Tag: CIA

Torture as War Victory: 'Zero Dark Thirty' and the torture reports

This post is the first of our ‘Throwback Thursday” series, where we re-publish an earlier post on a topic that is currently in the news, or is receiving renewed attention or debate. This original post was published February 23rd 2013 (right before the Oscars) but the main arguments about the utility and rational behind torture expressed in the movie may be worth revisiting given the recent release of the CIA’s ‘torture report.’

“This is what winning looks like”

I have to confess, I was late to watch “Zero Dark Thirty” (ODT). I read a handful of reviews and blogs about the movie, had arguments with friends about its message, and even wrote it off completely–all weeks before I bothered to watch it. I wasn’t interested in watching another American war movie, nor was I keen to see the lengthy torture scenes I had read about in the reviews. I figured I already knew exactly what the content was (are there every any real surprises in American war movies? and, didn’t we all know how this story ended anyway?) and that there was really nothing left to say. BUT, I think there is something left to say about the film.

First, let’s all be honest: most of us walked away from this movie saying to ourselves “did I miss something?” What about the film deserved all the Oscar hype, debate, and acclaim? By most standards, this was a classic, boring American war movie. In this case, the lack of plot and acting skills are made up with using violent torture scenes rather than expensive battle scenes. There is no emotional journey, no big moral dilemma that the characters are going through (I’ll get to torture soon), little plot twist (again, we all know how it ends after all), and no unique or interesting characters (don’t get me started on Jessica Chastain–what exactly about her stone-faced performance warrants an Oscar? perhaps she deserves an award for for ‘most consistent blank expression’). So what gives? Is this just another “King’s Speech”? Meaning, is this just another big movie that people talk about and get behind, but no one actually can put their finger on what was remotely interesting about it (never mind what was destructive about it)?

So I’m calling it. Not only was this movie soul-less, boring and poorly made, everyone seemed to miss the message (and it is easy enough to do). The real question about ODT is not whether or not it is condoning torture. Continue reading

Share

“Get the Big Idea Right”

This morning, the McConnell Center at the University of Louisville hosted CIA Director David H. Petraeus.  The event was not publicized and required a ticket for admission. As chair of the Political Science Department, I was invited to hear the talk — and had a seat very near the front and center of the stage, less than 25 feet from the speakers. Unfortunately, very few students outside of the (approximately 40) McConnell Scholars were invited to the event.

The lecture hall was instead filled with older guests, including many veterans and some active duty servicemen (and women, though I didn’t see many), local elites important to the University and Center, faculty, administrators, etc. I sat between a veteran and a banker with a famous local name. Senator McConnell was on the stage with the scholars, as was his spouse, former Labor Secretary Elaine Chao, University President James Ramsey, and Center Director Gary Gregg.

Petraeus spoke on the subject of leadership, a central concern for the McConnell Center and its students. Unfortunately, the former four star General gave a half hour talk that began with a very long introduction thanking his various hosts (and a couple of jokes) and ended with many platitudes that were not especially provocative. 

In between that long intro and weak conclusion, the body of the speech addressed 4 main points (Petraeus called them tasks of leadership) and employed primarily examples from the 2007 Iraq surge “success” to illustrate them:

  1. Get the big idea right (in this case, counterinsurgency strategy)
  2. Communicate effectively throughout the organization
  3. Implement the ideas
  4. Capture the lessons: refine and repeat

Petraeus did not take questions at the end.

That last fact was especially disappointing to me since it seemed like Petraeus ignored the elephant in the room. After all, the Iraq war started in March 2003 and the insurgency was a fairly significant problem not long after the successful U.S. capture of Baghdad. Why did it take so many years to “get the big idea right”? More importantly, how was Petraeus able to convince political leaders of the need for his favored strategy in a context that so obviously started by getting the big ideas WRONG?

In some ways, I think the problems I had with this particular speech and event parallel many of the most common criticisms levied against the CIA.

