On Thursday, the Senate Intelligence Committee voted to declassify the executive summary and conclusions from its report on the CIA’s Detention and Interrogation Program. Senator Dianne Feinstein (D-CA), charwoman of the committee, released a written statement, stating that “[t]he report exposes a brutality that stands in stark contrast to our values as a nation…. This is not what Americans do.” Continue reading
Yesterday afternoon, the Associated Press reported that the US is currently tracking an American citizen and terrorist suspect in Pakistan. While officials have not confirmed the identity of the man, they described him as an “al Qaeda facilitator” who is currently plotting attacks against the United States. Now the Obama administration is struggling with the question of whether to use the controversial drone program to eliminate him. Continue reading
In an article released just this morning, The New York Times reports that a government watchdog group has released a review of the NSA surveillance program, stating:
“An independent federal privacy watchdog has concluded that the National Security Agency’s program to collect bulk phone call records has provided only “minimal” benefits in counterterrorism efforts, is illegal and should be shut down. Continue reading
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
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.
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.
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.”
Paul Taylor, Senior Research Fellow
Center for Policy & Research
The number of high-profile officials and former officials who have voiced support for a court to review lethal drone operations is multiplying.
On Monday, former CIA Director and Defense Secretary Bob Gates told CNN that while he has long advocated the use of drones to monitor and target suspected terrorists, he also supports greater oversight.
Gates’ opinion will carry weight. As a career public servant who has served both Democratic and Republican administrations, he is perceived as a trustworthy source of non-partisan analysis. And because in the last two administrations he held high-level positions bearing directly on drone operations, he can be considered to have intimate knowledge of their uses, and their risks.
“I’m a big advocate of drones,” said Gates. While he admits that innocent people are sometimes killed by drones, he says “the numbers, I believe are extremely small”. Given the limited options to confront the terrorists and insurgents in places like Pakistan, Gates still thinks that drones are the best option, explaining “You do have the ability to limit that collateral damage more than with any other weapons system that you have.”
But despite their efficacy, Gates agrees with the recent calls for some form of oversight panel or court:
“Whether it’s a panel of three judges or one judge or something that would give the American people confidence that there was, in fact, a compelling case to launch an attack against an American citizen – I think just as an independent confirmation or affirmation, if you will – is something worth giving serious consideration to”
Currently, the Senate Intelligence Committee is reviewing proposals for creating such a tribunal. However, no legislation has yet been started.
Paul Taylor, Senior Research Fellow
Center for Policy & Research
With the confirmation hearings of John Brennan as Director of Central Intelligence, news related to the U.S. drone program is coming fast. This time it was made by Senator Diane Feinstein (D-CA), chairwoman of the Senate Intelligence Committee.
Both during the hearing and in comments to the press afterward, Sen. Feinstein suggested that she and other Democrats would be working to create a new court that would review the administration’s decisions on who may be targeted in lethal counter-terrorism operations. (I assume at that such a court would be given jurisdiction over all targeted killings, not just those conducted by drones, despite the common conflation of the two.)
The concept of a court or tribunal of some sort to review or provide oversight for targeted killing decisions, whether restricted to those targeting U.S. citizens or with a broader mandate, is not new (see, e.g., our previous post). However, this is the highest profile such suggestion that has yet been made.
In Sen. Feinstein’s conception, the court would be modeled after the Foreign Intelligence Surveillance Court (FISC), with the aim of increasing transparency and to correct public misconceptions about civilian casualties.
Such a court could also help to alleviate concerns that the administration is overly-permissive in its decisions to use targeted killing instead of other alternatives. For example, the editorial board of the New York Times writes, “Mr. Brennan’s assertions that the government only resorts to lethal force when ‘there is no other alternative’ is at odds with reports of vastly increased drone strikes.” An independent body which reviews such determinations would go a long way in ensuring that such concerns are addressed.
