An Anecdotal Comparison of Efficient Judicial Systems

• Khalid Sheik Mohammed - captured on March 1, 2003, and still not prosecuted as of October 12, 2011.

• Umar Farouk Abdulmutalla - captured on December 25, 2009, charged, arraigned, and plead guilty as of October 12, 2011.

Who says Military Commissions are more effective?

George W. Bush, 9/11, and Intelligence

I plugged for the National Geographic interview of George W. Bush yesterday in The Short List.  Hopefully our (limited) readership watched it last night, because I think it's important for a few different reasons.  The interview kicks off two weeks of solemn commemoration of the events of 9/11, how it changed our world, how the United States changed, and what it might mean for the future.  It's fair to say that the events of that day, unbeknownst to me at the time, changed my life and I will always remember where I was, and what I felt watching the second plane hit.

The interview splices in images and video from 9/11 and the days immediately following.  The feeling in the pit of my stomach is as visceral as it was 10 years ago when I saw it happen live.  Anger, sorrow, fear, anxiety all flash through my body every time I see the second plane hit.  And you can tell that discussing 9/11 still gets to President Bush.  That unmistakable mix of anger and sorrow is evident in his eyes.  He discusses why he lingered in a Florida elementary classroom after Andy Card told him about the second plane.  He discusses his frustration in being shuttled around the country and not being allowed to return to DC immediately.  He discusses how Saddam Hussein's name was mentioned on September 11th, though he doesn't indicate a particular member of his senior staff.  He also spends a fair bit of time decrying the communication equipment available to him onboard Air Force One.  He discusses a great many things, but two things really stood out to me.

First, as if a mantra he discusses how he never planned to be a "war time president," and how America was now "at war."  This could be legacy protection, but it could also be that he legitimately felt he was suddenly transformed into a war time president in the mold of Lincoln or Roosevelt (he draws no such comparison).  I've had a hard time, in retrospect, considering the acts of 9/11 and our actions following as a "war."  And I fear that President Bush wraps himself in the "war time president" cloak so we might dismiss the extra-judicial actions of his administration in the years that followed.

The second thing that struck me was toward the end of the interview.  He says "I was not acting strategically," and follows up saying he believed what he was doing was protecting the American people.  I know that 9/11 was an extreme case of terrorism, but to think that in the following seven years that the President of the United States did not act strategically just dumbfounds me.  Certainly in those first 24 to 48 hours it is about command control and strategy comes later, but the admission that the whole response was not strategic seemed to confirm for me a bias I had before the interview that the interview just reinforced.  President Bush was not up to the challenge of the situation.

If you listen during the interview you notice how little he decided as President.  There are briefings.  Information is coming in.  Things are happening, but there doesn't seem to be any decisions that began with President Bush.  He was a passenger to his own administration on that day.  Perhaps it was due to the poor communication system on Air Force One.  Perhaps the military had a protocol for a terrorist incident of this magnitude and it was implemented step-by step.  Perhaps the gears of the state were well-oiled and responsive to this kind of shock.  I have my doubts.  And so what emerges is the image of a figurehead president being shuttled around the country while the serious people make decisions and secure America.

In a post at Democracy in America today, E.G. posts commentary on the recent exploration of Gov. Perry's intelligence.  Towards the end of the post he says something that captures a bit of my reaction to the interview.

So this kind of examination leads us to a broader question: even if we could assess a candidate's intelligence... how clever does a candidate need to be, and how important is intelligence in a president? It's tempting to say that a person elected president can't actually be stupid, because otherwise we would be hard-pressed to explain how they got to be president.

And yet it wasn't intelligence that Bush was lacking in the interview.  He knew what was going on, the gravity of it, and that action needed to be taken.  E.G. continues:

I would prefer a president who isn't overtly anti-intellectual or hostile to empirical analysis, both of which suggest small-mindedness and ideological devotion.

