The Volokh Conspiracy

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.” Continue reading ‘Afghanistan and Nation-Building’ »

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 that kissing a young son’s penis is accepted as common practice in his culture. Kargar also said it was very possible that his neighbor had seen him kissing his son’s penis. Kargar was arrested and taken to the police station.

Prior to the jury-waived trial Kargar moved for a dismissal of the case pursuant to the de minimis statute. With the consent of the parties, the court held the trial phase of the proceedings first, followed by a hearing on the de minimis motion.

The de minimis hearing consisted of testimony from many Afghani people who were familiar with the Afghani practice and custom of kissing a young son on all parts of his body. [Footnote: Kargar testified during the de minimis hearing that the practice was acceptable until the child was three, four, or five years old.] Kargar’s witnesses, all relatively recent emigrants from Afghanistan, testified that kissing a son’s penis is common in Afghanistan, that it is done to show love for the child, and that it is the same whether the penis is kissed or entirely put into the mouth because there are no sexual feelings involved. [Footnote: Kargar testified during the de minimis hearing that his culture views the penis of a child as not the holiest or cleanest part of the body because it is from where the child urinates. Kargar testified that kissing his son there shows how much he loves his child precisely because it is not the holiest or cleanest part of the body.] The witnesses also testified that pursuant to Islamic law any sexual activity between an adult and a child results in the death penalty for the adult.

Kargar also submitted statements from Professor Ludwig Adamec of the University of Arizona’s Center for Near Eastern Studies and Saifur Halimi, a religious teacher and Director of the Afghan Mujahideen Information Bureau in New York. Both statements support the testimony of the live witnesses. The State did not present any witnesses during the de minimis hearing. Following the presentation of witnesses the court denied Kargar’s motion and found him guilty of two counts of gross sexual assault.

[I.] Maine’s de minimis statute provides, in pertinent part:

1. The court may dismiss a prosecution if, ... having regard to the nature of the conduct alleged and the nature of the attendant circumstances, it finds the defendant’s conduct:

A. Was within a customary license or tolerance, which was not expressly refused by the person whose interest was infringed and which is not inconsistent with the purpose of the law defining the crime; or

B. Did not actually cause or threaten the harm sought to be prevented by the law defining the crime or did so only to an extent too trivial to warrant the condemnation of conviction; or

C. Presents such other extenuations that it cannot reasonably be regarded as envisaged by the Legislature in defining the crime.

Continue reading ‘“Cultural Defenses,” Crime, and De Minimis Violations’ »

(c) Jean-Marie Simon

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 corruption, whether by the private interests of the oligarchy which, strikingly, is clearly distinguished as often working against the interests of the “nation” by army officers – or the then-emerging drug trade.

Twenty years later, Guatemala, including its military, oligarchs, and others, are all deeply enmeshed in the drug trade and the effect is tearing apart society in ways often more extreme than, but overshadowed by, neighboring Mexico. Continue reading ‘Counterinsurgency Then and Now’ »

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 be the proper intent given the presumed opinions of many lawyers advising inside the government (many of those questions came up, of course, in the detention-interrogation-rendition arguments as well). His fundamental point is to say, as far as I understand it (and if I do, I agree), if you declare that CIA participation is a crime, then it follows that somewhere there is a perpetrator. Not to go after him or her is to permit impunity; it is not a matter of saying, well, you are committing crimes, but all we want to do is persuade you to change your policies going forward to bring you into compliance with international law. Crime is a charge of more than mere non-compliance. If there is a crime, someone must be responsible for doing it, whether you call it murder, criminal extrajudicial execution, what have you.

And whether one calls these crimes serial killing, murder, extrajudicial execution, etc., they are still a large number of killings. It’s not the kind of crime that just happens to be a tort or civil infraction criminalized, but for which as a regulatory matter one can simply agree not to do it any more, like various of the lesser environmental “crimes” for which corporations routinely pay criminal fines in the domestic United States. Killing is not like that, presumably, at least not when it’s systematic, systemic, large-scale, and under direct orders.