As an interesting aside, it seems that not everyone is concerned that President Obama is sliding into a Bush Doctrine approach. John Yoo wrote in the Wall Street Journal that “[t]he real story revealed by the [white paper released Monday] is that the Obama administration is trying to dilute the normal practice of war with law-enforcement methods.” However, this appears to be a minority view.
Ex Ante or Ex Post?
If the FISC forms the model for this targeted killing court, then the assumption would be that it would that the court would review the targeting decisions ex ante. That is, before the administration could act, it would have to produce for the court the evidence or intelligence gathered to support the targeting decision. The court would then review the evidence for some level of sufficiency before allowing the operation to move forward.
However, many of the suggestions for a tribunal to review these killings call instead for ex post review. This is the model required in Israel. The basic idea of this is generally that waiting until the operation is complete keeps the court out of the way of military or para-military operations, but still maintains some oversight.
Robert Chesney of Lawfare provided some very interesting points to consider about such a court, including whether the review should be ex ante or ex post. He falls on the side of ex ante, but some of his commentary actually seems to point in the other direction. First, he points out the all of the serious propositions would subject the nomination process to judicial review, not the “trigger pull.” This temporally removes the judicial authorization from the final decision to kill, and in Chesney’s view eliminates the concern that the process will interfere with the execution of the operation.
I’m not sure that it does. Names may be placed on the list at any time, conceivably as the result of a time sensitive push within the intelligence community. While I am not an expert in the process of targeting decisions, I think that the executive may need to be able to act quickly on new information that indicates that a subject is targetable. Ex ante review would place an additional hurdle between the decisive intelligence and the operation. Chesney seems to realize this by admitting the need for an “exigent circumstances exemption.” But this exception would itself mean defaulting back to an ex post review.
Additionally, Chesney notes that “Some judges want absolutely nothing to do with this … due to hostility to the idea of judicial involvement in death warrants. (And that’s without considering the possibility of warrant-issuing judges finding themselves the object of suit or prosecution abroad.)”
Judges would likely be much more comfortable with ex post review. Ex post review would free them from any implication that they are issuing a “death warrant” and would place them in a position that they are much more comfortable with: reviewing executive uses of force after the fact. While there are clearly parallels that could be drawn between the ex ante review proposed here and the search and seizure warrants that judges routinely deal with, there are also important differences. First and foremost is that this implicates not the executive’s law enforcement responsibility but its war-making and foreign relations responsibilities, with which courts are loath to interfere, but are sometimes willing to review for abuse.
Additionally, in search and seizure warranting, there an ex post review will eventually be available. That will likely not be the case in drone strikes and other targeted killings unless such a process is specifically created. There are simply too many hurdles to judicial review (including state secrets, political questions, discovery problems, etc) for the courts to create such an opportunity without congressional action.
Chesney also noted that executive officials involved in the nomination process would prefer an ex ante review to shield them from unexpected civil liability by the victims or their families. I’m sure that it is true that administration officials would like to have “certainty ex ante that they would not face a lawsuit.” However, this is not a guarantee that the courts can provide to the executive. As noted above, as with search and seizure warrants, there are issues to consider after the approval of the executive action. Ex ante review does not allow for inquiry into important ancillary issues, such as the balancing of risk to civilian bystanders. Also, it provides no assurances that new, exculpatory intelligence forces a reassessment of the targeting decision. Only ex post review would achieve this.
There is also the problem that typified the FISC: permissiveness. Of the tens of thousands of FISA warrant requests, only a handful have been rejected. When allowing for modification of the requests, it is not clear whether any have been finally rejected. There is little reason to believe that the proposed “drone court” will be much different. It is far too likely that a court will hesitate to impede an operation that the executive believes is required to protect out national security. Once the operation is complete, however, the court will not be inclined to hold back its criticism on all manner of aspects of the operation, from the initial targeting decision to the final execution.
