Professor Kenneth Anderson says that President Obama has failed to lay the legal groundwork for acts of targeted killing of “non-state enemies of the United States” and thereby risks impaling itself on the horns of a dilemma of his own making. By relying on “international humanitarian law” instead of asserting its own legal doctrine, the Obama administration will eventually find that it cannot defend the United States without condemning itself by the legal standard it has embraced. Anderson writes:
Eventually there will emerge other threats that do not fall within the existing armed conflicts, and the United States is likely to seek to address at least some of those threats using its inherent rights of self-defense, whether or not a conflict within the meaning of international humanitarian law (IHL) and its thresholds is underway, and using domestic law authority under the statutes establishing the CIA. In that case, a US administration seeking to offer a legal rationale justifying its use of targeted killing might discover that reliance upon a state of IHL-armed conflict does not provide it the robust authority to use force that the US has traditionally asserted under its rights of inherent self-defense.
The administration’s concept of a “light footprint”, Anderson argues in another article, consists of increasing use of targeted hits, not just in formal war zones, but outside of them. This trend is only likely to increase with the passage of time.
But if the Obama administration’s on-defense counterterrorism strategy is an intellectually superior, operational disaster, its on-offense strategy has been a completely different story. Predator drone strategy is something that has gone really, really well. …
No matter what turn national security strategy in Afghanistan and Pakistan takes, or wherever else jihadist terrorist might regroup or form, drone strikes will be increasingly relied upon as a weapon. If the administration seriously doubles down on counterinsurgency in Afghanistan, UAV strikes against leadership hiding out in Pakistan becomes ever more important. That’s quite apart from attacking Pakistani Taliban intent on destabilizing Pakistan as well. On the other hand, if the administration moves to the “light footprint” that Vice-President Biden urged, or even exit from the ground war, UAVs become ever more crucial as the over-the-horizon mechanism for projecting discrete but implacable force. The same, but more so, in dealing with terrorist groups in other ungoverned places in the world.
So what’s the problem? Anderson says the problem is that Obama has found a workable approach wholly inconsistent with his philsophy that works and has taken Yogi Berra’s advice: “when you come to a fork in the road, take it.”
Meanwhile, one wonders if and when the administration’s senior transnationalist lawyers will come down from purely procedural, process-driven, abstract intellectual defenses of “multilateralism” and “engagement” and self-congratulation about the bodies it has joined – the UN HRC – and actually offer a legal defense of the administration’s actions in the field. …
So far, anyway, I would describe the defenses of actual practices that are seen by the administration as crucial to its national security strategy – targeted killings, using Predators or CIA teams or special forces or anything else, not just in zones of clear armed conflict, but elsewhere where safe havens are found – as missing. Not just anemic – but really not offered.
The really interesting thing about the administration’s increase in the use of targeted hits, its unwillingness to take custody of prisoners and indeed to hand them over to people like the Pakistani military; and indeed its declining ability to take any enemy combatant alive at all is that it is rooted not in what Anderson called Dick Cheney’s “brutish, simplistic” determination to defend America, but in President Obama’s desire to live up to the highest standards of International Humanitarian Law (IHL). And although Anderson has no fondness for Cheney’s approach he correctly appreciates that sooner or later the public is going to discover the rank hypocrisy of Obama’s approach. “But journalistic sentiment will swing back again, particularly as the NGO community seeks to peel the CIA from the uniformed military in its use of drones and targeted killing.” An Obama deprived of his Teflon may find himself unable to simultaneously justify the actions needed to suppress the enemy (which he must do to avoid an electoral backlash) and maintain his purity in the eyes of his ideological supporters. He has to square the circle. Faced with the prospect of following the urgings of the Left which don’t work, and following the urgings of his political enemies which do work, his plan is apparently to graft the two halves together. But sooner or later, as Anderson notes, someone will notice.
The problem goes back to the inability of political leadership to declare war and name an enemy. America is at war yet not at war. It is fighting an enemy, but none are named. It is fighting a something which respects no rules by applying the full protection of the Constitution to enemy combatants. And the predictable result of these contradictions is that it is tying itself into philosophical knots. But are the contradictions fatal?
Some are, others are not. Lincoln famously argued that certain contradictions must be resolved. “A house divided against itself cannot stand. … It will become all one thing or all the other.” Yet it is unlikely that this policy will must coherent just yet. The soundbite, the continuous adjustment of the media frame, the distraction of fads which intermittently sweep through the public consciousness all conspire to keep the division hidden. At 32 frames per second some continuity errors can’t be seen. We keep “moving on” too fast for anyone to notice that we’re traversing a high wire from which we may fall at any minute. Maybe the contradictions have to be resolved eventually but that’s too unpleasant for just now. Someone traveling with Yogi Berra once remarked that they were lost. “Yeah,” he replied, but we’re making great time.”