UN to Investigate Drone Strikes

The United Nations has appointed a special rapporteur, Ben Emmerson, to investigate drone strikes in Afghanistan, Pakistan, Palestine, Yemen, Somalia, and the Sahel region of Africa.

The investigation was formally launched on Thursday in response to requests from Russia, China and Pakistan, and will look into drone strikes by the US, UK, and Israel.

Emmerson will select a “representative sample” of about 20 or 30 strikes to assess the extent of any civilian casualties, the identity of militants targeted and the legality of strikes. It beggars the imagination, however, that 20-30 strikes by at least 4 government agencies in at least 6 countries could be representative of much of anything, except possibly sample bias.

Emmerson has previously suggested that some drone attacks could possibly constitute war crimes. While this is certainly true, it could be said of any sort of attack. The fact that it is conducted by drone should make little if any difference to the calculus.

Emmerson also told the Guardian: “One of the fundamental questions is whether aerial targeting using drones is an appropriate method of conflict … where the individuals are embedded in a local community.” But again, the particular platform chosen to conduct the attack has little bearing on its legality or morality. It is how the platform is used that matters. The appropriate question is therefore not whether drones should be used, but whether any aerial strikes should be.

It is clearly important that the use of armed force by any state be carefully studied and it’s justifications questioned. This may be especially true when it is the world’s most powerful state that is conducting the operations. However, like many of the activities of the United Nations, it will remain to be seen whether the resulting report is an honest assessment of a difficult question, or is a purely political swipe by rivals.

Paul Taylor, Senior Research Fellow

Center for Policy & Research

Only the Judge is in Control, Except When He Isn’t

2L student Adam Kirchner is currently observing the KSM hearings in Guantanamo.  This article, describing his experiences as an observer, was featured in “The Public Record” today:  

The Guantanamo Bay Military Commission Hearing, United States v. Mohammed, et al., resumed on Tuesday after adjourning on Monday. As expected, all of the accused waived their right to appear at their own hearings, with co-defendant Walid bin Attash’s criticism of the trial’s process still echoing from the day before. Bin Attash had described the process, given the detainees’ inability to communicate with their attorneys without the government listening in, as undermining  the establishment of trust in the  attorney-client relationship— and the legitimacy of the hearing itself. . Bin Attash, Khalid Sheikh Mohammed, and three other co-defendants, are charged with violations of the Military Commission Act of 2009 for their alleged roles in the preparation for the 9/11 terrorist attacks.

Only the Judge is in Control, Except on Monday

Immediately following the issue of the non-present defendants, Presiding Judge James Pohl addressed the pressing question of who, exactly, is in control of his courtroom. In Monday’s hearing, all but the prosecution were surprised when the audio feed to the gallery of press, NGOs and the families of 9/11 victims suddenly halted when defense counsel for KSM uttered the title of a motion pertaining to his client’s detention at a CIA sponsored black-site prison— a matter of public record. Judge Pohl reaffirmed that, even though a court security officer has instructions about what topics are to be censored, only the presiding judge has the authority to close (i.e., censor) the courtroom. Furthermore, Judge Pohl noted that the comment that resulted in the censorship “is not a valid basis for the court to have been closed.”

Judge Pohl then attempted to resolve— on the record— the defense’s concern  regarding who has access to audio feeds from the courtroom. He explained that there are two audio feeds. One feed never is censored and is transmitted only to the court reporter. The other feed – the feed in question during Monday’s prolonged censorship – is buffered with a 40-second delay, which allows the aforementioned court security officer time to sever the feed before it reaches the gallery or remote-viewing locations. “The purpose of the 40-second delay,” in Judge Pohl’s words is, “to prevent spillage of classified information.”

It Was Not A 40-Second Delay

James Harrington, Learned Counsel for co-defendant Ramzi Binalshibh, quickly brought to the commission’s attention that Monday’s actual events seem inconsistent with characterizing the censorship episode as an accidental 40-second delay glitch. “[T]here was a little bit of a delay; it wasn’t a 40-second delay,” Mr. Harrington said. “That is not what happened. The light went off in a time much shorter than 40 seconds.”

