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.
 

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51 thoughts on “The Morally Degenerate Sociopath’s Defense of Counter-Terrorism….

  1. 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.

    By this do you mean:

    1) The Obama administration provides a better set of counter-terrorism policies than the alternatives presented to us, as voters, by the political alternatives to Obama, or

    2) Given the fact that terrorists exist and can find shelter in “locations…outside the reach of standard capture operations”, the Obama policies are the best possible option?

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      • I’d say a few hired assassins would do the job, in a lot quicker and better order.

        I don’t mind a lot of things so much as I mind the public knowledge of the same.         America ought not to admit to torturing people.

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  2. … 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.

    How much of a constraint do you think the AUMF really is? It’s so thin and written so broadly that it really seems to have very few concrete boundaries. Granted, the previous administration tried to argue that the AUMF would allow a targeted attack in, say, London or inside the US itself and the supreme court pushed back on this in Hamdan but not formally. Overall I think it’s quite a stretch to call the AUMF the basis for a sound legal framework.

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    • I think it’s a substantially more powerful constraint than making arguments that Article II provides all the authority necessary to detain people. As to whether or not it’ll be a useful constraint in the future…

      Well, I think Al Qaeda’s starting to be in a position where the 9/11 related rationale will slowly stop functioning. Once you knock out Zawahiri, it’s probably up for the current iteration of the AUMF.

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  3. This is a good, thoughtful post. Thanks for writing it. That said, a few things that leap out at me immediately:

    1) The principle and greatest reason for a state’s existence is the protection of the lives of its citizens.

    This, it seems to me, is where terrorism/counter-terrorism discussions go completely off the rails. This simply isn’t the purpose of the state. The state exists to defend the liberty of its citizens. This is not wholly distinct from defending their lives, but it matters. It’s the core of liberalism, the whole kit and kaboodle. As soon as we abandon the distinction, we end up where we are, where the most important thing the state can do is root out every mean person in the world who has ever said unkind things about the United States.

    2) I can understand why there are those who find detailed explication of international law comforting. I’m just not one of them. The Bush lawyers had international law arguments too. That Obama’s lawyers are better at making their case is not terribly impressive, given the overall intellectual quality of the members of the Republican Party (read: abysmal). What you see is lawyers working to define the limited scope of the hard work they have to do to make the world safe for America. What I see is lawyers developing post hoc justifications to defend the power projection they wanted to do anyway. You fall back on the notion that Obama has tried to close Gitmo somewhat regularly, but from where I sit he made a half-assed gesture in that direction and then immediately abandoned it at the first sign of political pressure.

    3) Whatever the restrictions the executive claims on its authority, I just find the extra-judicial assassination of alleged terrorists/criminals/whatever pretty deeply wrong. These people haven’t been convicted of anything and are not, to my mind, and despite claims to the contrary, at war with the United States. I think you and Jaybird are right that targeted killings are a damn sight better than just lobbing cruise missiles, but their ease of use should give us all pause. And the fact that the administration refuses (or until recently has refused) to have an open conversation about their existence and the value of the targets should raise any liberal’s hackles. I won’t get into the related question of blowback or public relations with Muslim populations, because I don’t think that kind of utilitarianism is the right approach to this topic.

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    • Liberalism certainly needs to be concerned with the imperative of the state to defend the people’s liberty, but at the same time, ultimately the purpose of the state is also to defend their lives where necessary.  And the liberal has to wrestle with the possibility that these imperatives can be in tension.  I personally don’t believe it is illiberal not to think that that tension is simply always to be resolved in favor of the defense of liberty.  What is illiberal is to conclude without deep reflection and persuasive reason that the tension should be resolved in favor of defending life – in general, or in specific cases. Liberalism doesn’t enact the cry of  Patrick Henry.

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      • “Where necessary” does a lot of work in that sentence. My own position on that would be that the liberal state, properly understood, is fully justified in killing other people only in strict self-defense. That is what “necessary” means, and why you didn’t say “where sufficient” instead. Is it absolutely necessary for the safety of the citizens of the United States that we use drones to kill alleged terrorists without any trial, conviction, or other recourse to our own core values? Seems to me the answer to that is almost always going to be no, but I’m willing to let the state try to convince me otherwise. Simply declaring a fake war on a non-state actor and insisting that we can mete out punishment in secret is not a particularly compelling argument.

