Twilight of a Long War: A Draft Presidential Address to a Joint Session of Congress

Abstract

An American war on terror has profound rhetorical, political, and legal implications. Someday, perhaps not too far off, this war will end in all senses. This paper, anticipating the end of that long war, uses the artifice of a draft speech by President Obama to a joint session of Congress to shape the future. Weaving policy and law, the President explains the factors that caused him to conclude that the United States can shift exclusively to the criminal justice system for handling the problem of domestic and international terrorism.

President George W. Bush, after the 9/11 attacks, coined the war-on-terror phrase. For a while, the phrase was useful in motivating the American public and its allies against terrorism. Eventually, it went stale. President Obama, in his 2009 speech at the National Archives, recognized this staleness and instructed his administration to discard the phrase as much as possible. The rhetorical value was gone.

A president at war has enhanced powers. He can point to the commander-in-chief clause and seek congressional authorizations for the use of force. Indeed, a week after 9/11, Congress boosted President Bush’s power through an Authorization for Use of Military Force (AUMF). This authorization continues to boost President Obama’s power. Therefore, his conclusion that the long war is over would arguably diminish his own power under both the Constitution and the AUMF.

Other American armed conflicts came to relatively clear endings. An unconditional ceasefire was accepted; a treaty was signed; a presidential proclamation was issued; or a statute was amended. For over two centuries, when courts have been called upon to define a war’s endpoint to interpret statutes, contracts, or other legal instruments, they have deferred to the actions or inactions of the political branches.

But, as commentators have delighted in noting, the long war will not end with an exchange of pens on an aircraft carrier — or anything comparable. So, if this war is to ever end, at least one political branch must take action. Accordingly, the Supreme Court in Boumediene v. Bush implored the other two branches in 2008 to provide more guidance in defining the “outer boundaries of war powers.”

An end to the long war, as explained in the president’s hypothetical January 2015 speech, would affect many policies: targeting suspected terrorists outside conventional war zones; detaining suspected terrorists in Guantanamo, Bagram, and other locations; snatching and transferring suspected terrorists between points outside the United States; triggering financial sanctions by national emergencies; and maintaining secrecy to keep these and other tactics in the shadows. On the other hand, policies unconnected to war powers (e.g. prosecutions for material support to terrorists) would continue.

Declaring an end to the long war is not only about law. It creates the potential of a political boomerang. If a terrorist attack occurs after the speech, the President will be accused of having let down his guard. For this reason, the President’s speech will require great finesse. He will need to explain why terrorism can be handled as something other than a military problem at the same time he tells the country to be resigned to additional attacks. President Obama, an able instructor, will use this speech to educate the American people about terrorism’s evolution.

The killing of al Qaeda’s leader, Osama Bin Laden, in May 2011 was a clear victory against international terrorists. Even so, the threat continues. It is not clear whether al Qaeda remains a top-down organization or whether it has been reduced to a brand or a franchise. Those who believe it is a mistake to think about al Qaeda in terms of an organizational chart choose other metaphors: virus, mold, or cancer, to name a few. Whatever the metaphor, it appears that al Qaeda is more diffused today, more decentralized than on 9/11. Besides al Qaeda, homegrown terrorists have emerged as greater threats, whether Yemenis in Lackawanna, Somalis in the Twin Cities, or lone wolves anywhere in America.

Keywords: al Qaeda, terrorism, presidential address, war on terror, presidential power, Authorization for Use of Military Force, Boumediene v. Bush, Guantanamo