The Washington Post’s Three Article Series on “The Permanent War”

The Washington Post has featured three major front-page stories on what they call “The Permanent War” – meaning the war on terror or however one might like to label it, as the US moves from Obama 1 to either an Obama 2 or a Romney administration – and administrations after that.  The first, by reporter Greg Miller, is headlined “U.S. Set to Keep Kill Lists for Years: ‘Disposition Matrix’ Secretly Crafted: Blueprint Would Guide Hunt for Terrorists” (October 23, 2012); Robert Chesney comments on it over at Lawfare.  The second article is a feature profile by Karen de Young of White House counterterrorism advisor John Brennan, “A CIA Veteran Transforms US Counterterrorism Policy” (October 24); Bobby and Jack Goldsmith each comment on it at Lawfare. The last in the series appeared on October 25, by Craig Whitlock, “Secret Ops Grow at U.S. Base: At Forefront of Drone Wars: $1.4 billion upgrade at Djibouti post planned.” These are excellent, well-reported stories, and well worth reading to get a sense of the longer run trajectory of what might be called US “counterterrorism-on-offense.”

The larger issue raised by these three stories taken together is “institutional settlement” in counterterrorism policy.  The stories together are titled “The Permanent War,” and they address war-making aspects of counterterrorism – the drone wars and targeted killing, forward bases for drones in increasingly far-flung places, and, though with much less discussion, military and intelligence advisors to local governments dealing with various non-state actor groups that have both domestic and transnational aspects.  (The three WaPo stories mostly don’t deal with other large aspects of counterterrorism, such as domestic counterterrorism issues, or with detention or trial.)

The counterterrorism polices that the articles address are peculiar from a standpoint of law and policy.  On the one hand, seen within the ambit of the US political community, most of these practices, policies, and processes are fairly widely accepted and seen as legal and legitimate. Is there institutional stability in these policies?  From within the broad center of US politics, there is gradual convergence – I don’t think it can be called institutional settlement as yet, but it is converging on that.  There are things both to be tweaked and things that haven’t really been addressed, to be sure.  These include, for example, a much clearer statement of principles and policies as to why the CIA should have an active use of force role as a strategic matter, rather than turning it over to JSOC – the utility of it quite apart from its lawfulness.

The oversight and reporting process for covert action, vis a vis Congress, is another example.  In many ways, the process is quite robust.  The intelligence committees apparently get told lots of things in apparently lots of detail. But the reporting and oversight process – decades old as a statutory matter, although it has evolved in practice through pragmatic adjustments by Congress and administration – does not correspond well to differences in the actual activities being carried out.  Covert activities, for example, are treated in Title 50 as being either covert or not, whereas the whole category is more realistically seen as shifting into a spectrum of activities – ranging across degrees of covertness, deniability and acknowledgment – that should have distinct mechanisms of both oversight and secrecy.  The statutory definition of covert activities does not distinguish between uses of force operations and other things, such as a campaign to affect public opinion somewhere in the world; it simply refers to activities in which the role of the United States government is not intended to be known or acknowledged (I’m not putting any of this technically).  The apparent merger of activities between the CIA and the military’s JSOC is still another area in which there are large structural issues of institutional design in counterterrorism, as a matter of strategy, policy, and law.

Those are examples just taken from the category of covert action and the CIA.  One could also talk a lot about the continued institutionalization of the process of intelligence-driven target selection, or special processes in the case of targeting US citizens abroad.  There are many distinct issues here in domestic national security law.  Standing behind all of these is a need for Congress and the Executive to come together on at least some of these matters, if one is meaningfully to talk about institutional settlement within the US political community.  A second Obama term would presumably consolidate the general approach seen to date – and presumably seeking, as part of the process of institutionalization, to offer principles of both “permission” and “limitation,” for itself and for successors.

A Romney administration might move to change the direction of some of these activities and their processes, as well as the legal rationales offered for them – but once in office, there are reasons to think it would embrace continuity. A Romney administration might rather quickly conclude that it ought to look for as much common ground as possible with the Obama administration on policy, legal rationales, and legitimacy, and strive to show, not innovation, but continuity.  But in any case, the general trend since the second Bush term and Obama administration has been mostly convergence.  Perhaps, at least after broad continuity, stability of broad policy, through another change of party administration, it might be accurate to talk about institutional settlement in counterterrorism, at least in “counterterrorism-on-offense.”

That’s the US political community, however.  Within important parts of the international law community, on the other hand, many of these same practices are seen as contentious and illegal from a law and policy standpoint.  Pretty much every aspect of US “counterterrorism-on-offense” is challenged by important parts of the international law community, particularly its advocacy and activist wings.  There might be some modest countertrends in the international community, I suppose, particularly when it comes to actual practices.  French drones to Mali, for example, or Germany perhaps acquiring weaponized drones.  Perhaps just the simple fact that drone technology was always going to transform aviation generally, as part of a longer-run trend toward greater automation of many things, and in which military applications are just one part of it.  Or the gradual recognition that drone warfare offers new modalities of humanitarian intervention, though for much the same reasons it offers new possibilities of intervention; accepting it as a technique of humanitarian intervention makes it modestly harder to reject it as a possibility for intervention, insofar as the objection is centered on drone warfare as such.

But these are at most modest counter-trends in the international law community. Overall, that community offers increasingly strong voices of objection to US policies, despite convergence in the US political community. And the two communities might well be on a collision course politically. This might be so, too, with surprisingly little attention to this within the broad political center in the United States – either because these objections are not perceived very much at all, or else because they are not perceived as being able to seriously affect US policy, given gradual convergence within the US political community.

