Michael KreponEvery War Must End (cont.)

In a previous post, I asked the question whether the use of drones for targeted killings could be become habit forming. President Obama’s speech on U.S. counter-terrorism policy at the National Defense University  constituted a good-faith effort to answer this question. I appreciate that he avoids bumper-sticker answers to hard problems. So please bear with me for an overlong post.

Let’s begin with the US Congress’s Authorization for Use of Military Force [AUMF, Public Law 107-40, 2002]. In the wake of the 9/11 attacks, it passed by a vote of 98-0 in the Senate and 420-1 in the House. Here’s the key passage:

The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2011, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.

The last Congressional authorization of similar breadth was the Gulf of Tonkin Resolution, approved by the Senate by a vote of 88-2 and approved unanimously by the House of Representatives on August 7, 1964. Have a look:

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the Congress approves and supports the determination of the President, as Commander in Chief, to take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression…

Sec. 2. The United States regards as vital to its national interest and to world peace the maintenance of international peace and security in Southeast Asia. Consonant with the Constitution of the United States and the Charter of the United Nations and in accordance with its obligations under the Southeast Asia Collective Defense Treaty, the United States is, therefore, prepared, as the President determines, to take all necessary steps, including the use of armed force, to assist any member or protocol state of the Southeast Asia Collective Defense Treaty requesting assistance in defense of its freedom.

Now back to the AUMF. A Justice Department White Paper on drone strikes dated November 8, 2011 and leaked to the media in February, 2013 provided additional definition and breadth to the Obama administration’s guidelines. The White Paper focuses primarily on targeting killings of US citizens abroad, but its arguments also apply to drone strikes against foreign nationals. The following passages are of particular interest:

Targeting a member of an enemy force who poses an imminent threat of violent attack to the United States is not unlawful. It is a lawful act of national self-defense…

Moreover, a lethal operation in a foreign nation would be consistent with international legal principles of sovereignty and neutrality if it were conducted, for example, with the consent of the host nation’s government or after a determination that the host nation is unable or unwilling to suppress the threat posed by the individual targeted…

Any operation of the sort discussed here would be conducted in a foreign country against a senior operational leader of al-Qa’ida [hereafter al-Qaeda] or its associated forces who poses an imminent threat of violent attack against the United States…

In addition, the United States retains its authority to use force against al-Qaeda and associated forces outside the area of active hostilities when it targets a senior operational leader of the enemy forces who is actively engaged in planning operations to kill Americans…

None of the three branches of the U.S. Government has identified a strict geographical limit on the permissible scope of the AUMF’s authorization…

The [Justice] Department has not found any authority for the proposition that when one of the parties to an armed conflict plans and executes operations from a base in a new nation, an operation to engage the enemy in that location cannot be part of the original armed conflict…

Executive authority expands in wartime, especially in ways that diminish civil liberties. What’s new in this long story is the use of drones to kill enemy combatants, including the occasional U.S. citizen. When U.S. forces seek to defend a weak government, when the U.S. military footprint is limited, and when opposing forces find safe havens across a border, especially a disputed border, drone strikes can look like an appealing tool. The test case has been Pakistan, where drone strikes began during the George W. Bush administration and expanded considerably in the first two years of the Obama administration.

My reading of the President’s speech at NDU is that he has concluded that drone strikes have been used excessively, that their costs have been high and their benefits low. Drone strikes have had no evident effect on the outcome of an Afghan settlement, or the willingness of Taliban leaders to negotiate one. Nor have drone strikes appeared to deter the Afghan Taliban from attacking U.S. and coalition forces.

Drone strikes have been a recruiting tool for Islamic extremism and they have diminished U.S. national standing. Neither cost is easy to quantify. Public opinion polling is not definitive. Within Pakistan, poor U.S. standing preceded the Predators and has many causes. The stark reduction in drone strikes over the past two years appears not to have an appreciable impact on Pakistani public opinion or on militant recruitment.

Reputational costs are very hard to reverse. Perhaps the most striking criticism of the United States came from Archbishop Desmond Tutu, who wrote the following in the February 12th edition of the New York Times:

Do the United States and its people really want to tell those of us who live in the rest of the world that our lives are not of the same value as yours? That President Obama can sign off on a decision to kill us with less worry about judicial scrutiny than if the target is an American? Would your Supreme Court really want to tell humankind that we, like the slave Dred Scott in the 19th century, are not as human as you are? I cannot believe it.

I used to say of apartheid that it dehumanized its perpetrators as much as, if not more than, its victims. Your response as a society to Osama bin Laden and his followers threatens to undermine your moral standards and your humanity.

