Tag: counterterrorism policy

Fighting Terrorists Not the Same as Fighting Terror

I have a new piece up this morning at CNN’s Global Public Square, co-authored with Mieke Eoyang of Third Way, making the case against an expanded Authorization for Use of Military Force (AUMF). Rather than thinking of new powers to hand over to the president, Congress should revisit the original rationale for the AUMF, and realize that, with the end of combat operations in Afghanistan by late 2014, such authorities are no longer required. In the future, should additional threats emerge that the president is unable to address without taking the country to war, then Congress can and should declare war, on an enemy, and with a clear end-goal in mind.

As it currently stands, the AUMF has become a catch-all for any U.S. government activities that can be cast as counterterrorism. It has allowed what should have been a small and achievable mission–killing or capturing those who planned the 9/11 attacks, and those who helped them, and degrading al Qaeda’s ability to carry out future such operations–to become a quixotic and unbounded global crusade, the longest war in the nation’s history, with no end in sight. One proposed revision would only compound this problem, making it easier for the president, this one or his successors, to expand the list of targets, and this war, at his or her discretion. So long as the nation remains on a war-footing, the government will always find new wars to fight. 

The GPS piece was written before the revelations of U.S. government surveillance of U.S. citizens’ phone records, and, perhaps, Internet usage. But the themes are connected: how does the U.S. government strike a balance between protecting the rights and liberties of American citizens, and securing those same citizens from physical harm, especially from individuals (i.e. terrorists) who use violence or the threat of violence against innocent people for political purposes? The American people, usually jealous of government intrusions in their private lives, have been far more tolerant of such intrusions over the past 12 years for a simple reason: they are scared. Indeed, they are terrified. Counterterrorism should address that psychological condition as much as it does the people that cause it. And we don’t need an expanded AUMF to do that.

The government has done an able job of rounding up terrorists and their accomplices; core al Qaeda has been practically eliminated, and its would-be successors are notably unsophisticated. The AUMF had little to do with that, with the important exception of those initial operations conducted in and around Afghanistan. The government has also collected, chiefly through traditional law-enforcement methods, an additional cohort of idiots, nitwits, and utter incompetents, many of whom were unlikely to harm even themselves, let alone innocent bystanders. The small likelihood that they might succeed has justified further extraordinary efforts, about which we now know a bit more. Again, such capabilities do not hinge on an AUMF.

By contrast, the government has done a terrible job of reducing people’s fears, and the context of the AUMF–reminding the public that we are at war–probably makes the problem worse. By and large, despite a few hopeful signs, we are still terrorizing ourselvesThis was the overarching theme in a collection of essays that I edited with Jim Harper and Ben Friedman. The book was published nearly three years ago. Its message, unfortunately, still remains relevant today.

After the AUMF

Georgetown University’s Jennifer Daskal, and Stephen Vladeck, an associate dean in the College of Law at American University, have posted a working paper (.pdf) regarding the 12+ year old Authorization for Use of Military Force (AUMF) at the Lawfare blog that is receiving, and deserves, some attention. The shorter version in today’s New York Times is receiving even more attention, presumably.

“After the AUMF” is written, in part, as a response to a Hoover Institution proposal (.pdf) that would replace the existing AUMF with, as Daskal and Vladeck describe it, “a new blanket framework statute authorizing the use of military force against as-yet-undetermined future terrorist organizations, and to delegate to the Executive Branch the authority to delegate those organizations against which such force may be used if and when the time comes.”

The crux of the Daskal-Vladeck critique rests on their claim that such a framework is unnecessary, and, worse, counterproductive. They explain that we should be trying to end, rather than extend, the war on terror, and that existing authorities (including many that have expanded since 9/11) are more than sufficient to protect the country against terrorist attacks. Should those authorities prove insufficient in the future (for example, if an as-yet-unknown terrorist organization materializes and plots attacks against the United States), Congress would retain the ability to pass a new AUMF–and would likely do so quite quickly, if past history is any guide. Lastly, they claim that the war frame, in general, undermines the nation’s counterterrorism goals by engendering hostility and resistance across a broad spectrum, from innocent civilians to heads of nation states, who resist being drawn into a never-ending war.

