US Counterterrorism Policy and ‘Institutional Settlement’

The Washington Post has just featured three major consecutive front-page stories on “The Permanent War” – the war on terror (or however one wants to label it), as the US moves from Obama 1 to either an Obama 2 or a Romney administration – and administrations after that. The first, by reporter Greg Miller, is headlined “U.S. Set to Keep Kill Lists for Years: ‘Disposition Matrix’ Secretly Crafted: Blueprint Would Guide Hunt for Terrorists” (October 23, 2012); Robert Chesney comments on it over at Lawfare. The second article is a feature profile by Karen de Young of White House counterterrorism advisor John Brennan, “A CIA Veteran Transforms US Counterterrorism Policy” (October 24); Chesney and Jack Goldsmith each comment on it at Lawfare. The last in the series appeared on October 25, by Craig Whitlock, “Secret Ops Grow at U.S. Base: At Forefront of Drone Wars: $1.4 billion upgrade at Djibouti post planned.” These are excellent, well-reported stories, and well worth reading to get a sense of the longer run trajectory of what might be called US “counterterrorism-on-offense.”

The larger issue raised by these three stories taken together is “institutional settlement” in counterterrorism policy within domestic American law and politics.  ”Institutional settlement” means for these purposes long-run, broad and widely-shared agreement on frameworks of  law and policies in counterterrorism, including drone warfare, targeted killing, and covert and quasi-covert action – and their acceptance as being legitimate over the long term, as engaged in by presidents of either party, and founded on principles of law that are accepted broadly within the US political community.  Institutional settlement has to go beyond notions of urgent emergency, exception, and pure necessity, in order establish basic law-governed terms of both “permission” and “limitation” – authority and constraint – in the institutional framework of counterterrorism.

The three WaPo stories, titled “The Permanent War,” address war-making aspects of counterterrorism – the drone wars and targeted killing, forward bases for drones in increasingly far-flung places, and (though with much less discussion) military and intelligence advisors to local governments dealing with various non-state actor groups that have both domestic and transnational aspects. (The three WaPo stories mostly don’t deal with other large aspects of counterterrorism, such as domestic counterterrorism issues, or with detention or trial.  This post is a long essay on many aspects of counterterrorism, drone warfare, and targeted killing that I haven’t been able to address in months, so be advised.)

II

The counterterrorism policies addressed by the articles are peculiar from a standpoint of law and policy. Reaction to them is sharply, indeed unbridgeably, divided, as between the American political community and the international advocacy and law community.  On the one hand, seen from within the ambit of the US political community, most of these practices, policies, and processes are fairly widely accepted and seen as legal and legitimate. Is there institutional stability in these policies? From within the broad center of US politics, there is gradual convergence – I don’t think it can be called “institutional settlement” as yet, but it is converging on that.  There is unhappiness with these policies on Obama’s left; likewise there is unhappiness to Romney’s – well, it’s not quite “right,” but more like the Paulist wing of the Republican party coalition.

There is also concern among the pundits and policy analysts and journalists – the commentariat – about kill lists and targeting decisions made by committee.  It partly reflects an increasing anxiety among them about what all that might mean if the situation is no longer what that widely-commented, initial New York Times’s front page story on the kill-list committees seemed to regard as the philosopher-king making these decisions – but a Republican.  Meanwhile, the punditry has a basic problem – everyone wants to express “anxiety” about these policies, but they are not willing to articulate and forthrightly choose among the alternatives.  Their problem, and the reason so many of them stop merely with expressions of deep “anxiety” and calls for fixing the “process,” is simple.  If one believes that the US government is correct that it needs to use lethal military force to target terrorists, as the US national security establishment has said in an unbroken chain from 9/11 until now – if one believes that we are at war with them and should thus be affirmatively striving to destroy their organizations and kill them – then presumably the US government ought to use the most precise means and methods of warfare for using force in the circumstances.  If it is going to use force then, consistent with lawful military necessity, it should use the method most sparing of both civilians and American forces.

