So how to end the Forever War? President Obama should now diligently pursue three previously announced aims of US policy: 1) disengage from Afghanistan, 2) close Guantanamo and 3) discipline drones.
Disengaging from Afghanistan is fully underway, but three challenges loom. First, in transferring control of detention facilities, the US must ensure that transfers comply with obligations under international law not to return detainees to persecution or torture, and that future detentions comply with fair process and treatment obligations. Second, the US must work closely with the Afghans to help secure what Secretary of State John Kerry has called a "credible, safe, secure, all-inclusive, ... transparent, and accountable presidential election" to succeed Hamid Karzai in 2014. Third, the Afghan government must tackle the controversial task of negotiating with the Taliban. In so doing, it's crucial to build upon the myriad advances that have expanded individual freedom within Afghan civil society over the last decade.
Closing Guantanamo permanently is long past overdue. The US military prison in Cuba has 166 detainees, 76 fewer than in 2009. More than 100 of the detainees are on hunger strike, with many being force-fed. President Obama has acknowledged, "Guantanamo is not necessary to keep America safe. It is expensive. It is inefficient. It hurts us in terms of our international standing."
Crucially, he does not need a new policy to close Guantanamo. He just needs to put the full weight of his office behind the sensible policy first announced in 2009: Resume transfer of those who are cleared for transfer, try the triable, grant periodic review of those in law of war detention, resist further congressional restrictions and appoint a high-level White House envoy to implement the foregoing.
The goal of decimating Al Qaeda's core leads to the final contentious issue, disciplining drones. Critics often ask, "How, as a human rights advocate, could you criticize torture, while as a government lawyer, you defended the legality of drones?" The answer is sad, but simple: Torture is always unlawful. But killing those with whom a country is at war may be lawful, so long as the laws of war are strictly followed. It is the duty of government lawyers to police the line between those violent acts that are lawful and unlawful, and distinguish between those uses of force that do and do not on balance promote the human rights of innocent civilians.
Drones are not per se unlawful. If accurately targeted, they could be far more discriminate and lawful than indiscriminate weapons. The main problem is not drones, but that the Bush administration grossly mismanaged its response to 9/11. Instead of acting surgically against Al Qaeda when it had the chance, the administration squandered global goodwill by invading Iraq, committing torture, opening Guantanamo, flouting domestic and international law, and undermining civilian courts.
Left to pick up the pieces, Obama got off to a promising start, but that effort has slowed. Since 2010, the Obama administration has not done enough to be transparent about legal standards and its decision-making process. Small wonder that the public has lost track of the real issue, which is not drone technology per se, but the need for transparent, agreed-upon domestic and international legal process and standards. The Obama administration should now make public and transparent its legal standards and institutional processes for targeting and drone strikes, give facts to show why past strikes were necessary, and consult with Congress and allies on principled standards going forward. Most important, he should oppose proposed legislation that would grant him unneeded new authority to strike new shadowy foes.
The real and pressing issue facing the United States is how to end the Forever War underway since 2001. If the Obama administration cannot persuade its citizens, Congress and its closest allies that its drone program is legal, necessary for that task and under control, it will be hard for President Obama to see that war to its much-needed conclusion or take the other steps needed to secure the peace.