Judge Pohl stopped Mr. Harrington’s line of argument at that point, out of concern that it risked “sliding into an area we shouldn’t talk [about] in open court.” Counsel for both parties and Judge Pohl had discussed these issues in a closed session Monday afternoon. Elsewhere, Judge Pohl identified the crux of this and similar debates about the process of the hearings and access to information: “we are getting into a line between what is public and what is security.”

Judge Pohl: The United States Must Comply With Its Own Regulation

While it may seem that Judge Pohl shifted quickly from preserving access to information during the  hearings, to cautioning defense counsel about divulging information to which the public wants access, the issue resurfaced later during Tuesday’s proceedings. Judge Pohl ultimately held in favor of some procedural transparency, granting the defense’s motion to release redacted versions of classified pleadings.

James Connell, Learned Counsel for co-defendant Ammar al-Baluchi, illustrated for the commission that many documents in the case have remained entirely unavailable to the public for more than three months, some approaching half a year, despite the Government’s practice of releasing sanitized versions with sensitive information redacted.

Sterling Thomas, an Air Force Lieutenant Colonel and detailed defense counsel to al-Baluchi, further argued for the availability of documents, noting that the very slogan appearing on the Military Commission’s website would seem to promote intrinsic notions underlying the pursuit of justice:

“Your Honor, if you were to click on the Office of Military Commission website, you’re immediately greeted with the banner of fairness, transparency, and justice. And if one were a cynic, Your Honor, one might say that these words are merely window dressing. But yet, Your Honor, I think that it’s important to note that those words are there and that obviously the government understands that that’s an important principle…. But, Your Honor, the frustration continues to build as a result of delays in the – in having openness, in having transparence. And I think it was evident as recently as yesterday when our client made some statements about his frustration with the lack of what he sees as openness and transparence. And, Your Honor, I think that equally you could say the American people are also frustrated by a lack of openness and transparence. With those things in mind, Your Honor, I just want to emphasize that we think it’s critically important that whenever possible the pleadings, orders by the commission that are not classified, that these things be made available to the public so that they can inform themselves and educate themselves about this trial.

Against the points made by the defense counselors, Navy Lieutenant Kiersten Korczynski, assistant trial counsel for the United States, argued little more than that the defense is required by the Military Commission Rules to file documents, that are not certainly unclassified, directly to the judge rather than through the ordinary docketing process.

The relevant regulation (RTMC 17-1(c)(1)) is designed to preserve the judge’s control over the release of trial-related information. If the United States wants to prevent the defense’s documents from being released, the prosecution must petition the judge to do so. Likewise, if the defense wants to compel the release of their documents, it must petition the judge to do so.

Finding that the Military Commission Rules already provide the remedy that, if followed, would preclude the United States from indefinitely detaining unclassified information, Judge Pohl held essentially that the United States must comply with its own regulation.

The hearing adjourned until Wednesday, to determine if the defense will be prepared on Thursday to argue a number of outstanding motions to compel the production of witnesses. The United States has refused to produce many defense witnesses for the case, arguing that the defense has not explained how the witnesses are relevant or necessary to the issues.

Adam Kirchner is a dual-degree student at Seton Hall University School of Law and the Whitehead School of Diplomacy and International Relations. He is a Research Fellow of the Center for Policy and Research and the Transnational Justice Project at Seton Hall University School of Law

 

The Khalid Sheikh Mohammed Hearings Resume: But Who Is The Man Behind The Curtain? And “Who is Controlling These Proceedings?”

2L student Adam Kirchner is currently observing the KSM hearings in Guantanamo.  This article, describing his first day as an observer, was featured in “The Public Record” on January 28th.  

The KSM Guantanamo Bay Military Commission Hearing, United States v. Mohammed, et al., reconvened on Monday for the second session of pre-trial motion hearings. The first session of these hearings, held in October, 2012, devolved into what many referred to as “a circus.” The opening session of this week’s hearings produced several tense moments, including a proverbial “Man Behind the Curtain” incident (as Presiding Judge James Pohl’s control of the proceedings was superseded by some, in his words, “external body”); the hotly contested issue of the United States obstructing defense attorneys’ access to their clients arose;  the debate over whether defense attorneys are truly free to communicate with their clients waged on; and, in their own words, the detainees offered the reasons why they choose to waive their rights to be present during the hearings.