Drone warfare undoubtably causes more casualties than the Obama administration has admitted to, but measured by the historical standards of using force in war and by the alternatives that one can actually bring to bear, it is still by far the most precise and sparing of civilians.  If one then still opposes using drone warfare – well, it’s a principled position, yes, but be straight that the principle is a belief that it’s not justified to use force at all against these targets.  Pundits and commentators who believe this often don’t want to say this.  Some of them, I think, don’t want to say this because, although they do believe that using military means and attacking terrorists in remote places is a bad, unjustified, and counterproductive strategy, they understand that this view is not widely shared by Americans.  Nor is it shared by the US national security leadership, whether under Bush, Obama, or whatever comes next.  But it’s easier to criticize the technology and tactics of using military force rather than owning up to one’s opposition to the use of force in these circumstances by whatever modality.  It’s a disengenuous position, because it attacks the military tool as though it were the problem, whereas it is the best military tool and your problem is that you don’t think force should be used at all.

Other parts of the punditry stop with expressing anxiety because they do accept what Leon Panetta and David Petraeus and the rest of the Obama administration says, that of course we need to target terrorists.  We should be using force against them.  They accept the use of force proposition – but then they don’t want to face the consequences that it entails:  if you do plan to use force, then use the most precise tool available.  That will turn out to be drone warfare.  Unhappy with that, but unwilling to eschew the necessity of force, they express lots of “anxiety” instead.  I don’t disfavor anxiety, if it entails a searching evaluation of policy and alternatives; I am less enamored of it when it is mostly a way of positioning oneself to have one’s cake and eat it too.  Most of all, “anxiety” (as I once noted about one of David Ignatius’s many anti-drone columns) is not actually a policy.    Meanwhile, among the American public on a very broad spectrum, there is deep and wide support for the policies.

That broad public support could change somewhat (as I discuss later in this post), as the issue is reframed by advocacy groups, international NGOs, academic-activists, and journalists – particularly in the case of a Romney administration – away from being described as a way of using force more precisely, more sparingly of civilians and of US forces, and toward being described as secret kill lists and the president making unreviewable decisions about murdering people.  It is a nearly perfect opportunity for narrative-framing journalism, both in the print media and TV; I explain the rational choice considerations in such an advocacy campaign later in the post.  But, still, there is wide support for these programs among the American public – which was why there was nothing to debate when the question was put to the candidates in the foreign policy debate.

III

Although there is an evolving American convergence on policy, however, there are important things to be elaborated both as explanation and actual policy, things to be tweaked, and things that haven’t really been addressed. Here are a few examples.  There has not so far been a clear statement of principles and policies as to why the CIA should have an active use of force role as a strategic matter, rather than turning it over to JSOC – the utility of it quite apart from its lawfulness. Meanwhile the CIA is seeking more drones, bolstering its paramilitary and operational role, as Greg Miller reported in the WaPo back on October 19, 2012. The Obama administration’s national security team, and in the CIA itself, seems remarkably unaware, or at least remarkably sanguine, that the participation of the CIA, rather than military, in any use of force is an early and obvious objective of the anti-drone campaign.

The oversight and reporting process for covert action, vis-a-vis Congress, is another example of things that need updating. In many ways, the process is quite robust. The intelligence committees apparently get told lots of things in apparently lots of detail. But the reporting and oversight process – decades old as a statutory matter, although it has evolved in practice through pragmatic adjustments by Congress and administration – does not correspond well to differences in the actual activities being carried out. Covert activities, for example, are treated in Title 50 as being either covert or not.  In today’s world, the whole category is more realistically seen as shifting into a spectrum of differentiated activities – ranging across degrees of covertness, deniability and acknowledgment.  They should have distinct mechanisms of both oversight and secrecy.

The statutory definition of covert activities, for that matter, does not distinguish between uses of force operations and other things, such as a campaign to affect public opinion somewhere in the world; it simply refers to activities in which the role of the United States government is not intended to be known or acknowledged (I’m not putting any of this technically).  This is partly because of a desire not to mention these kinds of uses of force at all in the original statutory framing, but it does seem as though we are well beyond that point.  It’s time to recognize the category, distinguish between different types, and make clear that it is not some unregulated activity, either as to reporting and oversight, or as to its conduct.