So would I, and I don't think President Bush is hostile to empirical analysis as it related to terrorism, but by his own admission he did not approach the issue of terrorism strategically.  That's why his account of the day makes him sound like a bystander.  He was overwhelmed by the situation, and could not break it down strategically.  He knew something needed to happen or rather that many somethings needed to happen, but the sequence eluded him. The interview, I think, reveals a man with good intentions for his actions on 9/11 and in the years that followed, but a man sorely out classed by the gravity and complexity of the problems that led to 9/11 and the consequences of our responses.  

OBL Raid and International Law

As I noted earlier this week, the OBL raid presents myriad complex legal issues. And, unfortunately, the complexity is often exacerbated by silly errors made by commentators in their attempts to describe them. For instance, David Bosco writes:

But Koh says nothing about the most difficult question: Pakistan's sovereignty and the compatibility of the raid with the U.N. Charter's restrictions on the use of force. The administration is sticking to the justification that the U.S. is at war with al Qaeda and is clearly not interested in trying to delineate when that state of war permits nonconsensual operations on another country's territory.

This is in no way correct. In fact, Koh speaks directly to this issue when he writes:

In addition, bin Laden continued to pose an imminent threat to the United States that engaged our right to use force, a threat that materials seized during the raid have only further documented.

(emphasis mine). Koh is here speaking to the requirements of self-defense under international law; self-defense, as preserved by Article 51 of the U.N. Charter, empowers a state to use necessary and proportionate force when faced with an imminent armed attack -- even, in some cases, if that use of force violates another state's nominal sovereignty.

Bosco can be forgiven for his mistake -- after all, the United States continues to rely on both self-defense and the law of armed conflict to justify its targeted killing operations without articulate which of the two, separate justifications applies to any given operation. Koh did so in his ASIL speech in March 2010, and he did so again yesterday in his post on Opinio Juris. This confusing state of affairs preserves operational flexibility but does little to advance international law or quiet critics of targeted killings.

The more difficult questions of sovereignty arise when the targeted killing of Osama bin Laden is viewed strictly through the lens of armed conflict. Then, and only then, do Bosco's questions of sovereignty bubble to the surface.

A Good Kill

Some two weeks ago, the United States launched a daring raid and assault into Pakistan that ended in the death of Osama bin Laden. Since then, a debate has raged as to whether bin Laden’s killing was lawful—whether it was a good kill.

Much of the commentary in this debate has betrayed fundamental misunderstandings about the law governing the relations among states and the law governing relations among states and combatants in armed conflict. This includes both a tendency to confuse jus in bello and jus ad bellum, as well as a tendency to confuse the law governing self-defense with the law governing armed conflict. These confused commentaries do little to shed light on the operation, its legality, or advance an understanding of U.S. counter-terrorism operations.

The starting point of any analysis of the bin Laden raid must begin—explicitly or implicitly—with the UN Charter. Under the Charter—which has achieved jus cogens—use of force is prohibited except when authorized by the Security Council or when undertaken in self-defense. Of course, a state may use force within the territory of another state when the host state consents to that use of force. Regardless of the legality of the use of force itself, once force is employed it must conform to the law of armed conflict—so long as the use of force rises to the level of an armed conflict.

The bin Laden raid raises questions about the legality of the use of force from the inception and the legality of the kill itself. What is the legal justification for the raid? Regardless of that justification, did the kill conform to the requirements of the law of armed conflict?

While there has been much discussion that the raid was carried out in self-defense, the better explanation—and the more legally accurate one—is that the United States is engaged in a non-international armed conflict with al Qaeda. As such, the United States has the authority to lawfully use force against enemy fighters—combatants is an improper term for members of a non-state organized armed group—when those fighters forfeit their civilian status by directly participating in hostilities. Bin Laden, as an operational leader of al Qaeda, was such a leader and, therefore, was a lawful target. His was a good kill.

More problematic is the question of whether the U.S. incursion into Pakistan was lawful.

In which I blast Pakistan...

We've gone dark over at DCExile here lately, something we're going to remedy next week, but I read an article that I just have to comment on.  I didn't want to write the "let's all hate on Pakistan" blog post, but based on comments coming out of the military leadership in that country, something is seriously amiss.  