The principal defendant, Khalid Sheikh Mohammed, and his four co-defendants are each accused of eight distinct changes under the Military Commission of 2009, for their roles in the terrorist attacks of 9/11. The charges against the accused are: Conspiracy, Attacking Civilians, Attacking Civilian Objects, Intentionally Causing Serious Bodily Injury, Murder in Violation of the Law of War, Destruction of Property in Violation of the Law of War, Hijacking an Aircraft, and Terrorism.

In a briefing on Sunday, Chief Prosecutor Brigadier General Mark Martins addressed the suggestion that the recent detainee victory in Hamdan II from the D.C. Circuit would nullify the Conspiracy charges in this case as well. Prosecutor Martins stated that he would proceed in this case, assuming that he will be directed to push forward and argue the merits of the Conspiracy charge, despite the decision in Hamdan II. The strategy would make sense in the event the Hamdan II decision is appealed to the Supreme Court.

In the case at hand, the decisions made by the Judge,  Colonel James Pohl, in this phase of the commission  will ultimately affect the evidence that can be discussed, and the procedure of the commision on the merits once all pre-trial motion hearings have been concluded.

The Prosecution alleges that Khalid Sheikh Mohammed was the “architect of the 9/11 concept” in its motion designed to exclude from the trial information that it asserts could compromise the United States’ national security. See Government Motion to Protect Against Disclosure of National Security Information, AE013, page 3. Elaborating on the claim that Mohammed was the “architect of the 9/11 concept,” the Prosecution charges that he conceived of and oversaw the preparation for the 9/11 attacks. Co-defendant Walid bin Attash’s alleged role in the 9/11 attacks was developing the method by which the hijackers smuggled weapons aboard the airplanes, in addition to training the hijackers in hand-to-hand combat. Following co-defendant Ramzi Binalshibh’s denied entry into the United States, his alleged role in the 9/11 attacks was to be the liaison between the chief hijackers and Khalid Sheikh Mohammed. Co-defendant Ammar al-Baluchi’s alleged role in the 9/11 attacks included financial coordination of the hijackers, in addition to procuring a cockpit operations video and flight simulator for the hijackers’ training. Co-defendant Mustafa al-Hawsawi’s alleged role in the 9/11 attacks was financial coordination of the hijackers. Al-Hawsawi’s actions allegedly included draining the hijackers’ bank accounts on the day of the attacks.

Who is the Man Behind the Curtain?

Static filled the gallery’s speakers, and the large video screens which displayed the 40-second-delayed proceedings went blank— to prevent lip-reading— while a red light flashed at the right-hand side of Judge Pohl’s desk. Observation of the hearing was shut down.

As soon as the audio and visual feeds resumed and the flashing light shut off, Judge Pohl expressed two immediate question/concerns: Who ordered the audio/visual feeds to be censored, because it was not on his authority and why were the feeds censored when Learned Counsel for Khalid Sheikh Mohammed, David Nevin, had been discussing theunclassified portion of the Joint Defense Motion to Preserve Evidence of Any Existing Detention Facility? After resuming control of what information would appear on the record, Judge Pohl emphasized his concern that an “external body” is superseding his authority, remarking that it was if “if some external body is turning the commission off.”

Nevin, on behalf of Khalid Sheikh Mohammed, echoed Judge Pohl’s concerns and asked: “Who is controlling these proceedings?”

Learned Counsel for Walid bin Attash, Cheryl Bormann, emphasized  that the mere mention of a motion that contained some classified information seemed to trigger the censorship..

Defense Counsel for Mustafa al-Hawsawi, Navy Commander Walter Ruiz, raised an even more worrisome implication:  If an external body above Judge Pohl’s authority is censoring the audio/visual feeds, that same external body might also be eavesdropping on the defense teams’ communication during the proceedings even when they are not addressing the court. After all, the courtroom is filled with microphones.

Only the Prosecution did not look surprised when the curtain of silence fell upon the courtroom, and they would not discuss what they knew in public.