Still another unaddressed area is the apparent merger of at least some activities between the CIA and the military’s JSOC (which Robert Chesney has addressed).  This apparent convergence raises large structural issues of institutional design in counterterrorism, as a matter of strategy, policy, and law – though mostly addressed at this point through executive branch tools.  There are important ways in which this could be a very good thing from the standpoint of regularizing covert and clandestine uses of force.  This could be a win-win for standards in the use of force and oversight; a gradual merger of activities could and should mean any covert use of force has to meet the military’s law of war conduct standards, and any military clandestine use of force has to report through the much more robust and higher level oversight of Title 50.

Some appear to believe, to judge by the WaPo’s articles, that if JSOC instead takes over all these functions of using force from the CIA, this magically creates accountability, transparency, and oversight consonant as with other military functions.  I’m skeptical.  In part, for the same reasons Jack Goldsmith identifies.  In addition, I think, on the contrary, that if JSOC takes on all these intelligence-driven missions from CIA, the likely result is that JSOC turns into the CIA, and with possibly less actual accountability.  It  is not merely a reflexive, pre-existing culture of secrecy in the CIA that makes it unforthcoming, but the nature of the missions and the intelligence-driven activities themselves.  Turn this over to JSOC and I would guess that the same exogenous pressures will cause it to move over time to the same approach as the CIA today – or at least that is a serious possibility.  That is one reason I favor, at this point, a partial merger that looks for the standards-accountability “win-win,” while not simply turning one into the other.  In any case, the involvement of JSOC in covert activities, while not in fact new, raises in its institutionalization further reporting and oversight questions in relation to the intelligence committees in Congress and the armed services committees – again an area for reform and updating, preferably through legislation.

IV

Those are examples just taken from the category of covert action and the CIA. One could also talk a lot about the continued institutionalization of the process of intelligence-driven target selection, and all the anxiety over the “kill list” intelligence process.  It is pretty clear both that more will have to be spelled out about these processes, and the processes themselves will have to become more institutionalized than they appear to be now.  People on the right do not trust President Obama in this function, and people on the left will not trust a President Romney; at the same time, in my view, the media reports, including the WaPo’s reporting, make a much bigger deal out of this than it is, if it is viewed, as it more properly should be, as an exercise in targeting that somehow, somewhere always goes on in war.  Many of the critics are nervous about the unattractive idea of kill lists, but unless their position is that one should not be targeting at all – which is to say, using force in counterterrorism, and then using the most precise means available by which to use that force, it is hard to see how one would not have intelligence dossiers prepared, meetings to review what is known about this person or that, attempts to assess the threat raised by the person, etc.  On the one hand, the very demand for accountability and the elimination of the ad-hoc, discretionary element presses toward bureaucratizing the process; on the other hand, it is not possible to eliminate elements of subjective judgment in all of this.

Still another is creating some acknowledged special process in the case of targeting US citizens abroad.  There is one  - the Attorney General laid it out as undertaken in the Awlaki targeted killing – but it needs to be more institutionalized and, in this question of US citizens most of all, would benefit from a legislatively-blessed process.  This could largely legislate the process that the AG described; his essential point is the most important: although a US citizen is owed some form of due process, that is not always judicial due process, particularly if he has fled abroad, is in hiding in places where he can’t be arrested, and is deeply involved operationally in terrorist operations aimed at Americans.  (Critics on the left and right were not satisfied – but, particularly from the right, I wonder if, in their impassioned denunciations of the President as supposed judge, jury and executioner of an American citizen, they had quite taken on board the public facts of Awlaki’s role in Al Qaeda in the Arabian Peninsula operations and plots to kill Americans that very nearly succeeded, not to mention his involvement with the Fort Hood jihadist, where there were dead Americans.  President Paul no doubt would not have fired the drone that killed Awlaki; but President Romney undoubtably would have; it’s not all some conspiracy to seize unlimited power worked up by the Obama White House).

One could go on with many other examples; there are many distinct issues here in domestic national security law. Standing behind all of these in particular, however, is a need for Congress and the Executive to come together on at least some of these matters, if one is meaningfully to talk about institutional settlement within the US political community.  Desirable as it would be, it has not come about so far on these issues, and I am not optimistic of this happening in either a second Obama term or a Romney term.  A second Obama term would presumably consolidate the general approach seen to date as a matter of executive branch interpretations of law – and presumably seeking, as part of the process of institutionalization, to offer principles of both “permission” and “limitation,” for itself and for its successors.

