Several times in his West Point speech on Afghanistan and Pakistan, President Obama declared that the US would not permit Al Qaeda or “violent extremists” the use of safe havens. He specifically noted Pakistan, Yemen, and Somalia. The President unsurprisingly never overtly mentioned Predator or drone missile strikes, or the CIA as the operational agents in many instances of these far-from-covert actions. But there is little doubt that both in the speech and in actual doctrine, targeted killing through drone strikes has been endorsed and indeed extended.
It was a tactic initiated by the Bush administration, but it was embraced and championed by the Obama administration, expanded and made a centerpiece of operations by it, as news stories before and after this speech in the NYT and Washington Post have repeatedly reported. But an important question remains as to whether the administration is preserving through use and ‘opinio juris’ the legal authority and doctrines that support these sensible tactics.
Not the only tool of US will, of course – the President went to great lengths to discuss diplomacy, values, and many “soft power” options. Targeted killing is a means, and a limited one; moreover it is not a strategic end in itself. And it is also quite true that although speeches of this kind are often constructed so as to make oblique references to be understood as such, it is also a mistake to interpret a large policy pronouncement by reference to particular phrases and oblique references in isolation from the larger whole. But reading the whole speech, there is little doubt that targeted killing is included among the vital tools for the projection of US power – not just in Afghanistan, not just in Pakistan (and the speech several times referred to Afghanistan and Pakistan together, for obvious strategic reasons – but a concept that some in the international law community find wrong or disturbing), but in places beyond.
Was one reference to drone attacks inserted in the speech when the President said that the United States “will have to be nimble and precise in our use of military power”? Whether that or any particular bit was a reference to targeted killing, however, a core message of the President’s address as a whole was that the US would target terrorist leadership worldwide, not just in Afghanistan and Pakistan, and in ways that can most easily be attributed to targeted killing, including via Predators:
High-ranking al Qaeda and Taliban leaders have been killed, and we have stepped up the pressure on al Qaeda world-wide.
And the President added that we “cannot tolerate a safe-haven for terrorists whose location is known, and whose intentions are clear.” Those places in the world were not just limited to AfPak, but specifically mentioned “Somalia and Yemen or elsewhere.” Still, that said, the full context of this quotation shows that the administration regards soft power and hard power together in confronting “violent extremists”; there are multiple ways of interpreting this passage and what are undoubtedly its deliberate ambiguities:
The struggle against violent extremism will not be finished quickly, and it extends well beyond Afghanistan and Pakistan. It will be an enduring test of our free society, and our leadership in the world. And unlike the great power conflicts and clear lines of division that defined the 20th century, our effort will involve disorderly regions and diffuse enemies.
So as a result, America will have to show our strength in the way that we end wars and prevent conflict. We will have to be nimble and precise in our use of military power. Where al Qaeda and its allies attempt to establish a foothold – whether in Somalia or Yemen or elsewhere – they must be confronted by growing pressure and strong partnerships.
And we cannot count on military might alone. We have to invest in our homeland security, because we cannot capture or kill every violent extremist abroad. We have to improve and better coordinate our intelligence, so that we stay one step ahead of shadowy networks.
Lest anyone doubt that targeted killing is an important, indeed key strategy, Scott Shane reported in the New York Times a few days after the West Point speech on the US government’s expansion of the Predator program (Jonathan noted this article earlier), and a vigorous, off the record defense of it with respect to the two core issues – identification of targets and collateral damage – by an unnamed senior source at the CIA.
Shane did outstanding reporting on the controversies surrounding drone targeted killing (I will come back in another post to discuss the collateral damage controversies, but the article is well worth reading on that question.) It appears to me that the CIA – independent of the Obama administration? – is slowly waking up to the likelihood that its operatives and officials will be targeted by the international law and human rights groups, quite possibly with cooperation from courts in Europe or the ICC prosecutor, if not now, then down the road once the Obama administration is out of office and these often-career officials are left holding the bag.
But the issues are not just targeted killing in relation to safe havens and terrorist leadership. As David Sanger and Eric Schmitt report today in the New York Times, the Obama administration is now saying that it will use force, even across the border into Pakistan. This might seem unremarkable, since the CIA is obviously already operating there – without official acknowledgment, if not really “covertly” in the strict sense. From the standpoint of international law and lawyers, however, cross-border operations raise issues of consent, sovereignty, the UN Charter, and so on. The US government says that the government of Pakistan has privately, but not publicly, consented to the CIA Predator strikes. Will the government of Pakistan consent publicly to military strikes cross border against safe havens? If it does not, what is the legal situation?
Candidate Obama said he would go into Pakistan – no mention of consent – in order to go after Al Qaeda and Bin Laden. The administration now seems to be signaling its willingness to go in with more forces, and overtly military forces, partly in pursuit of Al Qaeda, but more obviously in support of the Afghanistan war, to eliminate the safe havens for the Taliban.