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        • Absolutely, to all of that. Certainly the drone regime is not obviously necessary to protect life to the extent that one can’t argue that the policy is illiberal.  Obviously.  But your argument was far more absolute with respect to the need to defend liberty potentially – really, unambiguously – at the cost of defending life than just reaching that conclusion about this specific policy.  To me, liberalism is just the weighing of that (liberty against other values), weighted toward liberty, but not with liberty as a unique value.  You pretty much said that liberty is the unique value that liberalism seeks to protect.  I differ, but obviously, even as liberals we can differ on the point.

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      • I personally don’t believe it is illiberal not to think that that tension is simply always to be resolved in favor of the defense of liberty. 

        Mike,  I’m not hiring you as a survey question write anytime soon!  Would you mind rephrasing that so I can be sure I’m following you?

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          • This is right.  I’m not sure I do for all time either, but it’s where I am right now on liberalism: as I say above, the weighing of other values against liberty, always with the scale tipped slightly to liberty, but with other values as having ample space to have their case made for them, is for me the essence of liberalism.  In this accounting, libertarians are in fact variety of liberal with a high (high being a strictly arbitrary term here) threshold for being convinced that another value trumps liberty, unless in fact they are committed to liberty to the extent of not employing any balancing of it against any other values in their thought.  Meanwhile Leftists very well might not be liberals, depending on whether, when they consider the tenets of their Leftism, they do so by weighing them against the imperative of liberty (however much they value liberty), with at least a slight preference for liberty over other animating values (i.e. the burden of proof – again, however modest – lies with the value competing with liberty).

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          • Thanks, to Stillwater, Ryan and Michael all.

            In this accounting, libertarians are in fact variety of liberal with a high (high being a strictly arbitrary term here) threshold for being convinced that another value trumps liberty, unless in fact they are committed to liberty to the extent of not employing any balancing of it against any other values in their thought.

            I think that’s pretty true.  And I imagine some think they would never balance it, but I doubt if they’re being honest with themselves. I’m not sure many libertarians, if transported to a housing project in south-central L.A. in 1992, would be really that indignant about the curfew during the riots.

            And it’s worth remembering that libertarianism grew out of classical liberalism, as did modern liberalism–while the contemporary influences on the two have caused them to grow apart, they’re still organically related.

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            • Right. Which is why I so much prefer to call Leftism Leftism, because if we call it liberalism, basically all of that history, and indeed any distinction between the liberalism I talk about here and Leftism gets lost.  I’d rather force Leftists to account for whether they’re actually liberals too rather than just give them both words.

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              • I’d rather force Leftists to account for whether they’re actually liberals too rather than just give them both words.

                I could be wrong, but unless they’re truly coming from a Marxist perspective, or perhaps some other continental philosophical perspective, I’m not sure they can really disclaim being liberal. Perhaps the purist communitarians can, but I haven’t met many of them.

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    • I think you and Jaybird are right that targeted killings are a damn sight better than just lobbing cruise missiles, but their ease of use should give us all pause.

      Agreed, with the emphasis that “giving us pause” does not mean, “it’s outrageous and has to stop immediately,” but “we should think carefully about whether the ease of use and diminished danger to U.S. forces will lead us to use these things too indiscriminately, despite the alleged safeguards.” (I’m guessing that’s pretty much what Ryan meant, too.)

      And the fact that administration refuses (or until recently has refused) to have an open conversation about their existence and the value of the targets should raise any liberal’s hackles.

      Agreed.

      I won’t get into the related question of blowback or public relations with Muslim populations, because I don’t think that kind of utilitarianism is the right approach to this topic.

      Disagreed.  The approach taken by Nob is distinctly utilitarian, in that it’s talking about efficient means for the government to protect citizens from dangers.  If this approach is cost-effective at killing individuals, but potentially costly in the sense of creating ever more individuals/enemies that need to be killed, I think it’s an important part of the debate. But my sense is that it will create a lot fewer new enemies than invasions and cruise missiles, due to less collateral damage. At least that would be my initial hypothethis.

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  4. Nob,

    Very well written, and I’m generally in agreement with your position on the issue, although very uncomfortably so.