Why was the event secret? Guests were asked not to publicize the event because of security, but the CIA is frequently accused of excessive secrecy in the name of security. The McConnell Center has often hosted serving Secretaries of State, Ambassadors, Senators,and other political dignataries. Most were advertised in advance and the events were milked for PR purposes. Secretary of State Hillary Clinton’s address was so highly anticipated that people on campus could watch a live-stream of the event. Does a former first lady, President’s spouse, prominent presidential candidate, and serving Secretary of State face lower security threats?

I suspect that the visit of the CIA Director was not advertised because someone feared that left-leaning members of the campus community might organize a distracting protest outside the facility. Even if this is CIA policy, I challenge the rationale behind the policy.

The failure to invite a larger sample of the general student population, the decision to invite dozens of local elites, and the lack of questioning suggests another problem with the CIA. It has a reputation for not being especially accountable to various constituencies.

I’m sure organizers felt as if the event went off well, like an uncontested slam dunk. 

Share

Politics, Intelligence, and Academic Analysis

Writing in Foreign Policy, Paul Pillar makes the case that most so-called “intelligence failures” stem from bad leadership rather than problems with the US intelligence community. He touches upon a number of cases, but Iraq looms large:

Had Bush read the intelligence community’s report, he would have seen his administration’s case for invasion stood on its head. The intelligence officials concluded that Saddam was unlikely to use any weapons of mass destruction against the United States or give them to terrorists — unless the United States invaded Iraq and tried to overthrow his regime. The intelligence community did not believe, as the president claimed, that the Iraqi regime was an ally of al Qaeda, and it correctly foresaw any attempt to establish democracy in a post-Saddam Iraq as a hard, messy slog.

Pillar’s discussion of proliferation is a little more nuanced. He writes:

The intelligence community was raising no alarms about the subject when the Bush administration came into office; indeed, the 2001 edition of the community’s comprehensive statement on worldwide threats did not even mention the possibility of Iraqi nuclear weapons or any stockpiles of chemical or biological weapons. The administration did not request the (ultimately flawed) October 2002 intelligence estimate on Iraqi unconventional weapons programs that was central to the official case for invasion — Democrats in Congress did, and only six senators and a handful of representatives bothered to look at it before voting on the war, according to staff members who kept custody of the copies. Neither Bush nor Condoleezza Rice, then his national security advisor, read the entire estimate at the time, and in any case the public relations rollout of the war was already under way before the document was written.

I can’t speak to all of these claims, but the evidence seems pretty overwhelming that “intelligence failures” — understood as erroneous conclusions produced by the intelligence community in which Bush administration pressure played no role — cannot be blamed for the catastrophic decision to invade Iraq.

This discussion provides a nice pivot to something that’s bothered me for quite some time. Robert Jervis wrote a scholarly book on intelligence failures that, inter alia, places responsibility for the WMD-debacle on the CIA. In response to a negative review in the New York Review of Books, Jervis wrote:

Powers’s other point is that the CIA’s deputy director for intelligence, Jami Miscik, threatened to resign unless the White House stopped pressuring her. But her complaints were about the CIA’s refusal to affirm links between Saddam and terrorism, not about its WMD findings, which was the topic of my analysis. This is a key point. If politicization explained intelligence assessments, we would find them converging with administration preferences. But on Iraq and terrorism, they never did.

This line of reasoning strikes me as a classic “academic logic” blunder, one that I’m surprised that Jervis, as a former scholar-in-residence at the CIA, would make. Bureaucrats and officials pick their fights; they are much more likely to fall on their swords (or threaten to) over battles they believe they can win than over battles they see as losers. Whatever the truth of the matter, Miscik’s behavior is in no way inconsistent with the claim that politicization drove intelligence analysts to overstate the threat of Iraqi unconventional-weapons proliferation.