What about consent by Pakistan as a legal matter? Much of the international law community would say that without it, or without a Security Council authorization, such incursion is prohibited, except possibly under some narrow “hot pursuit” or a few other limited exceptions. The Obama administration might say that it either has consent – but what does that mean if the Pakistan government will not publicly acknowledge it? Or that it has Security Council authorization for the Afghanistan war, and the elimination of safe havens is incident to that – but is that really so?
Regardless of the discussion within the international law community, the United States has never accepted the view that safe havens across borders were inviolable. On the contrary, the US position has always been that if a government is unable or unwilling to control its territory, safe havens in that territory were liable to attack. The Obama administration needs to stand up and plainly reaffirm that doctrine. Not just to assert the modified-limited-hangout, we’re-slightly-ashamed-of-ourselves claim that “we have consent” or that “the Security Council said okay” – but what the US has always taken as international law, that safe havens are liable to attack, if the sovereign state is unwilling or unable to control its territory. It is the position taken most clearly in the 1989 Abraham Sofaer speech, as Legal Adviser to the State Department – a speech taken as USG policy and its official view of international law. (The text of the speech can be found here in pdf scan of the Military Law Review, where it was re-printed, but there are easier to read versions at Westlaw.)
Would the Obama administration seriously doubt that this plain statement by Judge Sofaer is its actual view of the law today? The Sofaer speech has never been withdrawn; it remains, so far as I know, the official view of the USG. But it has been allowed to gather dust in the past decade or so. It should explicitly reaffirmed as the underlying US view, as general principle of law. It is not the complete statement of law, because it is about terrorism and does not go on to the (legally easier) question of eliminating safe havens in armed conflict:
The United States also supports the right of a State to strike terrorists within the territory of another State where the terrorists are using that territory as a location from which to launch terrorist attacks and where the State involved has failed to respond effectively to a demand that the attacks be stopped.
The United States, and likely the Obama administration, is going to confront situations that are not covered by state consent or a Security Council resolution – but in which it will act, under doctrines of self-defense. It would be in the adminstration’s interest, and the long term interest of the United States, to reaffirm this doctrine at the general level, and not merely piecemeal.
ArthurKirkland says:
President Obama likely must approach this situation as if this were mid-September 2001. The world’s taste for the United States’ “hot pursuit” angle has understandably faded, but the United States should probably do now what it should have done eight years ago — quickly and forcefully pursue and neutralize those responsible for attacking us, while resisting any impulse to settle other scores or engage in any other peripheral activity. The task has been severely complicated (and our position compromised) by eight years of events, but the recently announced approach to Afghanistan and Pakistan resembles the approach that should have been followed in the immediate wake of the attacks.
December 8, 2009, 11:42 amPLR says:
I suppose if we are spending hundreds of billions of dollars more than the rest of the world on Killing Machines, we’ll need places to ply our craft. So priority-wise, we have (1) failed states (Somalia, Afghanistan), (2) ruined states (Iraq), (3) shaky states (Pakistan, Yemen), and (4) non-shaky states that we don’t like (Iran, North Korea).
I feel safer already.
December 8, 2009, 11:59 amdearieme says:
“..President Obama declared that the US would not permit Al Qaeda or “violent extremists” the use of safe havens”: well, except in the 50 states, obviously. Or is it 57?
December 8, 2009, 12:03 pmwm13 says:
There isn’t really any incentive for the Obama administration to make its questionable policies explicit. As Prof. Anderson suggested in a previous post, everyone understands that the “international law community,” which consists primarily of academics and European bureaucrats, will never take on U.S. officials from the Democratic party. (Just as Pinochet or Sharon might be arrested in Europe, but Arafat or Castro never would be.) It makes sense for the Obama administration to do what it wants, secure in its de facto immunity, while making it hard for past or future Republican administrations to operate with the same effectiveness.
December 8, 2009, 12:14 pmDilan Esper says:
i await kenneth anderson’s blog post explaining why fidel castro has legal justification to impinge on US sovereignty because we provide ‘safe haven’ to anti-castro terrorists.
look, there’s a reason these rules exist, whether or not it would be convenient for us to disregard them.
December 8, 2009, 12:30 pmJoe T. Guest says:
If Afghanistan = Viet Nam.
And Pakistan = Cambodia.
Then Obama = ???
Discuss.
December 8, 2009, 12:44 pmOut of Iowa says:
This post highlights many of the reasons I have a hard time believing “international law” exists. Anyone that has taken a basic political science course or is familiar with “realist” political thought knows the maxim: “strong countries do what they want and weak countries do what they are told.” No amount of treaties or bilateral agreements will stop a military power from doing something it feels is in its national interest. I’m just happy to see a democrat acknowledge these principals… frankly, I didn’t think Obama had it in him.