I'm referring to this article(NYT) that discusses how the Pakistani Army Chief is inclined to ignore U.S. demands for Pakistan's military to crack down on other militant groups in the wake of the targeted killing of OBL.  So I want to draw out a couple quotes and then blast them.  So first, from Gen. Javed Ashraf Qazi, former director of ISI:

“Without Pakistani support, the United States cannot win the battle in Afghanistan.”

I think Gen. Qazi greatly overstates our interest in "winning" in Afghanistan, particularly now that the boogeyman we sought to destroy has been destroyed.  It's also worth pointing out that Pakistani reticence, likes oh say supporting the Haqquani network, makes if very difficult for the U.S. to make progress in Afghanistan.  And yet, cutting support to the Haqquani network is exactly the kind of thing the Pakistani army chief doesn't want to do.

Quote number two:

"General Qazi said hard questions were being asked about whether the American financial support to the Pakistani military was 'worth the lives we have lost' in fighting Islamic militants."

You know what's a poorer bet then my Kentuky Derby wager on a horse I thought was named after the alias of King of the Hill's Dale Gribble (damn you Shackleford!)?  Betting that not receiving aid from and not collaborating with the U.S. will convince Islamic militants to cease attacks against the Pakistani state.

And finally to poor a little salt in the wound, Andrew Exum reminds us that the Pakistan Army has never won a war.  It makes one question the wisdom of such an army's leadership.  Remove head from sphinkter, not because the U.S. is right or has always been a solid ally.  That would be hard to back up, but because your alternatives are all worse.

Egypt - Different Obvious Lessons

Matthew Yglesias, writing in The American Prospect online, advocates for the United States to be on “the right side of history” and reconsider our support of at least un-democratic and at worst authoritarian regimes in the Middle East.  “The status quo in the Middle East is not sustainable and won’t be sustained,” Yglesias declares.  I think the sentiment is right, but the rose-colored glasses with which he reviews the region and revolution gives an incomplete picture.

The first issue is a matter of perspective.  I agree, the status quo is not sustainable and the U.S. concern is what comes next.  Don’t we still fear what will happen in Egypt?  Aren’t we still concerned that of an Islamist emergence a la Iran 1979 will take hold?  I think Yglesias discounts those concerns because he believes, “the longer the U.S. government stays in bed with kleptocrats, the more severe popular discontent against the United States becomes.”  I would contend there are limits to enmity, and a few decades of support to Middle Eastern autocrats builds a level of enmity that takes a long time to erase.  I subscribe to the “in for a penny, in for a pound” approach.  This would seem to conflicts with my post on reevaluating our alliances in the Middle East, but as I said in that post, we can’t turn our backs on these alliances.  From the perspective of the United States, autocrats give stability until they don’t. If the situation changes we will need to recalibrate our allegiances.  I would argue our most recent experience in Egypt is a strong example of the recalibration we can execute if we find a country at its tipping point.

Secondly, we have to work with the countries that are in power now.  Mr. Yglesias would have us side with the dissidents, causing immeasurable harm to our national security projections in some of the hottest corners of the world.  Mr. Yglesias might argue that it is our patronage of the governments in the region that makes them so hot, and I would not entirely disagree, but to my first point, ceasing that patronage would create good will, yes, but also undermine current stability, and limit our force projection in the region.  The cost-benefit analysis just doesn’t add up to a full-scale reversal of decades of U.S. foreign policy.

I’ll end by saying this: what happened in Egypt over the past three weeks may prove to be the turning point for the land of the pharaohs, but the jury is still out.  It’s a momentous thing to see people break the shackles of authoritarianism.  Regardless of the brotherhood I feel with the Egyptian people, from the perspective of the United States we can’t hop on the bandwagon of every protest or every dissident group.

The United States, by most accounts, managed the revolution in Egypt quite well.  I actually have confidence we can manage a similar situation as well, if not better, in the future.  I would like nothing more then to stick it to all the strongmen and monarchs that limit the freedom of their people in the Middle East, but the ideal and the practical are not one in the same.

