Inherent Right of Self
Inherent Right of
Self-Defense Not Restricted to Threats Posed by States
The Legal Framework for the United
States' Use of Military Force Since 9/11 : As Delivered by Stephen W.
Preston, Annual Meeting of the American Society of International Law,
Washington, DC, April 10, 2015. (DoD
Thank you, Professor Damrosch, for that kind introduction and
for the invitation to be here this afternoon. As a leader in ASIL, a professor
of international law, and for many years editor of the American Journal of
International Law, you have played a central role in shaping our understanding
of international law. And you have done so with an eye to the practical
realities faced by the government lawyer, which has made your contributions all
the more meaningful. I also want to thank Mark Agrast and Wes Rist, who have
done so much to make this event, and my participation in it, possible.
I am grateful, as well, to my colleagues in government, who
have contributed to my remarks today in many ways – not least through the wisdom,
learning and hard work they have brought to bear in answering the difficult
questions we regularly face together. Finally, I want to thank all of you – the
members of the American Society of International Law assembled here this
afternoon – for the warm reception I have received and, more important, for your
keen interest in the legal issues affecting the national security of our
country. I am very pleased to have the opportunity to speak with you today.
Indeed, I am greatly honored.
The Department of Defense has a long history of engagement
with the American Society of International Law. The first and longest-serving
President of the Society, Elihu Root, served as Secretary of War under two
Presidents before founding the Society in 1906. He saw this organization as a
place where the hard issues of the day could be discussed and debated. And he
believed that by educating the American public about international law, the rush
to war could be slowed. As he once put it, “[i]n the great business of settling
international controversies without war … essential conditions are
reasonableness and good temper, a willingness to recognize facts and to weigh
arguments which make against one’s own country as well as those which make for
one’s own country.” I couldn’t agree more.
The theme of this year’s annual meeting, “Adapting to a
Rapidly Changing World,” is a pretty good description of our day-to-day job at
the Defense Department. The conflicts and threats we face are constantly
shifting and evolving. Today, I will discuss how the U.S. Government has
responded to this rapidly changing world and, specifically, how the legal
framework for our military operations has developed since the attacks of 9/11.
President Obama has made clear from the beginning of his
presidency that he is deeply committed to transparency in government because it
strengthens our democracy and promotes accountability. Although a certain degree
of secrecy is of course required to protect our country, the Administration has
demonstrated its commitment to greater transparency in matters of national
security and, specifically, in explaining the bases, under domestic and
international law, for the United States’ use of military force abroad. We have
seen this in the President’s own speeches, for example, at the National Archives
in May 2009, at National Defense University in May 2013, and at West Point in
Among senior Administration lawyers, we saw this early on, in
a speech by the State Department’s Legal Adviser at ASIL in March 2010 – this
same meeting, five years ago – and in later speeches by the Attorney General at
Northwestern in March 2012, and by my predecessor as DoD General Counsel at Yale
and at Oxford, both in 2012. There was even a very modest contribution by the
CIA General Counsel in remarks at Harvard Law School in April 2012. My remarks
here today are the latest in the series – an update of sorts – addressing the
legal authority for U.S. military operations as the mission has evolved over the
past year or so.
This talk will proceed in four parts. First, I want to review
the legal framework for the use of military force developed in the aftermath of
the 9/11 attacks. Second, I will explain the legal basis for current military
operations against the so-called Islamic State of Iraq and the Levant, or ISIL.
Third, I will discuss the end of the U.S. combat mission in Afghanistan and its
impact on the legal basis for the continuing use of military force under the
2001 AUMF. Fourth, and finally, I will look ahead to the legal framework for
counterterrorism operations in the future.
Let us begin with a bit of history. It is only by seeing
where we have been over the past decade and a half that we can understand where
we are today.
Return to the first days after the attacks on September 11,
2001, for it is in that time that our government began to articulate the legal
framework that we still rely on today. As many of you know, it was only days
after the 9/11 attacks that Congress passed, and the President signed, an
authorization for the use of military force, or AUMF, authorizing the President
to take action to protect the United States against those who had attacked us.
