As noted in Ministry of Truth's most recent diary, it appears the administration has gradually pursued a dangerous path of political convenience in separating militants from civilian casualties in the drone war on al Qaeda. However, very little of the criticism I've seen here and elsewhere contains specific discussion of the broader policy context, let alone reality-based recommendations that go beyond facile negation of current policy without concern for the consequences of alternatives. I will attempt to fill that void.
I approach the subject through a series of questions that progressively address the legal, moral, and practical topics involved that I've seen raised over the years. We begin with the most obvious, and then proceed to subjects of ever-increasing ambiguity and difficulty:
1. Is it ever justified to take military action against a non-state organization that has taken responsibility for mass-casualty acts of terrorism and openly pledges more?
First, we can dispense with pacifist perspectives that claim military action in general is never justified: The view is a legitimate opinion, but is also morally inconsistent as it places higher value on the lives that would be lost due to their own side's military action rather than the lives lost as a result of the other side's unimpeded violence. The idea that all violent actors can be pacified by non-violent resistance is not borne out by history, psychology, or evolution, and so positions taken on the current war on that general basis are a non-starter. I deal later with the question of whether the specific enemy in this war can be pacified.
Rationally, an organization whose objective is undisputedly to engage in acts of mass-murder should be prevented from doing so as a higher priority than merely bringing perpetrators to justice after the fact - respect for human life requires it. There are four possible options to achieve this prevention, and not all are mutually exclusive: (1) Meet the demands of the organization. (2) Become a fortress police state to make their attacks impractical. (3) Attempt to capture, try, convict, and imprison members of the organization on criminal charges. (4) Take military action to kill them.
Since, as noted above, it is demonstrably false that all violent actors can be pacified, option (1) is insufficient even if we posited the existence of terrorist organizations who both could and should be pacified. With option (2), the level of internal security required to make even highly competent, well-funded mass-casualty terrorist attacks impractical without attacking their operations at the source would be both economically prohibitive and socially dystopian, and ultimately amounts to a passive-aggressive version of pacifism if foiled attacks are not followed up with some form of proactive move to dismantle the organization.
Option (3) makes the most sense under most conditions, but there are some conditions where it is impractical: If the terrorists are located in a lawless, chaotic region, or operating under the auspices of a friendly or corrupted "frenemy" state, capture may not be a plausible option, and thus trial and conviction are moot even if pursued in absentia. By natural selection, if no further action is taken in these cases, the organization will come to concentrate its operations in these regions and use them as bases to launch attacks elsewhere - which is precisely what happened with al Qaeda in Afghanistan prior to 9/11.
Once that occurs, the cost and complexity of pursuing option (2) goes through the roof and the probability of security failure increases because you have larger numbers of terrorists with greater resources constantly probing for weaknesses from a safe harbor location. At that point, with (1)definitively discredited, and (2) and (3) impractical, your only options are to accept the deaths from terrorist attacks that occur both on your soil and all around the world as the price of not taking military action against the organization, or else take such action. Since countries have a right to defend themselves, we have answered the above question - Yes, there are circumstances under which military action against a non-state organization is justified. This fact raises difficult questions about the specifics of such a decision, but the fact that it can be morally justified is simply a matter of reality largely accepted by the vast majority of people and nations.
2. Is it ever legal to take military action against a non-state organization?
Insofar as any organization, be it a foreign government or a terrorist entity, attacks a nation on a militarily significant scale, that nation has a legal right to defend itself militarily. This does not exempt a nation from the laws of war, including human rights and a due process determination of status of those detained in a war zone (i.e., whether they qualify as criminals to be turned over to civilian authorities, POWs, or enemy combatants subject to military trial), but it also does not extend greater protection to an enemy non-state organization than an enemy nation-state would enjoy. Difficult ambiguities occur in where to draw the line on what constitutes "militarily significant scale" and where the transition point lies between civilian and military measures, but there are no legal ambiguities about the mere existence of the right to take such actions. Yes, it can be legal to take military action against non-state entities.
