Repeal and Restore

How President Obama can end the war on terror, once and for all.

Does anyone remember the speech in which President Barack Obama promised to end the war on terror? Let me remind you: Speaking last May at the National Defense University (NDU), the president noted that, with "the core of al Qaeda... on the path to defeat" and most of its affiliates "focused on operating in the countries and regions where they are based," the scale of the threat the United States now faces "closely resembles the types of attacks we faced before 9/11." The president was inviting a national discussion on whether, how, and when to declare the war over.

But it never happened. So let's have that discussion now.

If there's a passage in the NDU speech that people do seem to remember, it was the president's spirited defense of the use of drones. Fewer of us recollect that the president also announced that he had signed a "Presidential Policy Guidance," which stipulated that, henceforth, the United States would use lethal force outside war zones only against a "senior operational leader" of al Qaeda or an affiliate who "poses a continuing, imminent threat to U.S. persons," and only under conditions of "near-certainty" that the target was present and "non-combatants will not be injured or killed." 

While the details of drone strikes remain shrouded in mystery, the administration has almost certainly failed in some cases to satisfy those stringent standards announced in the speech. Nevertheless, the president was making a down payment on his promise to put an end to the post-9/11 policies he had inherited. He also promised to finally close the detention facility in Guantánamo Bay and to use diplomacy and aid to address "the underlying grievances and conflicts that feed extremism."

In every supremely lawyered syllable, Obama was saying: It's not a war anymore. If you look very closely at the guidance on the use of lethal force, Obama was agreeing to bind himself to the rules governing behavior in non-battlefield settings, including the requirement of an imminent threat and the high threshold for the avoidance of civilian casualties. The same holds true for Guantánamo, since international law prohibits indefinite detention save during hostilities.

If the United States is no longer at war, the president doesn't need extraordinary war powers. Congress granted those powers on Sept. 14, 2001, in the form of the Authorization for Use of Military Force (AUMF), which permits the president to "use all necessary and appropriate force" against the organizations which carried out the attacks of 9/11. The AUMF is the heart of the legal structure of the war on terror. Repealing the statute, more than any single act, would mark the end of that war. In his speech, Obama called on Congress to "refine, and ultimately repeal" the act. Yet he has said virtually nothing on the subject since then.

The president has also never identified the moment when he believes he could do without those powers. How about at the end of this year? That's when all combat troops will have withdrawn from Afghanistan, thus ending the actual "war" of the war on terror. What's more, in his most recent State of the Union speech, Obama said that Guantánamo should close by the end of this year (though that will prove much harder to do).

Harold Koh, the former State Department legal counsel, told me that he favors a repeal of the AUMF in the near term, preferably by the end of 2014. Last summer, Rep. Adam Schiff offered a resolution to do just that. It lost, but garnered 180 votes. Schiff told me that he will re-introduce the measure this spring.

The AUMF has a reciprocal relationship to the measures it authorizes. If you're not at war, you don't need it. And if you don't have it, you can't engage in war-like acts such as the indefinite detention of belligerents. One very good reason to repeal the AUMF is to make it absolutely clear that the United States does not wish to have that authority. There is, for example, no further justification for indefinite detention. No new inmate has arrived at Gitmo since 2008, and when the United States withdraws combats troops from Afghanistan, it will no longer be encountering adversaries to be detained.

If Congress repealed the AUMF, the president would still be able to rely on the powers enumerated in Article II of the Constitution to defend America from attack. Both Harold Koh and Matthew Waxman, a former Bush administration legal official, agree that this would include the authority to use drones -- or special forces -- for targeted missions, so long as they abide by the more stringent terms of the president's 2013 guidance on the use of lethal force. (The president would probably still be able under certain circumstances to order the killing of an American citizen, as he is now reportedly considering.) Nevertheless, a president without war powers would probably shy away from the outer limits of his constitutional prerogatives, looking instead to the other instruments at his disposal to deal with terrorism.