December 8, 2009, 2:59 pmSeamus says:
So the United States would have no objection if Cuba or Venezuela were to send the equivalent of Predator drones to take out Luis Posada Carriles for his role in the Cubana Flight 455 bombing?
December 8, 2009, 3:03 pmSeamus says:
Holy crap. I just looked at Dilan Esper’s 12:30 pm post and realized I was on the same side of an issue with him. What’s next? Dogs and cats living together; human sacrifice; mass hysteria!
December 8, 2009, 3:05 pmRyan Waxx says:
Don’t cross the streams!
December 8, 2009, 3:28 pmGruest says:
Maybe now people’ll get off Israel’s jock.
December 8, 2009, 3:31 pmSteveMG says:
Not to be snarky but it seems easy (at least to me) to be able to distinguish between an individual now in his seventies who committed an act of terror 45 years ago versus a group of individuals who are actively engaged in terror against another country after having openly declared war against it.
December 8, 2009, 3:58 pmSteveMG says:
an act of terror 45 years ago
Correction: the bombing was 33 years ago and, having just checked, Carriles (now 81) admitted to having committed acts of terror up through 1997.
I’ll stand (or die) by the rest of my observation.
December 8, 2009, 4:11 pmDilan Esper says:
Actually, Steve, Posada was caught in Panama with a significant amount of explosives plotting to kill Castro in 2000. So I think Posada qualifies as something comparable to an Al Qaeda terrorist in that you have decades of ongoing terror plots and planned violence, some of which were carried out.
When Posada arrived in the US, he was 5 years removed from the 2000 arrest, which is less time than has now elapsed since 9/11. So I ask again– was Cuba permitted in 2005 to violate American sovereignty to attack a man who waged terrorist campaigns against Cuba for decades and whose last known plot was foiled just a few years before?
As I said, there’s a reason why we have rules against this stuff.
December 8, 2009, 4:41 pmPJens says:
I hope the next administration doesn’t prosecute the operators of the drones for doing their job as ordered by the president.
December 8, 2009, 7:50 pmDilan Esper says:
PJ:
Just so you know, there’s a big difference under international and domestic law between violating a country’s sovereignty waging a military attack and torture.
Torture is one of a tiny number of “jus cogens” norms, and torturers are “hostis humanae generis”, meaning that torturers can be prosecuted anywhere in the world and the norm against torture is so strong that it is nonderogable, and under the Convention Against Torture every signatory has an obligation to prosecute torturers.
So, prosecuting Predator pilots is simply not the same as prosecuting torturers.
December 8, 2009, 10:26 pmRicardo says:
The U.S. probably should have deported or extradited Luis Posada Carriles. Problem is, since there is a likelihood of him being tortured if he was sent to Venezuela he cannot legally be sent there, so a judge ruled. DOJ actually tried but failed. It’s a sticky problem under the law: keep him in the country and the U.S. gets accused of double-standards by harboring a terrorist, kick him out and it’s yet another illegal extraordinary rendition case.
The difference between the U.S. and Pakistan though is that Pakistan is on shaky ground and cannot get the public support or resources to really assert sovereignty over NWFP and other remote areas. The CIA can give the Pakistani government the plausible deniability it needs to secretly relish the killing of fanatics and terrorists of the kind who murdered the current President’s wife while distancing itself from these actions.
International law is premised on the idea that the world is inhabited by at least minimally legitimate countries who exercise a degree of control over their own territories. If frontier territories are allowed to be lawless safe-havens for terrorists and primitive fanatics who throw acid in the faces of schoolgirls, that simply will not do.
December 9, 2009, 8:14 amStrict says:
wm13: “(Just as Pinochet or Sharon might be arrested in Europe, but Arafat or Castro never would be.)”
Arafat had open warrants for his arrest in Europe. See: Italy.
The Italians have also used the European Arrest Warrant to pursue other Muslim terrorists. See: Hamdi Isaac.
dierieme: ““..President Obama declared that the US would not permit Al Qaeda or “violent extremists” the use of safe havens”: well, except in the 50 states, obviously. Or is it 57?”
Your suggestion that Obama is permitting al Qaeda and violent extremists to take safe haven in the United States is ridiculous.
Still harping on Obama’s campaign slip up is so sad. It was clearly a mistake, but even if it was intentional, why would 57 have to refer to the allegedly 57 (?) Muslim countries, when it could easily refer to the 50 States plus the 7 inhabited territories: Puerto Rico, Guam, Samoa, US VI, N. Mariana, Wake and Midway.
