To try to define terrorism as either strictly a law enforcement or a military issue seems to me to be an unwise attempt to make black and white a very grey issue. Terrorism has no widely accepted definition and, as the recent shooting at Fort Hood, Texas, demonstrated, isn’t likely to get one anytime soon. For this reason I believe it important to answer this question based on the specifics of each case.
Not only is it problematic to try to define terrorism, it defies reason to try to lump responsibility and jurisdiction for such vastly different instances as (just as mere examples) the Murrah Federal Building bombing in Oklahoma City and the attack on the USS Cole in the Port of Aden, both of which were obvious cases of terrorism, under the same entity. For the same reason, it is difficult to grant explicit jurisdiction to fight terrorism to either the military or to law enforcement. Terrorism is such a general term, with meaning differing from person to person, that doing so would be utterly foolish.
In many instances, the military has no jurisdiction, nor place, in dealing with terrorism. The Alfred P. Murrah Federal Building bombing is a prime example. I would be appalled to find military investigators or intelligence units investigating such an incident within the bounds of the United States. In this and other like instances, terrorism is clearly under the purview of law enforcement, either local or federal.
On the other hand, the military has similar jurisdiction when dealing with battlefield components of terrorism or terrorist acts perpetrated by or against its own personnel, such as the USS Cole or the Fort Hood example.
The question has only been muddled by the conflict between right and left leaning politicians with specific agendas within the United States. It was begun by the Bush administration’s declaration of war on terrorism, defining the conflict between democracy and totalitarianism as a war. It might more accurately be called an ideological struggle, a struggle between conflicting, mutually exclusive ideologies. If the whole “war” thing had never been introduced, it might have simplified things. Ironically, I don’t recall any real quandary when it came to dealing with “prisoners” of the cold war, once again a conflict between ideologies.
The conflict then is what to do with “terrorists” once our military has taken them captive in a foreign combat zone. I don’t believe the issue has ever been what to do with American citizens, or even foreign nationals, arrested on US soil, by US law enforcement, for either planning or executing a terrorist attack. This is where it gets fuzzy in regard to US national security. If there is insufficient evidence to convict a “terrorist” for criminal activity, and yet, the person was picked up fighting alongside terrorists and against US military personnel, is it rational and reasonable to just send the person back to where he’s from, knowing that he may just take up arms again against US military personnel?
I believe the answer is, if it is indeed a “war”, the international laws regarding the conduct of war, ought to be applied. If the “war” is still ongoing, the person ought to be held as a prisoner of that war until its conclusion. If it is something short of war, the person ought to be sent back to where he’s from. My critics will say, “If you send him back, he’ll just kill again.” They’ll also argue that by being held indefinitely, he may have developed animosity toward America where there was none, and so, he may be dangerous now when he wasn’t before. To my critics I would cite the Declaration of Independence, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” The critics will then say, “those rights are reserved for American citizens.” To that I would say, “ALL MEN…..” not just American citizens. It is contrary to the moral standard of America to hold individuals indefinitely, without giving them the right to apply for their liberty, or being able to prove their innocence. That's what Joseph Stalin and Saddam Hussein would do.
The American Intelligence Community is among the best in the world, if not THE best. There ought to be a very rational, and legal, means of monitoring these individuals, and using them, once tossed back into the population, to further develop America’s knowledge of Islamic extremist networks. Perhaps it seems simplistic, after all, I’m not an expert in such things, but biologists do this sort of thing all the time. They tag birds, animals, and even fish, then monitor their movements once back in the wild. There ought to be a great way of taking advantage of the situation and the people America has in its custody.
Saturday, December 5, 2009
Wednesday, December 2, 2009
Humanitarian Intervention
Approval of any major action taken by the United Nations must be given by the UN Security Council. Unfortunately, any of the five permanent members of the Security Council have the ability to veto any course of action voted upon by the council. As a result, the bureaucracy within the council virtually neuters its ability to take quick, decisive action. Article II basically states that no member state can take any action within or against any other state without the approval of the UN.
In some cases, member states have been compelled to circumvent the UN and its bureaucracy laden structure in order to accomplish meaningful humanitarian missions. A perfect example is the war in Kosovo in 1999. The UN Security Council (Russia and China) blocked any attempt by the other powers to prevent a repetition of the 1995 Bosnia genocide. Once again, the Christian Serbs were setting out to cleanse the former Yugoslavia by getting rid of the Muslim Albanian Kosovars. Following the botched attempt by the UN at “Peacekeeping” in Bosnia, the western powers on the UN Security Council flanked the UN by engaging in Kosovo by way of NATO, the consequential trans-Atlantic military alliance.
The gamut of problems which fall under the umbrella of humanitarian crisis is extensive, ranging from mere food aid for disaster relief, to military intervention to prevent or halt genocide. The military end of the gamut is the more controversial within the UN and has a tendency to cause strife between member states.
The moral dilemma between engaging in a humanitarian crisis and ignoring it is more complex than could be covered in multiple volumes. However, the west, due to its adherence to a “superior moral compass”, has typically engaged or considered engaging in various types of humanitarian crises in order to prevent or lessen the damage caused thereby. The totalitarian history of the west’s Asian counterparts seems to lean Russia and China away from humanitarian causes.
In democratic societies, the danger of intervening is that the citizenry is typically not very keen on seeing body bags come home in exchange for humanitarian benefit in some far off land. Inasmuch as the people hold the ultimate power in a democracy, elected officials are likely more willing to listen to popular opinion and therefore less likely to take risks which would have little political value.
The dilemma lies in the moral compass. It’s obvious that it would be morally commendable to intervene in some humanitarian crisis if the cost was zero, and most Americans would probably agree. But when the perceived costs of that intervention exceed its perceived value to the public, even if the costs might be well worth the outcome to a benefitted group, officials are likely to steer away from committing to it. The advantage to elected officials in a UN intervention, rather than a unilateral one, is that they can take credit if it goes well, but shrug it off on the UN if it doesn’t. If things had gone badly wrong in Kosovo, President Clinton would have heard about it in a bad way.
A major complication with circumventing the UN, as in the US invasion of Iraq in 2003, is that other states, member and non-member alike, may then use that action as justification and precedent in performing their own unilateral action. Russia may easily have used that very case when it invaded Georgia in 2008. This principle applies to humanitarian intervention as easily as military endeavors. China could easily invade a neighbor on humanitarian grounds using the precedent established by NATO in Kosovo. The advantage NATO has in this instance is that NATO is a broad coalition of numerous nations. The problem is that unilateral action undermines the international order established within the UN. If states rampantly disregard the principles of the UN, it might as well not exist.
In some cases, member states have been compelled to circumvent the UN and its bureaucracy laden structure in order to accomplish meaningful humanitarian missions. A perfect example is the war in Kosovo in 1999. The UN Security Council (Russia and China) blocked any attempt by the other powers to prevent a repetition of the 1995 Bosnia genocide. Once again, the Christian Serbs were setting out to cleanse the former Yugoslavia by getting rid of the Muslim Albanian Kosovars. Following the botched attempt by the UN at “Peacekeeping” in Bosnia, the western powers on the UN Security Council flanked the UN by engaging in Kosovo by way of NATO, the consequential trans-Atlantic military alliance.
The gamut of problems which fall under the umbrella of humanitarian crisis is extensive, ranging from mere food aid for disaster relief, to military intervention to prevent or halt genocide. The military end of the gamut is the more controversial within the UN and has a tendency to cause strife between member states.
