Stuart Malawer at the White House (Jan. 2013)

       Two very interesting legal developments seem to have been lost in passage and signing of the legislation avoiding the financial cliff, “The American Tax Payers Relief Act of 2012.”  

    Almost immediately after signing the fiscal cliff measure President Obama signed the National Defense Authorization Act of 2013. Among its numerous provisions it includes two critical ones.

    One, allowing the export of communications satellites as commercial rather than as an export-controlled munitions. Two,  imposing additional restrictions on transferring detainees from Guantanamo and Afghanistan in which President Obama attached a signing statement declaring that he has constitutional authority to override them.

     These two actions indicate a more aggressive post-election policy by the president in promoting two of his goals — global trade and national security.

     In particular, these goals have long been stated — reform of export control legislation and closing Gitmo.

     Underlying these two actions is the general presidential concern for national security issues. The first, to promote greater exports by defense contractors as a means of lessening the impact of defense budget reductions. Second, reasserting the traditional observance of the rule of law in the war against terrorism.

     While some hardliners may object to making communications satellites more readily available in the global marketplace and perhaps reverting back to the federal courts and prisons to deal with detainees from overseas hotspots, it is clear that President Obama is carefully weighting and calibrating national security concerns along with commercial and constitutional interests as we enter the new landscape of this decade. “Communication Satellites and Export Controls.” New York Times (January 4, 2013).

     It is now more than twenty years since the Cold War ended and over ten years since 9/11. Global competitiveness and individual rights under the Constitution are making a comeback, somewhat. Keep in mind the participation of the U.S. in wars of the last decade helped drive U.S. competitiveness into the ground. (The defense budget doubled in real terms from 1998 – 2010 and the U.S. spends more on defense than the next 10 countries combined.)

     To me it is time to adjust our wartime policies to a new global era where low-grade conflicts are likely to go on for years and where there are new players and new realities in the global marketplace. Global competitiveness of U.S. firms is essential to meet the domestic and foreign policy objectives of the United States. Observing the constitutional rights of all individuals under U.S. authority or control is also a good start. 

    Promoting exports and playing by the rules are hallmarks of the Obama presidency.  Hopefully, this is just the beginning of a more assertive presidential administration in upholding U.S. values and U.S. competitiveness in the construct of viable U.S. national security interests. This could be a part of the real legacy of the Obama years.