Archive | Afghanistan

Afghanistan and Nation-Building

On the strength of this weekend Washington Post review by Chris Bray, I’ve just ordered Bing West’s new book on Afghanistan, The Wrong War; I’ll let you know what I think once I’ve read it.  What moved me to order it was this bit in Bray’s review:

Endlessly engaged in euphemism and rhetorical triangulation, American generals and politicians insist on a story in which war isn’t war, and doesn’t center on killing. Official doctrine instead declares that professional warriors are engaged in a nation-building strategy “to serve and secure the population,” a focus that West argues has “transformed the military into a giant Peace Corps.”

Few leaders are spared [in West’s account]. Adm. Mike Mullen, the chairman of the Joint Chiefs of Staff, pronounces that “we can’t kill our way to victory” in a counterinsurgency. West’s judgment: “That was political drivel.” He writes that “the senior ranks were determined to sell counterinsurgency as benevolent nation building,” a politically motivated story that promised to minimize domestic opposition.

Later, Bray describes West’s view of the Kabul government:

While American leaders have dithered and fantasized, West charges, Afghan leaders have used the war as a business, enriching themselves through patronage and graft. But the counterinsurgency doctrine that has guided much of the American effort in Afghanistan promotes stabilization for the purpose of establishing legitimate government. “The American goal was to persuade Afghan tribes to support a centrally controlled, deeply corrupt democracy,” West writes. This clash between doctrine and reality builds a trap that recurrently captures its makers.

The soldiers caught in the trap can see it clearly. West quotes a perceptive Army officer, Capt. Matt Golsteyn: “We’re the insurgents here . . . and we’re selling a poor product called the Kabul government.”

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“Cultural Defenses,” Crime, and De Minimis Violations

I just reread State v. Kargar, 679 A.2d 81 (Me. 1996), and was reminded how interesting and bloggable the case is (some paragrpah breaks added):

Mohammad Kargar, an Afghani refugee, appeals from the judgments … convicting him of two counts of gross sexual assault in violation of 17-A M.R.S.A. § 253(1)(B) (Supp.1995) (Class A). [Footnote: “… 1. A person is guilty of gross sexual assault if that person engages in a sexual act with another person and: … B. The other person, not the actor’s spouse, has not in fact attained the age of 14 years.”] Kargar contends on appeal that the court erred in denying his motion to dismiss pursuant to the de minimis statute, 17-A M.R.S.A. § 12 (1983). We agree and vacate the judgments.

On June 25, 1993, Kargar and his family, refugees since approximately 1990, were babysitting a young neighbor. While the neighbor was there, she witnessed Kargar kissing his eighteen-month-old son’s penis. When she was picked up by her mother, the girl told her mother what she had seen. The mother had previously seen a picture of Kargar kissing his son’s penis in the Kargar family photo album. After her daughter told her what she had seen, the mother notified the police.

Peter Wentworth, a sergeant with the Portland Police Department, went to Kargar’s apartment to execute a search warrant. Wentworth was accompanied by two detectives, two Department of Human Services social workers, and an interpreter. Kargar’s family was taken outside by the social workers and the two detectives began searching for a picture or pictures of oral/genital contact. The picture of Kargar kissing his son’s penis was found in the photograph album. Kargar admitted that it was him in the photograph and that he was kissing his son’s penis. Kargar told Wentworth

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Counterinsurgency Then and Now

Over at SSRN, I have posted up a very old article by Jean-Marie Simon and me, Permanent Counterinsurgency in Guatemala.  It appeared in 1987 in the critical theory journal Telos (No. 73, Fall 1987, 9-46).  Here is the abstract, which includes a bit of information on why I have posted it up now:

This 1987 article in the critical theory journal Telos examined the counterinsurgency carried out in Guatemala during the late 1970s and 1980s by the Guatemalan army and security forces, and the country’s transition to civilian democracy in 1986 under the presidency of Vinicio Cerezo. The article, as an exercise in radical sociology of the Left, argues sharply that the transition is little more than the appearance of democracy, while beneath lies a “permanent counterinsurgency” and authoritarian control by the army. Based on extensive interviews by the authors with many actors in Guatemala, including leading military officers, it offers an inside look at how the Guatemalan military leadership conceived its extensive and brutal counterinsurgency campaign, particularly by comparison to other conflicts in Central America at the time – El Salvador and Nicaragua in particular.

