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 [...]