Due Process and Drone Strikes

Micah Zenko, who normally does outstanding work at the Council on Foreign Relations, got a bit sloppy with his “Year in Quotes” at Foreign Policy.  Among the twenty quotes that Zenko describes as “puzzling, hypocritical, and revealing”  is the following:

4. Attorney General Eric Holder: "An individual's interest in making sure that the government does not target him erroneously could not be more significant." ("Remarks at Northwestern University School of Law," March 5, 2012.)

Holder offered this remarkable observation during a landmark speech that provided the Obama administration's justification for why U.S. citizens can be killed, and why secret Executive Branch discussions are sufficient to deprive a citizen of his Sixth Amendment right to due process.

 (emphasis mine).  While Attorney General Holder did give a speech at Northwestern’s Law School defending U.S. counterterrorism policies, his defense of the targeted killing of (presumably) Anwar al-Aulaqi did not center around the Sixth Amendment but the Fifth Amendment.  The Sixth Amendment deals with criminal procedures like trial by jury whereas the Fifth Amendment deals with Due Process. 

More importantly, Holder did not argue that “Executive Branch discussions are sufficient to deprive a citizen of his [Fifth Amendment] right to due process.”  Rather, Holder rightly argued that Fifth Amendment protections exist on a continuum that balances individual rights against the interests of the state.  That is, the amount of process owed to an individual depends on the significance of liberty the individual will be deprived of and the significance of the state’s interest in depriving the individual of that liberty.  Obviously, life is a fundamental individual interest but likewise the state’s interest in survival is paramount:

Now, it is an unfortunate but undeniable fact that some of the threats we face come from a small number of United States citizens who have decided to commit violent attacks against their own country from abroad.   Based on generations-old legal principles and Supreme Court decisions handed down during World War II, as well as during this current conflict, it’s clear that United States citizenship alone does not make such individuals immune from being targeted.   But it does mean that the government must take into account all relevant constitutional considerations with respect to United States citizens – even those who are leading efforts to kill innocent Americans.   Of these, the most relevant is the Fifth Amendment’s Due Process Clause, which says that the government may not deprive a citizen of his or her life without due process of law.
 The Supreme Court has made clear that the Due Process Clause does not impose one-size-fits-all requirements, but instead mandates procedural safeguards that depend on specific circumstances.   In cases arising under the Due Process Clause – including in a case involving a U.S. citizen captured in the conflict against al Qaeda – the Court has applied a balancing approach, weighing the private interest that will be affected against the interest the government is trying to protect, and the burdens the government would face in providing additional process.   Where national security operations are at stake, due process takes into account the realities of combat. Here, the interests on both sides of the scale are extraordinarily weighty.   An individual’s interest in making sure that the government does not target him erroneously could not be more significant.   Yet it is imperative for the government to counter threats posed by senior operational leaders of al Qaeda, and to protect the innocent people whose lives could be lost in their attacks.

In the case of Anwar al-Aulaqi and other U.S. citizens who are actively waging an armed conflict against the United States, Holder is asserting that state owes those individuals a fairly small amount of process compared to, say, an individual who is accused of murder. This is not terribly controversial—consider, as Holder analogizes, the case of U.S. citizens who fought for Nazi Germany during World War II or U.S. citizens who were in rebellion during the Civil War. In each of these cases, it would be preposterous to assert that it was incumbent upon the United States to single out U.S. citizens fighting in opposition to the United States, serve them with warrants, and try them for domestic law violations.  No, these citizens exhaust heavily weight the due process balancing test in favor of summary state action by taking up arms with the enemy and actively opposing the United States.

The discomfort that arises in the case of al-Aulaqi and others is that these citizens were singled out for targeted strikes. But this discomfort is misplaced—at least in Zenko’s formulation. We are not discomfited by a supposed violation of the due process clause but, rather, by the notion of targeted killings in general—a notion that we too easily conflate with assassination. 

Let’s Talk About War (Armed Conflict)

So, last week I briefly responded to Spencer Ackerman’s Danger Room post on Secretary of Defense Panetta’s concession that the United States is engaged in a war (armed conflict) in Pakistan. This week, Ackerman jumps on the idea of a U.S. war in Pakistan and argues, given that there have been more drone strikes in Yemen than in Pakistan this year then: “Surely, if America is at war in Pakistan, it’s at war in Yemen, too.”

That’s a persuasive a fortiori argument in the abstract, in this moment in time, with that antiquated terminology: war.

