Ben Emmerson talks drones with Lawfare

UN Special Rapportuer for Human Rights and Counter-Terrorism Ben Emmerson spoke with Lawfare’s Benjamin Wittes and Ritika Singh about his study of US drone policy, focused primarily on our operations in Pakistan (podcast available from Lawfare: see episode 31). I have expressed some skepticism of his objectivity in past posts (here and here), but also some optimism (here). Having just listened to Emmerson’s 40 minute discussion, I now have a great deal of respect for the man’s commitment to objectivity.

In the discussion Emmerson admits to having initially approached the subject from not only a human rights perspective, but also with the preconception that the US was not at war at all. His views on these issues have become both tempered by his investigation and discussions with officials in Pakistan and the US, and also quite nuanced. Once example of this can be found in his explanation of his comments earlier this year in which he is broadly quoted as saying that Pakistan has not consented to US drones attacks on its soil. His elaboration of how he came to this position is quite interesting, and well worth listening to (it starts at minute 23).

Far from simply accepting the assertions of Pakistan’s civilan officials that they have repeatedly protested against drone strikes, Emmerson starts his analysis from the passage of a law restricting consent to the use of drones by officials of the Pakistani government. Since the US and the international community are interested in promoting democracy and the rule of law, Emmerson argues, such a restriction, passed by the elected representatives of the Pakistani people should set the basis of consent. To allow back-room deals to trump a duly enacted law would be anathema to the promotion of democracy.

Emmerson then preempted the ever-realist Wittes’ rebuttal that the democratic government of Pakistan is not the effective government with regard to matters of national security and foreign affairs by pointing out that while Pakistan is clearly a flawed democracy, it is also by the same token a fragile democracy that should be nurtured rather than subverted in the name of expedience.

Another point made by Emmerson which displays his objectivity and thoughtfulness relates to the perception that drones could unduly high civilian casualties. Emmerson cited  UNAMA statistics kept over the last decade on civilian casualties from various kinds of ordinance. And while that data clearly shows that drone attacks in Afghanistan tend to cause substantially fewer civilian casualties than attacks by fixed-wing air craft, the perception of the the majority of Afghans is the exact opposite: that drones are prone to killing innocents. He therefore wonders (without concluding) whether drone warfare is in the long run more harmful than other means of achieving similar ends.

Other points warrant mention as well, but in all, I am very impressed with Ben Emmersion’s intellectual honesty and objectivity. I now truly look forward to his report, due to be produced in September.

Paul W. Taylor, Senior Fellow
Center for Policy & Research

 

Condolences to the Victims of the Boston Marathon bombing and the people of America

The Embassy of Afghanistan released the following condolences and word of solidarity to the victims of the Boston Marathon bombing and the American people:

AfghanLetterhead

FOR IMMEDIATE RELEASE April 16, 2013

Ambassador Eklil Hakimi offers his condolences to the American people

I am deeply saddened to learn of the loss of life and innocent people injured at the Boston Marathon yesterday. We condemn this heinous act in the strongest possible terms. We greatly sympathize with those affected and offer our deepest condolences to the loved ones of those lost. The city of Boston, along with all of the American people, are in our thoughts and prayers.

This kind of deplorable violence is all too familiar to my fellow Afghans. We cannot let these cowardly acts diminish our resilience and drive towards a better tomorrow for all. United in our mutual pursuits, Afghans will continue to work with our American partners to combat violence around the world.

Sincerely,

Eklil Hakimi
Afghan Ambassador to the United States

The Right to Refuse Foreign Visitors: One of the Few Rights Guaranteed to GTMO Detainees

Earlier this month, the U.S. State Department denied a Russian delegation permission to visit with Ravil Mingazov (ISN 702), a detainee in Guantanamo Bay.

Mingazov is well known in Russia, as a former ballet dancer who had appeared on national television. He converted to Islam while living in Russia, but fled the country to Afghanistan to escape anti-Muslim prejudice. The U.S. captured Mingazov when he was found in a terrorist safe house in Pakistan in 2002. He is also accused of training in al-Qaeda linked camps. Mingazov conveyed, through his lawyers, that he fears returning to his country after the treatment other Russian former-detainees have received upon arriving home. According to Mingazov’s lawyers, “They were subject to persecution upon their release and based on that he does not want to go back.”