Even though it was only days later, we already knew that the attacks were the
work of al-Qa’ida, a terrorist organization operating out of Afghanistan, led by
a man named Usama bin Laden.
The authorization that was enacted into law – which came to
be known as the 2001 AUMF – was not a traditional declaration of war against a
state. We had been attacked, instead, by a terrorist organization. Yes, the
Taliban had allowed bin Laden and his organization to operate with impunity
within Afghanistan. But it was not Afghanistan that had launched the attack. It
was bin Laden and his terrorist organization.
The authorization for the use of military force that Congress
passed aimed to give the President all the statutory authority he needed to
fight back against bin Laden, his organization, and those who supported him,
including the Taliban. At the same time, the 2001 AUMF was not without limits.
It authorized the President to “use all necessary and appropriate force against
those nations, organizations, or persons he determines planned, authorized,
committed, or aided the terrorist attacks that occurred on September 11, or
harbored such organizations or persons, in order to prevent any future acts of
international terrorism against the United States by such nations, organizations
With this statutory authorization, the United States
commenced military operations against al-Qa’ida and the Taliban in Afghanistan
on October 7, 2001, notifying the UN Security Council consistent with Article 51
of the UN Charter that the United States was taking action in the exercise of
its right of self-defense in response to the 9/11 attacks.
Although the 2001 AUMF was not unlimited, enacted as it was
just a short time after the attacks, it was necessarily drafted in broad terms.
Shortly after President Obama came into office, his Administration filed a
memorandum in Guantanamo habeas litigation offering the new President’s
interpretation of his statutory authority to detain enemy forces as an aspect of
his authority to use force under the 2001 AUMF. That memorandum explained that
the statute authorized the detention of “persons who were part of, or
substantially supported, Taliban or al Qaida forces or associated forces that
are engaged in hostilities against the United States or its coalition partners,
including any person who has committed a belligerent act, or has directly
supported hostilities, in aid of such enemy armed forces.” Moreover, it stated
that “[p]rinciples derived from law-of-war rules governing international armed
conflicts . . . must inform the interpretation of the detention authority
Congress has authorized” under the AUMF.
This interpretation of the 2001 AUMF was adopted by the D.C.
Circuit and, in 2011, it was expressly endorsed by Congress in the context of
detention. The National Defense Authorization Act for Fiscal Year 2012
reaffirmed the authority to detain “ person who was a part of or substantially
supported al-Qaeda, the Taliban, or associated forces that are engaged in
hostilities against the United States or its coalition partners, including any
person who has committed a belligerent act or has directly supported such
hostilities in aid of such enemy forces.” It also reaffirmed that dispositions
of such individuals are made “under the law of war.” Thus, a decade after the
conflict began, all three branches of the government weighed in to affirm the
ongoing relevance of the 2001 AUMF and its application not only to those groups
that perpetrated the 9/11 attacks or provided them safe haven, but also to
certain others who were associated with them.
My predecessor, Jeh Johnson, later elaborated on the concept
of associated forces. In a speech at Yale Law School in February 2012, he
explained that the concept of associated forces is not open-ended. He pointed
out that, consistent with international law principles, an associated force must
be both (1) an organized, armed group that has entered the fight alongside
al-Qa’ida, and (2) a co-belligerent with al-Qa’ida in hostilities against the
United States or its coalition partners. This means that not every group that
commits terrorist acts is an associated force. Nor is a group an associated
force simply because it aligns with al-Qa’ida. Rather, a group must have also
entered al-Qa’ida’s fight against the United States or its coalition partners.