“War” is antiquated? Indeed it is. Once upon a time, before World War II, “war” as a legal state existed. But war was essentially a legal status invoked by states and, because war had been outlawed—and because it is a choice of law mechanism imposing certain responsibilities on states—it was often not invoked even when states were quite clearly at war (in a colloquial sense). In this era, states would engage in extraordinary amounts of hostilities over a prolonged period using their regular armed force and refuses to concede what was plain: they were at war. In turn, captured soldiers were denied prisoner of war status; laws respecting neutrality were ignored; civilians were denied the protections of war that the legal status of war affords them.

In the wake of World War II, the drafters of the Geneva Conventions of 1949 set about to rebuild the edifice of the laws of war in a way that they could not be avoided in such a pretextual way. Thus, the drafters chose—and the world acceded to—the notion that international humanitarian law would be invoked when an armed conflict occurs. And this idea, the occurrence of an armed conflict, would be determined objectively without reference to whether the states involved declared themselves to be at war. The drafters also differentiated between armed conflicts of an international character (those taking place between states) and armed conflicts not of an international character (those taking place between a state and a non-state actor or among non-state actors). The International Criminal Tribunal for Yugoslavia famously fleshed out these notion in its “Decisionon the Defence Motion for Interlocutory Appeal on Jurisdiction” otherwise knownas Tadic.

International armed conflicts exist whenever states resort to force against each other. But Tadic teaches us that the existence of a non-international armed conflict is determined with reference to the organization of the non-state actor and the intensity of the violence between the parties. Tadic and further ICTY determinations, as well as the authoritative commentary to the 1949 Conventions provide guidance for measuring relative organization and intensity of hostilities to determine an armed conflict’s existence. Relevant factors include geographic scope and duration of hostilities, whether military-type weaponry is used, whether the non-state actors are hierarchically organized, whether they are responsive to some sort of command, whether a governmental force (if involved) uses its regular armed forces as opposed to its police force, and more.

Importantly, Tadic also makes clear that the geographic and temporal scope of an armed conflict are not limited the immediate time and vicinity of armed clashes. Instead, if a non-international armed conflict exists, it exists throughout the state(s) in which it is occurring. And, it exists until “a peaceful settlement is achieved.”

And that brings us back to Ackerman’s quote. Despite Panetta’s statement, a real analysis of whether the United States is engaged in an armed conflict in Pakistan requires a Tadic analysis. Fortunately, such an analysis has been done and it concluded that, at least by 2010, and at least with respect to hostilities between the United States and Tehrik-e-Taliban Pakistan, the United States was indeed engaged in an armed conflict. For the sake of argument, let us assume that hostilities between the TTP and the United States are ongoing. If that’s true then, no “peaceful settlement [has been] achieved.” Thus, an armed conflict is ongoing in Pakistan.

But that does not mean an armed conflict is necessarily ongoing in Yemen. Although more drone strikes may have occurred so far this year in Yemen than in Pakistan, we would still have to conduct an independent analysis of the intensity of the hostilities between the United States and non-state actors in Yemen to determine whether an armed conflict exists. If, for example, 23 drone strikes in Yemen represent insufficiently intense hostilities between the United States and a non-state actor in Yemen, then there is no armed conflict in Yemen. And, although there have been fewer strikes in Pakistan, because there was an armed conflict in Pakistan previously and there has been no peaceful settlement, an armed conflict in Pakistan between the United States and a non-state actor persists!

This raises an ancillary point: What about the violence occurring between the state of Yemen (or Pakistan) and non-state actors in Yemen (or Pakistan) and what about the United States’s role in that violence? If that violence rises to the level of an armed conflict (and if those actors are sufficiently organized), then an armed conflict exists between the state and the non-state actors. U.S. use of force in that armed conflict constitutes an intervention in that armed conflict, and places the United States in an armed conflict. Depending on whether the United States is using force in support of or against the territorial state in question, dictates the nature of the United States’s armed conflict. For example, use of force against AQAP on Yemen’s behalf places the United States in a non-international armed conflict with AQAP so long as Yemen and AQAP are engaged in an armed conflict.

Notice that this implicates another point Ackerman made in his piece:

Katherine Zimmerman, an analyst at the American Enterprise Institute, doesn’t believe all this fighting adds up to the US being at war in Yemen, although she admits it’s “understandable” why others might hold that view. She sees the difference between the Pakistan war and the Yemen conflict as one of partnership, and intent. “It’s slightly different because of the local cooperation. The effort in FATA [Pakistan's Federally Administered Tribal Areas] are more heavily driven by Americans,” Zimmerman tells Danger Room. “In Yemen, we’re essentially acting as a stop gap until Yemenis can take full responsibility. We’ve got a very willing partner in Yemen. We’re working on making it an able partner.”