Mingazov was in fact ordered released by a federal judge in May of 2010, although he currently remains in Guantanamo. The US has appealed this decision. It is possible that his desire not to be returned to Russia will, or already has, held up his transfer. It is also possible that reasons unknown will keep him in Guantanamo Bay, like numerous other cleared detainees.

Although the State Department had facilitated the Russian delegation’s visit to the military base in Cuba, permission to visit with Mingazov was denied when he refused to see them. According to State Department spokesman Victoria Nuland, there is “a longstanding policy of not forcing such interviews if they’re not voluntary.”

Apparently detainees have a right to refuse foreign visits, but not food, as involuntarily force-feeding is ongoing during the current hunger strike. This highlights one of the many quandaries of Guantanamo Bay.

Ed Dabek, Research Fellow
Center for Policy and Research

Seeking Sanity in the Drone Debate

Drone bashing seems to be in vogue these days, especially in on the liberal end of the media spectrum. Many of these critiques are based on faulty information or focus entirely on the most extreme examples or hypothetical situations, such as whether the government could target a US citizen sitting at a Starbucks in NYC. Of course, these arguments are feed by our own elected officials, sometimes of the conservative bent (I’m pointing at you, Rand Paul).

I would like to point out one beacon of sanity among these shrill arguments. Hassan Abbas, in his article at the Atlantic, criticizes US drone policy in Pakistan, does a remarkable job of producing a relatively balanced argument, while still clearly landing on the liberal end of the spectrum. I don’t agree with all of his assessments, or even all of his “ground realities.” For example, it is particularly questionable that we know that around 50-60% of all drone victims have been civilians. Verifying just the numbers is a difficult task, and classifying the victims into combatants and civilians even harder–and his reliance on “local estimates” falls prey to his own critique of the bias in other studies.

However, I actually do agree with his basic assessment of the situation. The use of drones allows policy-makers to feel like they are doing something about the situation, while they are in fact ignoring the underlying issues. For example, as Abbas notes,

“There were roughly 350 drone strikes in the tribal areas since 2004, at an exorbitant cost (even though drone strikes offer a cheaper option in comparison to “boots on ground”). But how many schools were opened in the region over the same period of time? The answer is distressing, as the number of schools has actually declined sharply.”

This is a relatively common argument among the few drone critics who go beyond the temptation to focus on gore or appeals to sovereignty, and take a more nuanced view. But Abbas goes one step further, pointing out the role of those the US drone campaign targets:

“Damages to more than 460 schools throughout the tribal belt at the hands of Taliban has in fact displaced 62,000 children, including 23,000 girls, from school. It doesn’t require very high intelligence to guess that in the absence of schools, and with an increase in violence, what kind of future awaits these kids. Drone strikes may take out some of those who destroyed these schools, but that is hardly a sustainable solution to the larger problem.”

And in this, he is absolutely right. The situation in which the youth were placed in the 1980s and 90s was one of the factors leading to the rise of the Taliban. And as Abbas points out, drones can do little to protect the youth, and nothing to build them new school or provide quality teachers. The drone campaign doesn’t even try to do these things.

After all, our drone policy is basically a band-aid solution. It is designed to keep the leadership of al-Qaeda and the Taliban on the run, but has no hope of finally defeating either organization. However, it is folly to think that just because drones will not solve the security or humanitarian issues in Pakistan and Afghanistan, we should abandon the policy. That said, Abbas is perfectly correct that the solution is not sustainable. It must be augmented (and eventually entirely replaced) by policy directed at the human dimension.

One problem there, though: No one knows how to do that. Any ideas?

Paul Taylor, Senior Research Fellow
Center for Policy & Research

Update on UN Drone Investigator

After a recent secret visit to Pakistan, Ben Emmerson, the U.N. special rapporteur on human rights and counter-terrorism (see my previous posts here and here), released a statement that the Pakistani government “emphasized its consistently-stated position that drone strikes on its territory are counter-productive, contrary to international law, a violation of Pakistan’s sovereignty and territorial integrity, and that they should cease immediately.” 