RE: What To Do With Pakistan

I take issue with the pros that Jason believes will fall out of disengagement with Pakistan. It is not clear to me that our current engagement in Pakistan in anyway constrains U.S. or NATO freedom of action in Afghanistan. What constraints the U.S. faces have more to do with the role the Afghan government plays in coordinating or approving operations or, in cases like Marjah, the Afghan government’s inability to find Afghan civilians to fill key governmental positions. As far as I can tell, the United States concerns itself little if at all with Pakistan when operating on the Afghan side of the border. Indeed, there is a least some evidence that the United States concerns itself little with Pakistan when operating on the Pakistani side of the border!

That brings me to my next point of departure with Jason’s assessment: concern for Pakistani public opinion. I do not see much evidence that the United States has been concerned a great deal with Pakistani public opinion. The United States drone operations in Pakistan are unsurprisingly very unpopular among the Pakistani public. Despite this, drone strikes are increasingly common. There were 118 drone strikes in 2010, more than double the 2009 tally and triple the 2008 tally.

Finally, I do not see how disengaging will afford greater mission clarity, which is not to say that there is presently any mission clarity.

What to do with Pakistan: Part Two

I haven’t forgotten you Pakistan, but China stopped by and the whole day job got in the way.  Now where were we.  Last time I was commenting on T.X. Hammes and more generally about the messy history between Pakistan and the U.S.  This post is about just a few of the pros and cons of disengagement with Pakistan.

So what happens if the U.S. disengages from Pakistan?  First the pros:

• Greater autonomy to operate on the Afghan side of the AfPak border
• Be less concerned about the Pakistan public reaction to U.S. actions
• Have greater mission clarity and direction from unilateral action plans

And now, the cons:

• Loss of access to superior human intelligence network.
• Loss of international legitimacy for the mission since it would likely be unilateral.
• Loss of input/leverage over Pakistan’s nuclear program.

This is not even close to an exhaustive list, but I think it illustrates the point.  It’s easy to knock the current policy, but it’s very hard to come up with an alternative.  There are benefits from disengaging from Pakistan, however Pakistan, if not the best of allies, is an important power in a region that we can’t afford to have a blind spot.  I have a feeling the frustrations that T.X. Hammes outlines are some of the same frustrations voiced in meeting rooms at the White House, the Pentagon, and the State Department (or at least I hope they are) but sometimes there isn’t a good alternative and all you’re left with is the least bad alternative.  Obviously as a super power it sounds neither super nor powerful to pursue a least bad policy, but I don’t see a clear alternative.  Do you?

TSA, Outrage, and War

So in case you didn't hear, the TSA is under fire for enhancing search procedures. Specifically, people are up in arms about the body scanner that leaves little to the imagination or (if you elect to not go through the scanner) enhanced pat downs. Neither of these options are enjoyable, but how much of this is a real uproar and how much is media grabbing?

According to a CBS poll out last week, 81% of Americans support full-body X-ray scanner with only 15% not supporting the measure. This hasn't stopped calls for a boycott of TSA on Wednesday (the busiest travel day of the year) by some. TSA Administrator John S. Pistole has a statement out which correctly reminds people "we cannot forget less then a year ago a suicide bomber...tried to bring down a plane over Detroit." He has also urged people just this morning to not cause slowdowns at security checkpoints so people can get home to see loved ones.

As someone who will be flying Wednesday, I'm really hoping people heed his request. Of course, bigger happenings are afoot in the halls of Congress. Ron Paul has introduced legislation that would open up TSA employees to prosecution if they engage in enhanced pat downs. Rep. John Mica of Florida has said TSA should be ditched for private contractors. Of course the TSA, when asked for comment simply stated private contractors wouldn't be a cure all since "TSA sets the security standards that must be followed." Perhaps Rep. Mica will be more comfortable having a private contractor copping a feel as opposed to a federal employee?

I spend a fair bit of time in airports. I have been patted down just so I could board a plane in Columbia. I have been interrogated by a Federale in Mexico. I have suffered long lines, forgotten belts, and I tend to look for men in suits when figuring out which security line I'm going to go through, but I take this as all part of the process. The security procedures could be overblown, but clearly (based on the CBS poll) most American are fine with whats being done.