Sort of. So, Zimmerman is right that whether we are operating in concert with the local government is important. But whether the Pakistani government is actively or passively cooperating with the United States is irrelevant—at least to an analysis whether there exists an armed conflict. Zimmerman’s point might be directed to questions of jus ad bellum as opposed to jus in bello. In that case, she might be suggesting that in Pakistan the United States is relying on self-defense whereas in Yemen the United States is relying on state consent. Regardless, whether those actions—given the consent or not of the territorial state—rise to the level of an armed conflict is a wholly separate question.  

Why Drones Are Different—And Why They Aren’t

For the last few years, unmanned aerial systems (“drones”) have been the source of a number of sometimes overlapping debates. For example: Are drone strikes legal? When are they legal? Are drone strikes dishonorable? Are they counterproductive when used in COIN?

At the same time, a parallel debate over whether these other debates (relative merits aside) are a waste of time altogether. The question animating this corollary debate is whether drones are in fact different from the other weapons platforms available to U.S. policymakers. At heart, this debate centers around the sense that for all their virtues, drones are really just air systems. They fly. They launch missiles. They come home. Sure, drones are unmanned. But so are cruise missiles.

In general, the drones are really just air systems approach is the correct one. Drones and their operators are subject to the same law as manned air craft and their pilots, for example. Unfortunately, hewing too closely to this position tends to lead observers to ignore or discount the ways in which drones actually are different—and why these differences have caused drones to be perceived so differently by the public and policymakers alike.

Unlike manned systems or cruise missile or most other standoff platforms, armed drones are able to stay on station for incredibly long periods of time. Whereas an F-15, for example, can remain airborne for only about 5 hours without refueling, a (now obsolete) MQ-1 Predator is built to loiter over a target for 14 hours (and at least one declassified flight lasted for 40 hours) and MQ-9 Reapers are built to loiter for 24 hours.

Also, unlike manned systems, drones are expendable. Necessary support infrastructure aside, individual drones are substantially cheaper to purchase than their manned counterparts. An F-15E costs approximately $31 million dollars; an individual MQ-9 Reaper costs about $13 million. Although that price tag blows a cruise missile out of the water—depending on the version, a Tomahawk will cost between $500,000 and $1.5 million—a cruise missile delivers just one warhead and returns no intelligence.

Finally, unlike manned systems, drones are unmanned. That is, putting a drone in harm’s way does not put a pilot in harm’s way. This seems like an obvious point but the impact of it has been discounted in some circles. No, the absence of an onboard pilot does not mean there are no U.S. (or allied or proxy) personnel on the ground supporting the operation. Nor does it mean, absolutely, that the United States will not suffer casualties. One need only look at the suicide bombing of FOB Chapman in Afghanistan in December 2009 for evidence of U.S. casualties directly related to the operation of armed unmanned aerial systems over Pakistan. But U.S. personnel are not necessarily in proximity to the targets of U.S. drone strikes—in stark contrast to strikes by manned systems.* What’s more, although drones operate almost exclusively in permissive environments—those where air defenses are actually or effectively non-existent—which means that manned systems would face a low probability of being shot down in the same airspace, removing the pilot also removes the more realistic threat (in these environments) of casualties due to accidents, weather, or operator error.

Although infrequent losses of U.S. personnel due to these causes may seem relatively trivial, the impact on policymakers is clearly not. The fact that the United States is relying on drones instead of manned systems despite the limitations of drones is a prima facie indicator that policymakers in fact view drones as different from other systems. This is likely due to the fact that, as described above, drones have operational capabilities that are not matched by other standoff platforms. More compelling, the unique capabilities of drones are paired with a tantalizing ability to avoid or minimize U.S. casualties. When a policymaker dispatches drones to survey and attack a target, that policymaker need not worry about images of U.S. pilots being dragged through the streets of some God-forsaken warren in Mogadishu, Sana, or Peshawar. Nor does that policymaker have to worry about the political backlash that such images would engender.

Again, it is tempting to downplay the impact that casualties (or potential casualties) have on policymakers. Doing so is folly, however. The relative marginal effect of casualties on public support for U.S. troop deployments has steadily increased since World War II. That is, the public was more tolerant of U.S. casualties in World War II than Korea, in Korea than Vietnam, Vietnam over the most recent war in Iraq. Avoiding U.S. casualties was one of the primary drivers of U.S. decision making around the 1990–1991 Gulf War, leading both to the large (and long) deployment of U.S. forces, and the decision to curtail operations after liberating Kuwait (rather than going to Baghdad, e.g.).

Casualty-avoidance is a good thing for numerous reasons, including that it encourages the safety and protection of U.S. personnel. It also reduces the likelihood that policymakers will rely on force—or significant amounts of force—for fear of evoking the ire of the public (over U.S. casualties) and facing electoral sanction.

