Speaking the Law

Speaking the Law

The Obama Administration's Addresses on National Security Law

Authors: Kenneth Anderson, Benjamin Wittes
ISBN: 978-0-8179-1654-1
Publication Date: 5/1/2015

When Barack Obama came into office, the strategic landscape facing the United States in its overseas counterterrorism operations was undergoing a shift. Even before the rise of drones necessitated the articulation of legal doctrine, the Obama administration had to explain itself. In Speaking the Law, the authors offer a detailed examination of the speeches of the Obama administration on national security legal issues. Viewed together here for the first time, they lay out a broad array of legal and policy positions regarding a large number of principles currently contested at both the domestic and international levels.

The book describes what the Obama administration has said about the legal framework in which it is operating with respect to such questions as the nature of the war on terrorism, the use of drones and targeted killings, detention, trial by military commission and in federal courts, and interrogation. The authors analyze this framework, examining the stresses on it and asking where the administration got matters right and where they were wrong. They conclude with suggestions for certain reforms to the framework for the administration and Congress to consider.

Kenneth Anderson is a professor of international law at Washington College of Law, American University, Washington, D.C., and a visiting fellow at the Hoover Institution, where he is also a member of the its Task Force on National Security and Law.

Benjamin Wittes is a senior fellow in governance studies at the Brookings Institution and co-director of the Harvard Law School-Brookings Project on Law and Security, and is a member of the Hoover Institution Task Force on National Security and Law.

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Benjamin Wittes

Benjamin Wittes is a fellow and research director in public law at the Brookings Institution. A former editorial writer for The Washington Post specializing in legal affairs, he currently writes an online column for The New Republic and is a contributing editor for The Atlantic. He is a member of the Hoover Institution Task Force on National Security and Law.



Kenneth Anderson

Kenneth Anderson is a professor of international law at Washington College of Law, American University, Washington, DC, and a visiting fellow at the Hoover Institution. He specializes in international law. Formerly general counsel to the Open Society Institute and director of the Human Rights Watch Arms Division, Anderson has written Living with the UN: American Responsibilities and International Order (2012), and a new book with Benjamin Wittes, Speaking the Law: The Obama Administration’s Addresses on National Security Law (2013), both published by the Hoover Institution Press. Anderson blogs at the law professor websites Volokh Conspiracy and Opinio Juris, and is the book review editor of the national security law website Lawfare.

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Contents


      Introduction

1    An Overview of the Obama Administration's Canonical Speeches of the First Term    1
2    The Good, the Bad, and the Underdeveloped    17
3    The President's NDU Speech and the Pivot from the First Term to the Second    137
4    The Speeches in Interaction with Other Branches of Government    185
5    The Framework and Its Discontents    215

      Conclusion    257


Appendixes: Addresses and Remarks by President Obama and Administration Officials on National Security Law



Appendix: Obama-A    283
President Barack Obama, "Remarks by the President on National Security," the National Archives, Washington, D.C., May 21, 2009

Appendix: Obama-B    301
President Barack Obama, "A Just and Lasting Peace," The 2009 Nobel Peace Prize Lecture, Oslo, Norway, December 10, 2009

Appendix: Obama-C    305
President Barack Obama, "Remarks by the President at the National Defense University (on US counterterrorism strategy)," Fort McNair, Washington, D.C., May 23, 2013. Plus Addenda 1: "Fact Sheet: US Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active hostilities," White House Office of the Press Secretary, May 23, 2013; and Addenda 2: Letter from Eric H. Holder, Jr., Attorney General, to Sen. Patrick J leahy, Chairman, Senate Judiciary Commitee, May 22, 2013 (Re:Drone Warfare and US Citizens).

Appendix: Obama-D    340
President Barack Obama, "Remarks by the President on Review of Signals Intellegence," Department of Justice, Washington, D.C. January 17, 2014.

Appendix: Koh-A    356
Harold H. Koh, legal adviser to the Department of State, address to the American society of International Law, "The Obama Administration and International Law," March 25, 2010.

Appendix: Koh-B    370
Harold H. Koh, legal adviser to the Department of State, address to the USCYBERCOM Inter-Agency Legal Conference, "International Law in Cyberspace," Fort Meade, Maryland, September 18, 2012

Appendix: Kris-A    384
David Kris, assistant attorney general for national security, "Law Enforcement as a Counterterrorism Tool," address at the Brookings Institution, June 11, 2010.

Appendix: Johnson-A    398
Jeh C. Johnson, general counsel, Department of Defense "Jeh C. Johnson Speech to the Heritage Foundation," Washington, D.C., October 18, 2011

Appendix: Johnson-B    408
Jeh C. Johnson, general cousnel, Department of Defense, "National Security Law, Lawyers, and Lawyering in the Obama Administration," address at Yale Law School, February 22, 2012.

Appendix: Johnson-C    417
Jeh C. Johnson, general counsel, Department of Defense, "The Conflict against Al Qaeda and Its Affiliates: How Will It End?" Oxford Union, Oxford University, November 30, 2012.

Appendix: Holder-A    424
Eric Holder, Attorney General, Department of Justice, Address at Northwestern University School of Law, March 5, 2012.

Appendix: Preston-A    439
Stephen W. Preston, general counsel, Central Intelligence Agency, "CIA and the Rule of Law," address at Harvard Law School, April 10, 2012.

Appendix: Brennan-A    450
John O. Brennan, assistant to the president for homeland security and counterterrorism, "Strengthening Our Security by Adhering to Our Values and Laws," address at Harvard Law School, September 16, 2011.

Appendix: Brennan-B    466
John O. Brennan, assistant to the president for homeland security and counterterrorism, "The Ethics and Efficacy of the President's Counterterrorism Strategy," Woodrow Wilson International Center for Scholars. Washington, D.C., April 30, 2012.

Appendix: Brennan-C    485
John O. Brennan, assistant to the president for homeland security and counterterrorism, "US Policy toward Yemen," Council on Foreign Relations, New York City, August 8, 2012.

Appendix: Litt-A    494
Robert S. Litt, general counsel with the Office of the Director of National Intelligence, "Privacy, Technology, and National Security: An Overview of Intelligence Collection," adress at the Brookings Institution, Washington, D.C. July 19, 2013.

About the Authors    519

About the Hoover Institution's Jean Perkins Task Force on National Security and Law    521

Index    523



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