The US has previously relied on the contention that Pakistan consented to these strikes, and it has a lot of support to back it up. In fact, diplomatic cables released by Wikileaks confirm that Pakistani leaders did not oppose the use of drones on their soil, and even encouraged it. It is true that Pakistani officials have made public statements that the attacks are not welcome and should stop. But as pointed out by Ben Farley in his thoughtful piece on the D.C. Exile blog, it is not always clear from public sources when consent has been given or revoked, as when then-Yemeni President Ali Abdullah Saleh consented to US drone strikes on its territory, but under the pretense that they were the actions of his own air force. No one who witnessed such a strike would therefore know that it was not a breach of Yemeni sovereignty.

Emmerson, however, has apparently adopted a black and white view of the issue after his meetings with Pakistani officials, claiming that “[t]he position of the Government of Pakistan is quite clear. It does not consent to the use of drones by the United States on its territory.” But it is not clear.

Ben Farley’s conclusion is a more thorough and eloquent presentation of my own thoughts on the issue than I could hope to achieve:

Pakistan’s behavior in general has been at best ambiguous.  Despite having the capacity to “‘trace and detect any aircraft’” operating near its border with Pakistan and (apparently) the ability to shoot such aircraft down, there have never been reports of Pakistan shooting down a U.S. drone.  Although the absence of public reports of such downings is not dispositive, the fact that U.S. drones carry out any strikes even though they are slow moving, are not maneuverable, and carry no air defense countermeasures, strongly suggests that Pakistan ischoosing not to interdict drones.  Additionally, Pakistan has a modern air force that is at least as capable as the Iranian air force but, while Iran has chased a number of U.S. air force drones over the Persian Gulf in recent months, there have never been any similar reports from Pakistan.  Finally, and perhaps most tellingly, Pakistan has not taken the sort of concrete steps vis-à-vis the United States for drone strikes as it has for other violations of Pakistani sovereignty.  For example, in November 2011, a frontier incident between U.S. and Pakistani troops (that resulted in the death of 26 Pakistanis), led Pakistan to both close its border with Afghanistan to NATO convoys and to kick U.S. drones out from their Pakistani bases.  Pakistan also upgraded its Afghan-border air defense systems.  Similarly, after a CIA contractor killed two Pakistanis in January 2011, Pakistan ousted all CIA contractors and reduced the number of U.S. special operators allowed in Pakistan for training missions from 120 to 39.  Not only has Pakistan not taken such steps in response to U.S. drone strikes, at least until the Wall Street Journal report at the end of September 2012, Pakistan  continued to clear the parts of its air space in which the CIA indicated it would conduct drone strikes.  That is to say, not only is Pakistan not intervening to prevent drone strikes, it is taking affirmative steps to facilitate those strikes.  Thus, Pakistan’s behavior at least renders its public statement ambiguous and, more likely, supersedes those statements altogether.  Again, consent must be clearly stated but clearly stated to the recipient of that consent not the outside world.

If the United States is operating without Pakistan’s consent within Pakistan, it is violating Pakistan’s sovereignty—and it may be violating international law.  However, Emmerson’s conclusion notwithstanding, it is far from clear that, as a matter of international law, the United States is violating Pakistani sovereignty.

 

Paul Taylor, Senior Research Fellow
Center for Policy & Research

A New Look at Targeted Killing Authorities

The Obama administration is reportedly taking another look at the legal foundations of its use of drones for lethal counterterrorism operations. And none too soon, with the changes in the structure of al-Qaeda stretching the AUMF to the breaking point.

Like the war in Afghanistan, the targeted killing campaign in Pakistan, Yemen and elsewhere was undertaken under legal auspices of the Authorization for the Use of Military Force, passed by Congress in the wake of the 9/11 attacks. That law allowed the administration “to use all necessary and appropriate force” against those who “planned, authorized, committed, or aided” the 9/11 attacks or who “harbored such organizations or persons”.

However, with the continuing tactical successes of the dogged and technologically sophisticated campaign to target the core al-Qaeda leadership in Pakistan over the last several years, the terrorist network has become much more diffuse.  This makes finding the necessary connections to the al- Qaeda senior leadership much more difficult, thereby undermining the legal justification for using lethal force. In fact, even detaining these individuals would require that they fall under the AUMF or some other legal authority (something critics of targeted killing often overlook).