Share

Kandahar and My Lai; Drone Strikes and Carpet Bombing

 The New York Times recently posted reports about the U.S. military’s trial of soldiers accused of randomly killing civilians in Afghanistan’s Kandahar province, “for sport.”  Apart from the horrors of the alleged crimes, there is a terrible irony in the stories.  This goes beyond the fact that these kinds of incidents are hardly news.  They are completely predictable in any war, even among the best-trained and most disciplined armies—let alone those in which governmental and military leaders provide signals that make incidents like Abu Ghraib possible.  

The irony also goes beyond the coincidence that this story appeared in the New York Times the same day as another, titled “CIA Steps Up Drone Strikes on Taliban in Pakistan.”  That story re-emphasized the open secret that Pakistan has become the new Cambodia.  Like that other unfortunate nation, Pakistan is being targeted because another of America’s wars is not going well.  But rather than accepting the original war’s folly, our military and civilian leaders, in their consummate wisdom, have expanded it to nearby countries.  Supposedly, it is these nations’ failures to control their populations and borders that explains the war’s failures.

But the real irony is the prosecution of these soldiers, when the architects of the war–responsible for placing the soldiers in Kandahar to begin with–are taking actions that predictably lead to large civilian casualties as well.  It is, of course, true that from a legal standpoint, there are differences in the intent of the killers:  in the first case, intentional; in the second, unintentional.  It is also true that in the first case, the soldiers allegedly knew their victims to be innocent.  In the second, military officers believe themselves to be targeting Taliban or al-Qaeda fighters—though of course their information is often faulty.  And, of course, the soldiers should be prosecuted for their alleged crimes.
But the strategic effects of these incidents is little different.  Who would you hate more if your home was destroyed and your children killed by Predators?  The Taliban fighters who the missiles were intended to kill and who were conducting operations in your area—or the American military and CIA personnel sitting at their desks in Creech Air Force Base?  Perhaps both equally—but, more likely, those who pulled the trigger.  Nor is a grieving Afghan likely to care about the legal niceties that help the drone controllers sleep at night–or be assuaged by the payments the U.S. government sometimes disburses to relatives of its collateral carnage.
To my mind, the closest analogy to this situation comes from Vietnam:  The well-deserved prosecution and conviction of Lieutenant William Calley for the My Lai massacre–at about the same time that the U.S. government was carpet-bombing Vietnam and Cambodia to the tune of untold thousands of civilian deaths—all with the broad rationale that we would thereby win hearts and minds.

No doubt our new smart bombs and drones kill fewer innocents–though still far too many, given the futility of the “war on terror.”  But if I were an Afghan grieving over a drone’s dismemberment of my family, would I care about this sign of “progress?”

Share

What is the status of CIA drone operatives in international law? (Short answer: I don’t know, but that shouldn’t matter.)


Despite our modern ideas about a separation between civilians and soldiers in international law (and then complain about the breakdown of the legal distinction in counterinsurgency conflict or situations like Pakistan), civilians have almost always accompanied military forces into the field. These include journalists, clergy (not within the armed forces of an army) and “camp followers” which may have included cooks, tailors, menders, prostitutes, etc.

That these individuals were there and an essential part of the operations of the armed forces, was accepted. Yet, because they were not formally “enlisted” they were considered as civilians and not subject to direct attack so long as they did not take a direct part in hostilities.
This doesn’t render the principle of distinction irrelevant of course. It’s still one of the key principles upon which the law of war rests. However, it does suggest that we sometimes forget that the line has not always been crystal clear between combatants and civilians.
Yet, a major recent difference has been the increasing technological dependence of the armed forces in their military missions. This has resulted in civilians working on computer and weapons systems, possibly crossing certain lines in terms of distinction and participating in a conflict in a direct way.
Efforts trying to regulate civilian participation have not been particularly successful. As is relatively well known, efforts to regulate private military firms (PMFs) have been less than satisfactory (and even the US government who employs them has trouble exercising jurisdiction over their behaviour). The Montreux guidelines are just that – guidelines – and without any enforcement mechanism.
However, the CIA drone issue is different from that of PMFs. The CIA is a state-sanctioned institution. It’s armed and uses force against other actors. So what does it mean for their status under their international law? Are they directly participating in hostilities? Is their participation allowed?