3. Was NATO military intervention in Afghanistan justified?
After 9/11, we faced a crossroads identical to the one outlined in Question 1 above, and our ultimate decision vis-a-vis Afghanistan was not controversial in the eyes of the world: On the one hand, there was a highly capable, wealthy, regionally powerful terrorist organization proudly claiming responsibility for acts of wanton mass-murder deliberately targeted at civilians, openly planning to repeat them with impunity, and operating with the direct support and encouragement of the equally murderous, oppressive, and criminal taliban militias in control of Afghanistan at the time. On the other hand, we faced military action against that organization and its taliban supporters that would inevitably result in unintended civilian deaths as a consequence of war against the people who were actively attacking us and slaughtering their own people with impunity.
Returning to the options identified for Question 1, we had the following choices at our disposal after 9/11, again not all of which were mutually exclusive: (1) Try to pacify al Qaeda by withdrawing all Americans from all Muslim countries, end all support for Israel and all non-Islamist Arab states, and somehow address a multitude of odd complaints based more on violent bigotry and delusional ignorance than actual US policy. (2) Build a Leviathan national security state impervious to terrorism. (3) Seek the arrest and extradition of al Qaeda terrorists by the illegal taliban state that supported them. Or (4) act with NATO to restore the UN-recognized government of Afghanistan and destroy al Qaeda's bases and personnel in the country.
Option (1) would have been a sick joke that not even Neville Chamberlain would have entertained, since we had already been attacked on a massive scale rather than merely facing the danger of such attack. We could, and should have taken rational measures to improve our standing in the eyes of global populations who might otherwise think we'd "had it coming," but there was no basis to see al Qaeda itself as anything other than what it was and still is: An eliminationist hate group who became even more violent the more they got what they wanted.
As for the taliban, nothing as heinous had been seen in the world since the Khmer Rouge - their "government" literally consisted of little more than bands of thugs with AK-47s roving around shooting, hanging, beating, and stoning men, women, and children to death for minor offenses or just because they felt like it. They used a UN-built soccer stadium more often as an execution grounds than for playing sports. Any possible variant of Option (1) was dead on arrival due to the psychopathic nature of the enemy, even if it had been politically possible to just absorb the horror of 9/11 without vengeance.
Measures, both legal and illegal, were taken to approach Option (2), but largely to the detriment of national security: E.g., rounding up mass numbers of Muslim foreigners, throwing them in a gulag, torturing people, conducting state harrassment of "suspicious" minorities, and so on. A few changes to the status quo were common sense, like nationalizing airport security, but other than that it's not clear if even a majority of the legal measures taken have been effective or just cumbersome and extraneous distractions. Even if attempts to suffocate terrorism by turning the US into a fortress had been rigorously law-based, logistically competent, and respected both human and civil rights, the fact is there are points of diminishing returns for internal security measures - at that point you are left with law enforcement and military action.
Attempts were made at Option (3), although they took the form of an ultimatum issued to the taliban: Hand over Bin Laden and the rest of the al Qaeda leadership or face invasion. This was a perfectly legitimate attitude to take: The taliban had no legal right to rule in Afghanistan, were not an actual government even in practical terms let alone legal ones, had supported al Qaeda throughout its growth in the country, and had nothing resembling a system of laws or a judicial process - just arbitrary acts of violence and mayhem meted out by killers on behalf of fanatics. It would have been one thing if the taliban offered to turn over the terrorists to an international court, but what they offered was to try Bin Laden themselves: Basically it would be akin to the Ku Klux Klan offering to try a Neo-Nazi. While it's true they're not exactly the same people, they have similar values and agendas. So the offer was a bad joke on its face.
At that point the options were simply to let al Qaeda continue planning and launching attacks on the United States, or else invade Afghanistan, restore the UN-recognized government as per international law, and destroy Qaeda bases and militants. The US had spent several years trying to get Bin Laden and other members of his organization through diplomacy and a few limited military strikes, but his organization had continued to grow in power and boldness regardless, so we knew exactly what lay ahead if military action was not taken: The same things that had already happened. That was unacceptable - we would not permit these people to murder Americans with impunity, and the taliban made clear that it would support al Qaeda if we acted. True to form, they declared NATO to be "invaders" for restoring the UN-recognized government, and waged war against forces fighting al Qaeda. It was not an ambiguous situation, and the overwhelming majority of the world supported the decision to go into Afghanistan, remove the taliban, and destroy al Qaeda's presence in the country. So Yes, NATO military action in Afghanistan was justified.