This diffusion of al-Qaeda—and the legal authorities for use of force—is not a particularly new phenomenon. After all, after the invasion of Afghanistan, and the routing of the Taliban and al-Qaeda, many al-Qaeda operatives left the Afghanistan/Pakistan theater altogether, dispersing across the globe. They were not going into hiding, per se, but looking for new places to recruit, plan, and carry out their terrorist operations. When the US subsequently invaded Iraq, some al-Qaeda operatives followed us there to take root in the security void we created.

The courts have taken an expansive view of the AUMF, allowing the administration to target these “associated forces,” or what many analysts have called al-Qaeda 2.0. However, these individuals and groups had clear, direct connections to the original, core al-Qaeda element run by Osama Bin Laden and Ayman al-Zawahiri which planned and carried out the 9/11 attacks.

Most al-Qaeda 2.0 groups were founded and run by his lieutenants, and remained in contact with Bin Laden. This is not true of the newest crop of terrorist groups cropping up across the Middle East and Africa. Instead, the leadership of these new groups often learned their trade as lieutenants to al-Qaeda 2.0 leaders and have only the most tenuous connections to the core al-Qaeda group. This makes fitting them into the AUMF scheme difficult, creating questionable legal authority to use lethal force.

According to a senior Obama administration official,

“The farther we get away from 9/11 and what this legislation was initially focused upon, we can see from both a theoretical but also a practical standpoint that groups that have arisen or morphed become more difficult to fit in.”

Even the leaders with the firmest connections often pose legal problems: Mokhtar Belmokhtar, a former fighter in Afghanistan and later leader of al-Qaeda in the Islamic Maghreb (AQIM), had broken ties with AQIM and formed his own group, the al-Mulathameen Brigade operating in Algeria and Mali. The threat he poses to the to the US is not diminished, however. He was the mastermind of the Algerian gas plant attack, which lead to the deaths of three US citizens. However, because he is no longer a part of al-Qaeda or one of its franchises, the administration determined that the AUMF would apply to him.

When those like Belmokhtar and the Benghazi attackers kill Americans, the US could capture them based on criminal law enforcement authorities. However, should we have to wait for US citizens to be victimized before we allow the government to take action, when we know that an individual or group has nefarious intentions? Should we also have to wait until they show up somewhere that we can execute an arrest without undue danger to our agents?

The Obama administration is now looking for ways to square this circle, and create a more permanent framework for dealing with these issues. However, they apparently do not like their options. Simply expanding the current AUMF is unappealing. “You can’t end the war if you keep adding people to the enemy who are not actually part of the original enemy,” according to one person who participated in the administration’s internal debates. But relying solely on the constitutional authority of the President are not appealing either.

And while the administration may be correct that there is little political appetite for it, what is needed is a new authorization, allowing the executive broader authorities to kill or capture terrorists that target US interests, not just those connected to specific prior attacks. But these authorities must be coupled with judicial and congressional oversight procedures to protect against abuse or overuse. In fact, failure to create these authorities with built-in checks will encourage future presidents to rely on their inherent authority to act to defend the country from foreign threats, thus seizing all of the power with none of the constraints.

A more comprehensive “Counterterrorism Operations Powers Act” would create checks on the President’s powers, while still giving him the ability to carry out his duty to protect the nation. It would also help to elucidate the line between law enforcement situations and national security/counterterrorism situations.

Paul Taylor, Senior Research Fellow
Center for Policy & Research

Redefining Victory in Afghanistan

Sometime in the last twelve years, someone moved the goalposts. We’ve gone from wanting to crush the Taliban like the backwater illiterates they are, to wanting to abide their trouble while we slowly secure the country.

And according to then-outgoing commander of our troops in Afghanistan, General John Allen, “This is winning, this is what victory looks like.”

What he did not add was that winning would look like this for years to come. 2014 has come to be seen as what one Afghan official has called a “magical date”, a make-or-break date by which the conflict will effectively be determined one way or the other. But the truth is that there is little reason to believe that it will all be sorted out by then.