The moral dilemma between engaging in a humanitarian crisis and ignoring it is more complex than could be covered in multiple volumes. However, the west, due to its adherence to a “superior moral compass”, has typically engaged or considered engaging in various types of humanitarian crises in order to prevent or lessen the damage caused thereby. The totalitarian history of the west’s Asian counterparts seems to lean Russia and China away from humanitarian causes.
In democratic societies, the danger of intervening is that the citizenry is typically not very keen on seeing body bags come home in exchange for humanitarian benefit in some far off land. Inasmuch as the people hold the ultimate power in a democracy, elected officials are likely more willing to listen to popular opinion and therefore less likely to take risks which would have little political value.
The dilemma lies in the moral compass. It’s obvious that it would be morally commendable to intervene in some humanitarian crisis if the cost was zero, and most Americans would probably agree. But when the perceived costs of that intervention exceed its perceived value to the public, even if the costs might be well worth the outcome to a benefitted group, officials are likely to steer away from committing to it. The advantage to elected officials in a UN intervention, rather than a unilateral one, is that they can take credit if it goes well, but shrug it off on the UN if it doesn’t. If things had gone badly wrong in Kosovo, President Clinton would have heard about it in a bad way.
A major complication with circumventing the UN, as in the US invasion of Iraq in 2003, is that other states, member and non-member alike, may then use that action as justification and precedent in performing their own unilateral action. Russia may easily have used that very case when it invaded Georgia in 2008. This principle applies to humanitarian intervention as easily as military endeavors. China could easily invade a neighbor on humanitarian grounds using the precedent established by NATO in Kosovo. The advantage NATO has in this instance is that NATO is a broad coalition of numerous nations. The problem is that unilateral action undermines the international order established within the UN. If states rampantly disregard the principles of the UN, it might as well not exist.
US Sovereignty vs. the UN
As a nation which prides itself on the “rule of law” in the social fabric of society; and one which supposedly respects and admires morality, justice, equality under the law, ethics – in short “traditional Judeo-Christian values” – in that society; and as a nation which ultimately values peace in order that one may freely go about life without the interference of war or crime, the United States of America must inherently appreciate the existence of the United Nations and the order it provides in the international arena. However, the UN Charter explicitly guarantees the sovereignty of nations, in other words, the UN is not the government of the world.
The United States of America, as an independent sovereign nation, whether guaranteed by the UN Charter or not, implicitly reserves the right to govern its own affairs in a way which best accomplishes the needs and protection of its people, its territory, and its existence. As a sovereign nation, if the interests of the United States of America come in conflict with the UN or any of its member states, if there is no middle ground to be compromised, the United States must act adamantly on behalf of its people out of obligation to them to insure their interests. The allegiance of the governing bodies of the United States is to its own people, first and foremost, and only secondarily to the betterment of the human condition across the globe, or to whatever other cause may arise.
As it pertains to the issue of national security, the UN is an excellent means to a better end, not the end itself. The UN is not the government of the world. As demonstrated by President George W. Bush in 2003 with his invasion of Iraq, whether one is in agreement or not with the act, the United States reserves the right to act for itself even it is if in conflict with the United Nations and its set of governing principles, or in disagreement with its member states. The governing principles of the United Nations do not, and cannot supersede the law of the United States of America in America. The wishes and demands of UN member states cannot supersede the needs and interests of the citizens of the United States of America when the latter's governing bodies are called upon to act on behalf of its citizens. The UN certainly must be respected in the international order, its customs and practices adhered to insofar as any sovereign nation is reasonably able, but each sovereign nation must retain the right to act unilaterally on behalf of its citizens, if or when the UN is unable or unwilling to do so. Until the world as a whole is willing and wanting to forfeit its sovereignty to the United Nations, the nations of the world must continue with the traditional role of sovereign governments. This must remain the case with the United States of America until that time. The UN is still not the government of the world.
The United States of America, as an independent sovereign nation, whether guaranteed by the UN Charter or not, implicitly reserves the right to govern its own affairs in a way which best accomplishes the needs and protection of its people, its territory, and its existence. As a sovereign nation, if the interests of the United States of America come in conflict with the UN or any of its member states, if there is no middle ground to be compromised, the United States must act adamantly on behalf of its people out of obligation to them to insure their interests. The allegiance of the governing bodies of the United States is to its own people, first and foremost, and only secondarily to the betterment of the human condition across the globe, or to whatever other cause may arise.
As it pertains to the issue of national security, the UN is an excellent means to a better end, not the end itself. The UN is not the government of the world. As demonstrated by President George W. Bush in 2003 with his invasion of Iraq, whether one is in agreement or not with the act, the United States reserves the right to act for itself even it is if in conflict with the United Nations and its set of governing principles, or in disagreement with its member states. The governing principles of the United Nations do not, and cannot supersede the law of the United States of America in America. The wishes and demands of UN member states cannot supersede the needs and interests of the citizens of the United States of America when the latter's governing bodies are called upon to act on behalf of its citizens. The UN certainly must be respected in the international order, its customs and practices adhered to insofar as any sovereign nation is reasonably able, but each sovereign nation must retain the right to act unilaterally on behalf of its citizens, if or when the UN is unable or unwilling to do so. Until the world as a whole is willing and wanting to forfeit its sovereignty to the United Nations, the nations of the world must continue with the traditional role of sovereign governments. This must remain the case with the United States of America until that time. The UN is still not the government of the world.
Public Opinion and the Military
Use of American military forces abroad has always been a contentious issue. In question more broadly has been the conflict between two ideologies, Isolationism and Globalism (or internationalism; or interventionism). The debate between the two in America goes back to its genesis; the debate over whether America should keep to its own borders, or if its interests require, that it exert its influence abroad.
At the outset of the Second World War in Europe, American public opinion was largely opposed to the committal of US forces to that theater. The opinion was largely, “Let the Europeans deal with their own mess!” After all, America had intervened in World War One and the Europeans clearly hadn’t learned their lesson. Roosevelt had wanted to commit American forces to the European theater long before the Japanese Attack on Pearl Harbor and it was American public opinion that prevented him. He needed the Japanese awakening to persuade the American public that American intervention in Europe was necessary. It was public opinion, ultimately, that brought the United States of America into the Second World War.
America’s engagement in Vietnam largely ended as a result of tremendous public pressure, or negative public opinion. Over the decade long war, the Vietnam conflict garnered increasing public criticism. In this instance, Isolationism had grown in the arena of foreign policy as a result of the Second World War and the Korean conflict. As Vietnam dragged on, American public opinion grew until finally, under U.S. President Gerald Ford, American troops were completely withdrawn from Vietnam in 1975. The conflict rested upon the premise that democracy’s mortal enemy was communism, and that democracy, in order to prevail on the global stage, needed to stem the tide of communist expansionism. The American public didn’t see things quite in that light. In large part because of the media, American public opinion turned so strongly against Vietnam that Washington finally conceded and removed the last remaining American troops in April, 1975.
In 1993, American forces had been committed to Somalia as part of a UN aid program to protect and distribute relief aid to starving Somalis. The country was run largely by warlords and was in basic anarchy. The American commander in that theater authorized a raid aimed at abducting Mohamed Farrah Aidid, a leading warlord and strongman in Mogadishu, along with several of his top lieutenants. The raid succeeded in part, but failed to net Aidid, and resulted in the deaths of several American soldiers. The media, as in Vietnam, couldn’t get enough of the carnage of war, and succeeded in driving public opinion in opposition to the American presence in Somalia. Many Americans saw Somalia as a lawless, godless region and believed American troops had no place in such a god-forsaken part of the world. It didn’t take long for President Bill Clinton to withdraw American forces.