Other important “guidance” here comes from the (controversial) ICRC study on the direct participation in hostilities. This document has been, is and will be subject to a lot of scrutiny (and it will be interesting to see, exactly, which states consider it authoritative. I’m thinking not many…). However, for our purposes here, a lot of the criticism (typically directed to ‘insurgent’-like actors and a supposed ‘revolving door of protection’) does not really apply.


Actually, the position taken with regards to private military firms and civilian employees would seem consistent with what the United States has typically put forward:

III Private contractors and employees of a party to an armed conflict who are civilians (see above I and II) are entitled to protection against direct attack unless and for such time as they take a direct part in hostilities. Their activities or location may, however, expose them to an increased risk of incidental death or injury even if they do not take a direct part in hostilities.

The fifth point of the study, (V Constitutive elements of direct participation in hostilities) is more controversial as some might deem the criteria as far too narrow for the purpose of modern fighting. (ie: On just one point, the United States would likely argue that someone who did financing for a terrorist organization was ‘fair game’). While this might provoke more controversy for their targets, for our purposes, the DPH guidelines suit the CIA Drone pilots rather well.

In order to qualify as direct participation in hostilities, a specific act must meet the following cumulative criteria:
i. The act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm), and
ii. there must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation), and
iii. the act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus).

Regardless of whether or not the threshold is too high or narrow, there is no question that what the CIA drone pilots are doing falls into this category.


Therefore, I would argue the two most important legal issues here are:

1. Is there participation in hostilities legal?
2. Are they subject to attack?

The first question is more difficult to answer than the second. I would argue that the default position regarding civilians accompanying armed forces is that their presence may be authorized by a state/military force (because of the increasing essential tasks that they perform). In this sense, I would argue that their presence is legal if they are authorized by a state and armed forces AND they carry out their operations in line with the laws of war. This implies that all actors should receive instructions and training in the laws of war.

Key to this framework – and I think this is rather obvious from what is stated above – is that although civilians may accompany the armed forces and assist them in a variety of ways, they remain civilians – not combatants or non-combatants (which, in US military parlance are considered to be chaplains and medical personnel). However, they are different from “regular” civilians in that their functions in relation to combat render them targetable.

If we take the case of a contracted computer specialist who accompanies a unit to a forward operating base, I would suggest: 1) His presence is legal. 2) His activities may constitute direct participation in hostilities 3) He may be subject to attack. 4) He, like the rest of the armed forces, must carry out his activities in line with the laws of war.

I think it is clear that for policy reasons the military should do its best to ensure that his participation does not constitute combat functions – although where one draws the line in this day and age is almost impossible to tell.

Article 4(A) of the Third Geneva Convention also makes it clear that should these authorized individuals be captured in an international armed conflict that they are to be given POW status. States/armed forces must therefore provide such civilians with appropriate identification cards.
However, again the CIA case is difficult because it poses several direct challenges to this scenario.

As suggested above, legal questions surrounding the participation of civilians revolve around civilians accompanying the military into the theatre of operations. The CIA case is different – many, if not most, of the operations seem to be coming from abroad or within the United States. Are the civilians therefore within the theatre of operations? And does distance render this ‘arithmetic’ irrelevant?

An important question here is whether or not the CIA operations can be considered as supporting military operations? The CIA program seems to operate at arms length from the DoD/Air Force Program – although how near or far is almost impossible to say. It may be that the CIA and US government considers the Agency to be part of the broader effort in the abstract “War on Terror” and therefore, yes, they are supporting military operations. They may also see themselves as working within a “self-defence” scenario whereby they are responding to the threat of terrorism posed by radical extremists in Pakistan.

Others, however, may see this as problematic because, legally, the conflict in Pakistan must be considered separately – not as an international armed conflict, but as an internal armed conflict and subject to a different set of international rules.

