For the first time in a generation, a Democrat is running for president without facing sustained attacks on his national security credentials. That’s partly due to recession politics, but also because President Obama is pursuing several aggressive counterterrorism policies that leave little room for conservatives to cast him as soft on defense.
The military prison at Guantanamo Bay is still open. Military commissions are trying detainees instead of the federal courts. Drone killings of suspected militants abroad — including American citizens — occur at a much higher rate than under George W. Bush.
Related: Obama’s anti-terrorism record
Many White House watchers say these policies reflect the inevitable tug of actually serving as commander-in-chief: Obama, like other presidents, has embraced executive power once in office after previously criticizing its use.
But there is another critical dynamic shaping Obama’s approach to terrorism, often below the radar. On key questions of how the U.S. should detain or try terror suspects, Congress has drastically narrowed the administration’s options.
In 2010, Congress unilaterally banned the transfer of Guantanamo detainees into the U.S. To this day, that legislative action prevents the administration from bringing detainees here — even for prosecution in a death penalty trial.
Turning Guantanamo into Hotel California makes it harder for the administration to handle new detainees. White House officials say it also limits their ability to gain cooperation on extradition from other countries.
These kind of blanket rules have fed arguments that Congress has solidified some of Obama’s most aggressive policies — and curbed his ability to reform programs initiated by Bush.
“Congress has made it impossible for Obama to close Guantanamo,” says Larry Korb, a former assistant secretary of defense under Ronald Reagan. “They made it very difficult for him to try people in civilian court. That has really made it very tough for him to do the things that he would like to do.”
“After a while, Obama decided it’s not worth it to keep fighting” Congress,” added Korb, who now studies how both branches of government craft security policy at the Center for American Progress.
Reflecting on the Obama administration’s current detention policy, Tommy Vietor, spokesman for the National Security Council, told the Grio, “It is a fact that Congress has put up as many roadblocks as possible to keep the Guantanamo Bay prison open.”
But the controversy, and frustration with the administration from some human rights groups on terrorism issues, extends beyond Guantanamo Bay.
The largest quantifiable gap between Bush and Obama’s counterterrorism approach can be boiled down to a single piece of military data: one. That is the total number of terror suspects that the Obama administration has captured, off the conventional battlefield, and taken into American custody.
Bush, by contrast, detained over 750 individuals at Guantanamo alone. Ultimately, about 600 of them were released without charges, according to Human Rights Watch, reflecting the difficulty of sorting out the high-value targets from lower-level bystanders.
The low capture number under Obama does not mean suspected terrorists are getting a pass. It means they are getting killed.
In 2010 alone, Obama oversaw the killing of 500 suspected militants in Pakistan, according to the Counterterrorism Strategy Initiative. The kill-to-capture ratio has prompted questions about the strategic and moral foundation of Obama’s approach.
A debate has emerged on this tactic: has Obama given up capturing terror suspects in favor of killing them?
Senator Saxby Chambliss, the ranking Republican on the Intelligence Committee, believes that is exactly what’s happening.
“Their policy is to take out high-value targets, versus capturing high-value targets,” he told the New York Times in May, when it broke the news of Obama’s “kill list.”
It’s a serious allegation. Human rights law requires that the military capture when possible. Killing for expediency is generally prohibited, and the U.N. opened an investigation into Obama’s policy on this score. White House officials, however, emphatically deny such charges.
“It’s always our preference to capture,” says Vietor, who noted past policy statements echoing the point by John Brennan, Obama’s top adviser on counterterrorism.
“Whenever it is possible to capture a suspected terrorist, it is the unqualified preference of the administration to take custody of that individual,” Brennan has said, “so we can obtain information that is vital [to national security].”
The formal denials of a policy that favors killing over imprisonment don’t convince everyone. Author Daniel Klaidman, who just finished a book probing Obama’s counterterrorism policies, argues that members of Congress from both parties, particularly in their opposition to closing Gitmo, “did not give president the flexibility that he needed” on counterterrorism policies.
As a result, Obama was left with a “legal morass” that created “unspoken but real incentives” to avoid capturing suspects and “incentives for more killing,” Klaidman argues.
“I didn’t uncover anybody saying that in a meeting,” Klaidman added, referring to the reporting for his book, which is called “Kill or Capture: The War on Terror and the Soul of the Obama Presidency.” “But I don’t think people say those things in meetings.”
Some human rights critics of the administration’s foreign policy, however, dispute the premise that congressional roadblocks were key to shaping Obama’s path.
“Congress has done nothing to make it more difficult to capture or detain suspects,” says Chris Anders, senior legislative counsel for the ACLU, which is suing the CIA and Defense Department over targeted killing policies.
Anders does criticize Congress for backing Guantanamo and indefinite detention “without charge or trial,” but he is convinced that the buck stops with the president.
“The decision to use targeted killing lists is squarely one made by the White House, with Congress sidelining itself,” he says.
Finally, there is one more complicating factor that has very little to do with politicians: the evolution of the battlefield itself.
National security experts say that while the rules crafted in Washington do matter, in the current phase of this war, more threats emanate from places where capturing people on the ground is not feasible.
Korb believes there should be a real national debate over drone attacks, which he stresses are “acts of war.” But he also believes that drones may offer the most limited military option.
“I don’t want to send large land armies into Yemen to capture al-Aulaqi,” he said, referring to the first American citizen killed under the targeted killing program.
Neither did officials in Washington. For the foreseeable future, that likely means the political branches of government will keep shooting first, and asking questions later.
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