Counsel discussed these issues in a closed session Monday afternoon, originally slated to deliberate the Military Commission’s Rule 505, which states that an established attorney-client relationship can only be severed for good cause, by the request of the accused, or upon application for withdrawal by counsel. Rule 505 became a pressing issue early in Monday’s session because former-Detailed Defense Counsel for Walid bin Attash, Marine Major William Hennessey, suddenly withdrew from representing his client. Bormann expressed bin Attash’s wish to sever the relationship. However, Judge Pohl stressed the importance of clients themselves, not their counsel or proxies, controlling the severance of an attorney-client relationship when good cause has not been shown, as is the instant issue.

A Case in Point: Denial of Attorney Access to Clients

Before Judge Pohl heard any motions for the day, Ms. Bormann addressed a prevailing issue throughout her representation of Walid bin Attash during the past year: the United States, she argued, obstructs defense counsels’ access to their clients. Bormann and her co-counsel for bin Attash attempted to meet with their client in private at around 8:15, shortly before the proceedings. Bin Attash was present; however, Bormann and her co-counsel were denied any access to their client until he was brought to the courtroom under guard. Bormann argued that today’s barrier to accessing her client was a case in point, following along the lines of other instances of impeded attorney-client access.

Are Defense Attorneys Truly Free to Communicate with Their Clients?

Amidst vocal reactions from the gallery behind the glass, Ms. Bormann  told Judge Pohl, “You don’t live my life.”

Many of the families of 9/11 attack victims present did not, understandably, commiserate with Ms. Bormann. However, Bormann made her remark in the context of her ethical dilemma as an attorney whose attorney-client communication is seized for review by the United States. Ms. Bormann made the point, essentially, that she has not been truly free to communicate with her client since October 2011, thereby depriving her client of her ability to provide a fully informed defense against the charges against him.

Why the Accused Waive Their Rights to Be Present During the Hearings

Cheryl Bormann’s zealous advocacy for her client, Walid bin Attash, was matched in part by her client’s own level of engagement during the proceedings. Bin Attash, with a long, black beard, a head scarf, and a white tunic covered by a camouflage vest, spent much of the proceedings pouring over binders of information through thick, black glasses. Bin Attash made many notes and communicated often throughout the day with his co-defendants.

Anticipating that the accused would abstain from appearing in further sessions this week, Monday’s session concluded with Judge Pohl requiring the accused to answer whether they understood their right to appear at their hearings, and whether they had any questions for him about their rights. All of the accused answered in Arabic, through a translator, that they understood their right to appear at the hearings. But only Walid bin Attash took the opportunity to discuss why the accused, in their own words, waive their rights to be present during their hearings. Bin Attash, a Yemeni, explained excitedly in Arabic that the hearings’ process gives the accused no incentive to appear in court. The accused have been unable to develop trust in their attorneys despite a relationship lasting over a year. Bin Attash clarified that he and his co-defendants do not want this to be a “personal issue” with Judge Pohl. Bin Attash closed his comments by declaring that the Prosecution does not want the accused to hear or understand anything (presumably in reference to their rights and their waivers to appear at the hearings). Bin Attash:

“We have no motivation to come to court. We have been dealing with our attorneys for a year and a half, and we have not been able to build trust with them. Their hands are bound. The prosecution does not what us to hear or understand or say anything. They don’t want our attorneys to do anything.”

Adam Kirchner is a dual-degree student at Seton Hall University School of Law and the Whitehead School of Diplomacy and International Relations. He is a Research Fellow of the Center for Policy and Research and the Transnational Justice Project at Seton Hall University School of Law

White House Shutters Office Dedicated to Closing GTMO

The Morning Brief from the Soufan Group and Fordam Law’s Center on National Security reported this morning:

The Obama administration has reassigned Daniel Fried, the special envoy for closing the U.S. detention center at Guantánamo Bay, and is not expected to replace him with another high-level official, reports the New York Times. Fried’s duties will be “assumed” by the office of the State Department’s legal adviser, an official notice stated. Analysts say the decision is an indication the White House does not view shuttering Guantanamo as a realistic priority, despite prior administration statements to the contrary.

