America's weapon of choice against terror? Courtesy Time.com
Khalid Sheikh Mohammed, al Qaeda mastermind, has become the center of controversy about America’s new, clean, transparent and constitutional approach to the “war on terror,” – or “struggle against violent extremism,” as the speech re-branded it. However much credit Obama deserves for closing Guantanamo, American policy has yet to properly integrate law and strategy into a coherent approach for combating terrorism. As Ross Douthat points out, the US government since 2001 has retained the right to assassinate KSM and men like him. The new administration has not changed that view (indeed Obama outdid McCain in his zeal for drone strikes), but instead added a corollary that after capture, KSM was no longer a high-value target subject to airborne obliteration, but in possession of full constitutional rights. There are arguments against either of these views, but haphazardly combining both exposes our disjointed policy.
The case against KSM cannot fail. The President would not have permitted trying him in New York otherwise; no judge or jury will permit anything but ‘guilty’ regardless. The result: the tacit or explicit sanctioning of torture, detention, rendition, and warrantless surveillance into American law, and the ad hoc use of intelligence as evidence. Reports of abuse and expansion at Bagram demonstrate that while Guantanamo may close, the need for facilities like it persists. The reality is that neither the Geneva Convention nor US law will bear the legal and political burdens we now place upon them.
The result, rather than alterations to American law or working to establish new international norms and treaties to effectively combat terrorism, has been dissonance between law and strategy. Law enforcement agencies do not assassinate or practice counterinsurgency, but we expect the military and CIA to act as policemen once they’ve decided to capture instead of kill. We should not return to the Bush policy of ignoring or misusing law, but to continue the “war on terror” with the assumption that today’s laws will do – and they will not as far as they concern men like KSM – and be satisfied with that is dangerous. It is better for rule of law and American legitimacy that we find a way to bring more transparency and accountability to our current strategy than it is to proclaim these values without changing policy.
We are expanding drone strikes in Pakistan, but we have ignored the legal framework which should legitimize this strategy. Our simultaneous inisistence on a “lawful” fight against terrorism and our strategic emphasis on extrajudicial killings will undermine the credibility of the former and the efficacy of the latter. We cannot seek legitimacy while conducting actions widely considered illegal unless we create legal space for them. It is time to start asking hard questions about domestic and international law and how they must be changed to accommodate the vital interest in combating terror Obama has affirmed.
I agree wholeheartedly. There needs to be substantive effort by congress to change the legal framework that deals with terrorism. Unfortunately, congress won’t touch the issue with a ten-foot pole. There is no domestic political upside to reworking the legal framework for terrorism. Some sort of international framework needs to be established too. Here the initiative lies with the President. He will never push for reform, because the gray-areas in which the Intelligence community and to a lesser-extent the military now operate give them flexibility. Flexibility to deal with terrorists however they please. The legal framework is needed, but I see it as unlikely to actually happen anytime soon.
Agreed on the lack of domestic upside… But we’re holding politicians to a ridiculous double standard by which we want them to conduct the war on terror lawfully, but then expect them to do whatever necessary to prevent another 9/11 and destroy al Qaeda… If we were willing to change or amend our laws, both tasks would be much easier.