This is a sad result for the most powerful military the world has ever seen, but realizing the limits of our ability to drive the outcome is an appropriate and helpful adjustment to the factual situation.

The time in which a decisive battlefield victory over Taliban was possible ended sometime in late 2001 or very early 2002, and was given up when we decided not to press Pakistan to seal off its border (or allow us to do so). Since then, the US and the Afghan government it helped into being have been engaged in a cross-border insurgency, and it is by the fundamental laws of insurgency that the conflict will be won or lost.

We need to abandon the naïve idea that we can crush the Taliban on the field of battle, and realize the truth that has been recognized by the Taliban since the beginning: winning will be determined by which side can be relied upon to provide basic governmental services like security and justice.

Chart-Afghan Issues

And while some may have read my earlier post as entirely pessimistic, there is reason to hope that Afghanistan is at least generally headed in the right direction. First, Afghans themselves are making the investment, in very real terms. According to General John Allen:

“[E]very Sunday when we’ve read the names of our Coalition dead, the Afghan National Army steps up to recognize the sons of Afghanistan, also who have sacrificed in this conflict.  And every week there are 25 or 35 or 45 killed in action and 50 or 60 or 70 wounded.  There can be no doubt that Afghanistan is investing in its own future.  The cost is paid in the blood of their finest young warriors.”

A report by CSIS indicates the total ANSF deaths are now well over 4,000, and it seems likely they are growing faster than those of ISAF.

In addition, the Afghan Army have been largely successful in keeping civilian casualties to a minimum, despite the increased combat pressure they are bearing and the fact that are not yet as professional as their mentors. According to the CSIS report:

“Between 1 January and 30 June, UNAMA documented 20 civilian deaths and 12 injured from search and seizure operations by Pro-Government Forces, a decrease of 27 percent compared with the same period in 2011. This is consistent with the downward trends documented in the same periods in 2009, 2010 and 2011. Civilian casualties as a result of ANSF and ISAF escalation of force incidents continued to decrease in 2012.”

The Afghan Government is also working to reduce its reputation for brutal interrogation and detention. For example, in response to recent reports detailing the prevalence of torture in Afghan detention centers, President Karzai has ordered that all interrogations be video recorded to ensure that the detainees are properly treated.

Such hard-fought successes can be short-lived, as can be seen in Karzai’s ban on ANSF calls for close air support in residential areas in response to an incident that caused severe collateral damage. However, this may be a good development in the long run. Remember that the Taliban cannot be defeated on the field of battle: the flip-side of that coin is that the Government can lose the population’s support by a too-aggressive approach. The French learned this same lesson in Algeria, where their brutal tactics won them a very shallow and self-defeating victory over their insurgent foes. Reducing civilian casualties is an important component of providing civilians a sense of security.

The other major good that the government must provide to the people in order to bolster its legitimacy and weaken the Taliban’s appeal is in the area of governance, justice and civil conflict resolution. Here, the vast majority of the damage done to its reputation has been entirely self-inflicted: endemic corruption in the courts and police has caused many in the south to turn to the Taliban to help them resolve their disputes with one another. While the Taliban verdicts are swift and harsh, they are also perceived as untainted by biased and corruption.

Unfortunately, there is little indication that the highest levels of the US or Afghanistan governments are very interested in tackling the corruption issue. Few official statements by either government ever mention the issue as more than a passing reference. Furthermore, little progress has been made in the past decade. Indeed, a recent report by the UN Office of Drugs and Crime found that while the number of Afghans who have to pay bribes has been dropping since 2009 (from 59% of Afghans to a mere 50%), the total cost of the corruption has risen 40%. And those who find themselves in the position where they must pay a bribe are subjected to higher bribes more often.

While there is good news in that there has been a 10% drop in the incidence of police bribery, this is counterbalanced by the fact that there has been no improvement in the judicial branch. Indeed, while the reporting rate of bribery appears to high by international standards, only one fifth of these reports lead to any investigation.

Since it’s speedy and reliable night courts are the one of the Taliban’s greatest selling points, it is imperative to Afghanistan’s long term stability that the epidemic of corruption be brought to heel. While it would be pie in the sky to think that success ending corruption could be quickly and easily be achieved by any means, the Afghan government and the US as its partner must secure steady and visible progress in reducing the corruption that impacts the day-to-day lives of Afghan citizens. This is perhaps especially important in the sectors that are mandated to combat corruption, such as the police and courts.