Lastly, as Chesney himself points out:
Of course, there is also the question whether creating any such system is constitutional in the first place, especially if the system is framed to encompass more than just US persons…
This may true for ex ante review, but one of the courts’ fundamental mandates reviewing the executive’s activities for abuse of its power. This is even true in cases involving military or foreign affairs, where the executive is given the widest latitude and enjoys the greatest autonomy.
I do share Chesney’s suspicion that a tort-based process in which victims seek damages is not the appropriate means of reviewing targeted killing decisions. However, I am certain that regardless of whether an ex ante review is used, some ex post review must be available. There are simply too many variables between the initial nomination and the final execution of the mission that should be subject to some independent review. Indeed, as a veteran, I know the value of lessons learned in after action reviews, but I also know how often these reviews are shortchanged or skipped altogether. An ex post judicial review will ensure that this does not happen here.
Paul Taylor, Senior Research Fellow
Center for Policy & Research
Since President Obama’s inauguration last month, his unfulfilled promise to close Guantanamo Bay Detention Center has once again risen to the forefront of the public discourse. Throughout his campaign as a presidential candidate, and into his first term as President of the United States, Obama stated multiple times that he was going to ensure Guantanamo closed its doors. In fact, on January 22, 2009, he began his second term in office by signing an Executive Order directing that, “the detention facilities at Guantánamo for individuals covered by this order shall be closed as soon as practicable, and no later than 1 year from the date of this order.”
Why, then, in 2013, four years after this Executive Order, is Guantanamo still open?
During the Executive Order’s signing ceremony, Obama made it clear that closing Guantanamo would be accomplished in a manner that prioritized United States national security and foreign policy interests. This may be true, but as we have seen throughout Obama’s first term as President, closing Guantanamo is far easier said than done.
A lot of the pushback against closing GTMO comes from our representatives. Congress has used its spending oversight authority both to forbid the White House from financing trials of Guantánamo captives on U.S. soil and to block the acquisition of a state prison in Illinois to hold captives currently held in Cuba who would not be put on trial — a sort of Guantánamo North. Despite these road blocks, Sen. Dianne Feinstein, D-Calif., the Senate Intelligence Committee chairwoman, has indicated recently that “if the political will exists, we could finally close Guantanamo without imperiling our national security.”
If President Obama wants to close GTMO, he needs to take some serious action soon, and establish a concrete plan that will garner support from the public, but more importantly, the politicians voting for his plan. Today, most Republicans and some Democrats remain opposed to closing the facility. House Armed Services Chairman Buck McKeon has said, “no one has ever argued that Guantanamo Bay is ideal, but before you talk about closing it you have to tell the country what you will replace it with.”
While politicians cite a variety of reasons for opposing closing down GTMO, it frequently comes down to cost and safety. A quick look at operating costs reveals it is far cheaper to house the remaining GTMO detainees in the United States vs. at the facility.
As of today, the 166 detainees held at Guantanamo costs the United States an astounding $114 million each year to operate. Transferring these detainees to a facility in the United States would be far cheaper. According to John Maki, who heads the John Howard Association (a watchdog group that monitors Illinois prisons), it cost $26 million annually to run the Tamms Supermax in Illinois- a recently closed prison with fewer than 200 inmates which was frequently referred to as being “tougher than GTMO.” That’s 22.8% of the cost of operating GTMO.
As to the safety argument, Senator John Thune, Republican of South Dakota, has stated that “the American people don’t want these men walking the streets of America’s neighborhoods.” Ignorant comments like this are tainting public opinion. As dangerous as some of these men may be, they will in no way be “walking the streets of America’s neighborhoods.” They would be locked up in a highly secure prison- no more dangerous than the murderers, rapists, and other criminals they would be sharing their facility with.
Thus, it is clear that the real hurdle to closing GTMO is the fear mongering of our Congress. America is ready for GTMO to close, we just need our elected representatives to get on board with us.
Paul Juzdan, Research Fellow
Center for Policy and Research