The AUMF is, in any case, very nearly obsolete. In Yemen, Somalia, and across North Africa, the United States is no longer fighting al Qaeda but its affiliates. The Supreme Court has ruled that the AUMF covers "associates" of al Qaeda, but demarcating this category has become an increasingly Jesuitical exercise. Especially after the war ends in Afghanistan, courts are going to be skeptical about the invocation of war powers against tenuously linked associates of al Qaeda. For this reason, Waxman and three colleagues have argued for updating the AUMF rather than repealing it, setting out clear criteria for the use of force and compiling a list of terrorist adversaries.

That's a sensible response if you think the most important objective is to preserve the president's freedom of action against terrorist groups. But I would say the most important objective is to restore America to itself. That doesn't simply mean forswearing war powers Americans were quick to grant after 9/11. It also means ending the reign of fear that inevitably emerged after the terrorist attacks. Americans still live inside their fear -- or at least their elected representatives behave as if they do. Think of the insane overreaction to the prospect of holding the trials of major figures like Khalid Sheikh Mohammed in civilian courts in the United States, or of transferring such figures to American prisons; or of the convulsive police reaction to the Tsarnaev brothers' bombing, which paralyzed metropolitan Boston; or of the pervasive military presence in so many public spaces. This is a national pathology that must be overcome -- especially before some new terrorist slips through the net and launches a successful strike on U.S. territory.

Obama will have excellent political reasons for putting off the repeal of the AUMF. The Republicans will rain down demagoguery from the skies -- especially should a new terror attack occur. And sure, Obama could "refine" the law rather than repeal it, even if a new statute would be very hard to design. He could also ask Congress to pass a new AUMF that must be annually renewed, which, as Koh suggests, would have the added virtue of forcing Congress to become a partner in the legal response to terrorism.

But Obama can afford to take political risks -- he isn't running for re-election. And, as Schiff points out, thanks to the national war exhaustion, Republicans are far more receptive to dialing down the counter-terror volume than they were only a few years ago.

Most fundamentally, however, no half-measure will convey the message that Obama plainly wants to transmit: We are no longer at war with terrorists.

It is increasingly clear that this president is pursuing a subtractive foreign policy. He ended torture. He removed American troops from Iraq; he is removing them from Afghanistan. All this is necessary, but it is still not the legacy he imagined for himself, or that his supporters hoped for. It is now within his power to end the war on terror. And that is something the American people will thank him for.

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Her Own Worst Enemy

Yulia Tymoshenko is out of prison, but the heroine of the Orange Revolution may not be the leader Ukraine wants.

In 2009, as her premiership was unraveling, everyone seemed to be conspiring against Yulia Tymoshenko -- even TV technicians. Just before a live broadcast, Tymoshenko was caught off-camera complaining, "It's all collapsed!" Whether she was referring to the teleprompter problems or Ukrainian politics more generally isn't clear, but that cryptic remark quickly became a national metaphor for Tymoshenko's career: Within a few short years, everything did indeed collapse. After losing the 2010 presidential election, the one-time prime minister and populist heroine ended up in prison.

Now, Tymoshenko is a free woman, but Ukraine is a completely different country than when she lost power in 2010. A leader of the 2004 Orange Revolution, Tymoshenko watched as that pro-democracy movement fizzled under the weight of its feuding leaders. Today, Ukraine has a real revolution on its hands, and Tymoshenko has won her freedom just in time to hop on the bandwagon.

But how will the irresistible force that was "Yulia" -- not unlike Hillary Clinton, her ubiquity on the national stage is such that she is often referred to by just her first name -- relate to the irresistible, grassroots force that has just brought down the old regime? Before her failed presidential bid in 2010, it was often said that Tymoshenko was the only real man in Ukrainian politics. And to do battle with President Viktor Yanukovych -- which she did -- it was necessary to fight fire with fire. But Yanukovych is gone now, and the new leadership faces a different set of tasks. Can Tymoshenko reinvent herself and eventually lead the revolutionaries on Kiev's main square, the Maidan?