This represents a major set-back for advocates of closing the off-shore detention center. Removing the office from the White House and placing it at State reduces its visibility and weight, thus making even less likely to succeed (if that is even possible). In addition, unless the State Department’s Office of the Legal Adviser creates a special position to handle the Guantánamo closure, the project will have to compete for time and attention with other concerns handled by the Legal Advisor. Given the lack of progress on the issue, those other issues will understandably be deemed more pressing, pushing closure of the facility even farther back onto the back burner.
Paul Taylor, Senior Research Fellow
Center for Policy & Research

Update re: AV censorship at Monday’s hearing

After yesterday’s censorship of the courtroom proceedings at GTMO, it was rumored that the issue would be addressed at a press conference this morning.

Instead, however, Judge Pohl declined to explain the incident, stating that it was not a discussion that was appropriate for open court.  He explained that a “security officer” is responsible for cutting of the audiovisual feed, but did not explain where this officer is located or why someone outside of the courtroom has the authority to censor the proceedings.

It will be interesting to follow this story as it unfolds, but for now, censorship in the courtroom remains just one of the many closely-guarded secrets at Guantanamo.

Kelly Ann Taddonio, Research Fellow

Center for Policy & Research

 

Censorship Episode During Today’s KSM Hearings Reveal New GTMO Secret

By now, those who follow Guantanamo-related news closely are aware of today’s censorship episode during the military commission hearing for Khalid Sheikh Mohammed (KSM).

During military commission hearings, journalists and observers are seated outside of the courtroom.  They can watch the hearings as they happen, but the sound is delivered via an audiovisual feed, which has customarily had about a 60-second delay.

Today, however, an unknown government censor abruptly shut off the audiovisual feed as David Nevin, counsel to KSM, began his request for information on the case, igniting frustration in the courtroom.   Until today, no one, including Judge Pohl and the defense attorneys, knew that the feed could be cut off by someone outside of the courtroom.  The feed is usually cut off by a security officer in the court or the judge, and typically everyone in the courtroom is aware of what is happening.

The action today generated a buzz on twitter amongst journalists present at the hearing.  Charlie Savage (@Charlie_Savage) said that the switch was hit after the attorney simply read the title of his own, unclassified brief.  Many others, like John Knefel (@johnknefel) indicated the surprise of Judge Pohl, and were surprised to find that even Judge Pohl didn’t know who hit the censorship switch.  Knefel tweeted,

“Let today’s censorship episode sink in. Gov official cut feed. When it returned, judge was furious & confused abt why it happened.”

It is rumored that the censorship issue will be addressed at a press conference in the morning, but until then, it certainly brings to light some interesting questions about the secrecy surrounding Guantanamo.

Who is really in control of the courtroom, if its not Judge Pohl? Why did the government feel the need to censor Nevins’ opening statements? As it turns out, there is even more secrecy surrounding Guantanamo than even those who appear to be closest to the action could imagine.

Kelly Ann Taddonio, Research Fellow

Center for Policy & Research

Too Many Cooks in the Kitchen

For a prosecutor, it is an odd way to “stick to his guns,” but Brig. Gen. Mark Martins, the chief prosecutor for military commissions at Guantanamo Bay, is refusing to support conspiracy charges against the alleged 9/11 conspirators.  He had previously acceded to dropping the conspiracy charges after the recent reversal in Hamdan. But the Convening Authority, Vice Admiral Bruce MacDonald (Ret.), pushed back by refusing to allow the charges to be dropped. Now the prosecutor is left in an uncomfortable position.

However, experts have noted that the Military Commissions Act of 2009 does not allow anyone, even the Convening Authority, to interfere with or unduly influence the prosecutor’s professional judgement. He may therefor allow the defense motion for dismissal of the conspiracy charges to go uncontested. In theory, he may even argue in support of it.

As noted by James Connell, defense counsel for co-defendant Ammar al Baluchi, this contest between the prosecutor and the Convening Authority emphasizes one of the fundamental weaknesses of the military commissions system: the Convening Authority has both judicial and prosecutorial duties. According to Connell, “The Convening Authority’s insistence on prosecution of the conspiracy charge at the same time it controls defense funding and hand-picks the panel of military officers to hear the case illustrates this conflict of interest.”

