(Special note: Lawfare, where I serve as His Serenity, Book Review Editor, is absolutely delighted VC’s own Orin Kerr has agreed to post there when the Spirit of National Security Law moves him.)
Over at Lawfare, I have a longish post about the declared US government policy of preferring capture operations over kill operations where “feasible.” This has been a constant refrain from senior US government officials for several years, including John Brennan (previously White House counterterrorism adviser and now CIA director) and President Obama in his May 23, 2013 speech at the National Defense University on counterterrorism (which Benjamin Wittes and I analyze closely in Chapter 3 of our e-book on the national security law speeches of the Obama administration, Speaking the Law, just now made available with open access at SSRN). It is safe to say that these assertions have been widely seen among journalists and commentators as mere pieties, window dressing on a policy of kill over capture if only because the administration doesn’t have any place to hold new detainees.
So there was a flurry of commentary three weeks ago when US special operators, in conjunction with CIA, launched capture operations in Libya and Somalia. Did this presage the beginning of a new era of special forces capture operations rather than drone strikes? Two days ago, on the other hand, the US launched a drone strike that killed someone it had been seeking for four years as the mastermind of a strike in Afghanistan against a CIA outpost that killed seven Americans, Hakimullah Mehsud, leader of the Pakistan Taliban. What was “feasible” supposed to mean? In practical terms, a kill operation differs from a capture operation in that the kill operation can be carried out by a drone, whereas a capture operation requires a human team on the ground.
Feasibility of capture, as I explain in my Lawfare post, is a policy decision put into a particular mission’s planning and rules of engagement, generally speaking with regards to a person whom the US government views under international law as already within the category of legally targetable through first resort to lethal force. The person can be attacked with lethal force without warning, without offer of surrender, without attempt to detain or capture; a decision to seek capture will be a policy decision and, as my post explains, it will involve an assessment of risks to civilians and own-forces at the operational level, and many considerations of strategy and politics as well. Interestingly, this essentially restates what President Obama said in his May 23 NDU speech, in which he took the bin Laden raid as an example of the kinds of considerations that a decision to use a SEAL team or a drone had to be weighed up. I discuss his example of the bin Laden raid, and then turn to a key consideration about the decision whether to put a team on the ground or not.
The Somalia raid three weeks ago failed to capture its target; it has been reported that the presence of civilians created too high a risk of collateral damage, and so the special operators withdrew. One can expect some version of this to occur more frequently if potential terrorist targets came to believe that the US was far more likely to try and capture them with a team on the ground than kill them with a drone strike. I explain why in the last section of the post, concluding that the more the US attempts capture operations, over time the less “feasible” they will become, and so no one should expect the drone to go away as a tool. Here is a bit from part III of the post:
Short of using civilians as shields (which … means having women or children highly physically, tightly proximate to you), a terrorist target has few if any ways of defending against the missile strike itself. It strikes without warning, and unless you have civilians very, very closely surrounding you at all times, it will be difficult to avoid becoming a target. So while you might try to conceal your location and stay under cover as much as possible, and stay with children generally around you, you can’t really do anything to protect against the actual drone attack itself. It’s too unpredictable and you don’t have protections against a missile.
However, if it is announced and becomes widely believed that the US has changed its policy to favor capture operations instead, the incentives change. In addition to trying to hide, protect your location, stay out of surveillance, etc., a capture operation requires a human team launching an attack that takestime – time to arrive, time to make the attack and capture, time to withdraw. It’s not a blink of an eye, like a drone missile strike … any human attack requires time – an eternity, by comparison, to the missile strike. That time gives the target plenty of reasons and opportunities to make that assault costly in terms of civilians. And where time is longer than a second, and is measured in many minutes at least, it isn’t necessary to strap the baby to your back to gain protection. It’s enough to have civilians in the area – women and children loosely in the area, who can be pulled closer to protect the target as the commando assault is launched …
The more convinced a terrorist target is that the US will attempt a capture operation, then, the greater the incentive he has to surround himself with civilians, and to prepare a gauntlet that a US special forces team will have to run to carry out the attack … The more targets believe that the favored US policy is capture, the more they will prepare against it – increasingly certain that they have something tangible to gain by it, and increasingly correct in that assumption. Their preparations against a human attack can be made effective and costly in ways not available to them against a drone strike. The irony is that capture operations become most likely to succeed, and most feasible, when they are few and far between, unpredictable, and sufficiently rare that they do not invite the targets to attempt preparations to prepare against an attack aimed at capture. The more you attempt capture, by contrast, over time the less feasible it will be.
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