More recently, during a public hearing before the Senate
Foreign Relations Committee in May 2014, I discussed at some length the
Executive branch’s interpretation of the 2001 AUMF and its application by the
Department of Defense in armed conflict. In my testimony, I described in detail
the groups and individuals against which the U.S. military was taking direct
action (that is, capture or lethal operations) under the authority of the 2001
AUMF, including associated forces. Those groups and individuals are: al-Qa’ida,
the Taliban and certain other terrorist or insurgent groups in Afghanistan;
al-Qa’ida in the Arabian Peninsula (AQAP) in Yemen; and individuals who are part
of al-Qa’ida in Somalia and Libya. In addition, over the past year, we have
conducted military operations under the 2001 AUMF against the Nusrah Front and,
specifically, those members of al-Qa’ida referred to as the Khorasan Group in
Syria. We have also resumed such operations against the group we fought in Iraq
when it was known as al-Qa’ida in Iraq, which is now known as ISIL.
The concept of associated forces under the 2001 AUMF does not
provide the President with unlimited flexibility to define the scope of his
statutory authority. Our government monitors the threats posed to the United
States and maintains the capacity to target (or stop targeting) groups covered
by the statute as necessary and appropriate. But identifying a new group as an
associated force is not done lightly. The determination that a particular group
is an associated force is made at the most senior levels of the U.S. Government,
following reviews by senior government lawyers and informed by departments and
agencies with relevant expertise and institutional roles, including all-source
intelligence from the U.S. intelligence community. In addition, military
operations against these groups are regularly briefed to Congress. There are no
other groups – other than those publicly identified, as I have just described –
against which the U.S. military is currently taking direct action under the
authority of the 2001 AUMF.
That brings me to my second topic: the legal authority
applicable to today’s fight against ISIL. The military operations conducted by
the United States against ISIL in Iraq and Syria are consistent with both
domestic and international law.
First, a word about this group we call ISIL, referred to
variously as ISIS, the Islamic State or Daesh (its acronym in Arabic). In 2003,
a terrorist group founded by Abu Mu’sab al-Zarqawi – whose ties to bin Laden
dated from al-Zarqawi’s time in Afghanistan and Pakistan before 9/11 – conducted
a series of sensational terrorist attacks in Iraq. These attacks prompted bin
Laden to ask al-Zarqawi to merge his group with al-Qa’ida. In 2004, al-Zarqawi
publicly pledged his group’s allegiance to bin Laden, and bin Laden publicly
endorsed al-Zarqawi as al-Qa’ida’s leader in Iraq. For years afterwards,
al-Zarqawi’s group, often referred to as al-Qa’ida in Iraq, or AQI for short,
conducted numerous deadly terrorist attacks against U.S. and coalition forces,
as well as Iraqi civilians, using suicide bombers, car bombs and executions. In
response to these attacks, U.S. forces engaged in combat – at times, near daily
combat – with the group from 2004 until U.S. and coalition forces left Iraq in
2011. Even since the departure of U.S. forces from Iraq, the group has continued
to plot attacks against U.S. persons and interests in Iraq and the region –
including the brutal murder of kidnapped American citizens in Syria and threats
to U.S. military personnel in Iraq.
The 2001 AUMF has authorized the use of force against the
group now called ISIL since at least 2004, when bin Laden and al-Zarqawi brought
their groups together. The recent split between ISIL and current al-Qa’ida
leadership does not remove ISIL from coverage under the 2001 AUMF, because ISIL
continues to wage the conflict against the United States that it entered into
when, in 2004, it joined bin Laden’s al-Qa’ida organization in its conflict
against the United States. As AQI, ISIL had a direct relationship with bin Laden
himself and waged that conflict in allegiance to him while he was alive. ISIL
now claims that it, not al-Qa’ida’s current leadership, is the true executor of
bin Laden’s legacy. There are rifts between ISIL and parts of the network bin
Laden assembled, but some members and factions of al-Qa’ida-aligned groups have
publicly declared allegiance to ISIL. At the same time, ISIL continues to
denounce the United States as its enemy and to target U.S. citizens and
In these circumstances, the President is not divested of the
previously available authority under the 2001 AUMF to continue protecting the
country from ISIL – a group that has been subject to that AUMF for close to a
decade – simply because of disagreements between the group and al-Qa’ida’s
current leadership. A contrary interpretation of the statute would allow the
enemy – rather than the President and Congress – to control the scope of the
AUMF by splintering into rival factions while continuing to prosecute the same
conflict against the United States.