More recently, with waning public support for “Operation Iraqi Freedom”, President Barack Obama promised in his election campaign that he would withdraw American troops from Iraq. The American public, at least in some part, had begun to desert the Iraq war and see it as another Vietnam. Obama viewed his election, as do all American presidents, as a “referendum” on the former president’s policies, and immediately set out to withdraw American troops from Iraq. Although public opinion is in no way as galvanized against the Iraq war as it was against Vietnam, the people have spoken, and public opinion has again been a part in shaping American policy.
Public opinion will always shape the ebb and flow of the use of military force as well as American policy generally. The nature of a democracy demands it. If public opinion ceased to be a factor in such aspects of government, America would cease to be a democracy.
At the outset of the Second World War in Europe, American public opinion was largely opposed to the committal of US forces to that theater. The opinion was largely, “Let the Europeans deal with their own mess!” After all, America had intervened in World War One and the Europeans clearly hadn’t learned their lesson. Roosevelt had wanted to commit American forces to the European theater long before the Japanese Attack on Pearl Harbor and it was American public opinion that prevented him. He needed the Japanese awakening to persuade the American public that American intervention in Europe was necessary. It was public opinion, ultimately, that brought the United States of America into the Second World War.
America’s engagement in Vietnam largely ended as a result of tremendous public pressure, or negative public opinion. Over the decade long war, the Vietnam conflict garnered increasing public criticism. In this instance, Isolationism had grown in the arena of foreign policy as a result of the Second World War and the Korean conflict. As Vietnam dragged on, American public opinion grew until finally, under U.S. President Gerald Ford, American troops were completely withdrawn from Vietnam in 1975. The conflict rested upon the premise that democracy’s mortal enemy was communism, and that democracy, in order to prevail on the global stage, needed to stem the tide of communist expansionism. The American public didn’t see things quite in that light. In large part because of the media, American public opinion turned so strongly against Vietnam that Washington finally conceded and removed the last remaining American troops in April, 1975.
In 1993, American forces had been committed to Somalia as part of a UN aid program to protect and distribute relief aid to starving Somalis. The country was run largely by warlords and was in basic anarchy. The American commander in that theater authorized a raid aimed at abducting Mohamed Farrah Aidid, a leading warlord and strongman in Mogadishu, along with several of his top lieutenants. The raid succeeded in part, but failed to net Aidid, and resulted in the deaths of several American soldiers. The media, as in Vietnam, couldn’t get enough of the carnage of war, and succeeded in driving public opinion in opposition to the American presence in Somalia. Many Americans saw Somalia as a lawless, godless region and believed American troops had no place in such a god-forsaken part of the world. It didn’t take long for President Bill Clinton to withdraw American forces.
More recently, with waning public support for “Operation Iraqi Freedom”, President Barack Obama promised in his election campaign that he would withdraw American troops from Iraq. The American public, at least in some part, had begun to desert the Iraq war and see it as another Vietnam. Obama viewed his election, as do all American presidents, as a “referendum” on the former president’s policies, and immediately set out to withdraw American troops from Iraq. Although public opinion is in no way as galvanized against the Iraq war as it was against Vietnam, the people have spoken, and public opinion has again been a part in shaping American policy.
Public opinion will always shape the ebb and flow of the use of military force as well as American policy generally. The nature of a democracy demands it. If public opinion ceased to be a factor in such aspects of government, America would cease to be a democracy.
Tuesday, December 1, 2009
Congressional Oversight in Intelligence Affairs
Congress maintains oversight of the intelligence community by the means of congressional committees. The intelligence oversight committee in the House of Representatives is the House Permanent Select Committee on Intelligence and the corresponding committee in the Senate is the Senate Select Committee on Intelligence (Sarkesian 2008, 145-146).
Through these committees, Congress has the ability to exercise oversight authorized through two primary public laws, the Hughes-Ryan Amendment and the Boland Amendments (Sarkesian 2008, 158). The Hughes-Ryan Amendment, named for Senator Harold Hughes of Iowa (US Congress, Biographical…) and Representative Leo Ryan of California (US House, Historical…), was passed in 1974 and required the Executive to keep the Legislative Branch informed regarding covert operations undertaken by the American intelligence apparatus. The Executive was thereafter required to inform congress in advance of any planned covert operations which were not deemed time sensitive and critical to the interests of the Untied States. As always, Congress exercised authority – oversight – over the intelligence community by tugging on the purse strings. For instance, Congress disapproved of a disclosed covert operation in Angola in 1975 and so, simply cut the funding for it (US House, Congressional…).
The three Boland Amendments, so called for Edward Boland, a Representative from Massachusetts, and enacted in 1982-1984, progressively attempted to eliminate American funding for the Contras in Nicaragua. The final installment read: “During fiscal year 1985, no funds available to the Central Intelligence Agency, the Department of Defense, or any other agency or entity of the United States involved in intelligence activities may be obligated or expended for the purpose or which would have the effect of supporting, directly or indirectly, military or paramilitary operations in Nicaragua by any nation, group, organization, movement, or individual.” (Federation).
The September 11 Report states: “Of all our recommendations, strengthening congressional oversight may be among the most difficult and important. So long as oversight is governed by current congressional rules and resolutions, we believe the American people will not get the security they want and need. The United States needs a strong, stable, and capable congressional committee structure to give America’s national intelligence agencies oversight, support, and leadership” (9/11, 419). The commission clearly viewed the current structure of Congressional Intelligence Oversight as lacking. Too disjointed, too confused, too fragmented. The commission believed the oversight of intelligence was in need of restructuring. To that end, they recommended one of two possible resolutions: first that a Joint Committee be formed which would oversee all intelligence activity, from appropriations to activities; second, that a single committee in each house of congress oversee intelligence operations, permanent and with standing membership and nonpartisan staff. It also recommends improvement in transition from one administration to another. (9/11, 422)
It seems to me the disconnect between the US Congress and the American intelligence community is a disaster in the making. Congress should have “oversight” in order to insure proper adherence to American standards of morality and ethics, and to insure the natural variance between a strong intelligence community and a vibrant democracy doesn’t develop into something more problematic. Congress’ role is not to exert authority and control, and incessantly undermine basic standards of confidentiality in order to achieve some political end. The intelligence community must be allowed to perform its intended function without fear of political reprisal every time one administration is replaced by another of a differing political persuasion. The CIA specifically seems to have become the congressional whipping boy, taking heat from Congress every time it needs to deflect blame or distract the public. Starting with the terrorist attacks of September 11, 2001, when the intelligence community took unending criticism for failing to stop the attacks before they happened, to the recent denigration of its efforts to insure 9/11 doesn’t happen again, the intelligence community continues to be smeared and castigated for political purposes. Congress is not adept at running the CIA, nor is it intended to. In my view, Congress should back off of the intelligence community, recognizing the difference between oversight and micromanagement , and let those professionals do their jobs.
Federation of American Scientists. Iran Contra: The Undrelying Facts. http://www.fas.org/irp/offdocs/walsh/part_i.htm (accessed October 28, 2009)
Sarkesian, Sam C., John Allen Williams, and Stephen J. Cimbala. 2008. US National Security: Policymakers, Processes & Politics. Boulder, CO: Lynne Rienner Publishers, Inc.
