The Morally Degenerate Sociopath’s Defense of Counter-Terrorism….

Fellow League blogger Ethan’s post about the Obama foreign policy dredges up perhaps the biggest tension point regarding Obama’s foreign policy: Counter-Terrorism policy.

Somewhat coincidentally Administration Counter-Terrorism Adviser John Brennan gave a speech on Monday further clarifying the Administration’s CT policy.

As noted by Bush Administration legal adviser Jack Goldsmith, this comes as an additional follow up to an existing literature of legal justifications for the Administration’s broad targeting of Al Qaeda operatives. (For those that are inclined, Kenneth Anderson has a handy list of these explanations, speeches and rationales.)

The League’s dear readers may know that in my actual life (rather than my dashing online incarnation) “Lawfare” and national security issues are one of my main areas of study. And today I mean to examine the Obama Administration’s counter-terrorism policy, with an emphasis on targeted killings and justify why I count myself as a supporter. Read on if ye dare (I can’t promise that this will be entirely self-consistent)…

Let’s start with the basics. I’m not a liberal of the non-interventionist stripe. While I have a general aversion to wars of choice and poorly conducted conflicts, I don’t have a problem with use of force in and of itself. I’m thoroughly convinced that there are justifiable grounds for humanitarian intervention and that there is a certain truth to the evolving norms of Responsibility to Protect. I’m also a battered but committed believer of international institutions, norms and law.

From this basis, I believe the current Administration’s counter-terrorism policies, while not perfect are a damn sight nearer to it than the available alternatives. In a perfect world, there would be no need for counter-terrorism policies. There would not be a need for an armed forces at all. Al Qaeda wouldn’t exist. Bin Laden would have spent his time at a Swiss Chalieu giving salon lectures about the evils of western encroachment. Something other than what happened in reality.

There is a legitimate argument to be made on the scale of the threat posed by transnational terrorist organizations. They certainly do not present the existential threat that had the Neoconservatives looking for the next “Evil Empire” slavering at the mouth. Yet on an operational level Al Qaeda and its affiliate organizations present a non-trivial threat to citizens of the United States. While the 9/11 attacks were the most spectacular example (and their scale was unprecedented then or hence), the 1998 Embassy Bombings, the 1993 WTC bombing, and a host of smaller attacks abroad show that they have some capability of inflicting casualties in a sustained campaign against the US.

On the broader question – should terrorism be treated as a military or a law enforcement question, I come down upon a mix. Law enforcement should be the preferred method of dealing with most terrorists. The rush to construct a military alternative to law enforcement efforts in the early years after 9/11 gave us the extremely unpalatable creation of Guantanamo Bay and separate military commissions. On the other hand, the reach of civilian authority and even the military can be limited. There are locations that are outside the reach of standard capture operations, and Al Qaeda at least has a clear policy of basing itself within those locales. The Af-Pak border is one such location, the lawless parts of Yemen are another.

There are several alternatives to tackling this issue. One of course is to simply invade and occupy those locations and place them under the control of US authority. To say that this hasn’t worked understates the epic degree of failure in the US wars of Afghanistan and Iraq. Both wars sought to conduct wars of liberation followed by wars of occupation, nation building and institution building to extend US rule of law into foreign soil. Not only did those initial efforts fail to capture Al Qaeda’s top leadership (Bin Laden and Zawahiri, specifically), but they also were extraordinarily costly in terms of blood and treasure. The collateral damage from the invasion of Iraq is still under dispute, but even the low end estimates put the casualties in the six figures.

Another alternative is to do nothing at all. Perhaps this is a valid alternative. The amount of harm done from active intervention can be large enough that if the principle being undertaken by the state taking action is one of minimization of harm, then morally this must be the case. But is that actually the moral principle underlying state action? The principle and greatest reason for a state’s existence is the protection of the lives of its citizens. Under those circumstances, within rules of proportionality, actions that are taken that could have adverse consequences on its own citizens in favor of another state’s citizens are of questionable legitimacy.

Finally there is the option of limited footprint operations aimed at capture or killing specific members of the organization in question. This can be in the form of special operations forces under the command of JSOC or the use of aerial drones or cruise missiles. The evolution of drone warfare technology over the past decade has made cruise missile strikes redundant for targeted killing of terrorist operatives, while also substantially decreasing the cost of conducting such an operation. A hellfire missile fired from a predator costs substantially less than a tomahawk cruise missile.