Some initially greeted with skepticism the President’s
reliance on the 2001 AUMF for authority to renew military operations against
ISIL last year. To be sure, we would be having a different conversation if ISIL
had emerged out of nowhere a year ago, having no history with bin Laden and no
more connection to current al-Qa’ida leadership than it has today, or if the
group once known as AQI had, for example, renounced terrorist violence against
the United States at some point along the way. But ISIL did not spring fully
formed from the head of Zeus a year ago, and the group certainly has never laid
down its arms in its conflict against the United States.
The name may have changed, but the group we call ISIL today
has been an enemy of the United States within the scope of the 2001 AUMF
continuously since at least 2004. A power struggle may have broken out within
bin Laden’s jihadist movement, but this same enemy of the United States
continues to plot and carry out violent attacks against us to this day. Viewed
in this light, reliance on the AUMF for counter-ISIL operations is hardly an
expansion of authority. After all, how many new terrorist groups have, by virtue
of this reading of the statute, been determined to be among the groups against
which military force may be used? The answer is zero.
The President’s authority to fight ISIL is further reinforced
by the 2002 authorization for the use of military force against Iraq (referred
to as the 2002 AUMF). That AUMF authorized the use of force to, among other
things, “defend the national security of the United States against the
continuing threat posed by Iraq.” Although the threat posed by Saddam Hussein’s
regime in Iraq was the primary focus of the 2002 AUMF, the statute, in
accordance with its express goals, has always been understood to authorize the
use of force for the related purposes of helping to establish a stable,
democratic Iraq and addressing terrorist threats emanating from Iraq. After
Saddam Hussein’s regime fell in 2003, the United States, with its coalition
partners, continued to take military action in Iraq under the 2002 AUMF to
further these purposes, including action against AQI, which then, as now, posed
a terrorist threat to the United States and its partners and undermined
stability and democracy in Iraq. Accordingly, the 2002 AUMF authorizes military
operations against ISIL in Iraq and, to the extent necessary to achieve these
purposes, in Syria.
Beyond the domestic legal authorities, our military
operations against ISIL have a firm foundation in international law, as well.
The U.S. Government remains deeply committed to abiding by our obligations under
the applicable international law governing the resort to force and the conduct
of hostilities. In Iraq, of course, the United States is operating against ISIL
at the request and with the consent of the Government of Iraq, which has sought
U.S. and coalition support in its defense of the country against ISIL. In Syria,
the United States is using force against ISIL in the collective self-defense of
Iraq and U.S. national self-defense, and it has notified the UN Security Council
that it is taking these actions in Syria consistent with Article 51 of the UN
Charter. Under international law, states may defend themselves, in accordance
with the inherent right of individual and collective self-defense, when they
face armed attacks or the imminent threat of armed attacks and the use of force
is necessary because the government of the state where the threat is located is
unwilling or unable to prevent the use of its territory for such attacks.
The inherent right of self-defense is
not restricted to threats posed by states, and over the past two
centuries states have repeatedly invoked the right of self-defense in response
to attacks by non-state actors. Iraq has been clear, including in letters it has
submitted to the UN Security Council, that it is facing a serious threat of
continuing armed attacks from ISIL coming out of safe havens in Syria, and it
has asked the United States to lead international efforts to strike ISIL sites
and strongholds in Syria in order to end the continuing armed attacks on Iraq,
to protect Iraqi citizens and ultimately enable Iraqi forces to regain control
of Iraqi borders. ISIL is a threat not only to Iraq and our partners in the
region, but also to the United States. Finally, the Syrian government has shown
that it cannot and will not confront these terrorist groups effectively itself.