4. Was NATO military action in Afghanistan legal?
Yes. The UN-recognized government corresponded to the Northern Alliance forces who had been driven into a tiny corner of the country by the taliban, and whose leader had been deliberately targeted for assassination by al Qaeda just prior to 9/11. This was the lawful government of Afghanistan under international law, and regardless of its moral character or motives, it supported NATO military intervention. But this went way beyond what was necessary to be legal, because the US had been attacked by forces operating in Afghanistan with the apparent ongoing support and cooperation of the illegal insurgent "government," so even if the Northern Alliance had opposed the invasion it would still have been legal as an eminently and obviously defensive military action against a force that had already murdered thousands of our people.
As far as I've seen, the only non-pacifist arguments against this conclusion come from Truthers who deny the facts of 9/11 - and commenters here who artfully dodge admitting that they subscribe to such notions to avoid a CT ban. So we've established that the decision to become militarily involved in Afghanistan was both legal and justified.
There are some libertarian-oriented criticisms about the fact that war was never officially declared, but for a number of reasons both historical, political, and practical, such declarations are no longer considered useful - and this has been a largely consensual position both by political leaders and their critics, given that official declarations of war are tantamount to martial law in terms of the powers they explicitly grant the Executive branch. Overt news media and private communications censorship are just two of the powers associated with declared war that few today would be interested in supporting, as well as draft armies, civilian regimentation, and for the right-wing folks, direct Executive control of the economy. Not only would these be politically insupportable, but are totally unnecessary to fight al Qaeda.
5. Is it justified to launch military strikes in Pakistan and Yemen??
The same set of circumstances that applied to Afghanistan prior to NATO intervention largely applies to the involved areas of Pakistan and Yemen: Trivial legitimate governance in lawless regions dominated by terrorists and religious militias operating with impunity. The central governments of these countries are either incapable of exercising sufficient control over these regions to take responsibility for them, or have elements within themselves (e.g., parts of the military and intelligence services in Pakistan) that are in direct collusion with our enemies.
So once Al Qaeda re-coalesced in Northwestern Pakistan and Yemen after being disrupted in Afghanistan, the three options (discounting those already discredited) were to (1)conduct limited, targeted operations directed at individual suspected terrorists, (2)treat the countries themselves as responsible for the terrorist activity occurring within their borders despite knowing they are not in control and invade Yemen and nuclear-armed Pakistan, or (3)just pretend it wasn't happening and let al Qaeda once again create safe harbors from which to launch attacks against us. Option (2) would be insane, and Option (3) would only be slightly less insane, but if the fact that Osama Bin Laden was being sheltered in an armed compound in the heart of the Pakistani military-industrial complex doesn't prove that Pakistan cannot be trusted to stop al Qaeda within its borders, then nothing would. That leaves limited aerial strikes against specific targets as the only remaining option with any sense to it.
6. Is it legal to launch military strikes in Pakistan and Yemen?
The facts surrounding Bin Laden's hiding place would technically make an all-out invasion of Pakistan legal, but as it is we're maintaining some thin semblance of a relationship with Islamabad by mostly limiting operations to drone strikes in Afghanistan-adjacent regions where the central government is weak or altogether powerless. Even without such stark evidence of Pakistan's duplicity, unreliability, and in some cases outright enemy behavior, the fact would still remain that it is either unable or unwilling to stop the taliban and al Qaeda from taking control in these regions, and we have a right to defend ourselves against the terrorists they permit to operate on their territory.
7. Is it ever justified to target individuals in war?
Everyone who fights in a war is an individual, so the question is more precisely rendered as whether it's ever justified to target someone whose identity is known. But that merely illustrates the superficiality of the perception that there is something fundamentally different about aiming at a specific person rather than at a uniform or a nameless bad guy. To propose a reductio ad absurdum, if one were preparing to shoot at an enemy and they shout out their name, must you then stop firing and allow yourself to be killed because you now know specifically who is trying to kill you? So we know that merely possessing the knowledge of an enemy's identity is not sufficient to disqualify them from being a battlefield target if their actions would otherwise call for it.
But let's take a step further away from clarity and pose a different scenario: You receive information that the person who shot at you earlier is So-and-So, and he operates out of a farmhouse at Thus-and-such location. Is it no longer war because he isn't shooting at you at that very instant? Does the fact your side now has information superiority somehow change the situation from one of combat to law enforcement, even if that's utterly impractical under the circumstances? The fact is that your level of insight into a potential target doesn't change the nature of it or the circumstances of the situation: If you don't know who's trying to kill you, then you are simply at a disadvantage - and if you do, then you have the upper hand.