This powerful message was perfectly crafted. But reputational costs don’t end wars. Wars end because of exhaustion, disillusionment, stalemate, or triumph. One means to end a war is for the Congress to repeal its authorization for the use of force. The Gulf of Tonkin Resolution was repealed after the Nixon administration extended the scope of futile U.S. military activity into Cambodia.

President Obama’s speech at NDU offered the following assertions and guidelines:

Under domestic law, and international law, the United States is at war with al Qaeda, the Taliban, and their associated forces. We are at war with an organization that right now would kill as many Americans as they could if we did not stop them first. So this is a just war — a war waged proportionally, in last resort, and in self-defense.

And yet, as our fight enters a new phase, America’s legitimate claim of self-defense cannot be the end of the discussion. To say a military tactic is legal, or even effective, is not to say it is wise or moral in every instance. For the same human progress that gives us the technology to strike half a world away also demands the discipline to constrain that power — or risk abusing it.

In the Afghan war theater, we must — and will — continue to support our troops until the transition is complete at the end of 2014. And that means we will continue to take strikes against high value al Qaeda targets, but also against forces that are massing to support attacks on coalition forces. But by the end of 2014, we will no longer have the same need for force protection, and the progress we’ve made against core al Qaeda will reduce the need for unmanned strikes.

Beyond the Afghan theater, we only target al Qaeda and its associated forces. And even then, the use of drones is heavily constrained. America does not take strikes when we have the ability to capture individual terrorists; our preference is always to detain, interrogate, and prosecute. America cannot take strikes wherever we choose; our actions are bound by consultations with partners, and respect for state sovereignty…

Where foreign governments cannot or will not effectively stop terrorism in their territory, the primary alternative to targeted lethal action would be the use of conventional military options. As I’ve already said, even small special operations carry enormous risks. Conventional airpower or missiles are far less precise than drones, and are likely to cause more civilian casualties and more local outrage. And invasions of these territories lead us to be viewed as occupying armies, unleash a torrent of unintended consequences, are difficult to contain, result in large numbers of civilian casualties and ultimately empower those who thrive on violent conflict.

Unless we discipline our thinking, our definitions, our actions, we may be drawn into more wars we don’t need to fight, or continue to grant Presidents unbound powers more suited for traditional armed conflicts between nation states.

So I look forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate. And I will not sign laws designed to expand this mandate further. Our systematic effort to dismantle terrorist organizations must continue. But this war, like all wars, must end.

It appears that President Obama has not repudiated any of the guidelines in the Justice Department’s White Paper, but has imposed far more severe standards for their application. The repeal of the AUMF is unlikely. It continues to enjoy broad public and Congressional support, unlike the U.S. military campaign in what used to be called Indochina. One test of the President’s judgment is how low he can drive down the number of drone strikes. But without the repeal of the AUMF, future Presidents may see things differently.

Comments

  1. Mark F. (History)

    ““Targeting a member of an enemy force who poses an imminent threat of violent attack to the United States is not unlawful. It is a lawful act of national self-defense…

    “Moreover, a lethal operation in a foreign nation would be consistent with international legal principles of sovereignty and neutrality if it were conducted, for example, with the consent of the host nation’s government or after a determination that the host nation is unable or unwilling to suppress the threat posed by the individual targeted…”

    Does that then mean that a foreign state, for example Cuba, would be lawfully entitled to carry out an attack within the United States, on the same basis?

    I doubt it.

    • John Schilling (History)

      If Cuba were at war with the United States, it would be entirely and unquestionably lawful for Cuba to conduct drone strikes within the United States on such a basis.

      Pragmatically, of course, a war between the US and Cuba would be a monumentally bad idea for Cuba. And attempting drone strikes would be a generally ineffectual way for the Cubans to fight such a war. But it would be legal.

      Whether or not it is wise for the United States to continue its war against Al Qaeda and friends, and whether or not drone strikes are the most effective strategy for winning such a war, are much harder questions. If you think the answers are obvious, you are probably missing something. But, wise or not, Obama is right that it is legal.

    • Jonah Speaks (History)

      John,
      “If Cuba were at war with the United States, it would be … lawful for Cuba to conduct drone strike.” This is an easy case, and I agree with your answer. Let’s move on to Mark F’s harder case.

      Suppose Cuba is not at war with the U.S., but believes the U.S. has not been sufficiently zealous in arresting and prosecuting dissidents who, Cuba alleges, are plotting the violent overthrow of the Cuban government. Would it be lawful for Cuba to conduct drone strikes on these alleged violent dissidents, absent a war between the U.S. and Cuba? Indeed, even if the U.S. and Cuba were at war, would drone strikes be legal against dissidents who were not participating in the military hostilities?