But offering policymakers a use-of-force option like that of drones, which promises nearly cost-free (or casualty-free) use-of-force is problematic. First, it may lead policymakers to wrongly believe that drone strikes are in fact insulated from casualties. As noted early, these strikes often involve spotters on the ground who may become casualties. We have already witnessed one suicide bombing that directly targeted drone operations. Second, it may lead policymakers to rely on force in situations where force is either unwarranted or warranted yet ultimately counterproductive to the overall mission—whatever that happens to be. Indeed, the extent of the drone campaign in Pakistan, and its growing scale in Yemen, suggests that the United States is already using force in situations it would not have previously. There are second order effects of such frequent uses of force—for instance, the frequency of drone strikes in Pakistan likely placed the United States in an armed conflict in Pakistan, making the civilian (CIA) drone operators unprivileged belligerents there. Third, the brilliance of the virtues of drones may obscure their costs, leading policymakers to rely on drones when a riskier means of using force may be more appropriate. Fortunately, in at least one high-profile situation (the killing of Osama bin Laden), the United States chose to rely not on drones (or manned air systems), but on a higher-risk deployment of SEALs.

*It is also worth noting here that manned strikes may also involve the presence of spotters on the ground. Thus the drone strikes that rely on similar spotter arrangement are, at the very least, removing one or two U.S. (or allied or proxy) personnel from harm’s way.




UPDATE: Dan Trombly kindly took the time to both link and respond to my post at his own blog. I'm (mostly) off the grid for work so I've only skimmed it. It's a solid post and I hope to respond in the coming days. In the meantime, go read it. 


UPDATE2: Buried at the end of the Joe Becker and Scott Shane's excellent piece in the New York Times on President Obama and Targeted Killings is this bit from former Director of National Intelligence Dennis Blair: 

Mr. Blair, the former director of national intelligence, said the strike campaign was dangerously seductive. “It is the politically advantageous thing to do — low cost, no U.S. casualties, gives the appearance of toughness,” he said. “It plays well domestically, and it is unpopular only in other countries. Any damage it does to the national interest only shows up over the long term.”

Conduct- versus Status-based Targeting in Yemen (and Pakistan)

Greg Miller reports in the Washington Post that the CIA is seeking authority for “signature strikes” in Yemen. Miller defines signature strikes as those that “hit targets based solely on intelligence indicating patterns of suspicious behavior, such as imagery showing militants gathering at known al-Qaeda compounds or unloading explosives.”


Miller’s description of the “signature strike” authority would seem to suggest that the CIA—in Pakistan and now potentially in Yemen—operates under targeting rules that are either a very liberal interpretation of Direct Participation in Hostilities (DPH) or that are status-based. This is a stunning revelation for two reasons.


First, irrespective of whether the CIA is employing DPH or status-based targeting, the authority Miller describes suggests that the CIA considers its targeting authority stems from the existence of an armed conflict—actually, two armed conflicts: one in Pakistan and one in Yemen. Because the targets of these strikes—various militant organizations in Pakistan and AQAP in Yemen—are not states, the existence of an armed conflict turns on the organization of the parties and the intensity of the hostilities between the United States and these organizations. While the intensity of U.S. drone operations in Pakistan in 2009-2010 almost certainly rises to the level of an armed conflict, the intensity of U.S. operations in Yemen (although increasing) does not seem to rise to the level of an armed conflict (10 airstrikes in 2011, just 10 airstrikes so far this year). That said, the United States may be engaged in an armed conflict through intervention into Yemen’s civil war, assuming that the intensity of hostilities between AQAP and the Yemeni government are sufficient to constitute an armed conflict. 


The existence—or not—of an armed conflict is a question of fact and it is very important. When an armed conflict exists, the law of armed conflict is triggered, imposing certain constraints and providing certain authorities to the parties to the conflict. For example, Common Article 3 provides a minimum level of treatment for captured or wounded non-state fighters in an armed conflict not of an international character. At the same time, the existence of an armed conflict vests a state with the authority to use force as a first resort. It also provides soldiers with combatant immunity. Simply put, what would be murder outside of an armed conflict may not be within the context of an armed conflict.


But it is also the source of the notion of unprivileged belligerency. You may remember this from the Bush administration’s phrasing: unlawful enemy combatants. The law of armed conflict defines two classes of people: combatants and civilians. Combatants are soldiers: uniformed members of the armed forces of states. Civilians are everyone else. Anyone who is not a uniformed member of the armed force of a state is a civilian. Combatants are entitled to prisoner-of-war status when captured, they enjoy combatant immunity, but they are also subject to status-based targeting. That means combatants can be targeted anytime, anywhere, unless they are hors de combat. Civilians, on the other hand, are protected from targeting and attack unless and for so long as they are Directly Participating in Hostilities. 