Over the last week, Ukraine's protest movement has achieved a lightning revolution against a corrupt government and the networks and norms it supported, perhaps best described by the Russian word sistema. Ukraine is now attempting to make the decisive kind of break with the country's Soviet past that the Baltic states made after 1991. Even for the Baltic states, this wasn't easy, and Ukraine's protesters ought to learn from their experience: It is crucially important that the first generation of new leaders not relapse into the old rules of the country's post-Soviet political game.

This time, the new regime must begin in truth. The president, in particular, must be a truth-teller and symbolize a new start for all Ukrainians. She or he will need to reunite the country, to leave the hard work of economic reform, lustration, and justice to the government, and to explain clearly -- and convincingly -- just how bad the old regime was.

Tymoshenko, who is widely expected to seek the presidency, has some of the necessary qualities for the role. She is from Ukraine's Russophile east. She speaks Ukrainian and Russian equally well (though she has occasionally insisted on Ukrainian to annoy Russian officials), whereas Yanukovych spoke them both equally badly. And she has posed as a unifying figure before: Like a vision from the country's peasant past, she donned Ukrainian folk clothing and appeared on the Maidan in 2004 as something of a mother of the nation.

But she has also been deeply divisive, earning a murky reputation in both business and government. After accumulating massive wealth as an energy executive during Ukraine's post-Soviet, robber-baron era, Tymoshenko's first stint in politics came in 2000 as a poacher-turned-gatekeeper. As the overseer of the country's gas sector, she used her knowledge of all the schemes and scams in the industry to close some of them down, but also drew allegations of corruption. The legacy of her tumultuous political career could also prove problematic to Tymoshenko's leadership prospects. Indeed, her myriad qualities -- insider, outsider, and political bulldozer all at once -- served her less well once she ascended to elected office than they did during the Orange Revolution. Now, they could be her undoing once more.

Tymoshenko has not always inspired confidence among Ukrainian voters. Together with then-opposition leader Viktor Yushchenko, she led the forces of the Orange Revolution to victory in 2004, succeeding in overturning the results of that year's fraudulent presidential election. But within a few years, the two had become bitter enemies. As prime minister in 2005 and again from 2007 to 2010, Tymoshenko quarreled incessantly with Yushchenko, to the point that they essentially paralyzed the policymaking process. By 2009, theirs had become the world's most unpopular government, with an approval rating of a mere 4 percent. Both lost the 2010 election -- to Yanukovych, the man they had ousted in 2004 -- because too many of their own, understandably disenchanted voters stayed at home. Yanukovych had few enthusiastic supporters, but he kept the votes he won in 2004 and thus won the presidency more or less by default.

Today, Ukraine's most pressing problems are economic, and economics was not exactly Tymoshenko's strong point during her time as prime minister. In 2005, she jumped from one populist measure to another, controlling meat and gas prices and causing shortages of both. And using the political capital they had accumulated during the Orange Revolution to quickly dismantle the system they had inherited, Tymoshenko and her allies constantly maneuvered for personal advantage when they should have been leading the country. (To be sure, though her record on economics is checkered, Tymoshenko's global renown would likely help raise the international financial support Ukraine desperately needs.)

By 2007, the start of Tymoshenko's second stint as prime minister, Ukraine was hit by the hurricane of a global recession and a self-induced asset bubble. The Ukrainian economy contracted by a massive 15 percent and unemployment increased to over 10 percent, and Tymoshenko's incumbency amid this mess was a key reason she lost the 2010 election to Yanukovych. But governments in the Baltic states and elsewhere have proved that re-election in an economic crisis is in fact possible, even after taking tough measures to stanch the bleeding -- so long as incumbents offer a clear way out. Tymoshenko, by contrast, was all tunnel and no light. Now, her loss to Yanukovych in elections that were widely described as free and fair looms over her political prospects like a dark shadow.

On the other hand, though not commensurate with the loss of life on the Maidan, Tymoshenko is a victim of the Yanukovych regime -- a fact that, in theory, could earn her political support. Knowing how tough Tymoshenko could be, Yanukovych began gunning for Tymoshenko and leading members of her party after he was elected in 2010. More than 20 people ended up the victims of "selective prosecution." In October 2011, Tymoshenko received a seven-year sentence for "abuse of office." She is said to have been mistreated while in prison and denied painkillers for her severe back problems.

