Writing in 2014, I observed in my book that the Obama administration was plagued by the long shadows cast by the George W. Bush administration and its use of force in the ongoing war on terror. President Bush launched his war on terror in 2001 after the 9/11 attacks that left nearly 3000 people dead. This war was not merely a rhetorical device but an actual armed conflict with emphasis placed on the use of force to counter transnational terrorist groups, particularly al Qaeda. As detailed in Chap. 6 of my book, President Bush built on precedents from previous administrations, especially the Reagan administration, in his war on terror. The rhetoric of both the Reagan administration and the George W. Bush administration included the militarization of foreign policy although, in fact, the Reagan administration only responded twice in a manner that matched its harsh language regarding terrorism. This occurred when the hijackers of the cruise ship Achille Lauro were captured in 1985, and in 1986 when the USA bombed Libya in response to its support of terrorism.
By the middle of President Obamaâs second term, the political narrative about the Obama counterterrorism architecture tended to divide into two schools of thought: those who contended Mr. Obama was essentially the same as his predecessor, Mr. Bush , only liberated from the protests of a noisy liberal opposition, and those who argued that substantive differences existed between the two administrations. By the end of his second term in 2016, it was clear that President Obamaâs actions in national security affairs did not always match the rhetoric of his earlier promises to break with the excesses of the war on terror.1 While many have been swift to brand Obamaâs policies as a continuation of the policies pursued by the Bush administration after 9/11, a close examination reveals a more nuanced and complicated assessment is in order.2
The starting point for that assessment is the âfait accompliâ war that George W. Bush bequeathed to his successor, Barack Obama. A fait accompli, something decided before those affected hear about it, leaves them with no option but to accept it; this is the war Bush left Obama in 2008. It is a war comprising all the virtually irreversible policy choices President Bush made regarding the use of force and targeting, detention, and interrogation methods. When Mr. Obama became Commander-in-Chief, he was left to direct three ongoing conflicts, the war in Afghanistan , the war in Iraq , and the fait accompli war in which the armed-conflict approach to counterterrorism was predominant.
Unlike his predecessors in the Reagan, Clinton, and both Bush administrations, President Obama did not have the same freedom of maneuver regarding his preferred counterterrorism strategies. Instead Mr. Obama was left with the dilemma of how to manage the various ramifications left from the second Bush administration and its war on terror, in addition to the global economic crisis of 2008. Broadly speaking, there are two approaches to the issue of international terrorism and how liberal democracies should respond. These are the âarmed conflictâ or war on terror approach and the âlaw enforcementâ approach. These are not merely descriptive designations, but âprovide moral frameworks for judging the actions of governments and determining what the law should be.â3 The war on terror approach defines international terrorism as a national security threat that imperils the existence of the state, not as mere criminal activity. It follows that international terrorism is more like war, with its signature violence and indiscriminate killing, than a crime, where the motive is usually economic gain. Terrorists violate the laws of war and if captured, âit is morally and legally permissible to try them in military courts and accord them a less rigorous form of due process than is found in civilian criminal courts.â4 As a grave national security threat, lethal force may be used against terrorists; another name for this approach is the armed-conflict model.
In contrast, the law enforcement paradigm treats terrorism as a serious criminal act, not a national security threat like an invasion by a nation-state. Proponents of the law enforcement model contend that terrorism should be handled like any other severe crime; police, prosecutors, and trials in civilian criminal courts with the usual due process standards are appropriate.5 The underlying philosophy is that even though a terrorist episode may inflict significant harm and casualties, terrorist acts are more like sporadic criminal events than a real war. In addition, the failure to treat terrorists as criminals unintentionally rewards them with the status of âwarriorsâ and may inadvertently play into terroristsâ narratives about their motivations.6 The status of those who perpetrate politically motivated violence is an important point; jihadists in al Qaeda, Islamic State of Iraq and Syria (ISIS), and similar organizations want to be treated not as mere criminals but as soldiers in a larger, ongoing engagement against the USA and the West.
There were three choices available to President Obama in January 2009 related to the war or crime dichotomy of international terrorism. The first was to announce that President Bushâs war on terror was over; this would acknowledge that the USA espoused a war paradigm against al Qaeda since 9/11 but signal that the Obama administration would henceforth no longer follow that path. The second option was to renounce the war on terror and forcefully confront all the illegal activity (including enhanced interrogation methods, extraordinary renditions, etc.) that occurred during the previous eight years; it also would acknowledge the war paradigm of the second Bush administration. The final option was to move toward a third, hybrid approach to counterterrorism that preserved certain policy choices from the Bush era but eliminated some of the more egregious and controversial aspects. This choice would blend aspects of the law enforcement and war approaches.
The first option, simply announce an end to the war on terror, was not plausible in January 2009 because the main terrorist perpetrator behind the 9/11 attacks , Osama bin Laden, remained at large and was able to inspire his followers to plan more attacks against the USA and its allies. Renouncing the war paradigm with all its problems, the second option, was legally and politically quite complicated for the incoming Obama administration. If President Obama had chosen to renounce the war on terror, then some Bush-era policies on interrogations, extraordinary renditions, and targeting would be illegal under various international laws. For instance, Central Intelligence Agency (CIA) drone strikes could be categorized as âextrajudicial executions assuming that they do not comply with human rights lawâ if there was no actual âarmed conflict.â7 Moreover, the Convention against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment requires state parties to try or extradite those accused of torture and prohibits using national security as a justification for âenhanced interrogation techniques.â The new administration, faced with the task of finding Osama bin Laden and directing the ongoing wars in Iraq and Afghanistan , chose not to renounce the war on terror, partially because it did not want to become mired in investigations and prosecutions of those responsible for questionable practices.
In addition to the legal issues left over from the Bush administrationâs war on terror, renouncing it would have ignited a political firestorm that the Obama administration would have struggled to contain. The economic crisis of 2008 was one of the biggest priorities for the new administration and it consumed a great deal of time and political capital. As he managed the economic crisis, President Obama did not want to appear weak...