V

A Romney administration might move to change the direction of some of these activities and their processes, as well as the legal rationales offered for them.  But once in office, there are reasons to think it would embrace continuity. A Romney administration might rather quickly conclude – or so I would hope – that it ought to look for as much common ground as possible with the Obama administration on policy, legal rationales, and legitimacy.  It should strive to show, not innovation, but continuity across presidential administrations.  Changing circumstances would force it to have to innovate no matter what; but it would be well-advised not think that it can suddenly start capturing people or using new rules for interrogation.

Messages Team Romney has occasionally put out – that Obama policy on targeted killing is okay but lacks the nuance of capturing and interrogating, and that the Obama administration is nothing ore than the prisoner of its own limitations on interrogation and having some place to stick new detainees – well, let me state baldly, this is not what drives the Obama administration.  It is in the first place responding to serious tactical constraints on the ability to capture people who are legitimately and lawfully subject to lethal targeting – an unwillingness to expose both civilians and US personnel to the much larger risks of attempts to capture, particularly when it is under no legal obligation to attempt or even consider capture over lethal force.  One wonders if the Romney team has given any serious thought to the risks created to American military personnel if a signal is given that it is obligated to attempt to capture – consider how tactical considerations change, for the better for terrorists and for the worse for US personnel and civilians.  Or whether it has given any serious consideration to the thought that there is not really a lot of great information to be gathered these days out of enhanced interrogation techniques, given how different the intelligence situation is today compared to 9/12.

Or whether it such a great idea, as some Republicans have done, practically to taunt the Obama administration for not putting capture over kill.  It invites, if there were a Romney administration, a call to make good on this, and perhaps even leads, to the alarm and dismay of the national security community and military, to a general claim that military targeting must pursue attempts to capture rather than kill, in serial order, even for persons who can be targeted with lethal force.  The result of that will be either a lot more dead SEALs or else a lot fewer attempts to target terrorists.  Does that seem like a good idea or worth the taunts against the Obama administration? For that matter, one also wonders – particularly if rumors have some truth in them that Ambassador Stevens was the victim of an attempt to take him hostage in exchange for the Blind Sheik – just how serious the problems of putting many new detainees at Guantanamo and incentivizing jihadists who don’t really care about the legacy detainees, but will care a lot about new detainees, and will start taking Americans and Westerners hostage.  Dead terrorists, rather than new live ones at Guantanamo, create far fewer incentives to hostage-taking.

One hopes and figures that an actual Romney administration would learn, in the same way that the Obama administration did, that many of the existing, long-running policies have sensible, rational, long term, non-political reasons for them.  But in any case, the general trend since the second Bush term and Obama administration has been mostly convergence on these policies. Perhaps, at least after broad continuity – stability of broad policy, through another change of party administration – it might be accurate to talk about “institutional settlement” in counterterrorism, at least in matters of “counterterrorism-on-offense.”

VI

That’s the US political community, however. Within important parts of the international law community, on the other hand, many of these same practices are seen as contentious and illegal from a law and policy standpoint. Pretty much every aspect of US “counterterrorism-on-offense” is challenged by important parts of the international law community, particularly its advocacy and activist wings. Jack Goldsmith notes at Lawfare that the UN Special Rapporteur on counterterrorism and human rights, Ben Emmerson, in a recent speech at Harvard Law School, said that some of the Obama administration’s targeted killings might be war crimes; and he has also said that he will consider convening processes through the UN Human Rights Council in order to set standards and, without mincing words, constrain the US.  It is directly a shot over the bow of US targeting practices, in which every element of the US legal view is contested – from the idea of an “armed conflict” with Al Qaeda to the application of laws of war principles to the participation of the CIA.

That campaign is gathering steam, as I, like Goldsmith, have often predicted.  Given the Obama administration’s enthusiastic embrace of the UN Human Rights Council, one wonders how it will react, if there is a second Obama administration. While it has been willing to go along with anything at the UN that smacks merely of symbolism about human rights and values, it has been willing to engage in exactly zero discussion of its counterterrorism war at the UN.  (I discuss the many shortcomings of the Obama administration’s engagement with the UN HRC and UN “values” processes generally in my book, Living with the UN: American Responsibilities and International Order.)