    I would quibble on Obama and detention, though. During the NDAA debate, Michigan Senator Carl Levin revealed that originally they had included a provision to exempt U.S. citizens from indefinite detention, but that the provision was cut because of pressure from the administration.

    MR. LEVIN: … I have one other question, and that has to do with an American citizen who is captured in the United States and the application of the custody pending a Presidential waiver to such a person. I wonder whether the Senator is familiar with the fact that the language which precluded the application of section 1031 to American citizens was in the bill we originally approved in the Armed Services Committee, and the administration asked us to remove the language which says that U.S. citizens and lawful residents would not be subject to this section.

    Is the Senator familiar with the fact that it was the administration which asked us to remove the very language which we had in the bill which passed the committee, and that we removed it at the request of the administration that this determination would not apply to U.S. citizens and lawful residents? Is the Senator familiar with the fact that it was the administration which asked us to remove the very language, the absence of which is now objected to by the Senator from Illinois? (157 Congressional Record S7638. November 17, 2011. p.S7657)

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  5. I firmly believe that there will be a time of national reckoning for the Bush Administration’s counterterrorism policies. 

    I also believe that the reckoning will take quite a while, just as it has in France.  (The parallels are remarkable, particularly given the gallophobia of the last administration.) The arc of history, et cetera, et cetera, except that it’s not terribly comforting, given that I’m living in the present.

    But anyway, when that time comes, history isn’t going to look too kindly on Obama, either.  As Ryan rightly notes, above, the goal of a liberal state is not to make us as safe as possible, but to make us as free as possible.  Even if sometimes that means a little less safety.  Are we safer in a world without Anwar al-Awlaki?  The administration says so, and I’m in no position to deny it.  But are we more free, given the precedent it’s set?  I can’t believe it.  Not for a moment.

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    • I firmly believe that there will be a time of national reckoning for the Bush Administration’s counterterrorism policies. 

      I wish I could believe it at all, much less do so firmly.  I sincerely hope you’re right, but if I was laying my money on the table I’d place it on “no reckoning.”  Maybe the big difference between you and me is optimism/pessimism?

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      • I assume Jason means decades from now. I think that’s inevitable, sort of like it was inevitable that we’d come to view the detention of Japanese Americans during World War II as a dark stain on our nation’s history. My worry is that it will be a relatively mild reckoning, though, more like the paragraph on our actions in the Phillippines at the turn of the last century than the internment.

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        • If that’s all, then we differ wildly on the meaning of “reckoning.”  I’m not sure Jason defines it that differently from me, but I’ll have to let him speak for himself.

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          • I do mean decades from now.  Again, like in France.

            The key factor, in both cases:  the existence of an otherwise lawful and stable political system in which a major faction is deeply invested in denying or minimizing the criminality.

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            • But what do you mean by reckoning? Something that will change the system in a way that makes it unlikely that the same thing can happen again, or a critical paragraph in the American history textbooks?

              I could see the latter, but am dubious about the former.

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                • Agreed. I just don’t know if I’m willing to call that a “reckoning,” except in the weakest sense.  It’s awfully easy to say, “Oh, weren’t we bad once upon a time, while continuing to turn a blind eye to anything that’s actually going on now.”  I mean, it’s nice that we’ve had a reckoning of sorts about the internment of Japanese-Americans, but A) nobody ever seems to have been punished, so there’s not much deterrent effect, and B) we’re doing something comparably bad now, but collectively we’re not drawing the appropriate conclusions.

                  So I guess having that future reckoning is better than not having it, but it seems a rather cold comfort.

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  6. Nob: This was really a great and useful post that changes my view of this administration’s anti-terrorism policies substantially.   I can understand why Ryan isn’t terribly keen on the notion that the legal arguments make a practical difference, but for me they make a massive long-run difference.  Knowing a small bit about how OLC works, the reversal on the legal arguments sets an important precedent.

     

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  7. Thanks for the kind words guys.

    I think I’m going to address the points raised by Ryan et. al in a follow-up post.

    There’s a few things I’d like to chew over, and I’m also not 100% comfortable with using some off the record conversations as a basis for a reply, so I might have to rethink/rephrase how I present some points.

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