Let’s turn now to my third topic: the end of the U.S. combat
mission in Afghanistan and its impact on the legal basis for the continuing use
of military force under the 2001 AUMF.
At the outset, I pause to observe, as Clemenceau put it, “It
is far easier to make war than to make peace.” That remains as true today as it
was a hundred years ago. Indeed, in an armed conflict between a state and a
terrorist organization like al Qa’ida or ISIL, it is highly unlikely that there
will ever be an agreement to end the conflict. Unlike at the close of the World
Wars, there will not be any instruments of surrender or peace treaties.
The situation is further complicated by the fact that the
U.S. Constitution says nothing directly about how wars are to be ended. The
closest it comes is the Treaty Clause, which gives the President and the Senate
the power, together, to join treaties – which were, at the time the Constitution
was written, the main way that wars were brought to an end. But, again, for a
variety of reasons, the current conflict is unlikely to end in that way.
How, then, are we to know when the armed conflict has come to
an end? The Supreme Court has not directly addressed this question, but it has
offered important guidance. In Hamdi v. Rumsfeld, the plurality interpreted the
2001 AUMF as informed by the international law of war. Citing Article 118 of the
Third Geneva Convention, it explained, “[i]t is a clearly established principle
of the law of war that detention may last no longer than active hostilities.” It
concluded, “[t]he United States may detain, for the duration of these
hostilities, individuals legitimately determined to be Taliban combatants who
engaged in an armed conflict against the United States.” Consistent with the
Court’s approach, the Obama Administration has interpreted the AUMF as informed
by these international law principles, and this interpretation has been embraced
by the federal courts. Hence, where the armed conflict remains ongoing and
active hostilities have not ceased, it is clear that congressional authorization
to detain and use military force under the 2001 AUMF continues.
Now what does this this mean for U.S. military operations in
Afghanistan after 2014? Although our presence in that country has been reduced
and our mission there is more limited, the fact is that active hostilities
continue. As a matter of international law, the United States remains in a state
of armed conflict against the Taliban, al-Qa’ida and associated forces, and the
2001 AUMF continues to stand as statutory authority to use military force.
At the end of last year, the President made clear that “our
combat mission in Afghanistan is ending, and the longest war in American history
is coming to a responsible conclusion.” As a part of this transition, we have
drawn down our forces to roughly 10,000 – the fewest U.S. forces in Afghanistan
in more than a decade. The U.S. military now has two missions in Afghanistan.
First, the United States is participating in the NATO non-combat mission of
training, advising and assisting the Afghan National Security Forces. Second,
the United States continues to engage in counterterrorism activity in
Afghanistan to target the remnants of al-Qa’ida and prevent an al-Qa’ida
resurgence or external plotting against the homeland or U.S. targets abroad.
With respect to the Taliban, U.S. forces will take appropriate measures against
Taliban members who directly threaten U.S. and coalition forces in Afghanistan,
or provide direct support to al-Qa’ida. The use of force by the U.S. military in
Afghanistan is now limited to circumstances in which using force is necessary to
execute those two missions or to protect our personnel.
At the same time, our military operations in Afghanistan
remain substantial. Indeed, the President recently announced that U.S. force
levels in Afghanistan will draw down more slowly than originally planned because
Afghanistan remains a dangerous place. It is sometimes said that the enemy gets
a vote. Taliban members continue to actively and directly threaten U.S. and
coalition forces in Afghanistan, provide direct support to al-Qa’ida, and pose a
strategic threat to the Afghan National Security Forces. In response to these
threats, U.S. forces are taking necessary and appropriate measures to keep the
United States and U.S. forces safe and assist the Afghans. In short, the enemy
has not relented, and significant armed violence continues.