The 9/11 Commission Report. http://www.9-11commission.gov/report/911Report.pdf (accessed October 28, 2009) US Congress. Biographical Directory of the United States Congress. http://bioguide.congress.gov/scripts/biodisplay.pl?index=H000922 (accessed October 28, 2009)
US House of Representatives. Congressional Precedents and Powers. http://www.rules.house.gov/Archives/jcoc2ar.htm (accessed October 28, 2009)
US House of Representatives. Historical Highlights. http://clerk.house.gov/art_history/highlights.html?action=view&intID=222 (accessed October 28, 2009)
Through these committees, Congress has the ability to exercise oversight authorized through two primary public laws, the Hughes-Ryan Amendment and the Boland Amendments (Sarkesian 2008, 158). The Hughes-Ryan Amendment, named for Senator Harold Hughes of Iowa (US Congress, Biographical…) and Representative Leo Ryan of California (US House, Historical…), was passed in 1974 and required the Executive to keep the Legislative Branch informed regarding covert operations undertaken by the American intelligence apparatus. The Executive was thereafter required to inform congress in advance of any planned covert operations which were not deemed time sensitive and critical to the interests of the Untied States. As always, Congress exercised authority – oversight – over the intelligence community by tugging on the purse strings. For instance, Congress disapproved of a disclosed covert operation in Angola in 1975 and so, simply cut the funding for it (US House, Congressional…).
The three Boland Amendments, so called for Edward Boland, a Representative from Massachusetts, and enacted in 1982-1984, progressively attempted to eliminate American funding for the Contras in Nicaragua. The final installment read: “During fiscal year 1985, no funds available to the Central Intelligence Agency, the Department of Defense, or any other agency or entity of the United States involved in intelligence activities may be obligated or expended for the purpose or which would have the effect of supporting, directly or indirectly, military or paramilitary operations in Nicaragua by any nation, group, organization, movement, or individual.” (Federation).
The September 11 Report states: “Of all our recommendations, strengthening congressional oversight may be among the most difficult and important. So long as oversight is governed by current congressional rules and resolutions, we believe the American people will not get the security they want and need. The United States needs a strong, stable, and capable congressional committee structure to give America’s national intelligence agencies oversight, support, and leadership” (9/11, 419). The commission clearly viewed the current structure of Congressional Intelligence Oversight as lacking. Too disjointed, too confused, too fragmented. The commission believed the oversight of intelligence was in need of restructuring. To that end, they recommended one of two possible resolutions: first that a Joint Committee be formed which would oversee all intelligence activity, from appropriations to activities; second, that a single committee in each house of congress oversee intelligence operations, permanent and with standing membership and nonpartisan staff. It also recommends improvement in transition from one administration to another. (9/11, 422)
It seems to me the disconnect between the US Congress and the American intelligence community is a disaster in the making. Congress should have “oversight” in order to insure proper adherence to American standards of morality and ethics, and to insure the natural variance between a strong intelligence community and a vibrant democracy doesn’t develop into something more problematic. Congress’ role is not to exert authority and control, and incessantly undermine basic standards of confidentiality in order to achieve some political end. The intelligence community must be allowed to perform its intended function without fear of political reprisal every time one administration is replaced by another of a differing political persuasion. The CIA specifically seems to have become the congressional whipping boy, taking heat from Congress every time it needs to deflect blame or distract the public. Starting with the terrorist attacks of September 11, 2001, when the intelligence community took unending criticism for failing to stop the attacks before they happened, to the recent denigration of its efforts to insure 9/11 doesn’t happen again, the intelligence community continues to be smeared and castigated for political purposes. Congress is not adept at running the CIA, nor is it intended to. In my view, Congress should back off of the intelligence community, recognizing the difference between oversight and micromanagement , and let those professionals do their jobs.
Federation of American Scientists. Iran Contra: The Undrelying Facts. http://www.fas.org/irp/offdocs/walsh/part_i.htm (accessed October 28, 2009)
Sarkesian, Sam C., John Allen Williams, and Stephen J. Cimbala. 2008. US National Security: Policymakers, Processes & Politics. Boulder, CO: Lynne Rienner Publishers, Inc.
The 9/11 Commission Report. http://www.9-11commission.gov/report/911Report.pdf (accessed October 28, 2009) US Congress. Biographical Directory of the United States Congress. http://bioguide.congress.gov/scripts/biodisplay.pl?index=H000922 (accessed October 28, 2009)
US House of Representatives. Congressional Precedents and Powers. http://www.rules.house.gov/Archives/jcoc2ar.htm (accessed October 28, 2009)
US House of Representatives. Historical Highlights. http://clerk.house.gov/art_history/highlights.html?action=view&intID=222 (accessed October 28, 2009)
National Security Policy - Clinton vs. Bush
As President Bill Clinton took office the principle adversary of the United States for nearly half a century crumbled. Clinton stated soon thereafter that the United States found itself in a unique position, suggesting that with the dissolution of the Soviet Union, America would be able to put aside the rivalry of the cold war and focus on the betterment of the general human condition. His suggested intent was to improve economies, bear down on civil rights abuses, decrease greenhouse gas emissions, and generally be more neighborly to America’s global neighbors. In a word, Clinton’s national security strategy involved engagement, engagement of every nation that wanted to engage.
Unfortunately his strategy seemed to included a whole lot of engaging and not a whole lot of acting. In case after case, Clinton refused to take risks. It was easy for him to deploy American troops to far off areas, launch tomahawk missiles and engage in outraged rhetoric, but when America’s security demanded real forceful response, when America’s security was imperiled by outside threats, his response was to cut military spending and expect America’s defenses to do more work on less pay.
Terrorist attacks and numerous engagements of American military personnel dotted the Clinton Administration’s time in office. The first World Trade Center bombing, Khobar Towers, Kenya/Tanzania embassy bombings and the USS Cole highlight the rising strategic imperative terrorism posed to the United States. Interstate conflicts of Clinton’s tenure include Bosnia, Haiti, Iraq and Afghanistan, as well as numerous African engagements from Liberia to Tanzania. The defining moment of Clinton’s national security strategy of engagement came, I believe, when shortly after taking office, on October 3-4, 1993, American military personnel attempted to capture Mohamed Farrah Aidid, a Somali warlord in the capital, Mogadishu. Defining because it set the pattern for future potential American military confrontations throughout Clinton’s presidency, that of inaction. Clinton ordered the withdrawal of American troops within days of the incident. Although American troops were frequently deployed throughout his presidency, Clinton thereafter shied away from committing American troops to combat but more than a dozen times sent American forces to police the globe. Clinton too heavily engaged in the left wing philosophy that pacifism and appeasement are rational means of confronting legitimate threats to America’s national security.
When George W. Bush took office he set about increasing support for America’s military (albeit not by much) and assembling a national security strategy that took on very definite threats rather than cavorting in vagaries as a means of evading problematic issues. Those threats included rogue states, Weapons of Mass Destruction and terrorism, with heavy emphasis on ballistic missile defense. Bush initially believed America’s greatest threat would come from rogue sovereign states such as Iran, Iraq, and North Korea. His BMD plans suggest he thought the threat of a ballistic missile attack was America’s gravest threat. Perhaps he believed there was no grave threat and BMD was a rational focal point for national security direction. Although Bush included terrorism in his national security assessments, he certainly didn’t give it the attention it probably deserved (it’s easy to say that in hindsight).
Terrorism has been a problem for the United States for decades and the number of attacks against American interests worldwide since the 1970s is quite notable. Ronald Regan saw dozens of terrorist attacks in his time in office, from both drug cartels and Islamic extremists, Clinton experienced the same, and George W. Bush should have had the foresight to realize that unconventional and asymmetric warfare would likely be a major source of international strife in the new millennium. While Clinton may be scorned for his flighty and noncommittal approach to national security, dabbling in numerous engagements around the world, George W. Bush, upon transition, may be seen as incognito when it comes to the reality of the threats he faced. The actual risk posed by some rogue state was probably quite minimal, especially regarding ballistic missiles, but if he had learned from the Clinton administration, he would have realized that small but heated conflicts crossing religious and cultural lines were the most persistent and notorious of the conflicts faced by past presidents.
