Mores sine legibus

Some in the media interpreted this week's big speech by President Barack Obama as a watershed moment in the development of US counter-terrorism and foreign policy. I say "interpreted"; what I mean is that White House officials worked throughout the week to push this understanding upon journalists and pundits, and some of them obliged by regurgitating this concept to their audiences. The White House pitched the speech as one part of a process of increasing transparency; it was anything but. You can read the full text of the speech for yourself, but in the mean time, allow me to summarize the important points as I understood them.

  • The United States will continue to use targeted killing as its primary tool in dealing with known or suspected "terrorists" in Yemen and elsewhere. It will, however, continue to claim that it prefers to capture suspects whenever possible.
  • The US will claim that it only kills individuals who it is certain pose a "continuing and imminent threat" to America, without ever informing America what any of those threats are or how they were discovered.
  • The president is sickened by the very idea of civilian casualties; the civilians who have died keep him awake at night. But the president  will not apologize for those who have already been killed, nor will he make reparations to their families.
  • The US would really, really like to narrow the scope of its counter-terrorism operations and not get involved in any more wars, but we'll just have to see how the chips fall.
  • The president of the United States would really like to close the extra-legal prison at Guantanamo Bay, but he may or may not be allowed by Congress and his own Defense and Justice departments to do this.
  • The president will no longer forbid the courts or the military from ordering the repatriation of Guantanamo detainees to Yemen; however, those detainees already cleared for release by the courts and the military will not be repatriated yet. They will have to have their cases reviewed, again. The criteria by which those cases will be evaluated will not be made public.

If you heard or read something different, please comment.

The day before the speech, President Obama apparently signed a document that contains more detailed guidance for the country's intelligence and security apparatuses, but we don't know what that guidance is because the document is--wait for it--classified. So as far as I can tell, the president's idea of "being more transparent" consists of telling the public that he has written and signed another classified document. Impressive.

This has been the problem since the day Mr. Obama took the reins of America's counter-terrorism programs: every time the public, the press, or the courts has asked for information about how he and his team make decisions, he tells us to just trust that he's doing the right thing. These life-and-death decisions, these policies that determine the use of lethal force, all of this is being done with the utmost regard for the rule of law and the good of the nation, we are told. Our national path is being charted according to the president's unwavering moral compass. He has gone so far as to say that the constitutional guarantee of due process can be safely met by him and his close advisors, behind closed doors.

If that were the spirit behind the concept of due process, we would not have courts, or judges, or juries. We would not need laws concerning the powers of the president or the use of force if every president knew and instinctively carried out the most righteous and strategically sound policy at all times. It may well be that Mr. Obama has impeccable morals (I don't believe that to be the case, but I'm in no position to judge); but that is not the issue. Without laws, without a clear and transparent legal framework, there is no accountability, and no way to assess the justice or the utility of the administration's counter-terrorism policy.

Here's an actual quote from the background briefing a few "senior White House officials" held before the speech, in order to get the press and the assembled experts on the right page (emphasis added):’ll also see that there are criteria listed, and some of them will be slightly different than the criteria, for example, that John Brennan noted in his Wilson Center speech.  And it’s a sort of — it’s an [evolving] process.  So one of the differences is we were looking at significant threats in the Wilson Center speech, and now we’re looking at continuing and imminent threats.  And so that is, in a sense, one of the standards that has evolved.

That's right. This senior White House official is telling us that the White House has DECIDED TO START USING DIFFERENT ADJECTIVES, and that we should believe, from that decision, that the actual standards underlying the targeted killing program have changed. The problem is that the White House has never defined (in an unclassified document, say) any of those three adjectives, nor has it explained how the president decides to which individuals or actions they apply.

This "just trust me" approach was unacceptable before the president's "game changing" speech, and it is still unacceptable today. The president's deployment of strategic adjectives will not defeat al-Qa‘idah or protect America's interests; only drastic and comprehensive changes to America's foreign policy can do that. Maybe such changes really are in the works. As usual, I would absolutely love to be proved wrong. But for that to happen, the administration would have to actually tell us what it's planning to do, and submit those plans to legal and practical review.

*The title of this post is an inversion of my old university's Latin motto, "Leges sine moribus vanae," which, I'm told, comes from a line from the Roman poet Horace, and which (loosely) means "laws without morals are useless." My correlate, then, translates roughly to "morals without laws are useless."