DPH is a concept that has garnered a fair amount of attention and controversy since September 11, 2001. The limiting language—unless and for so long as—has generated debate over the proverbial farmer-by-day, fighter-by-night and whether he can be targeted while he’s using his hoe or only when he bends low to pick up his rifle. A liberal interpretation of DPH has evolved, recognizing that some civilians join non-state armed organizations just to be fighters, and they are fighters all the time. As such, they assume a continuous combat function and are targetable all the time, regardless of whether they are then performing a hostile, much like a combatant. But this understanding of DPH is by no means uncontroversial nor universally accepted. 


The authority described by Miller—“hit targets based solely on intelligence indicating patterns of suspicious behavior, such as imagery showing militants gathering at known al-Qaeda compounds or unloading explosives”—suggests that the CIA is adopting either a continuous combat function approach or a status-based approach to targeting. That is, the CIA believes that people who gather at known al-Qaeda compounds or unload explosives are fulltime fighters, satisfying the continuous combat function criteria, and are therefore always targetable. Alternatively, the CIA may be adopting a status-based targeting approach to non-state fighters. Such an approach would violate extant law of armed conflict but may be a data point indicating an emerging revision of the customary law governing targeting.


Finally, notice that the employees of the CIA, because it is a civilian agency and its employees are not uniformed members of the armed forces of the United States, do not benefit from combatant immunity. That is, they too are civilians directly participating in hostilities. 

Unmanned Aerial Vehicles and Limiting Factors

Slouching Towards Columbia has dedicated a fair amount of space over the last two weeks to unmanned aerial vehicles ("drones")--a topic with which I'm somewhat familiar. One post, "Drones and the False Allure of Impunity," assesses a Zenko piece about the future of drone operations in Afghanistan if Pakistan were to oust our drone bases there. Trombly notes rightly:

The ability of the United States to conduct drone campaigns and other so-called standoff strikes is in fact heavily constrained by geopolitical and logistical considerations. While the drone aircraft may be unmanned, they are just as dependent on bases, ground crews, and a logistical tail as their manned counterparts. So too are they dependent on permissive airspace.

To which I would that drones are also dependent on human-source intelligence and the ability of intelligence agencies to operate in theater. Although the topic of drone reliance on HUMINT has been fairly downplayed, one need only look at the suicide bombing of FOB Chapman to understand it. FOB Chapman was manned by CIA agents who were looking over the border from Afghanistan into Pakistan to support the U.S. drone campaign in Pakistan. One of the sources the CIA was operating, Humam Khalil Abu-Mulal al-Balawi, a Jordanian doctor, proved to be a triple agent, tasked by Tehrik-e-Taliban Pakistan with attacking FOB Chapman. The TTP targeted that base because of its role in drone operations in Pakistan and because the TTP were one of the primary groups targeted by the drone campaign. 

I would also add that the comparison between CIA operations in Pakistan and JSOC operations in Yemen is not necessarily apt. In none of the reporting I've seen regarding drones in Pakistan has there been anything like Foust's depiction of 300-500 U.S. troops on the ground in Yemen supporting UAV operations. If the CIA is able to operate drones in Pakistan with a lighter footprint--and one that is likely reliant on contractors rather than U.S. military personnel--then there is little reason why the CIA could not do so similarly in Yemen. The choice for JSOC over CIA operations in Yemen--and the attendant larger JSOC footprint--likely has more to do with the legal framework underlying U.S. operations in Yemen. That is, the United States views its operations in Yemen as part of an armed conflict--either with AQ proper or through intervention in Yemen's IAC with AQAP--and, as such, must employ uniformed military personnel. As opposed to the apparent view that of the United States that it is not engaged in an armed conflict in Pakistan -- a point of view with which I disagree, at least with respect to the TTP during 2009-2010.

Re: “We’re doing airstrikes in Yemen?”

Over at Best Defense, Thomas Ricks asks, “We’re doing airstrikes in Yemen?” Inexplicably, Ricks missed out on 2009-2010 and the Wikileaks scandal. Yet, in the sea of overheated commentary since the United States launched an airstrike in Yemen last Friday, Ricks is perhaps the least objectionable. Since then, the majority of comment has fallen along the lines of “the U.S. is ramping up operations in Yemen.” The commentators rely on two data points for this assessment: Friday’s airstrike and the May 5 drone strike that targeted Anwar al-Aulaqi.