    • John Schilling (History)

      How is that a harder case? Drone strikes, like any other sort of airstrikes, are acts of war. It is legal to undertake such actions, in the territory of any belligerent nation, if you have declared war. If you have not done so, it is not legal. This is only slightly complicated by the fact that post-1945 declarations of war have generally used weasel-words like “Congressional resolution authorizing military action”; a practice I despise but which really doesn’t change anything and which is easily recognized.

      If nation X is harboring militants who attack nation Y, that is legitimate cause for nation Y to declare war against nation X. Or not, as they so chose, but one or the other. Having legitimate cause for war means you can legitimately go to war, with everything that entails including but not limited to drone strikes. There is no cause or grievance that lets you wage war without accepting the consequences of war.

      The governments of the United States, Afghanistan, Pakistan, and Yemen have chosen to declare and wage war against Al Qaeda and company, so drone strikes in any of those countries are legal as long as the targets are reasonably believed to be Al Qaeda combatants. The government of Cuba has not declared war against anyone, so drone strikes by Cuba are not legal no matter what the cause or justification. Possibly excluding very narrowly targeted drone strikes within Cuba itself conducted as law-enforcement operations.

    • Johnboy (History)

      JS:….”if you have declared war”…..

      John, nobody declares war any more.
      I know of no such post-WW2 declaration by anyone.

      You issue a declaration of war when you wish to instigate a “state of war” between *you* and *them*, and doing that is expressly prohibited by Article 2(4) of the UN Charter.

      The result is that the entire highly-formalized concepts of “declarations of war / state of war” has been replaced by “armed conflict”, which is an entirely fact-based concept.

      JS: ….”This is only slightly complicated by the fact that post-1945 declarations of war have generally used weasel-words like “Congressional resolution authorizing military action”;”…

      No, sorry, a AUMF is not even remotely the same thing as a “declaration of war”.

      A Congressional AUMF is a purely domestic US authorization to satisfy a Constitutional separation-of-power issue i.e. The Congress is authorizing the President to use force if he decides that’s what he wants to do.

      Note, however, that the President can get that authorization and then decide that, no, actually, I don’t want to use that force.

      In which case there is no “armed conflict”, let alone any “state of war”.

      Or, put another way:
      (a) a AUMF means that *if* the President wants to go BANG! on someone then Congress is cool with that idea.
      (b) a DofW means that your country is informing their country that we can both go BANG! on each other.

      One is a purely domestic act of law, the other is an (now-illegal) act under international law.

  2. Jonah Speaks (History)

    “The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001 [not 2011], or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.”

    Nearly 12 years has passed. The U.S. occupied Afghanistan, but is planning to leave. Bin Laden is dead. We are not going to war against Pakistan for harboring Bin Laden. Are the offshoots of Al Qaeda still the same organization that attacked the U.S. in 2001? Or is that initial organization (and the people who plotted the attacks) gone now?

    The 2001 war is over and winding down. The U.S. Civil War is over too – we do not militarily still attack anyone who carries a confederate flag. The real issue is how to obtain law enforcement in foreign countries against violent criminals who self-style themselves as warriors. Is a military solution to terrorism an appropriate substitute for law enforcement where law enforcement is unavailable?

    • John Schilling (History)

      “We are not going to war against Pakistan for harboring Bin Laden”, I think slightly misses the point.

      We didn’t go to war with France for harboring Nazis*; we went to war with the Nazis themselves. France being a co-belligerent power, it was thus legal for us to bomb the crap out of any spot in France where we reasonably believed there were lots of Nazis and few innocent Frenchmen. Which we did, sometimes to the annoyance of the French.

      Same deal in Pakistan, with the names changed.

      The broader point that maybe it is time to stop being at war with Al Qaeda, or at least greatly revise our tactics so as to stop annoying our allies so much, remains valid and is worth great consideration.

      [*] Actually, we sort of did, though only briefly in 1942. Parallels with Pakistan/Al Qaeda left as an exercise for the student…

  3. Jens (History)

    maybe this here is of interest to some of you:

    http://www.boell.de/calendar/VA-viewevt-en.aspx?evtid=12736

    The Böll-Foundation (independent, but very close to the Green Party) is hosting its 14. annual foreign policy conference in Berlin. This conference is about robots, drones, war, ethics, arms control etc. To all of you who cannot attend there will be a live stream.

    best,

    Jens

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