The article by Mary Ellen specifically says who commits a crime – members of the CIA. Yet they are not acting as rogues in this, but rather under direct orders of the President. If it is correct to call the acts a crime, then it is correct to identify the criminals, and those criminals will have to include those who ordered them to do the crimes. So what is it to be? I think it a salutary reminder that one ought to be careful in cranking up the machinery of international criminal law over contested interpretations of international law. One risks either over-invoking it or trivializing it or both. I take it that was Ben’s larger point in seeking to force the question onto the table by insisting on using an ordinary, non-legal term like serial killing.

I have another concern beyond this, however. It goes to one of the responses in the debate from Mary Ellen when Ben insisted in pressing the point. It is that it would be politically unrealistic to consider going after Barack Obama or Harold Koh, so there is no point to raising the issue of criminality and, I took by implication, Ben was engaging in a strawman argument to do so. But why should it be seen that way? Ben did not assert the question of criminality in the first place, and then suddenly or unreasonably put it on the table, after all; it is not a proposition tossed up by Ben. “Crimes” as an issue were raised in the first place by Mary Ellen against CIA officers. Ben has pointed out that they are acting under perhaps the clearest, deliberately and (admirably, in my view) least deniable set of orders from the President of the United States in a long time on contentious national security matters. If there is a crime, there must somewhere be a criminal or else it is merely a series of unfortunate events; if there is a criminal, he or she did not act alone, because these agents acted under instructions from a principal.

So this is my concern: If it is politically unrealistic to consider going after Barack Obama and Harold Koh and Leon Panetta and Joe Biden, et al., and that is the reason (or a big part of it) for not pursuing criminal sanctions that follow upon criminality, well, one has to wonder when it will be politically realistic.   Continue reading ‘Targeted Killing and Drone Warfare Debate between Mary Ellen O’Connell and Benjamin Wittes’ »

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 might go in seeking safe haven, or by new groups emerging that increasingly are not directly linked to AQ even if they take inspiration and aims from it.  I have queried at what point jihadist groups threatening the US become only “notionally Al Qaeda” and part of our existing legal framework of a non-international armed conflict only in theory, increasingly remote from the reality.  Territory or legal geography of conflict matters in that, not because the armed conflict is inherently bound to a territory or geography, but instead because the group at issue is only tenuously connected to the group initially defined as part of the armed conflict – partly under domestic law considerations and partly under international law considerations.  The non-international armed conflict goes where the participants go; and likewise if new groups engage in co-belligerent action, then they become part of the armed conflict.  But it has seemed to me in the past several years that some of these groups are in other places and not obviously connected, except by a forced abstraction, to the groups under the AUMF.

I still think that is a perfectly good way to see the use of force.  The new groups present a threat; they present a threat in a place where the armed conflict is not actually underway with respect to them; the US targets them as self-defense in the absence of an armed conflict.  Alternatively, however, if you think either that the people you are targeting are part of the armed conflict to start with because they are linked sufficiently to AQ and the authors of 9/11, or even more directly because they are AQ or affiliates fleeing Pakistan or Afghanistan in search of new safe havens, then the case for viewing this as simply the continuation of the existing non-international armed conflict is also highly plausible.

I view these rationales as permissive, rather than a forced choice between them, and think that each is a perfectly plausible and justifiable way of looking at current actions in Yemen or Somalia.  With regards to Pakistan, insofar as those being targeted are as part of the counterterrorism campaign, that seems to me unremarkably part of the on-going armed conflict, albeit one that has broadened out to include Pakistan Taliban and various terrorist groups in Pakistan that have allied themselves with AQ.  The point, however, is that the question of whether the proper framework for legal analysis is armed conflict or self-defense begins not from geography but instead from the identity of whom you fight; if it is a genuinely unrelated group and, even more plainly as a hypothetical, a genuinely unrelated issue – a new form of transnational Maoism in the Andes, say – then the question of legal geography comes into play to ask whether hostilities of sufficient intensity, etc., suffice to evidence a non-international armed conflict.