Bush came around quickly following September 11, 2001 and although he didn’t entirely abandon his previously held positions regarding rogue states and BMD, he redirected the course of American national security to more effectively counter the threats posed by Islamic extremism and terrorism generally. He took the battle to the extremists rather than waiting for the battle to come to the homeland. He set about “winning hearts and minds” and more fully engaged civilizations in order to root out the ideologies that feed extremism.
The difference between the Clinton administration’s national security strategy as it played out, and the Bush administration’s was moderate. The difference between the national security strategy of the first 8 months of the Bush administration, and the strategy that followed was much more pronounced.
Unfortunately his strategy seemed to included a whole lot of engaging and not a whole lot of acting. In case after case, Clinton refused to take risks. It was easy for him to deploy American troops to far off areas, launch tomahawk missiles and engage in outraged rhetoric, but when America’s security demanded real forceful response, when America’s security was imperiled by outside threats, his response was to cut military spending and expect America’s defenses to do more work on less pay.
Terrorist attacks and numerous engagements of American military personnel dotted the Clinton Administration’s time in office. The first World Trade Center bombing, Khobar Towers, Kenya/Tanzania embassy bombings and the USS Cole highlight the rising strategic imperative terrorism posed to the United States. Interstate conflicts of Clinton’s tenure include Bosnia, Haiti, Iraq and Afghanistan, as well as numerous African engagements from Liberia to Tanzania. The defining moment of Clinton’s national security strategy of engagement came, I believe, when shortly after taking office, on October 3-4, 1993, American military personnel attempted to capture Mohamed Farrah Aidid, a Somali warlord in the capital, Mogadishu. Defining because it set the pattern for future potential American military confrontations throughout Clinton’s presidency, that of inaction. Clinton ordered the withdrawal of American troops within days of the incident. Although American troops were frequently deployed throughout his presidency, Clinton thereafter shied away from committing American troops to combat but more than a dozen times sent American forces to police the globe. Clinton too heavily engaged in the left wing philosophy that pacifism and appeasement are rational means of confronting legitimate threats to America’s national security.
When George W. Bush took office he set about increasing support for America’s military (albeit not by much) and assembling a national security strategy that took on very definite threats rather than cavorting in vagaries as a means of evading problematic issues. Those threats included rogue states, Weapons of Mass Destruction and terrorism, with heavy emphasis on ballistic missile defense. Bush initially believed America’s greatest threat would come from rogue sovereign states such as Iran, Iraq, and North Korea. His BMD plans suggest he thought the threat of a ballistic missile attack was America’s gravest threat. Perhaps he believed there was no grave threat and BMD was a rational focal point for national security direction. Although Bush included terrorism in his national security assessments, he certainly didn’t give it the attention it probably deserved (it’s easy to say that in hindsight).
Terrorism has been a problem for the United States for decades and the number of attacks against American interests worldwide since the 1970s is quite notable. Ronald Regan saw dozens of terrorist attacks in his time in office, from both drug cartels and Islamic extremists, Clinton experienced the same, and George W. Bush should have had the foresight to realize that unconventional and asymmetric warfare would likely be a major source of international strife in the new millennium. While Clinton may be scorned for his flighty and noncommittal approach to national security, dabbling in numerous engagements around the world, George W. Bush, upon transition, may be seen as incognito when it comes to the reality of the threats he faced. The actual risk posed by some rogue state was probably quite minimal, especially regarding ballistic missiles, but if he had learned from the Clinton administration, he would have realized that small but heated conflicts crossing religious and cultural lines were the most persistent and notorious of the conflicts faced by past presidents.
Bush came around quickly following September 11, 2001 and although he didn’t entirely abandon his previously held positions regarding rogue states and BMD, he redirected the course of American national security to more effectively counter the threats posed by Islamic extremism and terrorism generally. He took the battle to the extremists rather than waiting for the battle to come to the homeland. He set about “winning hearts and minds” and more fully engaged civilizations in order to root out the ideologies that feed extremism.
The difference between the Clinton administration’s national security strategy as it played out, and the Bush administration’s was moderate. The difference between the national security strategy of the first 8 months of the Bush administration, and the strategy that followed was much more pronounced.
CIA Drone War
The CIA has been the cause of a ruckus over the past several years regarding the use of Unmanned Aerial Vehicles (UAV) to target and kill the leadership of America’s enemies in the Middle East. These UAVs are equipped with highly developed surveillance, tracking and targeting equipment, and armed with either Hellfire air to ground missiles, or Joint Direct Attack Munitions (JDAM) smart bombs. The UAVs are flown remotely and are often unseen and unheard before they strike. The surveillance equipment transmits a video signal of whatever or whoever is being targeted to the remote flight controller who then is able to launch a strike much as if he was playing a video game.[1] The leadership of al Qaeda and the Taliban specifically has been on the hot end of these strikes and, under the new presidential administration, it seems to be getting hotter. The debate focuses on the CIA’s use of these UAVs and numerous questions which have befuddled opponents and proponents alike.
The ruckus is in regard to the legality, morality, and efficacy of the UAV strikes. As with any aspect of international relations, there are those who are in favor of the strikes, and those who are opposed. This issue is by no means clear-cut and the holes in each argument are only exacerbated by severe lack of clarity on the subject within the codes of domestic law, accepted international law, and definitions and interpretations which cloud the issue and confuse any possible solution.
The most prominent aspect of the debate centers on legality. Two sets of legal codes have bearing on the question of legality; first, domestic law, and second, international law. Domestic law deals with the issue in terms of assassination, at least in the minds of the opponents. International law, on the other hand, evades the subject of assassination all together and forces the observer to make sense of various badly written codices to draw any meaningful conclusions. The latter provides guidelines for use of lethal force which in some instances only may apply.[2]
Before a discussion of law can take place, either domestic or international, it must be understood that there is no widely accepted definition of assassination. The word assassination is used in this thesis to encompass the practice of the CIA of killing enemy personnel using UAV strikes. This piece of the debate figures in nicely on behalf of the Bush administration inasmuch as it has defined the practice engaged in by the CIA as combat rather than assassination. The lack of a specific legal definition enables justification for numerous activities which an ordinary reasonable person might consider to be assassination, but which may be defined in other ways. It must also be noted that within the debate, several other words are used interchangeably with the word assassination, extra-judicial killing, among others.[3]
LEGALITY
Domestic Law
Domestic law regarding assassination comes from two sources; first, what’s known as the Lieber Code, and second, a series of executive orders. The Lieber Code, established in 1863 by Abraham Lincoln,[4] outlines “the Government of Armies of the United States in the Field.”[5] It is much the same as an executive order and outlines the authorized and prohibited actions of the military, of which the president is the Commander in Chief. The Lieber Code states:
“The law of war does not allow proclaiming either an individual belonging to the hostile army, or a citizen, or a subject of the hostile government, an outlaw, who may be slain without trial by any captor, any more than the modern law of peace allows such intentional outlawry; on the contrary, it abhors such outrage. The sternest retaliation should follow the murder committed in consequence of such proclamation, made by whatever authority. Civilized nations look with horror upon offers of rewards for the assassination of enemies as relapses into barbarism.”[6]
In some sense, this article bans wanted posters which read: “Wanted: Dead or Alive” or anything resembling such an advertisement. Although the law speaks specifically to “rewards for the assassination of enemies”, it only mentions a reference to “The law of war” and states that said law prohibits proclaiming an individual an outlaw and authorizing his extrajudicial killing, and never addresses the targeting of enemy personnel by government forces. It does not prohibit the assassination of enemy personnel.
