At the January 2009 Association of American Law Schools’ Section on National Security Law panel discussion, I and others urged the incoming Obama administration to make a clear and decisive break with the Bush administration’s national security policies. Six months later, the new Administration has not done so. Rather, it has acted in a contradictory manner: boldly asserting in its first days that it would ban torture and close Guantánamo, but in practice continuing many of the Bush antiterrorism policies. President Obama’s major speech on Guantánamo and other national security issues reiterated his desire to close Guantánamo, but also argued that the United States could hold detainees in custody indefinitely without trial or try them by military commissions. The Administration has adopted the Bush administration position that detainees held in U.S. custody in Afghanistan indefinitely have no right to seek habeas corpus in U.S. courts. It has also continued to assert the state secrets privilege to attempt to block lawsuits seeking accountability for extraordinary rendition and torture.
On Tuesday, November 4, 2008, Paula Loyd, assigned to U.S. Army team AF-4 Blue, was conducting interviews among the local population in the small village of Chehel Gazi in southern Afghanistan. According to witnesses, she approached a man carrying a fuel jug, and they began discussing the price of gasoline. Suddenly the man, Abdul Salam, doused her with the fuel in his jug and set her on fire. She suffered second- and third-degree burns over sixty percent of her body. Tragically, Paula Loyd died of her injuries a few weeks later, in early January 2009.
As the United States continues to fight on multiple fronts to disrupt the efforts of al Qaeda and its affiliates, the U.S. government has slowly come to realize that military force alone cannot defeat radical Islamist extremism (hereafter “radical extremism”). Today, there is a growing consensus that countering the ideology that drives this extremism is a critical element in the overall effort to prevent extremist acts of violence. Despite this greater realization, developing a precise strategy to counter extremism effectively and empower mainstream alternatives has proved challenging. This issue posed a difficult challenge to the Bush administration and remains a daunting and urgent task for the Obama administration.
The so-called “war on terror” has ended. By the end of his first week in office, President Barack H. Obama had begun the process of dismantling some of the most notorious “wartime” measures. A few weeks before, recently reappointed Secretary of Defense Robert M. Gates had clearly forsaken the contentious label in a post-election essay on U.S. strategy in Foreign Affairs. Gates noted this historic shift in an almost offhanded way: “What is dubbed the war on terror is, in grim reality, a prolonged, worldwide irregular campaign – a struggle between the forces of violent extremism and those of moderation.” At the same time, the Obama administration is taking care to reconfirm its commitment to defending the United States and its interests against the threat of radical Islamists, among others. However, because it is hard to replace something with nothing, this article argues that the President should go further and offer a positive formulation – based on good law as well as sound policy – of how he will lead us to a “future of peace and dignity.” He should restore Franklin D. Roosevelt’s Four Freedoms to a central place in the nation’s grand strategy.
The administration of George W. Bush left the international credibility of the United States in tatters and seriously undermined any U.S. claim to leadership in human rights and the rule of law. The Obama administration can begin to repair the damage wrought by the Bush administration by establishing a healthy new respect for public international law. Reengaging the international community multilaterally to develop international law further would be widely welcomed after eight years of unilateral and dictatorial engagement.