Thankfully, the lower levels of the US government have begun to take some steps in this direction. In the last few years, the Special Inspector General for Afghanistan Reconstruction (SIGAR) has quietly begun to tackle the US military’s enormous contribution to the climate of corruption (as well as some of its absurdly wasteful practices), while USAID’s Assistance for Afghanistan’s Anti-Corruption Authority program has helped Afghanistan develop its High Office of Oversight and supported civil watch-dog groups. Clearly, much more must be done, but it is precisely these sorts of quiet efforts that will prove most effective in the long run.

Pakistan’s Cooperation

Even if the Afghan government is able to reduce the corruption that encourages support for the Taliban, the insurgency will continue to drag on for years so long as they have a sanctuary in which to rest, recover, and prepare for the next operation. This is even more true if they may continue to rely on a state sponsor for support. Because of this, Pakistan plays a pivotal role in determining the longevity of the Taliban movement.

Thankfully, here too there is some reason for hope. With its increased internal instability, Pakistan has recently changed its strategic goal, limiting their references to “strategic depth” (read proxy government in Afghanistan) and calling instead for “power sharing” between the Afghan government and the Taliban. With its interest in stability along its border, the more Pakistan can be convinced that the Afghan state will not crumble in the wake of the US withdrawal, the less support it will provide to the opposition.

As with governance and security, progress in this regard will likely come in small and barely-noticeable form. It will not come as an announcement of a new policy or realignment on the part of Pakistan, but as changes in the attitudes of Pakistani leadership, declines in public support for the Taliban or in opposition to the US, or incremental reduction of support from the military.

This is What Victory Looks Like

Afghanistan has not been a stunning success by any metric. It was badly bungled, then pushed onto the back burner for years. By the time Americans noticed that it was still going on, the Taliban had regained much of their previous strength and had plenty of opportunity to hone their skills.

Yet it may yet be true that, from our current vantage point, this is what success looks like. Securing Afghanistan will require the long and tiring process of building state legitimacy while wearing down, coopting, and waiting out the insurgency.

“[O]ur victory here may never be marked by a parade or a point in time on a calendar when victory is declared.  This insurgency will be defeated over time by the legitimate and well-trained Afghan forces that are emerging today, who are taking the field in full force this spring.  Afghan forces defending Afghan people and enabling the government of this country to serve its citizens.  This is victory.  This is what winning looks like, and we should not shrink from using these words.”

General John Allen

Paul Taylor, Senior Research Fellow
Center for Policy & Research

Panetta Says the US Didn’t Need EIT’s to Get UBL

Over the past few weeks, the film “Zero Dark Thirty” has undoubtedly brought heightened  attention to the United States’ hunt for bin Laden (UBL).  In the film, some of the more shocking scenes include those in which the main characters, CIA agents, are interrogating detainees at various detention facilities.  The film shows some of the more frequently discussed EIT’s, or Enhanced Interrogation Techniques (arguably, just a more palatable euphemism for torture), including waterboarding, sleep deprivation, food deprivation, stress positions, blasting loud music, and playing off the detainees’ fears and cultural beliefs.

Regardless of whether director Kathryn Bigelow took artistic license when developing these scenes in the film, it is indisputable that EIT’s have been regularly used by the United States in the decade that has passed since the 9/11 attacks.  With the secrecy that shrouded the mission leading to the capture of UBL, it is only natural that the public is hungry for the details regarding how the intelligence leading to that fateful night in Abbottabad .

In an interview on “Meet the Press” that aired Sunday night, outgoing Defense Secretary Leon Panetta said that the search for UBL included piecing together a great deal of disparate information, and admitted that some of the information came from EIT’s, saying “Yes, some of it came from some of the tactics that were used at that time – interrogation tactics that were used.”

However, he continued on to say “I think we could have gotten Bin Laden without [EIT's]“- essentially revealing that the controversial EIT’s were not necessary to achieve the United States’ most significant accomplishment thus far in the Great War on Terror, capturing UBL.

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

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