So far it seems that all the players are exercising independent judgment. However, these events should be a warning to Congress that the system they designed is far from perfect, with flaws that have long since been addressed in our federal courts. The use of a convening authority for courts martial allows a commander to balance the need for strong discipline with the exigencies of maintaining a functioning military. Such considerations simply do not exist for accused terrorists. As in federal prosecutions, terrorism and war crime charges should be brought by a purely prosecutorial authority, with an independent judicial authority controlling which charges may proceed. This is precisely what we have in federal courts.

Paul Taylor, Senior Research Fellow

Center for Policy & Research

This week’s military commission hearing…

The military commission hearing, United States of America v. Khalid Sheikh Mohammed, et al., resumes on Monday, January 28, at the Guantanamo Bay Naval Station. 2L student and Center fellow Adam Kirchner will be attending the hearing this coming week. 

As with other military commission hearings held in the past, Seton Hall University School of Law’s Center for Policy and Research will be present at the hearings to observe and to report on the parties’ arguments and the commission’s decisions in collaboration with The Public Record

Khalid Sheikh Mohammed and his four co-defendants face seven distinct charges under the Military Commission Act of 2006: conspiracy, attacking civilians, attacking civilian objects, murder in violation of the law of war, destruction of property in violation of the law of war, hijacking or hazarding a vessel or aircraft, and terrorism. The United States brings these charges against the accused parties, alleging their roles in the conception and preparation of the 9/11 attacks in New York, Pennsylvania, and northern Virginia.

Army Colonel James Pohl, the presiding military commission judge, is scheduled to address twenty-three motions during the week’s hearings. The motions raise issues including privileged communications; unauthorized disclosure of protected information; preservation of evidence of existing detention facilities; the accused parties’ conditions of confinement; force-feeding procedures; the CIA rendition, detention, and interrogation program, and the production of witnesses. Hearings are scheduled to be held on Monday through Thursday of this coming week.

Adam Kirchner, Research Fellow

Seton Hall Center for Policy & Research

The Media Portrayal of GTMO Attorneys

Zero Dark Thirty, the recently released movie chronicling the hunt for Osama bin Laden, has been winning over audiences and came in at #2 in the Box Office this past week (grossing $1.2 million this week, and $58.1 million to date).  While the movie is undoubtedly well-made, it is just that, a movie, not a documentary.

While many of the Center for Policy and Research fellows have enjoyed the film since its release, all acknowledge that some element of creative license was taken with regards to its depiction of the events surrounding UBL’s capture.

Yesterday, The Hill published a blog post entitled “What Zero Dark Thirty gets wrong about Guantanamo lawyers.” The post was inspired specifically by a scene in the movie in which the CIA believes UBL may be hiding in Abbottabad, Pakistan.  After a government official asks whether a GTMO detainee may be able to confirm his location, a CIA operative responds, “Who the hell am I supposed to ask, some guy in Gitmo who’s all lawyered up?” He then explains that he is skeptical and believes that any GTMO lawyer would simply tip off al-Qaeda.The post continues to question the movie’s portrayal of defense attorneys and its depiction of their motives.

As a law student working in the Center for Policy and Research, I have had the opportunity to meet and interact with several Guantanamo lawyers, in addition to working closely with our director, Guantanamo lawyer and Professor Mark Denbeaux.  After two and years as a Center fellow, I can confidently say that I wholeheartedly disagree with the assertion that defense attorneys (particularly GTMO defense attorneys) are “morally questionable hired guns” or “traitors.” The authors of this post are correct: these attorneys are well-intentioned human rights lawyers who work tirelessly to uphold the Constitution.  On the walls of our office, a group of Center alumni have hung a quote which reads:

“The Part I took in Defence of Cptn. Preston and the Soldiers, procured me Anxiety, and Obloquy enough.  It was however one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country.” -John Adams

Like the GTMO lawyers, Adams took part in defending individuals who were politically unpopular, yet he understood that his role in their defense assisted in upholding the Constitution of the United States.  Yes, GTMO attorneys are working to protect the interests of their clients, but they are also working to protect the interests of our country, a crucial detail which is rarely recognized in depictions of defense attorneys in popular culture.