This is a change in emphasis for me, and in part a shift in view; in the past I have emphasized far more the geography as to where hostilities are underway, but I am persuaded that the correct analytic frame is to ask “who” and then whether, “where” the fighting takes place, the threshold of sufficient hostilities has been met.  But this is in the context of understanding that in places such as Yemen, it seems to me the facts can be plausibly understood to fit either view.  Indeed, an important shift in my view concerning Yemen in particular is that as we understand better the relationships between Al Qaeda in the Arabian Peninsula and other groups in Yemen and AQ proper, the facts increasingly suggest that both in the past and even more strongly today, the best – and not merely a decently plausible – characterization is to understand them as part of the non-international armed conflict.  It seems to me that there are good legal grounds to understand Somalia and Yemen as attacks as individual acts of self-defense, but as I read the Woodward book and what John Brennan in particular says about the movement of AQ operatives into those new safe havens, and talk with well-informed reporters, those factual descriptions are persuading me that the better of the two views is to see attacks there as part of the on-going non-international armed conflict.  That would include the targeting al Al Aulaqi.

I also understand that the Obama administration has reasons grounded in domestic law for preferring to see the best international legal frame as non-international armed conflict in Yemen or Somalia.  This arises from its view that for domestic law purposes, the terms of the conflict are set by the AUMF, and not the discretionary scope of the executive.  I think this is perfectly plausible as an international law rationale – either seems to me available to it – and in any case, my reading of the facts on the ground in those places suggest that the administration is not simply making a “notional” argument by any means for how it sees attacks in Yemen or Somalia.  The Obama administration is on sound grounds in saying that the non-international armed conflict goes where those who participate go, and extends to groups that co-participate with them.  But that is a shift in my read of the facts from two years ago, and it is also a shift in emphasis as to taking geography into account.

As one government lawyer put it to me, the administration’s view is that, yes, it does have independent grounds for self-defense, exactly as Harold Koh said, and in an appropriate circumstance will invoke it nakedly, without recourse to an armed conflict.  But it also holds the view that once parties initiated a non-international armed conflict, and met the thresholds of intensity and all that, the same non-international armed conflict goes where they go, irrespective of geography.  As he immediately added, with notable weariness, this does not mean Predators over Paris, whether France or Texas; Yemen is not France.  Territorial integrity is an important, vitally important principle of international law – but it can be overcome where a state either cannot or will not control its territory – which is to say, assert the lawful sovereignty over territory for which it has both a privilege but an obligation.  No safe havens has also been a bedrock qualification on territorial integrity of states, as a matter of self defense and consistent state practice.

I am (still) completing a new essay on the operational roles of drones, a roster of strategic uses, one that leaves aside the legal issues in favor of trying to get an analytic handle on the increasingly variegated uses of drones and targeted killing.  It seems to me important for legal analysis because the variations are sufficiently great at this stage that different uses suggest different legal frameworks – some are involved in armed conflict, for example, and some might not be.  But as the argument over the use of drones in Afghanistan, Pakistan, Yemen, and beyond intensifies, I thought it would be worth taking a moment both to clarify and advance my own baseline legal position.  Thus:

Although asserting the framework of self defense, and elaborating its constraints based in necessity, discrimination, and proportionality is crucial, because not all uses of force by the United States will always and forever be instances of armed conflict, it does seem to me plausible and – given the current understanding of facts on the ground in Yemen and Somalia – the best understanding of who is being targeted to regard those uses of force as part of the on-going non-international armed conflict.

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 covert campaign on Pakistan’s side of the border with Afghanistan has in many ways morphed into a parallel conventional war, several experts say.

Which is to say, the conflict in Pakistan has evolved to the point that, although the Pakistani government does not say so publicly, and neither does the US, one can say either that the conventional war in AfPak has widened to include the Pakistan Taliban or else that a secondary conventional conflict has opened up within the primary one.  Recall that two or three years ago, Pakistan was battling, or not, depending on the period, its own Taliban – but we were not directly involved, except in support of their fight.  Things have clearly broadened to the point that we and the Pakistani government are battling the Pakistan Taliban.  And, noting the Times Square bomber, the Pakistani Taliban have been planning for some time now how to bring the battle to us.