And yet, despite her mistreatment at the hands of the regime, many Ukrainians still regard Tymoshenko as part of the old system, the sistema. Her idea of politics was to use the sistema to her advantage -- parties, oligarchs, banks, and the media were all pawns in her bigger game of power. Winning was all, the ends mostly trumping the means. She even briefly contemplated a coalition deal with Yanukovych in 2009.

During the 1990s, Tymoshenko made huge sums of money by exploiting her country's gas business. And while she didn't rob her country blind during her time in office as Yanukovych did, there are more serious questions for Tymoshenko to answer than the trumped-up charges that landed her in prison 2011, including ones surrounding allegations of bribery and selective banking bailouts during the financial crisis.

Her relationship with Russia, and with Putin in particular, is also a question mark. In January 2009, she inked a notorious gas deal with Russia that removed the equally notorious company Rosukrenergo from the transit trade, a scam in which Gazprom managers and Ukrainian oligarchs were paid hundreds of millions of dollars simply for overseeing the transit of gas. That deal also helped fill the coffers of a beleaguered Gazprom. Tymoshenko signed for a high price and a "take-or-pay" clause that committed Ukraine to paying cash penalties to Gazprom if its gas import volumes dropped. Until the last minute, Russia was happy to back Tymoshnenko for financial reasons, just as it backed Yanukovych for political reasons.

There is a lot of baggage in her relationship with Russia, to put it mildly.

If Tymoshenko wishes to return to the highest echelons of Ukraine's government, current domestic politics will pose a problem as well. At the time of this writing, the new government appears to be skewed toward Tymoshenko's Fatherland Party, including likely Prime Minster Arseniy Yatseniuk. Acting President Oleksandr Turchynov is also a long-time associate. But Fatherland is only one of three former opposition parties in parliament, and it is the most centrist. As a result, it is furthest from the various groups on the Maidan, such as Self-Defense, the core of the protesters' front line, and the more nationalist Right Sector.

The disconnect between those in parliament and the protesters on the Maidan emerged before the bloodshed began in earnest in February. Without fully consulting protest leaders, every "agreement" between Yanukovych's government and the parliamentary opposition failed to stick. In fact, it was because they had been insufficiently consulted about a weekend peace deal that many of the protesters marched toward parliament on Feb. 18, sparking the chain of violence that culminated in the coup. Now, the blood sacrifice on the Maidan only adds to protest leaders' authority -- and the election of a president from among their ranks would give them the legitimacy that Russia openly argues they do not have.

Even Tymoshenko must defer to the Maidan's leaders at this point. It's clear, too, that she does not enjoy full-throated support from Ukraine's revolutionaries. One leading journalist has asked her to stay out of politics, and she was stopped and aggressively questioned by Maidan supporters at Kiev's airport on Monday.

Indeed, if she runs, Tymoshenko will face an uphill battle to gain votes and best formidable opponents. The boxer Vitali Klitschko, who has announced he will seek the office, led the opposition ranks -- including Tymoshenko -- in opinion polls taken before the uprising. Andriy Parubiy, the leader of Self-Defense who has been brought into the new government, could also stand. Complicating matters is Ukraine's famously divided electoral geography, which hasn't changed overnight. If Yanukovych's Party of Regions can get its act together and select a candidate who is not too obviously pro-Russian or too tarred with the crimes of the old regime, then the votes are still there in eastern and southern Ukraine.

In short, with many candidates competing for the country's leadership, and without the benefit of a primary system to weed their number down, the stage could be set for yet another potentially disappointing finish for Tymoshenko at the polls.

Tymoshenko has had plenty of thinking time in prison. When she addressed the Maidan from a wheelchair on Saturday, everybody welcomed her release, but not everyone welcomed her rushing straight there to implicitly claim credit for Ukraine's revolution. At the same time, the media published unflattering reports that her daughter had been partying in Rome three days earlier to celebrate her birthday -- while protesters were being killed on the Maidan.

If Tymoshenko expected to be anointed upon her return, she must be sorely disappointed.

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