The United States’ armed conflict against al-Qa’ida and
associated forces in Afghanistan and elsewhere also continues. As my predecessor
explained at the Oxford Union in 2012, there will come a time when “so many of
the leaders and operatives of al Qaeda and its affiliates have been killed or
captured, and the group is no longer able to attempt or launch a strategic
attack against the United States, such that al Qaeda as we know it, the
organization that our Congress authorized the military to pursue in 2001, has
been effectively destroyed.” Unfortunately, that day has not yet come. To be
sure, progress has been made in disrupting and degrading al-Qa’ida, particularly
its core, senior leadership in the tribal areas along the Afghanistan-Pakistan
border. But al-Qa’ida and its militant adherents – including AQAP, that most
virulent strain of al-Qa’ida in Yemen – still pose a real and profound threat to
U.S. national security – one that we cannot and will not ignore.
Because the Taliban continues to threaten U.S. and coalition
forces in Afghanistan, and because al-Qa’ida and associated forces continue to
target U.S. persons and interests actively, the United States will use military
force against them as necessary. Active hostilities will continue in Afghanistan
(and elsewhere) at least through 2015 and perhaps beyond. There is no doubt that
we remain in a state of armed conflict against the Taliban, al-Qa’ida and
associated forces as a matter of international law. And the 2001 AUMF continues
to provide the President with domestic legal authority to defend against these
Finally, we have come to my fourth topic: the future of the
legal framework governing the United States’ use of military force. I have
described for you how we arrived where we are over the course of nearly fourteen
years. The 2001 AUMF continues to provide authority for our ongoing military
operations against al-Qa’ida, ISIL and others, even though the conditions of the
fight have changed since that authorization was first enacted.
In his 2013 NDU speech, the President anticipated “engaging
Congress and the American people in efforts to refine, and ultimately repeal,
the AUMF’s mandate.” While, today, the Administration’s immediate focus is to
work with Congress on a bipartisan, ISIL-specific AUMF, the President’s position
on the 2001 statute has not changed. When transmitting to Congress his draft
AUMF against ISIL, he stated, “Although my proposed AUMF does not address the
2001 AUMF, I remain committed to working with Congress and the American people
to refine, and ultimately repeal, the 2001 AUMF,” that is, to tailor the
authorities granted by the AUMF to better fit the current fight and the strategy
going forward. Our democracy is at its best when we openly debate matters of
national security, and our nation is strongest when the President and Congress
are in agreement on the employment of military force in its defense. The
President has made clear that he stands ready to work with Congress to refine
the 2001 AUMF after enactment of an ISIL-specific AUMF.
In February of this year, President Obama submitted to
Congress draft legislation authorizing use of “the Armed Forces of the United
States as the President determines to be necessary and appropriate against ISIL
or associated persons or forces.” This raises the question: if the President
already has the authority needed to take action against ISIL, why is he seeking
a new authorization?
Most obviously and importantly, as the President has said,
the world needs to know we are united behind the effort against ISIL, and the
men and women of our military deserve our clear and unified support. Enacting
the President’s proposed AUMF will show our fighting forces, the American
people, our foreign partners and the enemy that the President and Congress are
united in their resolve to degrade and defeat ISIL.
But the value of having a new authorization expressly
directed against ISIL and associated forces of ISIL extends beyond its
expression of the political branches’ unified support for our counter-ISIL
efforts. The 2001 and 2002 AUMFs authorize the current military operations
against ISIL, but they were enacted more than a decade ago. The last 14 years
have taught us that the threats we face tomorrow will not be the same as the
threats we faced yesterday or face today. This confrontation with ISIL will not
be over quickly, and now is an appropriate time for the President, Congress, and
the American people to define the scope of the conflict and make sure we have
the appropriate authorities in place for the counter-ISIL fight.