I think questions as to the status of the legality of the conflict in Pakistan are jus ad bellum issues and I will ignore them for the purpose of this post. I am also going to work from the assumption that a drone attack is an “armed attack” for the purpose of the laws of war and that this makes it the appropriate law to apply when considering the CIA operations.

I would therefore apply the following argument regarding the CIA drone pilots:

1. They are civilians.
2. Their activities constitute direct participation in hostilities in a law of war context.
3. They may be subject to attack, regardless of their location. The same may be said for a civilian who provides logistical support for military operations at the Pentagon. Of course, the same may not be said of a civilian who works at the Pentagon Best Buy (and yes there is one) who is supporting the staff who work at DoD, but is not directly participating in hostilities. This individual may be at risk because he/she works at a military target, but is not targetable. He/she must be taken into a proportionality consideration when a strike is being considered or planned.)
4. Their armed attacks must be carried out in line with the laws of war.

But what about their legality?

There is no question that the CIA is not part of the armed forces of the United States. Typically referred to as “other government agency” in military documents, one typically struggles to see them named within the DoD literature.

Yet international law stipulates that armed forces are not necessarily the only groups which may participate on the battlefield. For example, in a situation of a “mass uprising” (levée en masse), civilians may participate in an armed attack with immunity. Similarly guerrilla/partisan movements which follow certain rules have been recognized by the law of armed conflict since 1949.

However, none of these categories work particularly well. The CIA operatives do not meet the standards of these categories and nor were these categories ever really intended to apply to state actors. Ultimately, the Agency represents not “the” armed forces of the United States but “an” armed force of the United States. And this is essentially the main difficulty with regards to their legal classification.

Therefore, I simply can’t help but conclude that the CIA program is operating in a legal grey area – there is just not enough law or examples to render a crystal clear verdict on the status of the CIA operatives. The state-sanctioning of the activity means that they are not simply rogue individuals who are operating like some kind of armed group (unless you want to consider it a state-sanctioned armed group – in which case I don’t know how you would distinguish this from the armed forces). There are differences and developments here which international law has not yet had a chance to catch up with.

Practically, however, this should not make an operational difference. As I have suggested above, I think regardless of who is carrying out the attacks, they must be done in accordance with the laws of war. This is the really important key factor – at least for me. Not who is carrying out the attacks, but whether they are actually done in accordance with the applicable law.

It seems to me that there is no doubt that the individuals who are carrying out these activities are directly participating in activities and are targetable. Additionally, their civilian status does not relieve them of law of war obligations.

To me it would seem that the legality of the participation becomes really important if someone wanted to arrest and charge the CIA pilots for their missions. Practically speaking, I find this highly unlikely.

However, there is a more important issue of accountability here – what happens in a case of gross negligence? Or A clear violation of the laws of war? Who is responsible? I think this is where there is more room to be concerned. And how this will play out remains to be seen.

I’m curious as to what other international legal-politicos out there think of this. Am I missing something? Law simply does not have all of the answers – at the end of the day, I think it will be more helpful if the CIA program is going to have to be judged on its effectiveness vs the amount of damage it does and this will likely be done on political and moral grounds.

Share

The Short Career of Hakimullah Mehsud

In the latest round of the ongoing blood feud between the US military/intelligence agencies and the Pakistani Taliban (Tehrik-i-Taliban Pakistan or TTP), it appears that the TTP’s leader, Hakimullah Mehsud, was killed by a Predator drone attack in mid-January. The assassination was apparently in “revenge” for the murder of seven CIA operatives at a forward operating base in Afghanistan by Hakimullah’s associate and Jordanian double agent, Humam Khalil Abu-Mulal al-Balawi. Of course, Al-Balawi had claimed that his suicide bombing was in retaliation for the assassination of the former leader of the TTP, Baitullah Mehsud, by a CIA drone in August 2009. The US and Pakistan targeted Baitullah Mehsud because he was allegedly behind the assassination of Benazir Bhutto in December 2007 and a series of suicide bombings and armed attacks in Pakistan. Baitullah had claimed that his attacks were only in retaliation for US drone attacks facilitated by the American puppet regime in Pakistan… Thus the origins of this blood feud recede into a murky history of drone attacks and suicide bombing counter-attacks.