By in large ignored, however, is that the drone strike came nearly a year since the last U.S. airstrike in Yemen. Moreover, that previous strike—and the two U.S. airstrikes that occurred six months earlier—were launched by regular U.S. military assets. The May 5 drone strike was likely the work of the Central Intelligence Agency—as was the drone strike Ricks references; one that occurred in November 2002 and was the first ever use of an armed predator drone outside of Afghanistan. Even taken together, the U.S. operations are too infrequent, too sporadic to qualify as armed conflict.

So, despite the recent breathless rhetoric, U.S. operations in Yemen do not (yet) seem to be ramping up. And to answer Ricks, no, the United States is not engaged in a war in Yemen—at least, not its own war there. Of course, this may all well change the further into chaos Yemen descends.

With Friends Like These

Something happened last week, which was not widely reported (though we mentioned it in Thursday’s Short List).  King Abdullah of Saudi Arabia had a testy exchange with President Obama, cautioning Obama not to humiliate Mubarak.  This part actually has been reported widely, but there was a second part people have not devoted much time to.  The Kingdom of Saudi Arabia pledged to provide $1.5 billion in aid to the Mubarak government if the Obama administration decided to drop its aid.  This pledge may no longer be valid, but it’s worth coming back to because of what it means to the U.S. concept of allies in the Middle East.

It also ties in to a column David Ignatius wrote in Thursday’s Washington Post.  Mr. Ignatius considers the blind spot the CIA has developed because of their reliance on “liaisons.”  Liaisons are members of the intelligence apparatus in foreign countries.  In Egypt, it’s the General Intelligence Service. It goes by a similar name in Jordan and Saudi Arabia.  While in Pakistan, their intelligence service is called Inter-Services Intelligence, or ISI.  Basically, Ignatius considers how the CIA has been relying on these liaison relationships to provide intelligence on terror threats.  These relationships have had their ups and downs, but has provided the U.S. with vital intelligence (and often legal cover) in dealing with various threats.  But, the reliance on these relationships has left the CIA blind to the unrest and discontent within the countries of our allies.  Part of the terms of the relationships, often times, makes it nearly impossible for the CIA to recruit its own sources or assets in the country.  The agency is beholden to these relationships.  It is a problem that has plagued our efforts in Pakistan for years.

These two pieces together should necessitate a reconsideration of the terms of these alliances.  That’s a big ask, but we need to learn from history.  In Steve Coll’s Ghost Wars, there is a lot of consideration of the interplay between the CIA, ISI, and Saudi Arabia’s General Intelligence Department (GID), and the more you read the more you get the sense that the ISI and the GID are trying to keep the U.S. on the leash.  The CIA was tossed some red meat, and ISI and GID were tossed some cash, but the larger objectives weren’t the same.  In addition to this lack of alignment in objectives, the Saudi regime routed money to jihadists training in Pakistan and Afghanistan long after the Soviet Union’s withdraw.  It has been widely reported that the money coming from Saudi Arabia was used to found madrases in the hinterlands of Pakistan and Afghanistan.

We need to reconsider the terms of these alliances for several reasons.  First, what we want and what the intelligence services of our allies want are not in alignment.  Second, the reliance on the foreign intelligence services has made us blind to what’s going on inside these countries, while at the same time perpetuating distrust and anger in the people of these countries against the United States.  Third, even if we are able to disrupt some terror cells, these allies, specifically Saudi Arabia, is more then happy to publicly break with us, while still enjoying the shade of our security umbrella.

It’s impractical to break these alliances.  It’s not in keeping with the nuance of diplomacy to simply withdraw, but perhaps it’s time for the U.S. to take stock.  What is it we want to accomplish in the Middle East?  Are our current allies aligned with what we want to accomplish?  The revolutions in Tunisia and Egypt are being called part of an Arab Spring.  If that is true, if these revolutions give momentum to the disaffected within the borders of our Middle Eastern allies, the U.S. will be challenged with the same dance we have had to dance regarding Egypt.  It’s time to consider our dancing partners and if we are taking complimentary steps.

Stay Engaged

Like Jason, I’m impressed by the Pillar-Nagl debate in the National Interest. Like Jason, I think both gentlemen make excellent points; I find myself agreeing with both to some extent. But, where Jason engages with Pillar in his questioning of the purpose of US involvement in Afghanistan, I diverge. Instead, I, like Nagl, recognize that not all conflict zones are created equally.

It seems that Pillar implicitly argues that the United States is only able to engage in one conflict zone at a time, that if it is involved in Afghanistan then it cannot deal with security threats in Yemen. Or, conversely, that the Underwear Bomber having operated from Yemen indicates that Afghanistan is no longer relevant to US national security concerns.