The second article of domestic law which relates to the killing of enemy personnel by the CIA is a series of Executive Orders (EO): EO # 11,905, issued by President Gerald Ford in 1976;[7] EO # 12,036, issued by President Jimmy Carter in 1978;[8] and EO # 12,333 issued by President Ronald Reagan in 1981.[9] Each of these, with minor variations, prohibits assassination or conspiracy to engage in assassination by personnel either employed by or working on behalf of the United States Government. The problem with these when debating the use of UAVs by the CIA in targeting and killing enemy personnel is that they are not codified, they are theoretically reversible by later EOs, and they do not govern the actions of the President as the ultimate executive officer in the executive branch. Basically, the president can rescind or rewrite an EO if he wants to.
In authorizing the use of force by the CIA against enemy personnel in this case, the George W. Bush administration has made it clear that this assassination prohibition does not apply to actions taken against enemies of the United States in a time of war, especially when that enemy has made it perfectly clear that its objective is to continue killing Americans, anytime, anywhere, anyhow.[10]
International Law
International law regarding assassination is virtually nonexistent. In all of the Geneva Conventions, the UN Charter, and the Hague Conventions, there is no reference to assassination.[11] It is neither defined, nor prohibited in international law. There are however references to aspects of assassination which could indirectly define how assassination is used in international conflict.[12]
General use of lethal force is justified in the UN Charter under Article 51 when a member state acts in self defense. The article reads:
“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”[13]
As stated in Article 51, member states retain the right of self-defense. Article Two of the charter suggests member states “refrain” from using force[14] but Article 51 clearly trumps this suggestion. The striking lack of clarity in Article 51 leaves the potential for gaping holes in any attempt to support or oppose a use of force for any reason. First, the definition of an “armed attack” is open to the interpretation of the attacked party. To go a little deeper, the definition of “armed” and the definition of “attack” may be different to different people and due to the relatively fearful nature of the UN, a little creativity would go a long way in defining “armed attack” in one's favor.
For example, it is readily apparent that the invasion of Kuwait by Saddam Hussein of Iraq in 1990 fits the general definition of “armed attack”. Of that, few would argue. However, if for some reason Iran decided to lay maritime mines to impede shipping through the Strait of Hormuz, would this be considered an armed attack? It would certainly be armed, but would it be considered an attack? Large numbers of western, oil poor nations would certainly think so.
When al Qaeda jihadis hijacked four airliners on September 11, 2001 using nothing but knives and razorblades, was it an armed attack? It was certainly an attack, but on an international scale could it have been considered “armed”? Perhaps on the streets of New York City it might have been considered an armed attack, but on an international stage it is hard to suggest that men wielding pocket knives pose an international hazard. Until September 11, relatively few people would have considered a pilot in the cockpit of his aircraft to be armed. Nevertheless, ever since that day, the oft repeated description of those airliners has been as guided missiles.
To be short, virtually any act of physical hostility from one entity to another, whether state or non-state actors, could be considered an armed attack with a little creativity.
Within Article 51 there is no mention of how said self-defense should occur in regard to such things as proportionality of force and measured response. In other words, if Hamas lobs a thousand small surface to surface missiles into Israel killing a mere handful of civilians, and Israel responds by launching a vastly disproportionate ground invasion to eliminate the threat of further “armed attack”, based solely on Article 51, Israel is justified because there is no clarification of “inherent right...of self-defence”. There is no qualifier behind the “inherent right” which could be interpreted as vastly disproportionate use of force.[15]
By this statement, e.g. “inherent right...of self-defence”, it is natural to assume that assassination would be a permissible defense no matter the nature of the initial attack since there is no specific prohibition on assassination.
As it pertains to morality, the CIA program of assassinating top al Qaeda and Taliban terrorists seems right in its element. The opponents of the UAV program often cite the numbers of casualties, usually civilian, which the drones have inflicted.[16] Depending on the source as well as the time period the estimate covers, these numbers have quite a range but generally between the ramp up of these attacks by the Bush administration to President Obama's forth month in office the casualty total comes to between 600 and 700 individuals.[17] One estimate puts the kill ratio of civilians killed to al Qaeda leaders at 50 to 1.[18]
The morality argument is two pronged, the first lying in the morality of assassination itself. As already explained it is a difficult task to determine whether or not assassination is moral if few can agree on the definition of assassination, nor can they agree on whether or not these drone attacks constitute assassination.
The second morality argument lies in the collateral damage. This element is somewhat less problematic. At the end of January, 2006, Ayman al Zawahiri, Osama bin Laden's right hand man, delivered an address to the world in which he called President George W. Bush “the butcher of Washington”[19] for the Muslim civilians who have perished as a result of America's wars in the middle east. This coming from a man and an organization which intentionally target, not only western civilians, but Muslims as well, all in order to turn public opinion and serve his/its own interests.
Although it may be easy to justify the killing of Muslim civilians by American forces simply because that's what the Muslims do, this logic is unwise and irrational. A 50 to 1 kill ratio using UAVs is no better than the United States using the same wanton disregard for human life against the jihadis that they have used against America. This strategy will likely provoke the same animosity in the Middle East toward the United States as September 11, 2001 provoked in America toward the jihadis. In a part of the world where the only way to win the war is to win the hearts and minds of the people, provoking this kind of animosity is probably a bad idea. Not only is it bad PR on the part of the Americans, but it provides unending propaganda fodder for the jihadis.
EFFICACY
As already explained the kill ratio of civilians to al Qaeda leaders is probably quite poor. Although it may be impossible to verify the numbers claimed by either the United States Government, which tend to look better than 50 to 1, or by whatever other source has claims to make about the civilians killed by CIA operated UAVs, it is clear the ratio is not particularly good. With that in mind, it is important to observe that the cost of the program in terms of propaganda ammunition for the jihadis is tremendous. Whether the numbers play out in reality or not is immaterial when al Qaeda and the Taliban are using the images of the dead women and children to stir up animosity toward the west.
The jihadis do not necessarily inspire loyalty among the civilian population. In fact, it's quite likely that relatively few civilians in Afghanistan and Pakistan actually identify with the jihadis or feel any loyalty to them. It is more likely that most of the population would rather they keep to someone else's town.[20] However, when the Americans fly in and kill half of a person's family, that provides pretty strong motivation to join with the enemies of the Americans, whether they agree philosophically or not. If the Americans were there building infrastructure, and the jihadis were the ones killing people's families, as was the case in Iraq, it would be much more likely that the jihadis would become the ones alienated from the population. The jihadis would be the ones losing the battle for hearts and minds rather than the Americans.[21]
CONCLUSION
The three major arguments in the debate about the use of UAVs by the CIA to strike at the leadership of al Qaeda and the Taliban each have significant flaws. The legality argument is too full of holes to hold much water. The morality argument, while logical in some ways, is either based on the nonexistent definition of assassination or finds fault in the amount of collateral damage caused by the strikes. When the national security of the United States and other western powers is at stake, it is hard to justify the cessation of the program on the moral grounds identified. Finally, and most reasonably, is the efficacy argument. It is counterproductive for America to continue to further alienate the Muslim population by continuing a program that yields such limited results.
It seems the most reasonable plan moving forward would be to continue utilizing the drones, but to severely curtail their kill rate. It would be nearly as irrational to completely eliminate such a potent and useful weapon system as it would be to rely entirely on it. Stricter criteria for strikes ought to be drawn up to limit the strikes as they have been permitted and allow only the most obvious targets to be engaged.
