Targeting and Causation
The past few weeks have seen some resurrection of the old claim that targeted killing operations have increased under the Obama Administration because detention of participants in armed conflict (as the United States defines it) has become too fraught with legal difficulty. Jack Goldsmith has been making that causal claim on the speaking circuit for his new book, Power and Constraint: The Accountable Presidency After 9/11. And this week the Wall Street Journal joins the bandwagon, writing that the “Obama Administration kills every terrorist with missiles from the sky because it fears political embarrassment from holding them.”
Let’s ignore for a minute the chronic lack of public (or, as far as I can tell, non-public) empirical support for the claim that this accurately describes the motives or reasoning process of any relevant decision-maker inside the U.S. government. We could also ignore the public statement of White House counterterrorism adviser John Brennan, who called this notion “absurd” in his Harvard speech last September. As he put it then:
“Nevertheless, some have suggested that we do not have a detention policy; that we prefer to kill suspected terrorists, rather than capture them. This is absurd, and I want to take this opportunity to set the record straight. As a former career intelligence professional, I have a profound appreciation for the value of intelligence. Intelligence disrupts terrorist plots and thwarts attacks. Intelligence saves lives. And one of our greatest sources of intelligence about al-Qa’ida, its plans, and its intentions has been the members of its network who have been taken into custody by the United States and our partners overseas. So I want to be very clear—whenever it is possible to capture a suspected terrorist, it is the unqualified preference of the Administration to take custody of that individual so we can obtain information that is vital to the safety and security of the American people. This is how our soldiers and counterterrorism professionals have been trained. It is reflected in our rules of engagement. And it is the clear and unambiguous policy of this Administration.”
What I’m most puzzled by is what exactly the WSJ et al. think is playing out in operational decision-making. So, is the suggestion that Brennan is lying about these rules? Or that, notwithstanding the military rules of engagement that Brennan describes, military drone operators are making decisions to kill people they could otherwise capture in violation of those rules (and presumably the international law on which they’re based)? That the CIA is conducting these operations unbound by any of those rules, so free to act on their own assessment of kill v. capture incentives in each case? Or is the notion that the President’s decision not to invade, say, Somalia, for the purpose of capturing suspected terrorists is a decision made principally not because, say, our military is already stretched a bit thin, but because he wouldn’t know what to do with the influx of Somali prisoners seized in such a conflict?
Strangely, the single example the Journal points to in an apparent effort to support its view is the Warsame case – the Somali national captured by the U.S. military somewhere in the Gulf and later transferred to New York for federal prosecution on terrorism-related charges. Warsame was held on a ship for two months before being sent to New York for prosecution, the Journal reasons, because Obama didn’t want to send him to Guantanamo. So Warsame’s capture is meant to prove, that, um, whomever we have operating in the Gulf had every incentive to kill and no incentive to capture him? Ok, maybe it was just meant to establish that Obama made the call to hold him on the ship instead of transfer him to Gitmo because Obama doesn’t like Gitmo? Well that is surely true; he’s said as much repeatedly. So have many of our most distinguished military strategists – Petraeus among others – who see Gitmo as a net strategic cost in global counterterrorism efforts. Besides, if Obama and those who captured Warsame thought Warsame had actually committed the crimes of which he is accused, why would they send him to Gitmo? Congress has forbidden any detainees transferred away from there for prosecution in criminal court. And the military commission process has proven an enormously expensive, and still legally fraught, way to pursue convictions (the handful that exist are mostly the result of plea bargains) that overall seem to produce far shorter sentencing periods than those regularly obtained through the federal criminal process. In the meantime, that criminal process is the one through which the Obama Administration has detained dozens since taking office, indicting terrorist suspects at about twice the rate the Bush Administration did. (For more on the prosecution stats, see this. )
To be clear, I don’t mean to be defending all the detention and targeting decisions made by the Obama Administration. As I’ve written before, a host of questions surround the legality of Warsame’s 2-month detention preceding his indictment; legal questions, and significant strategic concerns, continue to surround U.S. drone operations as well. But I’ve tended to think – and I don’t think Jack disagrees – that the Obama Administration has increased the use of drone strikes because it thinks the program has been effective in disrupting (perhaps destroying) Al Qaeda in Afghanistan and Pakistan. That is, even if the detainees had lost their cases in Rasul, Hamdan, and Boumediene, drones would be with us in force. That alone gives us plenty to discuss. And leaves me still thinking that the causal connection Jack et al. would like to see between detention and targeting these days is more theoretical than real.