To understand the feud, one needs to appreciate that the relatively precise and virtually unstoppable suicide bomber is considered the military equivalent of the predator drone in the eyes of the Taliban. Hence, there is a cycle of carnage unleashed with each drone attack.

So who was this latest target, Hakimullah Mehsud? Should his death be considered a significant victory in the war?

Haikmullah (also known as Zulfiqar; real name: Jamshed) Mehsud was reportedly first captured and interrogated by Western forces (either NATO or CIA) in the Shawal district of North Waziristan in a raid on March 9th, 2007 according to Pakistani and Chinese media agencies. The illegal incursion by two military helicopters into Pakistani territory led to the ritualized faint murmurs of protest and indignation from the Pakistani government. NATO would later deny any involvement in the kidnapping without denying that the incident may have happened. At the time, Hakimullah was merely known as a cousin and confidante of Baitullah Mehsud, the head of the TTP. Through an apparent “catch and release” policy for junior terrorists, Hakimullah was let go.

Although he was most likely illiterate, the young and handsome (in a swashbuckling, Captain Jack Sparrow-ish sort of way) Mehsud became a spokesman for the TTP organization. He appeared on a local news station (Khyber News) in October 2008 to refute rumors of the death of his cousin. He then transferred from the Taliban’s communications desk to become a commander in the field. By November 2008, he rose to become the head of the Taliban in the Orakzai, Khyber, and Kurram Agencies of Pakistan’s Federally Administered Tribal Areas (FATA). However, even as he rose in the ranks of the Taliban, he continued to hold press conferences and grant interviews to local journalists — a sharp contrast with his introverted cousin, Baitullah. The brash commander particularly enjoyed showing off the Humvee he had captured from NATO forces by raiding their supply lines.

Despite his oddly charming personality, it was clear that Hakimullah was also ruthless. He claimed to have had several men beheaded for spying on the Taliban. He instituted a strict interpretation of sharia’ and enforced a ban on the movement of women outside of their homes in the Orakzai Agency.

The first attempt by the US to kill Hakimullah with a Predator drone was in April 2009. In revenge for this failed attempt, Mehsud unleashed a wave of suicide attacks and threatened that there would be at least two suicide bombings per week in retaliation.

Hakimullah was appointed to head the TTP network by a shura (council) after the assassination of his cousin by a drone in August 2009. Notably, Hakimullah held a press conference flanked by his new lieutenants to announce his promotion and he vowed to avenge the drone attack … a vow that his associate, al-Balawi, helped him to fulfill on the last day of 2009. Hakimullah would live for only one more month as American drones narrowed in on him.

At the end of the day the short three year career of the brash and ruthless Mehsud is relatively inconsequential in the broader war. The contrast between Hakimullah and his predecessor only illustrates the wide range of personality types which can assume a leadership position within the Taliban. The skill set Hakimullah used to lead the Taliban organization in the field were not particularly unique or demanding — he was little more than an illiterate, brutal, and narcissistic gangster.

When the camera pans back from the current assassination, it is clear the overall US strategy of leadership decapitation has failed to make a noticeable dent in the operational capacity of the organizations and networks that call themselves the Taliban. If anything, the Taliban appear to be growing bolder on both sides of the Durand Line that separates Pakistan and Afghanistan. For each commander who is killed, a new leader will rise and take his place after a short period of disorganization. The Pakistani government and media hypes each new leader (while selectively ignoring other militant “assets”), transforming a small fish into a whale; the leader comes to the attention of American forces which begin plotting an assassination with the assistance of Pakistani officials and local informants. After a few failed attempts and some collateral damage, which embitters the local population and helps to recruit more militants, the US usually succeeds in bringing down their man. The Americans trump their kill as a success in the war. Unfortunately, very little is actually accomplished as the cycle resets with each successful assassination, the structural positions are re-loaded, and the game begins again.

