The Obama administration's contrasting on-defense, on-offense responses to terrorism

(Update: Since posting this, CSPAN has put up a link to DOS Legal Adviser Harold Koh’s ASIL-sponsored, informal public conversation with his predecessor, John Bellinger, on the question of the Obama administration’s approach to international law. My congratulations to everyone involved for putting on this novel and very illuminating event. I comment on it more extensively at Volokh. As I say at Volokh, I do not think one should over interpret what is said in an impromptu, unscripted event in which not every word is weighed up as a possible formal declaration of policy. However, Dean Koh does say several things about targeted killing; see my discussion at VC. My post below remains as incendiary as ever; I don’t think anything in that discussion alters my concerns about the US government’s general failure to articulate publicly the legal basis for its most effective “on offense” counterterrorism strategy, let alone address the many problems with its “on defense” policies. But I strongly recommend watching the Koh-Bellinger discussion, and again, my thanks to Harold Koh and John Bellinger for doing this kind of informal give and take for the public.)

This material is not going to make it into the final draft of a piece on Predator drone strikes, and it seemed to me perhaps too incendiary for either Opinio Juris or Volokh Conspiracy blogs, although maybe I will cross post there. The draft article from which this is extracted is about Predators, self-defense in international law and US domestic law, and reasons why the Obama administration is right to embrace targeted killing - but also needs to embrace the full legal rationales of self-defense that it requires. This extract is instead mostly about the contrasting failures of the administration’s “on-defense” counterterrorism responses. In particular, I think Republican conservatives are quite wrong to think that the Obama administration is either “soft” or “naive.” It is tough and sophisticated - and that has led it to frankly remarkable conclusions as to who can - to use the language of academic lawyers - most efficiently bear the costs of terrorism:

The United States is today in the peculiar position in which it has done better – innovated better, executed better – in counterterrorism “on-offense” than “on-defense.” Many things have gone flatfooted in US counterterrorism “on-defense.” Gone wrong, or never got going under the new administration, or simply stagnated in a bureaucratic morass – airport security, terror trials, interrogation, war versus law enforcement, and more. It is not, by the way, that the Obama administration is soft on terror. On the contrary, it is, if anything, even “harder,” more hard-headed and tough-minded than its predecessor.

Unfortunately, what its tough-minded, cost-benefit analysis seems to have told it is that indeed it needs to get tough – tough, however, on the American people. Tell the American public that the chances of dying in a terrorist attack (as liberal pundits are wont to point out because, one gathers, administration bean-counters, including John “Hey, 20% detainee recidivism is pretty darn good!” Brennan, have told them so) are less than the chances of getting hit by lightening or a drunk driver. Americans need to quit being such wimps and, if it comes to that, go down with the plane and take one for the team. Toughness on-defense counterterrorism for the Obama administration has meant getting tough, yes, but with the American people. Since Christmas Day, the administration has understood that is electoral suicide – but there is a big difference between policy undertaken from fear of electoral repercussion and policy undertaken because you actually believe it.

So score the Cheney team altogether as having maybe 10% of the administration’s most brilliant lawyers’ hyperactive neurons. But Cheney et al. had the advantage of the brutish, simplistic conviction that their problem, and their only problem, was to protect the American people from its enemies. Not to impose on it some exquisitely calibrated risk analysis. Cheney’s famous 1% doctrine is intellectually incoherent, as Sunstein has convincingly written. But as an operational doctrine, as a heuristic of execution rather than merely intellectual design, it recognizes that even if one does one’s damndest, something will still get through, which is why one does one’s damndest.

That’s a long ways from the current administration’s seeming view that whether one’s does one damndest or not, things will always get through - and learning to live with that is what passes as ‘social engineering’ in counterterrorism. As an exercise in risk analysis, it has the effect of passing the costs onto the American public, while telling the national security team that, whatever shit happens, they can feel good about themselves. This is the most sophisticated group of intellectuals in the history of government anywhere in the world when it comes to assessing risk. It is therefore doubly peculiar that the conclusion it seems to have drawn about protecting against terrorist risk is deeply fatalistic, as though one were betting ‘against the Gods’ - peculiar because, as the late Peter Bernstein noted in his masterwork on the intellectual history of risk, the point of risk analysis is to enable one to do just that. So which team would you rather have as your public security officials? The irrational security activists or the rational fatalists? The American public is not atavistic to prefer the former to the latter, even if the latter offers presumably a superior exercise in abstract risk analytics. I’m a fat tail, and so are you.

But if the Obama administration’s on-defense counterterrorism strategy is an intellectually superior, operational disaster, its on-offense strategy has been a completely different story. Predator drone strategy is something that has gone really, really well. “On-offense” counterterrorism has done better, ironically, under an administration that (let’s be honest) hoped it could just play counterterrorism on-defense, play for time, wind down wars, wind down “on-offense,” wish away the threat as a bad dream from the Bush years, while hoping the whole terrorism-counterterrorism meme would just fade away so it could focus on health care. Yet for all that, the Obama administration is playing effective hard-ass, hard-ball in counterterrorism on-offense. Through Predators, it is taking the fight to the enemy.

