Raiding Strategies with Predators

Patrick Cronin over at Facebook points to a new review essay from Edward Luttwak in the latest Times Literary Supplement, but unfortunately not up online.  (I subscribe but apparently Patrick gets this stuff a lot faster than I do.)  However, Patrick posted a couple of paragraphs.  Luttwak reviews David Kilcullen’s widely noticed book among several others, and apparently argues (from the bits I’ve seen) that counter-insurgency warfare (clear and hold, etc.) in Afghanistan is a mistake, and argues instead for raiding strategies using small teams of Special Forces, special ops, Predators and drones, and so on.  I will post a link to the full article if the TLS puts it up.  However, here is a bit taken from Patrick’s note on FB:

“Obama will soon learn how even small wars can drain all the oxygen from a presidency.”… “For there is is a far superior alternative to the occupation of worthless places at very great cost in policy attention as well as in dead soldiers and money: surveillance to detect gathering threats…followed by ground, air or naval raids to destroy them. Raiding is far more economical than counter-insurgency, if only because it requires intermittent action, and is eminently suitable for Afghanistan….”

I don’t take a position here regarding whether strategy in Afghanistan should shift from counterinsurgency to counterterrorism in the sense that Luttwak means it above.  That’s a big discussion, particularly without reading the whole Luttwak piece first.  There are several complicated possibilities, especially when Afghanistan and Pakistan are each considered:  among them are surge and counterinsurgency on the Iraq model, or using a raiding strategy as Luttwak describes above, or a combination (which is one way of looking at this current move by the Pakistani army, as well as the Swat Valley operations; massive artillery lead assaults against whole regions that also had the effect of making various AQ and Taliban targets more susceptible to Predator strikes).

Whichever of these strategies one might favor, however, all of them feature increased use and reliance upon targeted killing, via Predator, via special ops, etc.  If you propose to do counterinsurgency on the surge model, you will use clear and hold in combination with raiding strategies as enemy leadership is flushed out.  If you are backing away from counterinsurgency, and following Luttwak’s strategy above, you are also looking primarily to these raiding methods.  Even without taking a view on the correct strategy, targeted killing is a featured and growing part of any of them.

As I have said repeatedly here and at Opinio Juris and in this paper on SSRN, the strategic considerations favor increased use of targeted killing by the US on pretty much every matrix.  That places great pressure on the legal rationales that allow the practice as the US carries it out.  Jeffrey Goldberg correctly observes at the Atlantic that, for example, pressures on Israel’s targeted killing practices – moves to indict its military leaders, for example, for undertaking these tactics – will inevitably point to similar US policies:

Tactics deployed to hurt Israel inevitably cause collateral damage. It’s a good thing that the United States, and a handful of European countries, have opposed the referral of Israel to a war crimes tribunal, but they aren’t doing enough (and, of course, France and Great Britain absented themselves from the vote). They would do more, I think, if they understood that Israel represented a kind of test run for a uniquely nefarious idea. Israel may find itself in the docket soon, but the U.S., and Britain, and other Western democracies that are battling Islamist terror, may soon find themselves in similiar straits. Who could seriously argue that what happened in Gaza was unique? Talibs hide behind civilians in Afghanistan, and often those civilians get killed. It’s only a matter of time before David Petraeus, or Bob Gates, find themselves under attack from the same forces that want to punish Israel for trying to defend itself from a state-sponsored terror group seeking its elimination.

Many actors in the international legal community regard targeted killing as the US has carried it out, for example, in the famous Yemen 2002 Predator strike against an Al Qaeda operative, as simply an extrajudicial execution and murder – that 2002 strike, after all, was described by the UN’s special rapporteur as “a clear case of extrajudicial killing.”  Apparently the United States was required to seek to detain or arrest instead.  International legal scholars spin out complex and intriguing theories for why the view of the vast majority of Americans, American policy makers, politicians is wrong.  Brought down to their bottom line, as Mark Osiel sums them up in his excellent book  The End of Reciprocity, the international law scholarly community is “almost entirely hostile to the practice, sanctioning it only under the most restrictive conditions, of a sort that can virtually never be satisfied in practice.”

The Obama administration comes in with a certain immunity to these complaints – but its strategy is predicated even more strongly than the Bush administration’s was on targeted killing as a way of fighting terrorists while ratcheting down the full-scale wars (whether that be a good strategy or bad).  Given how much the international law community has lined up against Israel, and absent the Obama administration, earlier lined up against the targeted killing of the Bush administration, one wonders why the administration does not forthrightly state its views on the legality of the practice – offer its opinio juris to backstop its state practice.

It needs to bear in mind that the justification of going after Al Qaeda in an armed conflict that takes place on a global basis will not satisfy critics of targeted killing or of “global wars on terror.”  There is a legal attack both on the idea of targeted killing and on the idea that it can be justified by reference to a geographically unbounded war.  But if one limits the war to Afghanistan, then what about Pakistan – or Somalia, or any other place in the world in which AQ might take refuge, but in which one could not say, under those standards, that an armed conflict was underway?  And what happens when the enemy is no longer Al Qaeda, but something else down the road?

The US long had a plain answer to those questions, in the form of a speech by then-DOS Legal Adviser Abraham Sofaer in 1989, later issued in the Military Law Review that same year.  It addresses in a comprehensive way that issues of addressing cross-border terrorism, including self-defense in international law, the lawfulness of going after terrorists in safe havens where the government was unable or unwilling to control its own territory, why targeted killing did not violate the US regulation against “assassination,” and other topics.  I have been told by several sources that the speech was cleared by DOS, DOD, DOJ, and the White House; it was intended as a major statement of policy.

So far as I understand, the US government has never withdrawn that speech as policy.  On the other hand, the US government seems to have narrowed significantly the grounds on which it concludes that targeted killing is justified – the documents are not public, so we don’t know for sure – to limit it to “armed conflict” and “combatants” – without taking account, if that is true, of targeted killings justified and necessitated by self defense that do not take place within an armed conflict in the technical sense of the term under international humanitarian law treaties.  US domestic law, after all, authorizes the CIA “fifth function” use of covert force as an exercise of lawful self-defense, and yet outside of armed conflict as defined under international humanitarian law – and for good reasons.

The current Predator campaign in Pakistan appears to be run by the CIA.  The adminstration, in my view, ought to take a far more vigorous approach to defending the full lawfulness of that campaign, as well as other operations that the US might undertake, whether via the CIA or military special ops or a combination, outside of the geography of an “armed conflict” in any but the Bush administration’s “global” view of the armed conflict with Al Qaeda.  An excellent place for the administration to start would be for the current DOS Legal Adviser, Harold Koh, to reaffirm in toto the Sofaer 1989 speech as continuing, good policy and the legal views of the United States.

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