Read “What Zero Dark Thirty gets wrong about Guantanamo lawyers” here.

Kelly Ann Taddonio, Research Fellow

Center for Policy & Research

Planning for the Taliban’s Return

Recently, most public debate about the course of the war in
Afghanistan has centered on the pace of the U.S. troop withdrawal.
Distinctly lacking from the discourse is discussion of what happens
afterwards. In those few cases in which this is considered, it is
always couched in terms of how much or what kind of support we can
give to President Karzai or his successor.

Such medium-term considerations are of course very important. However,
in order to properly determine our best medium-term course of action,
we must have a clear an understanding of the longer-term range of
outcomes. For instance, support to Karzai or any other successor
assumes that the government will survive the U.S. withdrawal.
Unfortunately, there are many reasons to question whether the
government will in fact survive.

First, there are the centrifugal forces that constantly pull at the
pieces of the Afghan National Security Forces, the centerpiece of the
U.S. withdrawal strategy. The U.S. plans to “stand down as they stand
up,” but this will only work if they also stand together. It is
important to remember who the ANSF are, and how they are organized.
The majority of these forces are commanded by former mujahideen from
the 1990’s. These are the same men who, after the defeat of the
soviets, created a new government, only to tear it and the rest of the
country to pieces shortly thereafter. This should matter greatly to
our strategic planning: what are we doing to ensure that their
factionalism does not again rip the new state apart? This is
especially concerning since the U.S. has encouraged the creation of
local militias in addition to the ANSF.

Second, there is the Taliban to contend with. Last time a major power
withdrew from Afghanistan, it did so under pressure from the
Mujahideen, not the Taliban. And as noted, the Mujahideen were a
fractious conglomeration of various different groups, unused to
heeding central authority. The Taliban, by contrast, are a political
movement as much as an Army. They therefore have a political ideology
binding them together and giving them common purpose. After all, the
Taliban was formed in reaction to the rampant factionalism of the
1990’s. They thus have a great advantage in surviving challenges and
repelling attempts to buy off pieces of their armed forces (a common
tactic in Afghanistan).

Third, the Taliban have a distinct legitimacy advantage. Not only are
they are a Pashtun group seeking to rule a Pashtun-majority country,
they also provide real governance at the ground level (even in areas
they do not currently hold). The Taliban, interested more than
anything in law and order of the strictest nature, brooks no
corruption within its ranks. The Afghan people know this, and respect
it. The national government, by contrast, is mainly seen as a pool of
corrupt leeches, for very good reason. The U.S. has done little or
nothing to confront the rampant corruption of the government, police,
and militias.

Lastly, and of no little import, the Taliban have a geographic
advantage. They can enter almost any area of Afghanistan, as they have
shown through several high-profile attacks on Kabul. Meanwhile, the
Afghan government cannot follow them back to their redoubt in the
tribal areas of Pakistan. Until Pakistan reverses its policy of active
support for the Taliban and other insurgent groups, the Taliban will
have a large and secure area to rest, rearm, and plan. It has been
shown that insurgencies with such cross-border safe havens are much
more likely to survive and thus succeed in toppling the government.
Indeed, this is how the Taliban got started.

Given these factors, it seems highly likely that the Taliban will
succeed in driving the Karzai government from power within a
relatively short time. Some very respectable analysts estimate that
the government would not be able to keep Kabul more than two years
after the U.S. withdrawal is effective. Whether or not this is the
case, the plausibility of the scenario warrants study and discussion.
The U.S. needs to be prepared to deal with whoever is in charge of
Afghanistan. As yet, there has been no discussion of how the U.S.
should prepare for, or handle, a Taliban-ruled Afghanistan. Can
anything consequential be done prior to complete withdrawal? If the
Taliban take power, should the U.S. accommodate them, and interface
with the new regime, as it has done with other popularly supported
insurgencies? Should we plan for a partitioned Afghanistan?

With the troop withdrawal around the corner, we need to start planning
for every eventuality. And if we expect that the Taliban will return,
we must start laying the groundwork now for whatever form our
relations with them will take.

Paul Taylor, Senior Research Fellow
Center for Policy & Research