These are historically typical battlefield considerations in a guerrilla war, and do not inherently add up to something illegitimate any more than reading a uniformed enemy's name tag before shooting back at them would make you an "assassin." So while it is obviously the case that there is a great deal of peril in targeting enemies whose identities are known, and major ambiguities that must be resolved before those dangers can be categorically avoided, the answer is Yes - it can be legitimate to target individuals in war.
That fact is not changed by the inherent limitations of information and human judgment: If it is ever justified to wage war at all - and we've already dispensed with the claim that it isn't - then the fact that mistakes or malfeasance will lead to death is no more of an argument against the inherent validity of targeting individuals in war. However, there are a large number of ambiguities and details involved that need to be explored, which I do more fully in subsequent topics.
8. Is it ever legal to target individuals in war?
Yes. There is no standard of international law which holds that enemies in war whose identities are known become immune to being targeted. If you have a right to direct a bomb at the Reichstag in the vague, minimal hope of killing a Nazi leader, then you have a right to shoot Reinhard Heydrich on the street. This is even more obvious in asymmetric warfare where enemies do not wear uniforms, and leaders do not congregate in grandiose, flag-draped buildings. Again, there are dangerous ambiguities, but the legality exists.
9. Is it justified to target suspected terrorists in the war on Al Qaeda?
We have already established above that the war against al Qaeda is both legal and justified in general terms, so the question then becomes how it could possibly be fought on a moral and practical basis without targeting individuals - and the answer is that it can't. To refrain from using knowledge about specific individuals in making targeting decisions would make those decisions far less accurate than they are, result in pointless civilian casualties, and make it definitively impossible to target the terrorist leadership since they don't operate as concentrated institutions in the way of a nation-state. As terrorists, they also don't wear uniforms or rank insignia, so to fight them at all requires knowledge of their members and leaders as individuals.
Here we run smack into a very dangerous and problematic state of affairs, because we enter a domain where political and military leaders are forced by circumstance to assume a role that looks in PR terms like being summary executioners. It isn't that in reality - for one thing, the people in question are not in custody, and there is no plausible expectation that they could be brought into custody without a major military operation likely resulting in far higher civilian casualties. Asking them to surrender would be pointless: The guilty would not do so, and the innocent would be more afraid of becoming a target of the militants for cooperating with the US than being mistakenly targeted by us. So there aren't a lot of obvious options other than to set high standards of evidence before going forward.
And yet that leaves the dangerous ambiguity unresolved, because though the situation requires such measures, it does not preclude the possibility of establishing clear statutory limits, oversights, and checks and balances to ensure that the war stays in the war and doesn't become a generalized authority of the Presidency. It is reasonable to demand the formulation of specific, empirically-verifiable definitions of what constitutes the war zone: Ones that reflect the complexities of the concept in fighting terrorists, but also makes absolutely clear that the actual war part of the fight against al Qaeda is geographically limited to where (a) they actually exist in major concentrations, and (b) the local authority can't or won't capture them. It's also reasonable to demand that at least the Congressional select committees be made aware of all individually-targeted strike decisions as they happen, and the evidenciary basis for them. Ideally international bodies would eventually be involved, but as a war based strongly on human intelligence, publication would be an unreasonable demand. However, it is reasonable to put a relatively rapid time limit on such secrets.
What is not reasonable is to demand that the President simply refrain from acknowledging the reality of the situation that requires such decisions. He can impose as many limitations on the process as he pleases by order as Commander in Chief, but they could easily be reversed by a bloodthirsty Republican successor, so the only way to remove the danger created by this situation is to have a Congress that is willing to pass statutory changes making the process more accountable and balanced. I personally trust that President Obama is doing what he can to protect both Americans and the civilians of other countries, but that's not enough because the process will continue after him and most of the people who occupy the White House after him will probably not take the same level of responsibility for monitoring the military's actions. So Yes, the targeting is justified - but very, very dangerous over the long-term.