It is true, there might be some modest countertrends in the international community, particularly when it comes to actual practices. French drones to Mali, for example, or Germany perhaps acquiring weaponized drones. Perhaps just the simple fact that drone technology was always going to transform aviation generally, as part of a longer-run trend toward greater automation of many things, and in which military applications are just one part of it. Or the gradual recognition that drone warfare offers new modalities of humanitarian intervention, though for much the same reasons it offers new possibilities of intervention; accepting it as a technique of humanitarian intervention makes it modestly harder to reject it as a possibility for intervention, insofar as the objection is centered on drone warfare as such.

But these are at most modest counter-trends in an international law and advocacy community that is itself converging on a campaign to contest the legitimacy of American counterterrorism policies and legal views. Overall, that community speaks with increasingly loud and strident voices of objection to US policies – despite, and in some ways on account of, convergence on the legitimacy of policy in the US political community.  The two communities are on a collision course politically.  And with surprisingly little attention to this within the broad political center in the United States – either because these objections are not perceived very much at all, or else because they are not perceived as being able seriously to affect US policy, given gradual convergence of an institutional legitimacy for these policies within the US political community.

I myself think this indifference seriously underestimates how much of an impact these voices of objection might finally have on US policy. To understand how this might turn out to be so, let’s talk purely “strategically” for a moment. Meaning by “strategically,” without any view of the substance of the positions – as if simply rationally framing an NGO or UN-led advocacy campaign against drone warfare and targeted killing policies as the US has embraced them. I’m not speaking cynically here; I don’t doubt anyone’s or any organization’s sincerely held views on the legal or moral substance here, but let’s think for a moment purely from the standpoint of strategic behavior.

VII

Seen from the standpoint of the international advocacy community, the choices for advocacy campaigning are premised on either Obama 2 or Romney 1. In the case of Obama 2, the rational fear has to be that although there has been considerable unwillingness to take on the Obama 1 administration directly and aggressively – announcing its policies as illegal, even war crimes, for example, or calling for indictments and prosecution in foreign courts for Obama officials – if these policies go on for eight full years, they will likely be set in stone within US doctrine, policy, law, strategy, and tactics. From a campaigning standpoint, it is not feasible to wait until President Obama leaves office if it goes on eight years. If that is so, then the time to raise the advocacy pressures is as soon as possible in the beginning of a second Obama term, because policy simply can get more sticky as more time passes.

This creates a difficult strategy problem for advocacy groups, however.  Although there is a left wing of the Democratic party that sees this as the international advocacy community does and is increasingly willing to say so – simply given the fact of a Democratic administration, a wide range of Democrats will hang with it. The advocacy community faces a significant risk that, the broad political center of the Democrats will hang with President Obama, stand by him and his administration’s policies into Obama 2 – and even more so if UN Special Rapporteurs or UK magistrates or Pakistani judges start threatening indictments or arrests, or civil damage judgments against US officials individually.  The goal of the campaigners, as the UK organization Reprieve has said many times, is to succeed in de-legitimizing drone warfare by turning it into a new version of Guantanamo as an international symbol of wicked America.  But in Obama 2, the effort to de-legitimize might not merely fizzle, at least as far as American institutions are concerned – it might have the effect of actually legitimizing US policy and solidifying it, especially stretched out over two Obama terms. The advocacy campaigners can’t afford not to act early in Obama 2, because of path dependency in policy and “lock-in” – but they also face a greater risk (than they would in a Republican administration) that an unsuccessful de-legitimation campaign winds up entrenching its legitimacy.

In the case of Romney 1, advocacy strategy is much simpler.  It is simply the Guantanamo-Bush playbook reprised.  It’s made possible because an advocacy campaign against these policies in a Republican administration has greater hope for a “pivot” by Democrats who, in the case of a Democratic president, would hang with the administration – but don’t see any reason to do so in the case of a Republican administration. So one can hope either to enlist them to one’s side or see them remain indifferent to an advocacy campaign against the Republican administration’s policies, even if, in substance, they are the same and merely a continuation of the previous administration’s policies. Moreover, since neither party, as presidential administrations, seems very inclined to go to Congress to get legislation and, in effect, a political announcement that the two political branches have reached agreement on policy and law in these contentious areas, political and policy stability is much weaker. This particularly so given that the default position of any opposition party is to criticize-on-autopilot, especially when votes in Congress have not locked at least some of them in, including perhaps Congressional leadership, and reduced their ability to kibitz from the uncommitted sidelines.

