Matthew Waxman

Matthew Waxman

Matthew Waxman is a professor of law at Columbia Law School and an adjunct senior fellow at the Council on Foreign Relations. He previously served as principal deputy director of policy planning (2005–7) and acting director of policy planning (2007) at the US Department of State. He also served as deputy assistant secretary of defense for detainee affairs (2004–5), director for contingency planning and international justice at the National Security Council (2002–3), and special assistant to National Security Adviser Condoleezza Rice (2001–2). He is a graduate of Yale College and Yale Law School. He served as law clerk to Supreme Court justice David H. Souter and US Court of Appeals judge Joel M. Flaum. His publications include The Dynamics of Coercion: American Foreign Policy and the Limits of Military Might (Cambridge University Press, 2002).


The government often does a poor job of defending its most secret intelligence programs when they become public through leaks.  There are some obvious and largely structural reasons for this, including that the agencies conducting the programs are not designed for public relations and that defending intelligence programs may require disclosing even more sensitive information than has been leaked.  The government also, however, tends to fall into some traps that may be avoidable, and an advantage of robust external oversight may be to help ensure that internal justifications will — if necessary — be persuasive to the public.

The most recent example of the government’s difficulty in publicly defending leaked intelligence programs is the telephony metadata program run by the National Security Agency, and disclosed in documents released by its former employee Edward Snowden to the media.  To some extent the government seemed to cripple itself for political reasons in mounting an aggressive defense in this case: the Obama White House took the position that this and other surveillance programs should be re-examined and it held senior officials back from some efforts at public debate.

Many of the problems the government experienced in defending this and related surveillance programs are not unique, though.  They resembled those that arose during other recent disclosures in which the government launched an aggressive and unapologetic public relations campaign, such as in the case of the Bush administration’s enhanced interrogation program.

That the government, and especially the most secretive intelligence agencies, would be poorly suited and practiced to defend sensitive intelligence programs is unsurprising for several reasons.  First, intelligence agencies are culturally oriented toward secrecy and caginess, not toward working with the media and other public outlets. Second, mounting a public defense usually requires officially declassifying some program details or clearing sensitive information for public release.  Not only are these processes cumbersome — usually too slow for media cycles, and certainly much slower than the capacities of skeptics or opponents to launch critiques and allegations — but they have a watering-down effect that results in very general statements with scant detail to back them up.

When they do reach out publicly on intelligence issues, government officials  usually think they are being much more transparent than they are, or than it seems to those on the receiving end of information.  The result is that outreach efforts can backfire: journalists or advocacy group members invited for briefings can leave frustrated and led-on, rather than engaged.

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Obama’s Guantanamo Legacy


Even if President Obama successfully closes Guantanamo, ironically he may leave behind for future presidents a stronger and more reliable law-of-war detention tool for terrorist enemies than he inherited.  If the United States finds itself in another war (technically, an “armed conflict”) with a terrorist group, the president will likely have very dependable and well-tested military detention powers in his arsenal, in part thanks to some of the Obama administration’s efforts.

Closing Guantanamo only makes sense in the context of a broader detention policy that is legally, politically, diplomatically, and strategically sustainable.  More important than the location of detention is the legal and administrative process of detention.

For many participants in the debate, therefore, “Guantanamo” is shorthand for a broader set of policies.  “Closing Guantanamo,” to many advocates, means ending detention-without-trial.  “Keeping Guantanamo open,” to many of its proponents, means continuing to use law-of-war authority to hold captured enemy fighters until the end of hostilities, even if that detention occurs at other sites, and to some it means using military rather than civilian trials to prosecute war crimes.

President Obama has charted an ambiguous middle path between these views.  On the one hand, he calls Guantanamo a stain on America’s reputation and anathema to our values.  On the other hand, he has implied that his pathway to closing it will include at least some continued detention of al Qaeda leaders and fighters who are not prosecutable yet are too dangerous to release, and his administration has staunchly defended its law-of-war detention powers.  In some respects, the surprising result of this incongruous path is that law-of-war detention is now a stronger counterterrorism tool under Obama’s leadership than it was under Bush’s.

First, the Obama administration has helped to bolster mainstream moderate political support for some long-term law-of-war detention.  Statements like the president’s 2009 Archives speech regarding the likely need to detain long-term without trial some dangerous Guantanamo detainees gave political credibility to a position that many of the political left (and some of the libertarian right) had been reluctant to acknowledge.  Additional legitimacy of at least some detention of enemy terrorists outside the criminal justice system has come from the Obama administration’s improving periodic review processes and emphasizing their fairness and accuracy; its commitment to detention consistent with the laws of war and prohibitions on torture; and Guantanamo skeptics’ increasing awareness that the alternative to detention in some cases may be lethal force or proxy detention by others.

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The last four years should have been a good period for executive-congressional relations in the areas of national security and foreign affairs.  The president, vice president, and secretary of state were former Senators.  They all viewed President George W. Bush as too inclined to bypass or ignore Congress and they promised to do better.  And the Obama administration started with Democratic majorities in the House and Senate.

It is thus surprising that the past four years have been notable for inter-branch clashes and paralysis on some major national security agenda items, with the administration failing to engage Congress or operating in a slowly reactive mode, while many congressional Republicans remain in an obstructionist mode.  In the second term, the Obama administration will need to pick its legislative priorities more deliberately, engage with allies and opponents in Congress more actively, and be willing to negotiate compromises or wage aggressive campaigns on key issues.

Congress has repeatedly stifled the president’s signature counterterrorism promise to close the Guantanamo Bay detention facility.  Congress’s opposition has been more than political.  Beginning with legislation in 2010 when Democrats controlled both houses of Congress, Congress has consistently placed legal barriers on the president’s ability to transfer Guantanamo detainees or to try them in civilian courts in the United States. After hinting in his speech at the National Archives in 2009 that he would work with Congress on these issues, Obama has put forward no proposal of his own, nor has his administration been willing to explore possible compromises on long-term Guantanamo policies, instead playing defense against moves by congressional blocs with their own Guantanamo agendas.  That defensive strategy has included a series of veto threats, which were always abandoned in the end and now carry little credibility.

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