While US resources are finite—and its freedom of action has been severely curtailed since the 2003 invasion of Iraq—it is objectively not the case that United States is so tied up in Afghanistan that it cannot address other, smaller security threats. Various responses, including both military special forces and civilian covert attacks, have been used over the last year to address al-Qaeda branded security threats in Pakistan, Yemen, and Somalia.

It is also not the case that the Underwear Bomber’s non-Afghan point of origin is indicative of Afghanistan no longer being a threat to US national security. Abandoning Afghanistan presents at least two distinct threats. First, eight years of war in Afghanistan should have taught us above all that conflict separation based on such thing so arbitrary as the Durand line is nonsensical. The notion that abandoning Afghanistan will not have regional consequences is insane. There is no reason that, should Afghanistan collapse, the Pakistani Taliban will not begin to use Afghanistan as a safe haven as the Afghan Taliban have used Pakistan since 2002. It should be remembered that the Pakistani Taliban have a real beef with the state of Pakistan—they, unlike the Afghan Taliban, would actually like to see Pakistan collapse. Of course, the collapse of Pakistan is a nightmare scenario.

Second, while the hijackers that actually carried out the attacks were not Afghans, the freedom of action al-Qaeda enjoyed there certainly facilitated those and other attacks. Though al-Qaeda is a diffuse operation (diffuser now than it was in 2001), having a base of operations is useful to the organization. Were that not the case, bin Laden would not have relocated from Sudan to Afghanistan. Were that not the case, then it would be mere coincidence that so many of the terrorists that launched or attempted to launch attacks in Europe since 9/11 spent time in either Afghanistan or Pakistan.

Though the Underwear Bomber’s plot was hatched in Yemen, it simply does not follow that Yemen is the sole threat to the United States currently. Yemen is merely the most recent example of a phenomenon that we might take to be a natural law at this point: weak or failed states afford non-state actors space in which to incubate, train, and launch attacks. The degree of intervention required to ensure (so far as that is possible) US national security is a fact-specific question. In Afghanistan, there is not yet a state to which the territory can be left, the US ought remain engaged until such a state exists—hopefully the Marja operation and the rounding up of Afghan Taliban leadership is a step in the right direct (there are many people that think it is not, however). Yemen, however, presents different facts and different requirements. There, the state, though weak, exists. Working within the state’s apparatus to disrupt al-Qaeda in the Arabian Peninsula is the best course of action. Additionally, as Nagl notes, the ease of access US military assets have to Yemen via the Arabian Sea also affords the US an ability to strike from a stand-off position which it does not enjoy in Afghanistan.

So, to answer Jason's question, we are trying to save ourselves. Long-term policy making is hard. It is harder still to execute. But it is absolutely necessary.

Who are we trying to save in Afghanistan?

In a fantastic debate published online by the National Interest, Paul Pillar and John Nagl debate whether Afghanistan is the right war. Pillar believes not. Nagl believes it is.

Pillar believes that we have done what needed to be done in Afghanistan. We have driven out Al Qaeda and the Taliban, but that now we are surging to build up a government in Kabul. He questions the continuing need to fight against the Taliban. He also questions the argument that leaving will allow the Taliban to return, and that a resurgent Taliban will bring with it Al Qaeda.

Pillar points to the underpants bomber as a reason why we shouldn’t focus so much attention on Afghanistan. The underpants bomber wasn’t part of the central Qaeda network, he was an operative for a Qaeda franchise based in Yemen. Pillar also protests to the constant supposition in our vernacular that this is a “war” on terror, drawing attention to the word “war” as a misnomer and hindrance to our ability to successful confront and defeat a diffuse, non-state actor with numerous franchises around the world and operatives often organizing in Western cities.

Nagl believes that this is the right war and the right strategy because allowing the Taliban to return to power (a likely outcome if we were to withdraw in the near term) would lead to a renewed safe haven from which Al Qaeda could plot attacks and coordinate actions, presumably with greater ease than they currently have in tribal areas of Pakistan. Nagl is very much preoccupied with force projections problems the US military would have after with withdraw from Afghanistan, repeatedly noting the distance from any accessible coastline for the US Navy. Nagl is also a full-throated supporter of building up the current Afghan government and Afghan military to address the threat caused by the Taliban. This support clearly comes from an assumption that if the Taliban were to return to power, Al Qaeda would return to its prior safe haven. Nagl notes that in other theaters, such as Yemen, force projection is not nearly as difficult as in Afghanistan. Nagl also emphasizes that these other theaters do not featured failed states in contrast to Afghanistan.

When I read the two pieces I found myself agreeing with points made by both Pillar and Nagl. Though I’m predisposed to agree with Nagl, I came out with one big question:

What or Who are we trying to save?