In other words, there is nothing inherently illegal or immoral about it, but the fact that we don't have mechanisms of oversight and accountability in place means that it's guaranteed to run off the rails out of control the next time a Republican psychopath is President. The current President can't do anything about that - he can't be asked to both defend the United States now and defend it from all possible future internal threats that will develop as a perversion of present-day measures for which there is no credible alternative. You couldn't tell FDR not to do certain things in WW2 because Richard Nixon some day would do them to get his political enemies - that's just not a rational or realistic demand from a President. And really it's moot until we are able to field a Congress willing to address the issue.
10. How should civilian casualties be differentiated from militants?
The news that got me thinking about this subject is that the Pentagon has been basically defining every military-age male who ends up dead in a drone strike targeted at someone else as a "militant" even without specific evidence to that effect. The administration is erring badly in permitting such a tactic: To the extent the strikes themselves are justified and every practical precaution is taken to avoid unnecessary civilian deaths, then those that do occur should be honestly acknowledged. The standard is pretty simple: Anyone not specifically identified as a militant by credible information is not a militant. Or they could use weasel words like "associate," but claiming that someone is a militant just because they're in the presence of a target when the bomb goes off is dishonest and unnecessarily compromises the moral authority of operations that are more than justified. Usually this administration knows better than to tolerate such chicanery, as it's self-defeating.
Trying to fudge the numbers certainly doesn't give critics less ammunition, and I don't believe being honest about the cost of war would give them more if those critics had to argue honestly about why this is necessary. The truth is that these strikes by and large make the world a safer place, because the people targeted in them would gladly kill a hundred, a thousand innocent people just like the ones who unfortunately sometimes die near them without a second thought, and they would do it deliberately with truck bombs full of nails driven into crowded marketplaces, under bridges, or airplanes into buildings. And the reason it's so hard to get local people cooperating against them isn't that they support them - it's because the militants saw people's heads off who defy them. They kill people's families one by one in front of them.
I may not take the military at its word when they say this about their targets, but I sure as hell take some of the targets at their own word that they want to kill me, my countrymen, and the Enlightenment civilization of Western modernity because we're not part of their medieval fantasy world. I take people at their word who release videos declaring themselves part of al Qaeda and hoping to see my country in ashes. I may not understand what goes on in the head of an eliminationist psychopath, but I know enough about history to recognize the phenomenon and know it's not some invented bogeyman of the US military industrial complex. Once you understand that, and acknowledge the conclusions reached above, then the real difficulty begins: How do you defend yourself against these people without basically having to become Skynet?
11. What's the plan, Stan?
There is a trap in all this that I had hoped Barack Obama would recognize and find a way around, but either he hasn't seen it yet or sees it and just hasn't found a way through. Taking more personal responsibility for targeting decisions is a stopgap measure with no sustainable conclusion. I don't know if there is any kind of actual long-term plan involved, and I wouldn't necessarily expect to know what it is if there were one, but for the moment is looks haphazard: Like the administration is pulling the reins tighter on its operations the more unstable circumstances become, and it's not encouraging. I trust the President, but he's one man and this is one of the most socially and politically intricate, Byzantine wars of all time.
Yes, it is true that drone strikes in Yemen and Pakistan can be destabilizing, but the destabilization works both ways - it also destabilizes the ability of al Qaeda to operate there, as they've reputedly complained in intercepted communications. What are the alternatives that both deny these locations as safe harbors for the organization and avoid political destabilization? I'm not sure there are any, short of nation-building such as in Afghanistan that would require a ground presence and probably have similarly disheartening results. Obviously we don't want to be playing Fundie Whack-a-Mole for all time, but for every thousand vague calls for an "exit strategy" or an "end game," I see maybe one specific recommendation on how to do that, and none so far that don't boil down to playing make-believe that the problem has simply gone away.
Until there is a credible, reality-based idea out there for how to evolve beyond the militarization of anti-terrorism operations in these regions, the criticism of current policy will remain plagued with puerile rhetoric, false generalizations, false dilemmas, and surreal, CT-driven personal demonization of President Obama simply by default because that's all that's available. There's a difference between acknowledging a situation sucks and has a lot of bad alternatives, and blaming the person who volunteers to navigate through the murky waters. We don't have to put up with nonsense like the Pentagon's rubbery retroactive definition of "militant," but the necessity of the operation overall isn't discredited by their flimsy attempts to capitalize on ambiguities that should favor the less convenient interpretation.