No matter what turn national security strategy in Afghanistan and Pakistan takes, or wherever else jihadist terrorist might regroup or form, drone strikes will be increasingly relied upon as a weapon. If the administration seriously doubles down on counterinsurgency in Afghanistan, UAV strikes against leadership hiding out in Pakistan becomes ever more important. That’s quite apart from attacking Pakistani Taliban intent on destabilizing Pakistan as well. On the other hand, if the administration moves to the “light footprint” that Vice-President Biden urged, or even exit from the ground war, UAVs become ever more crucial as the over-the-horizon mechanism for projecting discrete but implacable force. The same, but more so, in dealing with terrorist groups in other ungoverned places in the world.

Drones permit the US to go directly after terrorists, rather than having to fight through whole countries to reach them with boots on the ground – attacks directly against the terrorists and their leadership. Maybe that’s not enough to win. Maybe “light-footprint” counterterrorism via drones turns out to be the latest mistake in the perennial effort to find a way to win a war through strategic airpower. Yet even if the strategy is instead serious counterinsurgency on the ground (denial of the territory where the terrorists find safe-haven, rather than simply attacks against the terrorists) drones will still be increasingly important. Counterinsurgency strategy will still seek to attack terrorists directly even while clearing and holding territory. The upshot? No matter what direction the US moves strategically, drones will be an increasingly part of the “on-offense” part of that. This will become only more so over time, if the US gradually permits itself to develop and operationalize ever smaller, less detectable, more discriminate, more “sensor-laden,” and more individually lethal, remote-piloted UAVs.

So hooray for candidate Obama, and hooray for his administration. The Obama administration is right about this.

There is a lot of focus at this moment on the use of Predators in the Afghanistan offensive. Journalists seem to be discovering what they have not managed to discover in the Goldstone Report on Gaza, that, mirabile dictu, the insurgents use human shields, operate from mosques, and many other things that are encouraged by rules of war that put the legal and humanitarian burden onto one side. At this moment, the journalistic meme, focused on Our Brave Soldiers in the Field Under President Obama’s Good Faith Command, likes the idea of Predators and targeted killing. That is a swing back from where it was just a few weeks ago, as the journalistic herd scrambled to imitate Jane Mayer, and come up with pieces on the “rogue” CIA out assassinating everyone, including Americans, using Remote-Controlled Death From the Skies. The CIA is currently cool for having participated with Pakistan’s ISI to seize the Taliban number 2.

But journalistic sentiment will swing back again, particularly as the NGO community seeks to peel the CIA from the uniformed military in its use of drones and targeted killing. Even Vice-President Biden, preening over ‘taking the fight to Al Qaeda’ and beaming like a proud father over his flock of Predator gooselings, won’t stop the shift against the CIA using targeted killing. Meanwhile, one wonders if and when the administration’s senior transnationalist lawyers will come down from purely procedural, process-driven, abstract intellectual defenses of “multilateralism” and “engagement” and self-congratulation about the bodies it has joined - the UN HRC - and actually offer a legal defense of the administration’s actions in the field. A legal defense of actual actions, actual practices, with the breadth of legal defense that their full actual deployment requires. I wasn’t able to attend Harold Koh’s conversation with John Bellinger yesterday, but I understand John asked him about Predators. I am exceedingly curious, to say the least, as to the response. Without having seen the full videos of either Koh’s appearance or DOS international law counselor Sarah Cleveland’s UVA appearance, I can’t say for sure, but the initial reports seemed to suggest that the stance was one of saying that even a year in, it was still early innings, and not getting much more specific. That might be unfair and incorrect, and I’ll have to wait until the videos are available and will revise this as appropriate. But on initial take, well, much vision and much discussion about how long it takes to clean Augean stables - and my guess is that it will always be early innings, and it will always be vision but as little substance as possible.

So far, anyway, I would describe the defenses of actual practices that are seen by the administration as crucial to its national security strategy - targeted killings, using Predators or CIA teams or special forces or anything else, not just in zones of clear armed conflict, but elsewhere where safe havens are found - as missing. Not just anemic - but really not offered. When the legal defense is finally offered, I anticipate that it will be one based around an inadequate and narrow concept of combatancy and armed conflict, not self-defense of the kind that would go to the actual scope of what the US does, has always seen itself (and others) as entitled to do under international law, and will continue to do.

I draw a fairly simple conclusion from that. Leading lawyers in the administration appear to be acting as though this were going to be a one term administration. Their failure to offer a robust defense of targeted killing, to the full extent that it would almost certainly be contemplated by an administration planning on being around for another seven years, rather than three, suggests that they are hedging their bets and, in effect, offering a kind of private intrade-style prediction market for the inside players that they, and the President, will be back to being law professors sooner rather than later. In which case there is little point to offering the full range of legal defenses to the administration’s practices, if you anticipate being back in the NGO wing and going after a new, presumably Republican administration.

(Glenn, thanks very much for the Instalanche!)