A leadership decapitation strategy only makes sense when one is confronted with a highly centralized organization led by a small number of capable leaders and a mass of fighters with low morale — this is clearly not the situation of the organizations and networks targeting Americans and their client regimes in South Asia. The US military and intelligence community continues to confuse a policy of revenge killings for a viable military strategy to defeat a broad based and conscious rebellion.

Share

Use it or lose it

A recent paper from Brookings, Georgetown and Hoover discusses the international legal aspects of targeted killing. As you would expect, American policy isn’t in sync with the emerging global norm. An idealist might argue that the US is in the wrong (and they have a very strong case under the International Convention on Human Rights); a Realist might argue that the US needs the latitude to kill because it (or somebody–and nobody else is available) has the responsibility to combat enemies of the legal regime that everyone else assumes. The point that I hadn’t thought of before is the conclusion that the US might want to be open about what it is doing and assert–as a legal principle–that this is as it should be.

The ultimate lesson for Congress and the Obama Administration about targeted killings is “Use it or lose it.” This is as true of its legal rationale as it is of the tool itself. Targeted killings conducted from standoff platforms, with improving technologies in surveillance and targeting, are a vital strategic, but also humanitarian, tool in long-term counterterrorism. War will always be important as an option; so will the tools of law enforcement, as well as all the other non-force aspects of intelligence work: diplomacy and coordination with friends and allies. But the long-standing legal authority to use force covertly, as part of the writ of the intelligence community, remains a crucial tool—one the new administration will need and evidently knows it will need. So will administrations beyond it.

****

The death of Osama bin Laden and his top aides by Predator strike tomorrow would alter national security counterterrorism calculations rather less than we might all hope. As new terrorist enemies emerge, so long as they are “jihadist” in character, we might continue referring to them as “affiliated” with al Qaeda and therefore co-belligerent. But the label will eventually become a mere legalism in order to bring them under the umbrella of an AUMF passed after September 11. Looking even further into the future, terrorism will not always be about something plausibly tied to September 11 or al Qaeda at all. Circumstances alone, in other words, will put enormous pressure on—and ultimately render obsolete—the legal framework we currently employ to justify these operations.

What we can do is to insist on defining armed conflict self-defense broadly enough, and human rights law narrowly enough—as the United States has traditionally done—to avoid exacerbating the problem and making it acute sooner, or even immediately.

****

We stand at a curious moment in which the strategic trend is toward reliance upon targeted killing; and within broad U.S. political circles even across party lines, a political trend toward legitimization; and yet the international legal trend is also severely and sharply to contain it within a narrow conception of either the law of armed conflict under IHL or human rights and law enforcement, rather than its traditional conception as self-defense in international law and regulation as covert action under domestic intelligence law. Many in the world of ideas and policy have already concluded that targeted killing as a category, even if proffered as self-defense, is unacceptable and indeed all but per se illegal. If the United States wishes to preserve its traditional powers and practices in this area, it had better assert them. Else it will find that as a practical matter they have dissipated through desuetude.

Does the US (or someone) have the right to target individuals? In States where the US is not formally at war? Inside the US?

I suspect that someone has to have the job of playing cop in the international system. I don’t see anyone but the US who is able and willing to do it. A UN force is a possibility, but it still comes down to great power politics and capabilities. On the other hand, I don’t want to give the cops–any cops–the right to target whoever they choose. Even if they start with the best of intentions, that’s a structure that corrupts the cop, alientates the community, and kills the innocent.

Share

Leon comes in from the cold (updated)

Leon Panetta was named to head the CIA today.