Now, it’s clear that after trying Option 1. the US government (not simply this Administration but the government as a whole, consisting of the whole shooting match of institutions and organizations) has decided that it will pursue Option 3. Counter-terrorism policy has shifted from large scale “war” to a more contained series of covert actions.

This question being answered, the question of methods and rationales becomes of principle importance. It’s under the methods and rationales that I believe the Obama Administration has been superior to the Bush Administration in my view.

First, the Obama Administration has employed a strong cadre of international law experts, foremost among them Harold Koh, to steward and rationalize the actions of the US government in accordance with accepted international law.

The Obama Administration has used international law to inform the scope of its detention authority and as a result has substantially curtailed the use of detention as a method of combating terrorism. While it has not managed to close the detention facility at Guantanamo, it has functionally limited detention to in theater detention and has actively worked to streamline and minimize how it deals with suspected terrorists.

This is connected to the use of international norms regarding the laws of conflict. To wit the Administration’s standards on whether or not it will take action have been defined by Koh as follows:

Of course, whether a particular individual will be targeted in a particular location will depend upon considerations specific to each case, including those related to the imminence of the threat, the sovereignty of the other states involved, and the willingness and ability of those states to suppress the threat the target poses. In particular, this Administration has carefully reviewed the rules governing targeting operations to ensure that these operations are conducted consistently with law of war principles, including:

• First, the principle of distinction, which requires that attacks be limited to military objectives and that civilians or civilian objects shall not be the object of the attack; and
• Second, the principle of proportionality, which prohibits attacks that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, that would be excessive in relation to the concrete and direct military advantage anticipated.

In U.S. operations against al-Qaeda and its associated forces– including lethal operations conducted with the use of unmanned aerial vehicles– great care is taken to adhere to these principles in both planning and execution, to ensure that only legitimate objectives are targeted and that collateral damage is kept to a minimum.

Brennan’s speech yesterday highlighted that in addition to proportionality and distinction, the US is also constrained by sovereignty. In practice this means that the US is required to obtain host country authorization to conduct its drone strikes. This was described by Brennan as establishing a norm of permissible behavior and to create reciprocity in an emerging field of national security law. Essentially the argument by the Administration is that in setting out these limitations, it will create a framework that will constrain other actors in the use of drones in the future.

Finally along the lines of international law justification, the Obama Administration appears to be using human rights law principles as regard to the standards for targeting. As noted by John Bellinger:

Although human rights law may not apply as a binding legal matter, the Administration appears to be applying certain human rights laws principles to inform its targeting. I agree with this approach. It is not targeting EVERY al Qaida member. Instead, it is only targeting those that pose a “significant threat.” Note, however, that the Administration is not limiting itself to targeting those who pose an “imminent” threat. “Significant threat” is clearly a lower threshold, and human rights groups will not be comfortable with it. Moreover, some of the examples that Brennan gives — e.g. an “individual with unique operational skills that are being leveraged in a planned attack” — are not likely to be viewed by human rights groups as fitting within the traditional concept of “imminence.”

Further, unlike the Bush Administration which relied upon a rhetoric of inherent powers granted to the Executive Branch by the Constitution, the Obama Administration’s rationale for its counter-terrorism policies has been rooted in a single document: The 2001 Authorization for Use of Military Force. This is a substantial concession on part of the Administration.

The Administration is therefore constrained in its use of force against Al Qaeda and affiliated organizations and within the context of the September 11th attacks. By creating a sound legal framework under which the government operates, it can in the long run make it more difficult for these powers to be asserted simply as a matter of Executive Branch privilege.

In short what appears to be a “consensus” or “normalization” of Bush Administration practices is nothing of the sort. The legal authority and body of work constructed by the Obama Administration actually argues for the impermanence of targeted strike authority. What this will mean in practice is unclear. There is every likelihood that drones will become what cruise missiles were in the 90s: A cheap method of intervention that allows some show of force without risking US lives.

What is perhaps most significant about this framework, is that it minimizes the role of detention authority in general. This seems to imply that in the long run the Administration is looking to phase out detention authority entirely as an issue that in and of itself has too many thorny legal and constitutional problems and instead focus on using judicial means at home and drones abroad.

What this means for the future, I honestly don’t know. But I would much rather this form of executive rationale than the alternative.