My issue is this: How can you be up in arms about security procedures at airports designed to protect American lives when you voted to send American troops to Iraq? As someone who voted to send troops to Iraq, Rep. Mica should have to answer that question. How is it tolerable to put U.S. troops in harms way but not to go through a full body scanner? (Ron Paul doesn't have to answer the same question. He is consistent in his convictions.)

As for me, I hope people go with the flow through airport security on Wednesday. It won't be enjoyable and special preparations may be needed (fluffer?), but we're in it together. This is the world we live in and while we debate that balance between civil liberty and security I just want to make it to the airplane on time. Overhead space will be at a premium.

Awakening Council Reverting

No matter how you look at it, this isn't good for Iraq or the US. It seems like there are a number of reasons for the reversion back to Al Qaeda in Mesopotamia, but perhaps the most troubling is the perception (or perhaps reality) that the Iraqi government isn't keen to bring Awakening Council members into the fold.

Marc Thiessen, Ideologically Blinded Moron

Marc Thiessen’s propensity for writing ideologically-driven nonsense on the pages of the Washington Post sets him apart, well, not all, from most of the rest of that paper’s columnists. The deficiencies of the WaPo’s Op-Ed page are well known and oft commented upon. Thiessen, though, is particularly objectionable in part for his mindless defense of all things Bush and attack of all things Obama—much in the way the Bush administration approached the Clinton administration to its ultimate determent, see 9/11—and in part for his suborning evil (read: torture).

Among the strange positions he’s taken are an opposition to targeted killing (because it demonstrates Obama is weak on terrorism) and opposition to civilian trials for terrorists (because it demonstrates Obama is weak on terrorism). In his most recent diatribe he writes:

The Ghailani prosecution is hanging by a thread today not because of the interrogation techniques employed against him, but because of the Obama administration's ideological insistence on treating terrorists like common criminals and trying them in federal courts.

There are myriad problems with this statement. One obvious problem is that the Ghailani prosecution is not hanging by a thread—if it were, the government likely would have pursued an interlocutory appeal of the decision that inspired Thiessen’s Op-Ed. Another obvious problem is that the reason for the set back in the Ghailani case has nothing to with the Obama administration—it has everything to do with the Bush administration's program of using overly harsh interrogation methods at secret prisons. The setback, if it is a setback at all, can be place squarely at the feet of the Bush administration, Thiessen’s former employer.

Ultimately, though, the oddest part of Thiessen’s preferred approach—“they can be held indefinitely under the laws of war”—is its implicit elevation of Ghailani, a terrorist, to the status of a soldier. Combatants and civilians directly participating in hostilities are detainable—not indefinitely, but until the end of hostilities—under the law of armed conflict. This is not meant to punish the combatants but to remove them from the battlefield and return them, unharmed and unpunished, once the war has ceased. Terrorists, on the other hand, are criminals: they have not killed other combatants (legitimate targets); they have not targeted infrastructure of military import and utility; they have not abided by the laws or customs of war. No, they have killed untargetable civilians, attacked civilian infrastructure: they have committed murder. They ought to be treated as criminals—and soldiers, including our soldiers, deserve better than Thiessen’s implicit moral equivalence with terrorists.

Finally, from a pragmatic perspective, civilian trials have proved eminently more effective than CSRTs or Military Commissions in dealing with terrorists. Since 9/11, upwards of 300 terrorists have been successfully prosecuted and convicted in civilian courts, garnering something like a 90% conviction rate. In contrast, 70% of detainees at GTMO who have challenged their detention through habeas corpus proceedings have won.

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.

You Can’t Win Them All

Since at least Christmas, members of the Republican Party have been advancing a theme that President Barack Obama is Soft on Terrorism. Initially, President Obama was Soft on Terrorism because he did exactly the same thing President Bush had done in the same situation—namely, Mirandizing the Underwear Bomber. In the last week, though, the President has been ridiculed for being Soft on Terrorism by being more aggressive than President Bush.