If this “pivot” or at least indifference by Democrats under a Romney 1 turned out to be a real consideration, it presumably rationally incentivizes an advocacy campaign to be much more aggressive in its legal and other characterizations of such things as targeted killing by a Romney administration. This would presumably be so even if Romney 1 just continued policies of its predecessor, without altering things. Advocacy campaigners would have far less political reason, strategically speaking, not to call these things war crimes, seek indictments in foreign courts, assemble meetings of UN experts to denounce the US, and to undertake many other tactics that have been relatively muted under Obama 1. (There are lessons here that one hopes someone in what might be a future Romney administration is taking on board in a serious way; Team Romney seems to have reached this point of the campaign with the quite mistaken political view that if Obama did it, Romney can do it, and more.  This is remarkably foolish, not to put too fine a point on it.)

VIII

But what about incentives for the advocacy organizations while still under Obama 1 – with the outcome of the election still unknown? There seems to me a strong strategic interest on the part of campaigning advocacy organizations to get as much as possible of one’s legal conclusions and characterizations in place before the election takes place. Call this “pre-positioning” by advocacy groups. The rational incentive is simply that it is easier to defend against a charge that an organization’s views were one thing under Obama and another under Romney, if one has come as close as possible to declaring those much stronger conclusions while still under Obama 1 rather than waiting until Romney 1.

There is a countervailing disincentive while still under Obama 1.  If organizations become too strategically aggressive while still under Obama 1, they risk the problem of fizzling or de-legitimation as described above.  Describing President Obama as a murderer or war criminal is not likely to stick; more likely it would damage the advocacy campaign by making it appear crazy and extreme.  Strategically, it is okay to label President Romney, or his senior leadership, murderers and war criminals; politically, it can’t be done with President Obama and his team, and to do so only damages the advocacy campaign.  But pre-positioning still has value in being able to say that one had not simply adopted all these quite radical legal conclusions when the Republican entered office.  Hence the incentive to wait until the months just before the election – and simultaneously raise claims over illegality as high as possible without quite crossing a line that will not politically succeed applied to President Obama.  Once a President Romney is in office, then the other shoe can drop.

This strategic “pre-positioning” behavior might be thought to be playing itself out, in other words, in the ways in which advocacy groups have been edging closer and closer to describing various parts of the Obama administration’s as illegal or potentially criminal; or announcements that indictments are being sought in Pakistan against former Bush officials for targeted killing (despite the fact that nearly all such targeting has taken place under Obama); or statements that participation of the CIA in targeted killing “might” be illegal, but leaving open the possibility of concluding fairly quickly that it is illegal.  No advocacy campaign can succeed without narrative media support; this has been the core of human rights campaigns since the 1980s – and in this, one sees a shift in media anxieties about targeted killing, and perhaps most strikingly, the recantation of the New York Times on its manner of reporting about drones, at least through the eyes of its public editor, in ways that seem peculiarly matched to poll shifts in the likelihood of a Romney presidency.  Correlation is not causation, of course.

To be clear, I’m not attributing motive or bad faith or anything like that to campaigning organizations.  I’m merely describing rational incentives and strategic behavior.  I have no knowledge of motivations or intentions, and in any case I have no doubt that groups that have or are in the process of concluding that various of these activities are illegal believe their substantive analysis sound and correct. That’s why they’re campaigning so hard on these issues, after all. But advocacy groups do have to think about strategy in campaigning; I’ve spent years doing NGO advocacy campaigns, and if I were looking to rationally and strategically structure a campaign against US counterterrorism policies in these areas, this is how I’d think of it. I don’t think the NGO world is less rational or strategic than me, and I’m sure it’s much cleverer. But these strategic considerations seem to me a pretty good fit to what has happened so far; we can see what happens post-election. The kinds of legal characterizations, statements by UN officials, appearance of reports from various organizations, reasonably successful attempts to get more attention to the campaigning viewpoint in the media, in the months running up to the election, suggest to me a serious attempt at “pre-positioning” by NGOs and advocacy groups before the election.

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