on, the CIA and Pentagon would only fire missiles at people in other countries who could be shown to pose a continuing, imminent threat to Americans and when there was a near-certainty of avoiding civilian casualties. That means that the so-

called signature strikes carried out, particularly by the CIA, against groups of people based only on suspicion of their being terrorists, would cease. Mr Obama also said he would engage Congress in an effort to establish new oversight procedures that would be independent of the executive branch and he conceded that no American citizen (a reference to the killing of Anwar al Awlaki and the unintentional deaths of three other Americans) should be killed without due process.

Banned Domestic Drone Use

De facto ban on domestic drone use Hot Air, May 23, 2013
(Breaking: Obama vigorously defends drone policy that most of the public already supports, p. http://hotair.com/archives/2013/05/23/breaking-obama-vigorously-defends-drone-policy-that-most-ofthe-public-already-supports/)
So there you go: No summary executions of American citizens unless youre plotting terror and you cant be captured, which is the same policy that was stated in the DOJs white paper on targeting Awlaki months ago. Nothing

new here, unless you consider him ruling out drone strikes on U.S. soil as news. That was always implied by the white papers criteria that a target be beyond the reach of capture, though. If youre on American soil, almost by definition youre in a position to be captured. Also, note that Alwakis teenaged son, who was killed incidentally while in the presence of
another jihadi who was being targeted, fits none of the above criteria. He wasnt plotting and he certainly didnt get due process. He was in the wrong place at the wrong time, as many other drone victims have been, which is one of the main reasons Pakistanis arent any more proPredator than they are pro-military raid.

Gitmo

Gitmo Aff Evidence

All Rhetoric Obama Can Shut Down Gitmo But Wont

Obama could shut down Gitmo if he wants to New York Times, May 24, 2013
(Obamas Gitmo Problem, p. http://www.nytimes.com/2013/05/25/opinion/nocera-obamas-gitmoproblem.htm) It is my belief, shared by many lawyers who have followed the legal battles over Guantnamo, that the president could have shut down the prison if he had really been determined to do so. One reason innocent detainees cant get out is that the courts have essentially ruled that a president has an absolute right to imprison anyone he wants during a time of war with no second-guessing from either of the other two branches of government. By the same legal logic, a president can also free any prisoner in a time of war. Had the president taken that stance, there would undoubtedly have been a court fight. But so what? Arent some things worth fighting for? Whenever he talks about Guantnamo, the president gives the impression that thats what he believes. The shame his shame is that, for all his soaring rhetoric, he has yet to show that he is willing to act on that belief.

Obama has the ability to close Gitmo Daily Beast, May 23, 2013
(All In on Gitmo: Obama Returns to Fight for a Shutdown, p. http://www.thedailybeast.com/articles/2013/05/23/all-in-on-gitmo-obama-returns-to-fight-for-ashutdown.html)
So for many advocates of closing the detention facility, who Obama appoints inside the White House will be a key measure of his commitment. The

president has the authority to close Guantanamo, says Thomas Wilner, a prominent Washington lawyer who has argued landmark cases at the Supreme Court on behalf of Gitmo detainees. What hes got to do is act and put the full authority of the White House behind getting the prison closed.

President wont commit to releasing everyone from Gitmo Wittes, Senior Fellow in Governance Studies at the Brookings Institution, May 23 , 2013
(Benjamin, The Presidents Speech: A Quick and Dirty ReactionPart 2 (Guantanamo), Lawfare, p. http://www.lawfareblog.com/2013/05/the-presidents-speech-a-quick-and-dirty-reaction-part-2guantanamo/) The trouble is that, as Wells pointed out earlier, Obama proposes nothingnothingconcerning how to deal with those whom his own review task force deemed too dangerous to release but not plausible to bring to trial. The
only thing he could say on that subject was that once we commit to a process of closing GTMO, I am confident that this legacy problem can be resolved, consistent with our commitment to the rule of law. And what basis for confidence could he possibly have on that score? Its not as though these cases have never been reviewed before. There is only one way to resolve this problem other than maintaining a group of people in custody whom one cannot try: That is not maintaing that group of people in custody. But is Obama really going to free Abu Zubaydaagainst whom I have not seen a criminal case materialize? What about Mohammed Qatani, the would-be 9/11 hijacker turned away from this countrys borders in Orlando with Mohammed Atta waiting for him on the other side of customs? What about the

nearly 50 people whom the task force determined could not be tried but who pose real risksand the additional people whom the task force believed could face trial but for whom that assessment proved optimistic? Until the president is willing to say that he means to set these people free, he should cut out the pieties about what sort of country we areor would be if only a certain group of retrogrades would stop him from closing Guantanamo.

AUMF

AUMF Aff Evidence

Obama could repeal the AUMF if he wanted to

Obamas actions dont match his rhetoric isnt going to stop the war on terrorism Wittes, Senior Fellow in Governance Studies at the Brookings Institution, May 23 , 2013
(Benjamin, The Presidents Speech: A Quick and Dirty ReactionPart 1 (Are We at War?), Lawfare, p. http://www.lawfareblog.com/2013/05/the-presidents-speech-a-quick-and-dirty-reaction-part-1/) In other words, while the Pentagon regards the AUMF as providing the authority it needs to confront the enemy for the next two decades, the president wants to work with Congress to get off the war footing and to secure the documents narrowing, and ultimate repeal. Its a striking contrast, whomever one thinks is right. A striking contrast, that is, unless one does not quite take Obama at face value on this. After all, Obama does not need Congress to narrow or repeal the AUMF or to get off of a war footing. He can do it himself, declaring hostilities over in whole or in part. And Obama, needless to say, did not do anything like that. To the contrary, he promised that we must finish the work of defeating al Qaeda and its associated forces and while he used a lot of nice words about law enforcement and a lot of disparaging words about perpetual states of war, he also promised to continue targeting the enemy with lethal force under the AUMF. In other words, he promisedwithout quite saying it directly to keep waging war

Obama Moving toward Article II Authority; Not AUMF

Obama is relying more on Article II powers to justify the war on terrorism Goldsmith, Professor at Harvard Law School, May 24, 2013
(Jack, Reactions to the Presidents Speech, Lawfare, p. http://www.lawfareblog.com/2013/05/reactions-to-the-presidents-speech/) One increasingly important element in the Obama administrations counterterrorism philosophy is a growing comfort level with reliance on inherent Article II power to address extra-AUMF threats. Jeh Johnson and Harold Koh were pretty clear about this in their Oxford Speeches, and the Presidents speech implied as much. This is a remarkable development which deserves close scrutiny and on which I will have more to say later.