Although parts of the account are of course dated twenty years later (it suffers particularly from the authors’ youthful radical social theory, in which seemingly nothing, not even in principle, could show “actual” democracy as opposed to mere false consciousness) it is noteworthy for two features today. First, it offers an uncompromising account of what counterinsurgency requires, in the view of the Guatemalan army, including its view of the US-advised strategy of “hearts and minds” in neighboring El Salvador. That account remains relevant today by comparison to US counterinsurgency strategy in Iraq and Afghanistan. Second, it observes that the success of the Guatemalan army’s countersinsurgency depended crucially upon its internal nationalist coherence against

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Targeted Killing and Drone Warfare Debate between Mary Ellen O’Connell and Benjamin Wittes

Interest in targeted killing and drone warfare is not letting up in intensity – at least to judge by the pace of events on the topic. Right on top of my debate with Notre Dame’s Mary Ellen O’Connell on this at Washington University two weeks ago, Professor O’Connell and the Brookings Institution’s (and Hoover Institution’s) Benjamin Wittes undertook another one, this past Saturday at International Law Weekend in New York. It was considerably more testy than the Washington University debate. Some in the audience were unhappy with the confrontational nature of the exchange; some thought it refreshingly direct; my view is the latter and congratulations to Vincent Vitkowsky for an excellent job of moderating the debate. I’m sure it will generate a lot of interest and a lot of pushback in several directions. Ben (I’m going to use first names in this post for both of them and hope they don’t mind) has posted up video of the event at Lawfare.

Ben has also added a second post with some transcription, specifically on the question of whether, if one takes Mary Ellen’s statements at what they say, Barack Obama is not therefore a “serial killer” for having directly ordered the CIA to carry out what Mary Ellen characterizes as “crimes” and Harold Koh at the least an aider and abetter. Ben has in mind, for example, statements in Mary Ellen’s widely noticed article, “Unlawful Killing with Combat Drones,” which among other things declares that “members of the CIA are not lawful combatants and their participation in killing—even in an armed conflict—is a crime.”

One might argue Ben’s choice of provocative words in the debate – serial killing – or one might argue various technical points over whether it is murder or not murder, whether or not there can [...]

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Self Defense and Non-International Armed Conflict in Drone Warfare

Over the past year, I’ve been spending much time on the questions of drone warfare and the legal issues raised – many talks, panel discussions, debates, and so on.  In the course of those discussions, as well as discussions with many experts one-on-one, I’ve wanted both to clarify a couple of my views and acknowledge a change in how I would currently characterize some of what we might call the “legal geography” of armed conflict.

So, I have been strongly identified with, and have been robustly urging, that one possible ground justifying the use of drone warfare and targeted killing, as well as setting rules for its conduct, is the international law of self defense.  I maintain, and certainly continue to maintain, that there are circumstances in which the use of targeted killing can and as a proper legal description should be understood to be the use of force as a lawful act of self defense even though it takes place outside of an armed conflict, and even though that use itself does not create an armed conflict.  It seems to me, before as now, crucial to be clear of the existence of this category of the use of force as a lawful possibility for the United States, particularly looking down the road to conditions and situations that do not implicate the current struggle with Al Qaeda, has nothing to do with 9/11, is not covered by the AUMF – a new terrorist group with different terrorist aims, for example, emerging in Latin America or somewhere in Asia twenty-five years from now, and having no connection to any of today’s issues.

I have suggested that this is an appropriate way of characterizing the legal status of attacks carried out by the US in Yemen or Somalia, or elsewhere that terrorists [...]

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The Changing Conflict in Pakistan, and Targeted Killing

Adam Entous, military affairs correspondent for Reuters, has authored, along with several colleagues, an outstanding, smart, balanced, and well-reported story on the evolution of drone warfare and targeted killing.  A lot of reporting effort went into this story – this is not just an instance of a reporter being offered a little nugget of inside information and running with it.  I was interviewed at some length for the legal aspects of the story, and if my experience is any indication of the rest of the reporting, it is very well reported.  My Opinio Juris co-blogger Julian Ku picked up the story first over at OJ, “How the White House came to love the drone.”  But for my part, here at Volokh, I want to comment on a couple of the other issues  in the story – concentrating not on the legal issues, but instead on the strategic evolution.