To that end, the President has made clear that as part of the
counter-ISIL mission he will not deploy U.S. forces to engage in long-term,
large-scale ground combat operations like those our nation conducted in Iraq and
Afghanistan. With its proposed AUMF, the Administration has sought to strike a
balance, putting in place reasonable limitations that would, as the President
said at NDU, “discipline our thinking, our definition, [and] our actions,” while
continuing to provide the authority and flexibility needed to accomplish the
mission and preserve the Commander in Chief’s authority to respond to unforeseen
circumstances. And by working with Congress and the American people to come up
with appropriate authorizing legislation for the fight against ISIL, we might
also create a model to guide future efforts to refine the 2001 AUMF or otherwise
authorize the use of force against some new threat we may not yet foresee.
A central question as we look ahead is what follow-on legal
framework will provide the authorities necessary in order for our government to
meet the terrorist threat to our country, but will not greatly exceed what is
needed to meet that threat. Drawing again from the President’s NDU speech, the
answer is not legislation granting the Executive “unbound powers more suited for
traditional armed conflicts between nations.” Rather, the objective is a
framework that will support “a series of persistent, targeted efforts to
dismantle specific networks of violent extremists that threaten America.” The
challenge is to ensure that the authorities for U.S. counterterrorism operations
are both adequate and appropriately tailored to the present and foreseeable
Of course, in conducting military operations under the
authority of existing AUMFs, a new, ISIL-specific AUMF, or a follow-on framework
designed to replace the 2001 AUMF, we will remain committed to acting in
accordance with our international obligations. As I have already described, our
actions against ISIL in Iraq and Syria are justified as a matter of
international law, and our military operations are being carried out in
accordance with the law of armed conflict. This will continue to be the case
under any new domestic authorizations.
As a law partner of mine used to say, I go out the door I
came in: I would like to close with a few words about transparency in matters of
law and national security.
At the time I returned to government, in 2009, I could not
pick up a newspaper or turn on a news broadcast without seeing erroneous
references to “illegal” U.S. Government counterterrorism operations overseas.
Not fringe media, but mainstream press. Not isolated or occasional instances,
but quite routine – as if it were conventional wisdom that the United States’
use of lethal force in the armed conflict against al-Qa’ida was “unlawful.” For
me, and others in the Administration, this was deeply disturbing, and something
had to be done about it.
The something that was done about it was the series of
speeches that I mentioned at the outset of my remarks. It all began at this very
meeting in 2010, with Harold Koh’s defense of U.S. counterterrorism operations
in which he identified the international and domestic legal bases for lethal
operations, including the use of remotely piloted aircraft. And it continued
with the speeches that followed, including Eric Holder’s 2012 Northwestern
speech, again noting the domestic and international legal authorities for U.S.
counterterrorism operations and carefully explaining how citizenship does not
confer immunity on one who takes up arms against our country. Repeatedly, in
court filings as well as these speeches, we have sought to explain the legal
rationale for the actions it has taken.
One result: You no longer find, in the popular press or in
professional discourse, the same routine references to the U.S. Government’s
counterterrorism operations as being “illegal.” Not that the Administration has
persuaded everyone or will ever satisfy all of its critics. But the lawfulness
of our government’s efforts to counter foreign terrorist threats is now better
understood, and more widely accepted, at home and abroad.
Transparency to the extent possible in matters of law and
national security is sound policy and just plain good government. As noted
earlier, it strengthens our democracy and promotes accountability. Moreover,
from the perspective of a government lawyer, transparency, including clarity in
articulating the legal bases for U.S. military operations, is essential to
ensure the lawfulness of our government’s actions and to explain the legal
framework on which we rely to the American public and our partners abroad.
Finally, I firmly believe transparency is important to help inoculate, against
legal exposure or misguided recriminations, the fine men and women the
government puts at risk in order to defend our country. We agency counsel all
serve the same client, the United States of America, and each of us answers to
the head of our respective agencies. But our highest calling, in my personal
view, is to serve those who serve us.
Ladies and gentlemen: If my remarks this afternoon, like the
speeches in past years, go any distance towards furthering public understanding
and protecting those in uniform who are protecting us, I will have done what I
set out to do. I thank you for listening. And I want to thank for your continued
support of the men and women serving us in the United States Armed Forces.