This, I would suggest, is the most important reason why the Reuters analysis found a greater emphasis on killing low level soldiers.  This is no longer covert, or not so covert, targeted killings of high value individuals, but a more discretely aimed part of the overt conventional war.  Cannon fire, but using vastly more precise weaponry – rather than something outside of the regular military operations, this is now part of the overt war, using much more precise weapons.  It is a weapon being used to harass the enemy’s rear – an unusual weapon in a quite usual battlefield role. Continue reading ‘The Changing Conflict in Pakistan, and Targeted Killing’ »

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.

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 the issue themselves, than the technological issue that forces the role of the CIA in the use of force onto the table.  This debate is fundamentally about the CIA.
• Defending the legality of drone warfare gets you to different places depending on what legal rationale you think fits the case.  Going down the road of armed conflict will finally rule the CIA out of it, as well as limit the geographical reach of the use of drones, whether by the CIA or the military.  That is an important reason – given that the Obama presidency is foursquare behind drone strikes in places well beyond the active battlefields of Afghanistan – why the administration’s lawyers should not be giving up the US’s traditional, longstanding position that it is legitimate to use force off the hot, active, traditional battlefields in pursuit of terrorists – but that the appropriate way to understand this as a matter of law is self-defense, rather than the narrower law of armed conflict.
• Folks who buy into the currently Jane Mayeresque tropes about drone warfare removing the constraints of geography, the “natural barriers” that US forces would otherwise have to fight their way through, as the ACLU’s lawyer put it at Harvard recently, and thereby reducing the US disincentive to use violence, had better be really clear what they are saying.  Because what they are saying is that the US will have easy incentives to reach to the drone as a weapon because its servicemen and women are not sufficiently at personal risk to deter the US from using force.  That’s what you mean when you talk about “removing natural barriers” or reducing the American disincentives to violence.  You mean that not enough US personnel are at risk of getting killed.  I’d be interested to meet the US Congressperson who’d like to stand up and make that argument.

Well, this needs work, but it’s 1:00 am.

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 strategic reasons – but a concept that some in the international law community find wrong or disturbing), but in places beyond.

Was one reference to drone attacks inserted in the speech when the President said that the United States “will have to be nimble and precise in our use of military power”?  Whether that or any particular bit was a reference to targeted killing, however, a core message of the President’s address as a whole was that the US would target terrorist leadership worldwide, not just in Afghanistan and Pakistan, and in ways that can most easily be attributed to targeted killing, including via Predators:

High-ranking al Qaeda and Taliban leaders have been killed, and we have stepped up the pressure on al Qaeda world-wide.

And the President added that we “cannot tolerate a safe-haven for terrorists whose location is known, and whose intentions are clear.”  Those places in the world were not just limited to AfPak, but specifically mentioned “Somalia and Yemen or elsewhere.”  Still, that said, the full context of this quotation shows that the administration regards soft power and hard power together in confronting “violent extremists”; there are multiple ways of interpreting this passage and what are undoubtedly its deliberate ambiguities:

The struggle against violent extremism will not be finished quickly, and it extends well beyond Afghanistan and Pakistan. It will be an enduring test of our free society, and our leadership in the world. And unlike the great power conflicts and clear lines of division that defined the 20th century, our effort will involve disorderly regions and diffuse enemies.

So as a result, America will have to show our strength in the way that we end wars and prevent conflict. We will have to be nimble and precise in our use of military power. Where al Qaeda and its allies attempt to establish a foothold – whether in Somalia or Yemen or elsewhere – they must be confronted by growing pressure and strong partnerships.

And we cannot count on military might alone. We have to invest in our homeland security, because we cannot capture or kill every violent extremist abroad. We have to improve and better coordinate our intelligence, so that we stay one step ahead of shadowy networks.