What is the intent of the surge? Is it to protect America? Will it do that beyond disrupting central Qaeda HQ? McDonald’s HQ is in Des Plaines, Illinois. If we quarantined Des Plaines would that have a huge affect on the ability of McDonald’s franchisers to find customer and suppliers?

Will Afghanistan return to Taliban rule in the wake of an American withdrawal at this time? What is the human cost should the Taliban return to power? Will a Taliban reemergence necessarily mean an Al Qaeda safe haven, thus increased freedom to operate and, presumably, launch more sophisticated attacks?

What or Who are we trying to save?


I don’t believe that the surge in Afghanistan is directly tied to the current state of national security in the United States. I believe our mission is really to build up a state so we could have a presence in the country not unlike our presence in Yemen, which is to say minimal. So we aren’t trying to save America.


Maybe we’re there to protect Afghanis. Maybe the retribution and persecution of a reemerged Taliban would be so violent, so vindictive that policymakers get queasy in the stomach thinking about it. But then you must consider how many Afghan civilians have died at the hands of NATO forces. Despite the assumed benevolence of our mission, we’ve caused thousands of deaths. Also, while trying to prop up a chronically corrupt, ineffectual central government that the Taliban doesn’t recognize we encourage violent attacks simply by being present in the country. Would the Taliban really need to engage in much military activity if we weren’t there? I would think the Afghan army would provide little resistance to a Taliban advance. So we aren’t really saving Afghanis.

Perhaps we’re trying to save face in a region we only so recently misread and cast aside when we no longer had use for her. The US sponsorship of the muhajedeen during the Soviet invasion of Afghanistan and the subsequent abandonment of these fighters and what the evolved into is still fresh in the minds of US policymakers. Maybe we’re trying to not repeat our mistakes and restore or save some of the legitimacy of the US as a valuable ally in the region, but then is the Afghan government really looking to ally with the US? Does that serve a purpose for their political leadership other then patronage? Pakistan doesn’t seem to be interested in having the US as an ally. Maybe we’re trying to save some face, but if we are it would appear we are doing it the wrong way.

Dispelling Yemeni Myths

Former US Ambassador to Yemen Edmund Hull injects some reality into the conversation.

All Yemen, All the Time

Given the coverage of Yemen since the Christmas Day underwear bombing attempt, one could be forgiven for believing that Yemen is suddenly in the fore US security concerns, or that Yemen has just suddenly become unstable. The truth is, however, that Yemen has posed a significant security challenge to the United States for well over a decade—if not longer.

Aside from being the hiding place for the now infamous American-born Imam al-Alawi, Yemen was the sight of one of the earliest US predator strikes after 9/11. Yemen is also where the USS Cole was bombed in 2000.

More troubling, though, is that Yemen is fundamentally unstable. Just twenty years ago Yemen was still two separate states. Shortly after unification in 1990, civil war broke out and Yemen has remained—to greater or lesser extent—at war with itself since.

Despite significant US aid to Yemen over the last decade, the country has only become less stable. Despite covert US action against Al-Qaeda in Yemen, the country has only seen growth of that organization. The government of Yemen is waging a war against Houthi rebels in the north of the country, while Al-Qaeda is camped in the southern part of the country. Saudi Arabia has reportedly bombed Houthi rebel positions inside Yemen and there are unconfirmed reports that Saudi soldiers have crossed the border. Yemen is in a bad way and it’s getting worse.

So, what’s to be done? Clearly, Yemen is not a place to deploy US troops. Putting more US soldiers on the Arabian peninsula would only outrage the Muslim world. Further, it is unclear that US soldiers supporting President Saleh, an autocrat, would actually improve his position (and thereby our security)—to say nothing of American standing and moral authority. Nor is it clear that greater expenditures in foreign aid will improve

What is clear, though, is that instability remains a threat to US national security. Weak governments, unable to control their territory, and vulnerable, impoverished populations, provide ample opportunity for transnational organization to gestate. Al-Qaeda has demonstrated its willingness to take advantage of these opportunities: in Taliban-era Afghanistan, in the tribal region of Pakistan, and in Yemen. It is quite likely that even if the United States manages to oust or severely weaken Al-Qaeda in Yemen, that additional affiliates will grow and strengthen in the other nether-reaches of the planet—a likely environment sits just across the Gulf of Aden from Yemen in Somalia. US national security must focus both on confronting Al-Qaeda—through military or law enforcement means, as the situation dictates—and on confronting the ungoverned portions of the Earth. The United States should support those indigenous entities that manage to develop into putative States and governments—entities whose writ and legitimacy are frequently stronger than the recognized governments they stand in contradistinction to. US decision maker must become savvier and more sophisticated; they should not be easily convinced by regional powers that some putative State is really a front for Al-Qaeda when that regional power is pursuing its own ends.