It would be foolish to believe that war in any sense is ideal and as foolish to believe that the jihadis are anything less than barbaric in their methods of waging war. The national security of the United States and their allies should be the greatest concern when judging this issue and it seems that at this point in the battle, the most valuable asset in defeating the jihadis would be to have the confidence and loyalty of the population. This should be the objective the CIA in their UAV operations into the foreseeable future.
[1] Christopher Drew, “Drones Are Weapons of Choice in Fighting Qaeda,” March 16, 2009. http://www.nytimes.com/2009/03/17/business/17uav.html?_r=3&pagewanted=1&ref=world. (accessed November 14, 2009).
[2] Jason D. Soderblom, “Time to Kill? State Sponsored Assassination and International Law,” February 11, 2004. http://world-ice.com/Articles/Assassinations.pdf. (accessed November 19, 2009).
[3] Philip Alston, interview by Amy Goodman, Democracy Now, October 28, 2009. http://www.democracynow.org/2009/10/28/un_special_rapporteur_on_extrajudicial_killings. (November 16, 2009).
[4] Gerry J. Gilmore, “Modern Law of Warfare Instituted During the Civil War,” April 7, 2003. http://www.defenselink.mil/news/newsarticle.aspx?id=29147. (accessed November 14, 2009).
[5] Lieber Code: Section IX: Article 148. 1863. http://www.icrc.org/ihl.nsf/FULL/110?OpenDocument. (accessed November 13, 2009).
[6] Lieber Code: Section IX: Article 148. 1863. http://www.icrc.org/ihl.nsf/FULL/110?OpenDocument. (accessed November 13, 2009).
[7] Executive Order no. 11,905, United States Foreign Intelligence Activities, Sec. 5 (g), (February 18, 1976). http://www.fordlibrarymuseum.gov/library/speeches/760110e.htm. (accessed November 14, 2009).
[8] Executive Order no. 12,036, United States Intelligence Activities, Section 2, Title 305, (January 24, 1978).http://www.fas.org/irp/offdocs/eo/eo-12036.htm. (accessed November 14, 2009).
[9] Executive Order no. 12,333, United States Intelligence Activities, Part 2, Title 11, (December 4, 1981). http://www.tscm.com/EO12333.html. (accessed November 14, 2009).
[10] Mark Mazzetti and Scott Shane, “C.I.A. Had Plan to Assassinate Qaeda Leaders,” New York Times, July 13, 2009. HTTP://WWW.NYTIMES.COM/2009/07/14/US/14INTEL.HTML?_R=1. (accessed November 16, 2009).
[11] Jason D. Soderblom, “Time to Kill? State Sponsored Assassination and International Law,” February 11, 2004. http://world-ice.com/Articles/Assassinations.pdf. (accessed November 19, 2009).
[12] Jason D. Soderblom, “Time to Kill? State Sponsored Assassination and International Law,” February 11, 2004. http://world-ice.com/Articles/Assassinations.pdf. (accessed November 19, 2009).
[13] United Nations, “Charter of the United Nations,” Chapter VII, Article 51. June 26, 1945. http://www.un.org/en/documents/charter/chapter7.shtml. (accessed November 14, 2009).
[14] United Nations, “Charter of the United Nations,” Chapter I, Article 2. June 26, 1945. http://www.un.org/en/documents/charter/chapter1.shtml. (accessed November 14, 2009).
[15] United Nations, “Charter of the United Nations,” Chapter VII, Article 51. June 26, 1945. http://www.un.org/en/documents/charter/chapter7.shtml. (accessed November 14, 2009).
[16]Jane Mayer. “The Predator War: What are the risks of the C.I.A.’s covert drone program?” The New Yorker, October 26, 2009. http://www.newyorker.com/reporting/2009/10/26/091026fa_fact_mayer. (accessed November 14, 2009).
[17]Peter Bergen and Katherine Tiedemann, “The Drone War,” June 3, 2009. http://www.newamerica.net/publications/articles/2009/drone_war_13672. (accessed November 16, 2009).
[18] Gareth Porter, “The CIA’s Drone Wars,” June 12-14, 2009. http://www.counterpunch.org/porter06122009.html. (accessed November 14, 2009).
[19] Ayman Al-Zawahiri, “Bush the ‘butcher of Washington,’” January 30, 2006. http://www.cnn.com/2006/WORLD/asiapcf/01/30/zawahiri.transcript/. (accessed November 20, 2009).
[20]David Kilcullen and Andrew McDonald Exum, “Death From Above, Outrage Down Below,” May 16, 2009. http://www.nytimes.com/2009/05/17/opinion/17exum.html. (accessed November 15, 2009).
[21] David Kilcullen and Andrew McDonald Exum, “Death From Above, Outrage Down Below,” May 16, 2009. http://www.nytimes.com/2009/05/17/opinion/17exum.html. (accessed November 15, 2009).
The ruckus is in regard to the legality, morality, and efficacy of the UAV strikes. As with any aspect of international relations, there are those who are in favor of the strikes, and those who are opposed. This issue is by no means clear-cut and the holes in each argument are only exacerbated by severe lack of clarity on the subject within the codes of domestic law, accepted international law, and definitions and interpretations which cloud the issue and confuse any possible solution.
The most prominent aspect of the debate centers on legality. Two sets of legal codes have bearing on the question of legality; first, domestic law, and second, international law. Domestic law deals with the issue in terms of assassination, at least in the minds of the opponents. International law, on the other hand, evades the subject of assassination all together and forces the observer to make sense of various badly written codices to draw any meaningful conclusions. The latter provides guidelines for use of lethal force which in some instances only may apply.[2]
Before a discussion of law can take place, either domestic or international, it must be understood that there is no widely accepted definition of assassination. The word assassination is used in this thesis to encompass the practice of the CIA of killing enemy personnel using UAV strikes. This piece of the debate figures in nicely on behalf of the Bush administration inasmuch as it has defined the practice engaged in by the CIA as combat rather than assassination. The lack of a specific legal definition enables justification for numerous activities which an ordinary reasonable person might consider to be assassination, but which may be defined in other ways. It must also be noted that within the debate, several other words are used interchangeably with the word assassination, extra-judicial killing, among others.[3]
LEGALITY
Domestic Law
Domestic law regarding assassination comes from two sources; first, what’s known as the Lieber Code, and second, a series of executive orders. The Lieber Code, established in 1863 by Abraham Lincoln,[4] outlines “the Government of Armies of the United States in the Field.”[5] It is much the same as an executive order and outlines the authorized and prohibited actions of the military, of which the president is the Commander in Chief. The Lieber Code states:
“The law of war does not allow proclaiming either an individual belonging to the hostile army, or a citizen, or a subject of the hostile government, an outlaw, who may be slain without trial by any captor, any more than the modern law of peace allows such intentional outlawry; on the contrary, it abhors such outrage. The sternest retaliation should follow the murder committed in consequence of such proclamation, made by whatever authority. Civilized nations look with horror upon offers of rewards for the assassination of enemies as relapses into barbarism.”[6]
In some sense, this article bans wanted posters which read: “Wanted: Dead or Alive” or anything resembling such an advertisement. Although the law speaks specifically to “rewards for the assassination of enemies”, it only mentions a reference to “The law of war” and states that said law prohibits proclaiming an individual an outlaw and authorizing his extrajudicial killing, and never addresses the targeting of enemy personnel by government forces. It does not prohibit the assassination of enemy personnel.