I myself think this indifference seriously underestimates how much of an impact these voices of objection might finally have on US policy.  To understand how this might turn out to be so, let’s talk purely “strategically” for a moment.  Meaning by “strategically,” without any view of the substance of the positions – as if simply rationally framing an NGO advocacy campaign against drone warfare and targeted killing policies as the US has embraced them.  I’m not speaking cynically here; I don’t doubt anyone’s or any organization’s sincerely held views on the legal or moral substance here, but let’s think for a moment purely from the standpoint of strategic behavior.

Seen from the standpoint of the international advocacy community, the choices for advocacy campaigning are premised on either Obama 2 or Romney 1.  In the case of Obama 2, the rational fear has to be that although there has been considerable unwillingness to take on the Obama 1 administration directly and aggressively – announcing its policies as illegal, even war crimes, for example, or calling for indictments and prosecution in foreign courts for Obama officials – if these policies go on for eight full years, they will likely be set in stone within US doctrine, policy, law, strategy, and tactics.  From a campaigning standpoint, it is not feasible to wait until President Obama leaves office if it goes on eight years. If that is so, then the time to raise the advocacy pressures is as soon as possible in the beginning of a second Obama term, because policy simply can get more sticky as more time passes.

The difficult strategy problem faced by advocacy groups, however, is that (although there is a left wing of the Democratic party that sees this as the international advocacy community does and is willing to say so) simply given the fact of a Democratic administration, a wide range of Democrats will hang with it.  The advocacy community thus faces a significant risk that, instead of succeeding in de-legitimizing drone warfare and turning it into a new version of Guantanamo, the broad political center of the Democrats will hang with President Obama.  The effort to de-legitimize might not merely fizzle, it might have the effect of actually legitimizing US policy, especially over two Obama terms.  The advocacy campaigners can’t afford not to act early in Obama 2, because of path dependency in policy and “lock-in” – but they also face a greater risk (than they would in a Republican administration) that an unsuccessful de-legitimation campaign winds up entrenching its legitimacy.

In the case of Romney 1, advocacy strategy is simpler.  An advocacy campaign against these policies in a Republican administration has greater hope for a “pivot” by Democrats who, in the case of a Democratic president, would hang with the administration – but don’t see any reason to do so in the case of a Republican administration.  So one can hope either to enlist them to one’s side or see them remain indifferent to an advocacy campaign against the Republican administration’s policies, even if, in substance, they are the same and merely a continuation of the previous administration’s policies.  Moreover, since neither party, as presidential administrations, seems very inclined to go to Congress to get legislation and, in effect, a political announcement that the two political branches have reached agreement on policy and law in these contentious areas, political and policy stability is much weaker.  This particularly so given that the default position of any opposition party is to criticize-on-autopilot, especially when votes in Congress have not locked at least some of them in, including perhaps Congressional leadership, and reduced their ability to kibitz from the uncommitted sidelines.

If this “pivot” or at least indifference by Democrats under a Romney 1 turned out to be a real consideration, it presumably rationally incentivizes an advocacy campaign to be much more aggressive in its legal and other characterizations of such things as targeted killing by a Romney administration.  This would presumably be so even if Romney 1 just continued policies of its predecessor, without altering things.  Advocacy campaigners would have far less political reason, strategically speaking, not to call these things war crimes, seek indictments in foreign courts, assemble meetings of UN experts to denounce the US, and to undertake many other tactics that have been relatively muted under Obama 1.

But what about incentives for the advocacy organizations while still under Obama 1, with the outcome of the election still unknown?  There seems to me a strong strategic interest on the part of campaigning advocacy organizations to get as much as possible of one’s legal conclusions and characterizations in place before the election takes place.  Call this “pre-positioning” by advocacy groups.  The rational incentive is simply that it is easier to defend against a charge that an organization’s views were one thing under Obama and another under Romney, if one has come as close as possible to declaring those much stronger conclusions while still under Obama 1 rather than waiting until Romney 1.

The countervailing disincentive is that if organizations become too strategically aggressive while still under Obama 1, they risk the problem of fizzling or de-legitimation as described above; describing President Obama as a murderer or war criminal is not likely to stick or more likely damage the advocacy campaign. But pre-positioning still has value; hence the incentive to wait until just before the election and simultaneously raise the claims over illegality as high as possible without quite crossing a line that will not politically succeed applied to President Obama. This strategic “pre-positioning” behavior might be thought to be playing itself out, in other words, in the ways in which advocacy groups have been edging closer and closer to describing various parts of the Obama administration’s as illegal or potentially criminal; or announcements that indictments are being sought in Pakistan against former Bush officials for targeted killing (despite the fact that nearly all such targeting has taken place under Obama); or statements that participation of the CIA in targeted killing “might” be illegal, but leaving open the possibility of concluding fairly quickly that it is illegal.

To be clear, I’m not attributing motive or bad faith or anything like that to campaigning organizations – I have no knowledge of motivations or intentions, and in any case I have no doubt that groups that have or are in the process of concluding that various of these activities are illegal believe their substantive analysis sound and correct.  That’s why they’re campaigning so hard on these issues, after all.  But advocacy groups do have to think about strategy in campaigning; I’ve spent years doing NGO advocacy campaigns, and if I were looking to rationally and strategically structure a campaign against US counterterrorism policies in these areas, this is how I’d think of it.  I don’t think the NGO world is less rational or strategic than me, and I’m sure it’s much cleverer.  But these strategic considerations seem to me a pretty good fit to what has happened so far; we can see what happens post-election.  The kinds of legal characterizations, statements by UN officials, appearance of reports from various organizations, reasonably successful attempts to get more attention to the campaigning viewpoint in the media, in the months running up to the election, suggest to me a serious attempt at “pre-positioning” by NGOs and advocacy groups before the election.