The Obama Administration’s Addresses on National Security Law

A new book by Kenneth Anderson and Benjamin Wittes analyzes the Obama administration’s positions on national security law and how they have been disclosed through public speeches and address by administration officials.

• Speaking the Law: The Obama Administration’s Addresses on National Security Law, by Kenneth Anderson and Benjamin Wittes Stanford: Hoover Institution Press, 2015.

Publisher’s Description:

The authors offer a detailed examination of the speeches of the Obama administration on national security legal issues. Viewed together her for the first time, they lay out a broad array of legal and policy positions regarding a large number of principles currently contested at both the domestic and international level. The book describes what the Obama administration has said about the legal framework in which it is operating with respect to such questions as the nature of the war on terrorism, the use of drones and targeted killings, detention, trial by military commission and federal courts, and interrogation. The authors analyze this framework, examining the stresses on it and asking where the administration got matters right and where it went wrong. They conclude with suggestions for reforms to the framework for the administration and Congress to consider.

A review of the book:

• The Rhetorical Presidency Meets the Drone Presidency, By David Pozen, The New Rambler (September 30, 2015).

Sixteen speeches

One interesting aspect of the book is that the authors identify and reproduce (in a 235-page appendix) sixteen speeches by high-level officials as “canonical” articulations of the administration’s views. For government information librarians, the book provides a handy copy of these major documents and a companion to these and other official documents, putting them in context with each other and with other policies and historical events.

I find it particularly interesting (but not surprising) that these documents are not in one place within the government web. Indeed, some (as far as I could tell with a few quick searches) are not available on any government web site. This demonstrates three limitations that libraries face when they rely on pointing instead of collecting.

First, GPO will not get all of these documents because GPO is limited by Title 44, agency regulations, and court decisions as to what it can select. Libraries do not have these same limitations. A library that supports a Community interested in foreign relations could easily create an authentic, permanent digital collection of these documents and others that meet the needs of that Community. Libraries can do what GPO cannot: they can select and acquire documents from many sources and build a collection that meets the needs of its Communities.

Second, the provenance-organization of the .gov domain provides only one context to documents: the context of the documents’ origins. The book reminds us how other contexts can be more useful for discovery and for understanding. Libraries that collect born-digital government documents can select and organized (catalog) documents in ways that are useful to their own Designated Communities.

Third, since there is no guarantee that any agency or private organization will preserve documents on the web, many of these documents may either disappear or be difficult to find or be difficult to authenticate after the end of the Obama administration. Libraries can select, acquire, authenticate, and preserve born digital documents that their Communities will need, not just today, but in 18 months, and 18 years.

Examples

Here are a few of the documents reproduced in the book and where I found them on the web.

Some of these documents are on the web on government web sites and will presumably appear in the Public Papers of the President.

• President Barack Obama, Remarks by the President on National Security. the National Archives, Washington, D.C, May 21, 2009.

• President Barack Obama, A Just and Lasting Peace, the 2009 Nobel Peace Prize Lecture, Oslo, Norway, December 10,2009.

• President Barack Obama, “Remarks by the President at the National Defense University (on US counterterrorism strategy),” Fort McNair, Washington, D.C, May 23, 2013.

Others are available from agency web sites and some of these may appear in other forms (such as transcripts of Congressional Hearings). There is no guarantee that these will always be available on the agency web sites:

• Letter from Eric H. Holder, Jr., Attorney General, to Sen. Patrick J. Leahy, Chairman, Senate Judiciary Committee, May 22, 2013 (Re.: Drone Warfare and US Citizens).

• Harold H. Koh, legal adviser to the Department of State, address to the American Society of International Law, “The Obama Administration and International Law,” March 25, 2010.

• David Kris, assistant attorney general for national security, "Law Enforcement as a Counterterrorism Tool,’ address at the Brookings Institution, June 1 It 2010.

• Stephen W. Preston, general counsel, Central Intelligence Agency, CIA and the Rule of Law, address at Harvard Law School, April 10,2012.

Some may not appear on any official government web site:

• Jeh C. Johnson, general counsel, Department of Defense, Jeh C. Johnson Speech to the Heritage Foundation. Washington, D.C., October 18, 2011. Video: http://www.c-span.org/video/?302150–1/us-terrorist-suspect-detention-policy

• John O. Brennan, assistant to the president for homeland security and counterterrorism, “US Policy toward Yemen,” Council on Foreign Relations, New York City. August 8, 2012.

Conclusion

We are lucky to have this new book, Speaking the Law, and its appendix that selects and organizes and provides context for 16 important government documents. But when the born-digital output of the federal government every couple of months is equivalent in quantity to what FDLP has collected in its first 200 years, it is a tiny, tiny drop in a very, very large bucket. Libraries should be selecting and acquiring and organizing and preserving important government information. To do less is to neglect their responsibility and ignore the needs of their communities.

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