The second article of domestic law which relates to the killing of enemy personnel by the CIA is a series of Executive Orders (EO): EO # 11,905, issued by President Gerald Ford in 1976;[7] EO # 12,036, issued by President Jimmy Carter in 1978;[8] and EO # 12,333 issued by President Ronald Reagan in 1981.[9] Each of these, with minor variations, prohibits assassination or conspiracy to engage in assassination by personnel either employed by or working on behalf of the United States Government. The problem with these when debating the use of UAVs by the CIA in targeting and killing enemy personnel is that they are not codified, they are theoretically reversible by later EOs, and they do not govern the actions of the President as the ultimate executive officer in the executive branch. Basically, the president can rescind or rewrite an EO if he wants to.
In authorizing the use of force by the CIA against enemy personnel in this case, the George W. Bush administration has made it clear that this assassination prohibition does not apply to actions taken against enemies of the United States in a time of war, especially when that enemy has made it perfectly clear that its objective is to continue killing Americans, anytime, anywhere, anyhow.[10]
International Law
International law regarding assassination is virtually nonexistent. In all of the Geneva Conventions, the UN Charter, and the Hague Conventions, there is no reference to assassination.[11] It is neither defined, nor prohibited in international law. There are however references to aspects of assassination which could indirectly define how assassination is used in international conflict.[12]
General use of lethal force is justified in the UN Charter under Article 51 when a member state acts in self defense. The article reads:
“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”[13]
As stated in Article 51, member states retain the right of self-defense. Article Two of the charter suggests member states “refrain” from using force[14] but Article 51 clearly trumps this suggestion. The striking lack of clarity in Article 51 leaves the potential for gaping holes in any attempt to support or oppose a use of force for any reason. First, the definition of an “armed attack” is open to the interpretation of the attacked party. To go a little deeper, the definition of “armed” and the definition of “attack” may be different to different people and due to the relatively fearful nature of the UN, a little creativity would go a long way in defining “armed attack” in one's favor.
For example, it is readily apparent that the invasion of Kuwait by Saddam Hussein of Iraq in 1990 fits the general definition of “armed attack”. Of that, few would argue. However, if for some reason Iran decided to lay maritime mines to impede shipping through the Strait of Hormuz, would this be considered an armed attack? It would certainly be armed, but would it be considered an attack? Large numbers of western, oil poor nations would certainly think so.
When al Qaeda jihadis hijacked four airliners on September 11, 2001 using nothing but knives and razorblades, was it an armed attack? It was certainly an attack, but on an international scale could it have been considered “armed”? Perhaps on the streets of New York City it might have been considered an armed attack, but on an international stage it is hard to suggest that men wielding pocket knives pose an international hazard. Until September 11, relatively few people would have considered a pilot in the cockpit of his aircraft to be armed. Nevertheless, ever since that day, the oft repeated description of those airliners has been as guided missiles.
To be short, virtually any act of physical hostility from one entity to another, whether state or non-state actors, could be considered an armed attack with a little creativity.
Within Article 51 there is no mention of how said self-defense should occur in regard to such things as proportionality of force and measured response. In other words, if Hamas lobs a thousand small surface to surface missiles into Israel killing a mere handful of civilians, and Israel responds by launching a vastly disproportionate ground invasion to eliminate the threat of further “armed attack”, based solely on Article 51, Israel is justified because there is no clarification of “inherent right...of self-defence”. There is no qualifier behind the “inherent right” which could be interpreted as vastly disproportionate use of force.[15]
By this statement, e.g. “inherent right...of self-defence”, it is natural to assume that assassination would be a permissible defense no matter the nature of the initial attack since there is no specific prohibition on assassination.
MORALITY
As it pertains to morality, the CIA program of assassinating top al Qaeda and Taliban terrorists seems right in its element. The opponents of the UAV program often cite the numbers of casualties, usually civilian, which the drones have inflicted.[16] Depending on the source as well as the time period the estimate covers, these numbers have quite a range but generally between the ramp up of these attacks by the Bush administration to President Obama's forth month in office the casualty total comes to between 600 and 700 individuals.[17] One estimate puts the kill ratio of civilians killed to al Qaeda leaders at 50 to 1.[18]
The morality argument is two pronged, the first lying in the morality of assassination itself. As already explained it is a difficult task to determine whether or not assassination is moral if few can agree on the definition of assassination, nor can they agree on whether or not these drone attacks constitute assassination.
The second morality argument lies in the collateral damage. This element is somewhat less problematic. At the end of January, 2006, Ayman al Zawahiri, Osama bin Laden's right hand man, delivered an address to the world in which he called President George W. Bush “the butcher of Washington”[19] for the Muslim civilians who have perished as a result of America's wars in the middle east. This coming from a man and an organization which intentionally target, not only western civilians, but Muslims as well, all in order to turn public opinion and serve his/its own interests.
Although it may be easy to justify the killing of Muslim civilians by American forces simply because that's what the Muslims do, this logic is unwise and irrational. A 50 to 1 kill ratio using UAVs is no better than the United States using the same wanton disregard for human life against the jihadis that they have used against America. This strategy will likely provoke the same animosity in the Middle East toward the United States as September 11, 2001 provoked in America toward the jihadis. In a part of the world where the only way to win the war is to win the hearts and minds of the people, provoking this kind of animosity is probably a bad idea. Not only is it bad PR on the part of the Americans, but it provides unending propaganda fodder for the jihadis.
EFFICACY
As already explained the kill ratio of civilians to al Qaeda leaders is probably quite poor. Although it may be impossible to verify the numbers claimed by either the United States Government, which tend to look better than 50 to 1, or by whatever other source has claims to make about the civilians killed by CIA operated UAVs, it is clear the ratio is not particularly good. With that in mind, it is important to observe that the cost of the program in terms of propaganda ammunition for the jihadis is tremendous. Whether the numbers play out in reality or not is immaterial when al Qaeda and the Taliban are using the images of the dead women and children to stir up animosity toward the west.
The jihadis do not necessarily inspire loyalty among the civilian population. In fact, it's quite likely that relatively few civilians in Afghanistan and Pakistan actually identify with the jihadis or feel any loyalty to them. It is more likely that most of the population would rather they keep to someone else's town.[20] However, when the Americans fly in and kill half of a person's family, that provides pretty strong motivation to join with the enemies of the Americans, whether they agree philosophically or not. If the Americans were there building infrastructure, and the jihadis were the ones killing people's families, as was the case in Iraq, it would be much more likely that the jihadis would become the ones alienated from the population. The jihadis would be the ones losing the battle for hearts and minds rather than the Americans.[21]
CONCLUSION
The three major arguments in the debate about the use of UAVs by the CIA to strike at the leadership of al Qaeda and the Taliban each have significant flaws. The legality argument is too full of holes to hold much water. The morality argument, while logical in some ways, is either based on the nonexistent definition of assassination or finds fault in the amount of collateral damage caused by the strikes. When the national security of the United States and other western powers is at stake, it is hard to justify the cessation of the program on the moral grounds identified. Finally, and most reasonably, is the efficacy argument. It is counterproductive for America to continue to further alienate the Muslim population by continuing a program that yields such limited results.
It seems the most reasonable plan moving forward would be to continue utilizing the drones, but to severely curtail their kill rate. It would be nearly as irrational to completely eliminate such a potent and useful weapon system as it would be to rely entirely on it. Stricter criteria for strikes ought to be drawn up to limit the strikes as they have been permitted and allow only the most obvious targets to be engaged.
It would be foolish to believe that war in any sense is ideal and as foolish to believe that the jihadis are anything less than barbaric in their methods of waging war. The national security of the United States and their allies should be the greatest concern when judging this issue and it seems that at this point in the battle, the most valuable asset in defeating the jihadis would be to have the confidence and loyalty of the population. This should be the objective the CIA in their UAV operations into the foreseeable future.
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