Last week, as addressed here, Marc Thiessen published a piece in Foreign Policy questioning the Obama administration’s use of targeted killing. Thiessen feigned concern—and his concern was echoed by Karen DeYoung in the Washington Post—that the United States was killing so many members of Al Qaeda, the Afghan or Pakistani Taliban that US national security was being harmed. The use of Predator drones was indicative of a President unwilling to do what is necessary to secure America and unable to men and women in harm’s way. Utter nonsense, of course; this President has been more aggressive than his predecessor in disrupting militants in Pakistan. And, like his predecessor, he has extended US force into lawless portions of Somalia—why, Ms. Young, is it that a helicopter attack on a militant last year is indicative of his being Soft on Terrorism when President Bush’s use of an AC-130 gunship on a militant in 2006 was not?

But now, a fortuitous answer to these critics comes from Karachi, Pakistan:

The [Afghan] Taliban’s top military commander was captured several days ago in Karachi, Pakistan, in a secret joint operation by Pakistani and American intelligence forces, according to American government officials.

Unsurprisingly, this indicates that the President is aggressively continuing the United States’ campaign against the Afghan Taliban. It also indicates that, when the balance of target value and risk is right, he is willing to order the capture of that target. Further, and perhaps most importantly, it may indicate that Pakistan is willing to cooperate with the United States in its campaign against the Afghan Taliban—until now, Pakistan has seemingly been loathe to assist in the anti-Afghan Taliban campaign, preferring to take on what it sees as a greater threat: the Pakistani Taliban.

UPDATE: Two commanders of the Afghan Taliban have confirmed that the Taliban's top military commander, Mullah Baradar, has been captured. These two commanders claim that he was captured in the Marja area of Afghanistan--where the NATO offensive is taking place--rather than in Pakistan. It seems to me that what's important here is the confirmation of Mullah Baradar's capture. Given the Afghan Taliban's consistent claims that its leadership is in Afghanistan, not Pakistan, it is likely these commanders are trying to stave off the demoralizing impact of having to admit its leadership is not in Afghanistan.

UPDATE II: The New York Times reports this morning that Mullah Baradar was not the target of the raid in which he was captured. This, of course, throws cold water on the notion advanced above that his capture is evidence of risk-reward balancing for the employment of particular tactics in the Pakistan theatre. That said, the New York Times also reports that the Pakistani-led raid was instigated at American request, based on American intelligence. Thus, the most important aspect of Baradar's capture, the cooperation between the US and Pakistan against the Afghan Taliban, is preserved. As Kennedy notes above, it just feels smarter.

Wait One Minute

Every now and again, I stumble onto an article or opinion piece that stops me in my proverbial tracks. Marc Thiessen’s piece in Foreign Policy is one such item.

I think somewhere underlying Thiessen’s article is a deep skepticism of the drone campaign. He’s not alone. Jane Mayer put together a wonderful piece in the New Yorker last fall that did a good job of discussing the use of drones in Pakistan and their severe limitations. Notably, Mayer highlighted the high numbers of non-targeted individuals killed for each targeted individual eliminated. Setting aside human rights concerns, I question the efficacy of the drone campaign in light of our broader regional goals. I particularly wonder about the drone campaign encouraging otherwise neutral individuals to take up arms against the Pakistani state or the United States.

Thiessen, though, uses the drone campaign to accuse the President of endangering the United States by depriving the US of “vital intelligence” and of “shying away from the hard decisions needed to protect the United States.”

This is nonsense. Of course it is a truism that dead men tell no tales. But for Thiessen’s thesis to be true, the United States would have to have available to it a capability to capture and question the people targeted by the drones. Now, despite the hypocritical critiques offered by some, the problem with this premise is not the questioning, it’s the capturing.

The vast majority of the individuals being blown up are in the lawless FATA region of Pakistan. Many of the targets are affiliated not with Al-Qaeda or the Afghan Taliban but with the Pakistani Taliban. Whatever the arrangement the United States government currently has with Pakistan, it is clear that Pakistan does not want US soldiers on its territory—judging by the vitriolic reactions last week, American trainers are not even welcome.