Pjens: “I hope the next administration doesn’t prosecute the operators of the drones for doing their job as ordered by the president.”
“Just doing my job” and “just following orders” are not valid defenses. See: Nuremberg.
Out of Iowa: “This post highlights many of the reasons I have a hard time believing “international law” exists.”
International law certainly exists. Whether it’s meaningful in certain situations is another issue.
December 9, 2009, 12:01 pmPintler says:
Let’s say I’m an innocent Pakistani taxi driver faced with a choice. Behind door #1, I’m unwittingly driving an Osama henchman when a Hellfire comes through the windshield. Behind door #2, the CIA mistakenly nabs me and waterboards me. Both are horrible outcomes, but most people would pick door #2.
Why, then, is a drone pilot covered as long as he is ordered to launch the missile, but the waterboarder isn’t? I agree that what you state is how things are viewed, but I don’t understand why.
The classic example is that the ‘just following orders’ concentration camp guard isn’t excused, but the area bombing pilot is. One way to differentiate those is that the Holocaust could not even remotely be justified as aiding Germany’s war effort (to the contrary, it hurt that effort), while the area bombing campaign had at least a tenuous connection to winning the war. If that is the differentiation, though, why isn’t torturing for military ends OK?
I personally find torture repellent, but that’s a pretty weak argument.
December 9, 2009, 12:12 pmBob from Ohio says:
You have identified one limit of international “law”.
Pakistan would object (publicly at least) to our Predators but is unable to make us stop if we really want to do it.
If Cuba sent a Predator, we have the ability to punish them for it and would certainly do so.
Yet, both the US in Pakistan and Cuba in the US are acting against international “law”. In my view, it shows that much of international law is nonsense, that it remains power that controls. As it has always been, as it always will be.
International law is just a voluntary code of ethics really.
I do really like that the
December 9, 2009, 1:24 pmBushObama administration is just arguing my long held view that international law is what the US says it is.Dilan Esper says:
Why, then, is a drone pilot covered as long as he is ordered to launch the missile, but the waterboarder isn’t? I agree that what you state is how things are viewed, but I don’t understand why.
It’s a legitimate question, and one I often deploy against people who argue that (for instance) there’s nothing at all immoral about US military actions no matter how many casualties it causes because the casualties are technically accidental, never mind that at least some of the warfare that we have conducted (such as bombing Serbia, for instance) was clearly designed to inflict so much hardship on civilians that they would urge their leaders to sue for peace.
That said, international law, like domestic law, distinguishes based on intent and context, and the duty not to torture arises when someone is in your custody or control (and thus can directly control what happens to them), whereas when you drop a bomb you are harming people who are not in your custody or control.
Yet, both the US in Pakistan and Cuba in the US are acting against international “law”. In my view, it shows that much of international law is nonsense, that it remains power that controls.
This same logic would mean that the ability of organized crime to prevent enforcement of the laws against its members through threats, intimidation, violence, and payoffs proves that domestic law is nonsense.
Look, like all other laws, there are enforcement problems with international law. But the reason we attach importance to it is it is seen as mutually beneficial to have it even if honored in the breach.
December 9, 2009, 1:58 pmPintler says:
Thanks, that makes sense, especially if you’re talking small numbers of people in either situation. It’s less morally comfortable if you are carpet bombing thousands vs. torturing one, perhaps. As usual, I guess, ethics isn’t always black and white.
December 9, 2009, 2:23 pmRich Rostrom says:
The Obama policy calls for the U.S. to violate other nations’ sovereignty unilaterally.
It will result in civilian casualties, both from targeting errors and from collateral damage. Terrorist semi-regimes (Hezbollah, Hamas, Al-Qaeda, Taliban, and LTTE) have all used civiians as cover for their leaders and bases, and trumpet the resulting civilian casualties as evidence of infidel perfidy. (The Left complains that killing terrorists simply makes new terrorists. That isn’t always true, but it certainly applies here.)
It does very little to destroy the terrorist organization. The Taliban/Al-Qaeda forces are based in hundreds of locations in NW Pakistan. Killing two or three leaders each month won’t stop the recruiting and training at all these locations, nor free the population from Taliban indoctrination, nor shut down the Taliban’s propaganda campaign in the Moslem media.
It does nothing to stop the Taliban/al-Qaeda from bombing and killing; it provides no security to the people of the area. (The same applies in Somalia or Yeman.)
The one advantage of the policy is that it is “hands off”, and allows the U.S. (that is, the administration) to avoid responsibility: for U.S. casualties, for protecting the locals against the terrorists, for establishing civil order in these areas (necessary to stop the terrorists), for collateral damage and casualties.
That is moral cowardice.
And futile. One can swat mosquitos all day, but they keep biting till somebody drains the swamp.
December 10, 2009, 2:35 pm