Lest anyone doubt that targeted killing is an important, indeed key strategy, Scott Shane reported in the New York Times a few days after the West Point speech on the US government’s expansion of the Predator program (Jonathan noted this article earlier), and a vigorous, off the record defense of it with respect to the two core issues – identification of targets and collateral damage – by an unnamed senior source at the CIA.

Shane did outstanding reporting on the controversies surrounding drone targeted killing (I will come back in another post to discuss the collateral damage controversies, but the article is well worth reading on that question.)  It appears to me that the CIA – independent of the Obama administration? – is slowly waking up to the likelihood that its operatives and officials will be targeted by the international law and human rights groups, quite possibly with cooperation from courts in Europe or the ICC prosecutor, if not now, then down the road once the Obama administration is out of office and these often-career officials are left holding the bag.

But the issues are not just targeted killing in relation to safe havens and terrorist leadership.  As David Sanger and Eric Schmitt report today in the New York Times, the Obama administration is now saying that it will use force, even across the border into Pakistan.  This might seem unremarkable, since the CIA is obviously already operating there – without official acknowledgment, if not really “covertly” in the strict sense.  From the standpoint of international law and lawyers, however, cross-border operations raise issues of consent, sovereignty, the UN Charter, and so on.  The US government says that the government of Pakistan has privately, but not publicly, consented to the CIA Predator strikes.  Will the government of Pakistan consent publicly to military strikes cross border against safe havens?  If it does not, what is the legal situation?

Candidate Obama said he would go into Pakistan – no mention of consent – in order to go after Al Qaeda and Bin Laden.  The administration now seems to be signaling its willingness to go in with more forces, and overtly military forces, partly in pursuit of Al Qaeda, but more obviously in support of the Afghanistan war, to eliminate the safe havens for the Taliban.

What about consent by Pakistan as a legal matter?  Much of the international law community would say that without it, or without a Security Council authorization, such incursion is prohibited, except possibly under some narrow “hot pursuit” or a few other limited exceptions.  The Obama administration might say that it either has consent – but what does that mean if the Pakistan government will not publicly acknowledge it?  Or that it has Security Council authorization for the Afghanistan war, and the elimination of safe havens is incident to that – but is that really so?

Regardless of the discussion within the international law community, the United States has never accepted the view that safe havens across borders were inviolable.  On the contrary, the US position has always been that if a government is unable or unwilling to control its territory, safe havens in that territory were liable to attack.  The Obama administration needs to stand up and plainly reaffirm that doctrine.  Not just to assert the modified-limited-hangout, we’re-slightly-ashamed-of-ourselves claim that “we have consent” or that “the Security Council said okay” – but what the US has always taken as international law, that safe havens are liable to attack, if the sovereign state is unwilling or unable to control its territory.  It is the position taken most clearly in the 1989 Abraham Sofaer speech, as Legal Adviser to the State Department – a speech taken as USG policy and its official view of international law.  (The text of the speech can be found here in pdf scan of the Military Law Review, where it was re-printed, but there are easier to read versions at Westlaw.)

Would the Obama administration seriously doubt that this plain statement by Judge Sofaer is its actual view of the law today?  The Sofaer speech has never been withdrawn; it remains, so far as I know, the official view of the USG.  But it has been allowed to gather dust in the past decade or so.  It should explicitly reaffirmed as the underlying US view, as general principle of law.  It is not the complete statement of law, because it is about terrorism and does not go on to the (legally easier) question of eliminating safe havens in armed conflict:

The United States also supports the right of a State to strike terrorists within the territory of another State where the terrorists are using that territory as a location from which to launch terrorist attacks and where the State involved has failed to respond effectively to a demand that the attacks be stopped.

The United States, and likely the Obama administration, is going to confront situations that are not covered by state consent or a Security Council resolution – but in which it will act, under doctrines of self-defense.  It would be in the adminstration’s interest, and the long term interest of the United States, to reaffirm this doctrine at the general level, and not merely piecemeal.

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.”