Its a surprise move, as no one had Panetta on any lists for a major appointment, and many were looking for someone with “intelligence experience” to head the CIA. While Panetta has never worked in the IC, he was a Congressman, head of OMB, and Chief of Staff to the president. The top thing Panetta seemingly had going for him? His strong stance against torture and the distance he provides from Bush Administration policies. Its now well documented that he wrote in the Washington Monthly that “We cannot and we must not use torture under any circumstances. We are better than that.”

Reaction has ranged from great to terrible to huh? As I mentioned before, Obama is putting together a governing team heavy on legislative experience. I think Panetta has the potential to be a good DCI. He knows Washington. He knows the White House, and he knows how to serve the President, who is the CIA’s main client. Lets not underestimate this kind of experience–most are looking for supply-side, Intel product production experience. Panetta has consumer, client-based experience. He knows what needs to come out of the agency, and can press the agency to produce a higher quality product that is at is useful to for the President. He also knows the budget and the Hill, so he can get the agency the money it needs and build a positive relationship with Congress.

If he stands up for his people, rewards good work, and puts together a good management team, he can do well. Recall that one former DCI, George Bush, had no intel experience when he took over, and he seems to have done quite well for himself, as they named the building after him.

Of course, this remains potential. He doesn’t know the business, he could misjudge what the agency needs to do, and he could just as easily alienate his workforce and decimate their budget, and the Administration might not listen to him anyway.

I think, though, that Panetta is a savvy enough guy to make this gig work and to be a very solid addition to the Administration and an asset to the IC.

Update: After pondering this for a bit, this appointment gets back to the experience issue that has been a leit-motif of the entire Obama campaign. He has no experience. He doesn’t need experience, he has good judgment. Yadda yadda yadda. Here you have a number of people, including the relevant congressional committee chairs requesting someone with “experience.” The Obama people obviously felt that “experience” as they constitute it was a detriment, not an asset. The “experienced” people rumored to have been under consideration, like Brennan or Hayden, certainly knew the CIA, but gained their experience working there under the Bush Administration. Is this the kind of experience you want leading the agency? Obama clearly feels not– he wants to signal a break from torture, Iraq’s WMD, and a host of other high profile failings of the agency and IC. So, you look toward a different kind of experience, experience running a government agency and serving the President’s needs not tainted by the Bush Administration. That pretty much leaves one place to go, a Clinton Administration veteran such as Panetta.

Now, there’s the persistent criticism that this is a return to the Clinton years, but one cannot have it both ways. If you want experience, Democrats really have no place else to go but Clinton officials. If you want a break from the Clinton era, you end up with no experience in key positions.

Indeed, lets take a look at the cabinet nominations. Who among them has experience in the agency they are now slated to lead?
Gates at Defense, as a holdover certainly has experience since he’s already in the job.
Energy, Chu, he directs Lawerence Berkeley Lab, which is a DOE lab.
Justice, Holder, was Deputy AG in the Clinton Administration
Treasury, Geithner, was Undersecretary of Treasury for International Affairs in the Clinton Administration
EPA, Jackson, worked there for 16 years early in her career.
USUN, Rice, was an Assistant Secretary of State for Africa in the Clinton Administration
HUD, Donovan, former Deputy Assistant Secretary in the Clinton Administration
Emanuel, COS, was a deputy COS in the Clinton Administration.

A second list, on which I would include Panetta, shows related and relevant experience, but not direct experience.
Education, Duncan, ran Chicago Schools
Shinseki, VA, Army
Blair, DNI, did a stint at the CIA and ran PACOM
Jones, NSA, EUCOM
Panetta, former COS
Orszag, OMB, from CBO

And then there’s the Legislative / Governor experience that everyone assumes should translate to a Cabinet appointment, and sometimes does and sometimes doesn’t.
Agriculture, Vilsack
HHS, Daschle
Homeland Security, Napolitano
Interior, Salazar
State, Clinton
Labor, Solis
Transportation, LaHood

Moral of the story–Panetta’s not any better or worse than any other of Obama’s picks.

Share

© 2019 Duck of Minerva

Theme by Anders NorenUp ↑