Though Thiessen would have you believe that the Obama administration has put the United States in danger by eliminating a proposed CIA program to kill terrorists because it had an ethereal capture component, this is merely a straw man. This capability never existed. The Bush administration proposed these teams in 2002 and never managed to make them operational—in fact, I have questioned what this says about the US paramilitary operations previously. The last time the United States had a capability that resembles what Thiessen puts forward was, according to Steve Coll, under the Clinton administration, when the US put teams in the field to kill Osama bin Laden. Even then, though, the kill order was never given and the teams were never utilized. Thiessen thus presents a false choice between the use of drones, and a non-existent capture ability.

While I think there are legitimate questions to be raised about the use of drones and our strategic objectives, Thiessen’s piece represent an incredible contortion of the Obama-is-Soft-on-Terrorism narrative.

The Facts and Gen. Hayden

The Washington Post published a report this evening that Umar Farouk Abdulmutallab, the Christmas Day underwear bomber, is cooperating with investigators and providing intelligence about his training and his contacts. It seems clear that the unnamed Administration sources released this information to rebut "Soft on Terrorism" attacks on President Obama and Gen. Hayden's Op-Ed in the Washington Post that, just two days ago, argued that Mirandizing the underwear bomber placed US national security in jeopardy.

Soft on Communism

Throughout the Cold War, a favorite Republican political cudgel was to label Democrats as Soft on Communism. The argument, at bottom, was that Democrats could not be trusted with the national security of the United States because they did not recognize the dire threat posed by the Soviet Union and China. This attack, used for forty years, was wholly unfair and ignored the strong line Democrats repeatedly took against the Soviet Union—but it spoke to the voters and the Republicans used it to great effect.

And the Republicans have not discarded this line of attack with the demise of the Soviet Union. No, Democrats are no longer Soft on Communism, now they are Soft on Terrorism. Democrats do not take seriously the threat posed by Al Qaeda. Democrats do not consider the danger of terror attacks. Democrats want the terrorists to win. Democrats hate America.

The theme of these sorts of attacks emerged immediately in the aftermath of 9/11. The 2002 midterm elections were characterized by sweeping, unfounded attacks on Democrats along these lines. Despite becoming the object of ridicule by the middle of the decade, the line of attack has not yet died.

Since the failed Christmas Day underwear bombing, a panoply of Republicans have come reprised the Soft on Terrorism attack, directing it at the President. To characterize these attacks as cynical and inaccurate would be an understatement. In fact, a number of strong, independent rebuttals have appeared in places like the editorial page of today’s Washington Post.

But, while the Republican attacks in this vain are obscene and offensive, what concerns me is not their reemergence—sadly, this is just the nature of the modern, dishonest Republican party—but that the Pres. Obama walked into them. Like it or not, despite the horrendous mishandling of Afghanistan and US foreign policy under the previous administration, the Democratic party is still playing from a position of weakness when it comes to national security issues, including terrorism. As the leader of the Democratic party, President Obama and his administration should be aware that any misstep—real or perceived—will come back to haunt the Democratic party in 2010, 2012, and going forward so long as terrorism is a live issue. Thus, while I have all sorts of other problems with Pres. Obama taking a 10 day Hawaiian vacation for Christmas, his failure to cut short his vacation to return to Washington, DC is unforgivable—while true, it is clearly no effective political answer to point out that Pres. Obama’s reaction was similar (arguably more lively) than Pres. Bush’s reaction in the nearly identical Richard Reid incident in 2001.

While I generally applaud the job that Pres. Obama and his administration have done with foreign policy and national security, Pres. Obama cannot forget that the opposition party will cynically exploit any opportunity presented. Though it may be distasteful, it is their nature. What’s more, the Republicans have not played their cards close to their vest—it was clear from the outset of Pres. Obama’s administration that the Republican party would do their very best to undermine the President and capitalize on any opportunity presented. Here, the President’s reaction—or lack of reaction—to the Christmas Day underwear bombing has given the Republican Party plenty of ammunition to label Democrats as Soft on Terrorism.

Now, President Obama, fix the holes in the system, prosecute the would-be bomber, and get out in front of the next story.