Blog No. 5 Whither the War on Terror? Part II. Of Drones and Guantanamo

Drone Strikes. President Obama’s May 23 speech announced new criteria for drone strikes. Although the previous criteria had not been disclosed, he made it clear that the new criteria were significantly narrower. According to the President, a targeted terrorist must now pose “a continuing and imminent threat to the American people,” and “before any strike is taken, there must be near-certainty that no civilians will be killed or injured.” Taken literally and applied conscientiously, those are narrow criteria indeed. But as The New York Times reported, “Even as [Obama] set new standards, a debate broke out about what they actually meant and what would actually change.”

As if to lessen the impact of the policy he was announcing, President Obama claimed no less than three times that the “preference” of the Administration had always been to capture, interrogate and prosecute terrorists rather than to kill them by drone strikes. That claim, if technically accurate, seemed disingenuous. It was undermined by widely published (and undisputed) reports that in practice the decision to kill rather than capture had been made with overwhelming frequency. For example, an August, 2012, article by Steve Coll for The New Yorker discussed a book, Kill or Capture, by a former deputy editor of Newsweek: “[T]he book makes clear that the Obama Administration has judged again and again – almost routinely – that capturing suspects outside of Afghanistan… is not feasible.” Similarly, an April 7, 2013 article in The New York Times was headlined “Targeted Killing Comes to Define War on Terror.”

There are good reasons why a drone strike may appear more convenient than capture: it presents no risk to American lives and may be less offensive to the country where the target is located than a boots on the ground operation. On the other hand, killing in lieu of capture means a loss of intelligence. As the former head of the CIA’s Counterterrorism Center recently wrote:

“While I have no objection to the use of drones when absolutely necessary and when there is no viable option for apprehending top terror suspects, the default option now seems to be to kill them remotely. When we do so, we not only inspire many new terrorists, but just as importantly we lose the opportunity to find out what potential detainees know about the intentions of others planning terrorist attacks.”

Moreover, the use of drones away from the battlefield has its own costs. Such strikes have produced significant civilian casualties and have become increasingly unpopular in the countries where they have been carried out. Indeed, some have argued that such strikes produce as many new terrorist as they kill. Although Pakistan appeared to acquiesce in drone strikes over several years, its objections to them recently became more pronounced and included a ruling by Pakistan’s Supreme Court that the strikes are illegal. Although President Obama made no mention of the rising opposition to drone strikes in Pakistan, it may have been the single most compelling reason for curtailing the strikes. Apart from the legal merits of Pakistan’s objections, we cannot afford a policy that bears a serious risk of destabilizing its government.

Finally, there is a moral dimension. Although waterboarding and other harsh interrogation techniques are no longer employed, the use of drones is not necessarily a step forward for human rights. Most of us, given the unpleasant choice between waterboarding and being the target of a drone, would no doubt opt for the former. And as the retired vice-chairman of the Joint Chiefs of Staff, James Cartwright, once observed,

“To me, the weakness in the drone activity is that if there’s no one on the ground, and the person puts his hands out, he can’t surrender…. What makes it worse with a Predator is you’re actually watching it. You know when he puts his hands up.”

The consequences of reducing drone strikes are not clear and may not be for sometime. Will a reduction in drone strikes be accompanied by renewed efforts to capture terrorists? Perhaps, but the President did not promise that and, given the overall tone of his message, it would be unwise to expect it. Reportedly, the number of drone strikes had dropped sharply in the months preceding Obama’s speech, but the President made no mention of that fact and the reasons are not clear. Had the new criteria already been been put in place on a trial basis or was there simply a lack of high-level targets? For their part, Republicans would do well to call attention to – and seek to clarify – the murkier aspects of the President’s policy. But they should be restrained in their enthusiasm for drone strikes and wary of exaggerating the impact of reducing them.

Guantanamo. It has been suggested that one reason for a de-emphasis on capturing terrorists may be the lack of a suitable place to put them. The Obama Administration closed down detention facilities operated by the CIA and, because of its commitment to closing Guantanamo, has refused to send anyone there. As one experienced former government official put it last fall:

“The fact that the United States now has nowhere to hold a terrorist — and  no policy to deal with him once captured—means that a dangerous suspect might very well be let go. At present, there is no standard course of action approved by the president and relevant government agencies for what to do in the days and months following capture.”

There is no indication that anything has changed since then and the President made no mention of the problem in his speech

The President reiterated his call for a closure of the GTMO prison, and on its face, the position makes good sense. As he correctly noted, “The original premise for opening GTMO—that detainees would not be able to challenge their detention—was found unconstitutional.” However, as pointed out by Senator McCain, who has supported the idea of closing GTMO, the President has not submitted a plan for doing so. Moreover, it appears that the Administration has done far less than it could have to reduce the population at GTMO. Over two years ago, the President signed an Executive Order establishing a Periodic Review Board to consider the status of individual detainees – but the Board has not even begun to function. It perhaps should not be surprising that a hunger strike at GTMO commenced this spring and continues in progress. The President called on Congress to lift restrictions on the transfer of detainees from GTMO, but neglected to mention that the restrictions are subject to waiver provisions that, for unexplained reasons, the Administration has failed to utilize.

The President also conflated two distinct issues, the closing of GTMO and the handling of “detainees who we know have participated in dangerous plots or attacks but who cannot be prosecuted – for example because the evidence against them has been compromised or is inadmissible in a court of law.” The President noted the latter issue but dismissed it in a terse comment as blithe as it was inscrutable: “But once we commit to a process of closing GTMO, I am confident that this legacy problem can be resolved, consistent with our commitment to the rule of law.” In fact, however, the continued operation of Guantanamo or its closure have nothing to do with our ability to deal with such detainees.

Detainees who cannot be charged with a crime, but who are alleged to have been associated with al Qaeda in some way and are believed to be dangerous, have been held pursuant to the 2001 AUMF (Authorization of the Use of Military Force) resolution. Although the Supreme Court recognized the right of GTMO detainees to seek release by habeas corpus petitions, few such petitions have been successful as the District of Columbia Court of Appeals has accepted the argument of the Obama Administration that the government’s evidence in such cases – that the detainee is associated with al Qaeda – is to be presumed correct. The suggestion of the President that the AUMF be repealed, or “refined” in some undescribed fashion, simply adds to the uncertainty of the future and it is difficult to imagine what kind of “resolution” he has in mind.

All in all, Republicans should not dig in their heels to keep GTMO in operation or to prevent the transfer of detainees from it. On the contrary, they should support both goals, but hold the Administration accountable for developing realistic means of achieving them and explaining them coherently.

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The concluding portion of this Blog, Part III, will address the issues relating to the NSA Surveillance programs and their disclosure.