First, the Reuters story undertakes a very interesting analysis of the kinds and numbers of fighters being killed, to the conclusion that drone warfare in Pakistan is increasingly focused on taking out relatively low-level fighters, and in much greater numbers.  And notwithstanding a wealth of important quotations and analysis of different legal and policy matters, the biggest takeaway of the story is this:

In the rugged mountains of western Pakistan, missiles launched by unmanned Predator or Reaper drones have become so commonplace that some U.S. officials liken them to modern-day “cannon fire.” And they are no longer aimed solely at “high-value” targets like Mehsud, according to U.S. counterterrorism and defense officials.

Under a secret directive first issued by former President George W. Bush and continued by Barack Obama, the CIA has broadly expanded the “target set” for drone strikes. As a result, what is still officially classified as a

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Add Bad Ethics to the Problems of “Don’t Ask, Don’t Tell”?

My colleague Richard Painter, former chief ethics counsel to President Bush, thinks so because it “institutionalizes dishonesty.” Last fall, he sent a letter outlining his concerns to President Obama, whose administration has been lumbering toward pushing for a congressional repeal. “It is the only instance I know of,” writes Painter, “in which an employee of the United States government can formally suffer discipline and dismissal for telling the truth.” No response yet from the administration. [...]

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House Subcommittee Hearing on Drone Warfare

In the midst of the healthcare debate in Congress, other business does go on (sort of), including a subcommittee hearing on drone warfare, at which I’ll be testifying, along with some other experts, including the author of the seminal Wired for War, which put the issue of robotics and war squarely on the table.  I’ll post more later about my written testimony and about the process, but late tonight I’m preparing what I’m told can’t exceed four minutes of oral presentation.  Hmm.  What points can I make in four minutes?  Regular readers of my posts on the blog will not doubt think – none.  Well, subject to revision, but so far:

  • CIA director Panetta has been conducting a visible, on the front pages, PR campaign to argue that the Program That Cannot Be Acknowledged in Pakistan (and elsewhere) is every bit as successful as administration officials, from the President on down, have said.  That’s great, but somewhat beside the point.  Most of us are convinced that it is successful; the question is whether, and on what basis, the program is legal.  On that, the administration says, it’s legal but gives no clue on what basis it thinks that.  It’s gotta step up to the plate and declare itself.
  • The issue on the surface is drone warfare.  But in fact, drone warfare is a set of heterogeneous activities, conducted sometimes by the military as tactical air support, and sometimes, the other extreme, CIA strikes in far away places.  The use of drones by the military on the conventional battlefield is not really very controversial, not at bottom – it is just another standoff firing platform.  The real question on the table is the role of the CIA in the use of force.  Drones can be thought of as less
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Targeted Killing, Safe Havens, and the President’s West Point Speech

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 [...]

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Left/Right bloggers not confident in Obama Afghanistan plan

This week’s National Journal poll of political bloggers asked “How much confidence do you have in President Obama’s Afghanistan strategy?” On both the Left and the Right, no-one chose “A great deal of confidence.” The figures for “some confidence”/”not much confidence”/”no confidence” were 29%/50%/21% on the Left; and 43%/43%/14% on the Right.

I was among the “some confidence” voters. Although I disagree with the announcement of tentative plan to begin withdrawing after 18 months, and I was dismayed by the dithering of the last three months, I am persuaded by John McCain’s support for the Obama plan. If Senator McCain thinks that the Obama plan can work, then I am cautiously hopeful.

The second question in the National Journal poll was “Which is the bigger political imperative for Congress next year, creating jobs or reducing the deficit?” One hundred percent of the Left voted for “creating jobs,” as did 43% of the Right. Along with 50% of the Right, I voted for cutting the deficit, because “Reducing the deficit by ending the reckless spending spree will help improve business confidence, and thereby promote job creation.” [...]

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