Although I am broadly sympathetic with the idea that we should move away from thinking of counterterrorism as a war, thus demanding a military response (about which I have written book chapters here and here), I believe that the most important of the Daskal-Vladeck objections revolves around the Hoover proposal’s apparent disdain for Congress, and its willingness to grant more power to the Executive Branch. The Hoover proposal claims that this would be an improvement over the current system, because it would give “the president the flexibility he needs to address emerging threats” and would “render more transparent and regularized the now very murky process by which organizations and their members are deemed to fall within the September 2001 AUMF.”

Elsewhere the Hoover paper claims that such a blanket predelegation of authority is required because “Congress probably cannot or will not, on a continuing basis, authorize force quickly or robustly enough to meet the threat.”

Daskal and Vladeck disagree. They counter that “no examples exist of cases where Congress either could not or would not provide the necessary authority–or why, in the interim, the President’s Article II authorities, criminal law, and other existing counterterrorism authorities weren’t sufficient to meet the threat.” On the contrary, the Congress has consistently demonstrated the ability and willingness to authorize wars quite quickly (too quickly, some might say), including within three days of the 9/11 attacks, and within five days of the supposed attack in the Gulf of Tonkin in August 1964. Thus, Daskal and Vladeck conclude, if a new terrorist group “were to emerge, nothing would or should stop Congress from providing a new, narrow and specific authorization to use force.”

They continue, with emphasis:

Proposals to delegate such future—and momentous—decisions to the President lack any historical precedent, and for good reason. It is Congress, not the Executive, that is given the authority under our Constitution to declare war. An authorization to use military force…should not be an ex ante delegation to the President to make unreviewable decisions to go to war at some future date. This is something our Founding Fathers understood well. Thus, proposals to delegate such a determination to the President threaten the carefully calibrated balance of powers enmeshed within the Constitution, essentially asking Congress to surrender one of its most important functions to the Executive.

This is an important and interesting discussion, and one that should not reduce to the predictable partisanship in Washington today. Some liberal Democrats agree with conservative Republicans that the president should be given more powers; other liberals and conservatives are joined in opposition to such suggestions. This timely–indeed, overdue–assessment of the powers that exist, and will be needed in the future, to deal with terrorist threats should and will be getting more attention in the weeks and months ahead.

 

Domestic Military Detention Isn’t Necessary

I make the case that domestic military detention for all terrorism suspects isn’t necessary in this piece over at the Huffington Post. Legislative proposals by Rep. Buck McKeon (R-CA) and Sen. John McCain (R-AZ) would mandate military detention instead of criminal prosecution for all those suspected of international terrorism. I oppose this policy change for reasons both principled and practical:

If the civil rule of law handles terrorist threats adequately, then invoking military jurisdiction is a counterproductive overreaction.

That was the case with one of the handful of domestically detained enemy combatants, Ali al-Marri. Al-Marri was an honest-to-goodness Al Qaeda sleeper agent masquerading as an exchange student. The FBI indicted him on charges that could have carried a 115-year maximum sentence. The government requested that the judge dismiss its charges with prejudice, meaning that they could not be levied again, and moved him to a naval brig.

The Supreme Court ultimately agreed to hear al-Marri’s case, but the government mooted the case when it removed al-Marri from military custody and charged him with material support of terrorism. Al-Marri pleaded guilty and received a sentence of eight years and four months.

Al-Marri’s case was a missed opportunity. The government should have put him away for life.

This isn’t the first time McKeon and McCain have proposed treating all terrorism suspects like al-Marri and Jose Padilla. I criticized a similar proposal a year ago, as did Ben Wittes of the Brookings Institution. Wittes’ criticisms of this year’s bad ideas are here and here. Given the excellent track record of federal courts in prosecuting terrorism cases and the recent death of bin Laden, now is not the time to roll back the civil rule of law.

Let’s Not Go to the Video

Not that I think it will happen for the next several days, but it’s time for the chattering class to move past the White House’s decision not to release death photographs of Osama bin Laden.

The focus on this largely media-driven issue is an unnecessary distraction from what should be a broader discussion about the direction of U.S. counterterrorism efforts. Photographic evidence is not necessary to establish Osama bin Laden’s death. Al Qaeda has not disputed that its founder and leader is, in fact, dead. And photographic evidence has not stopped the conspiracy theorists from claiming that Americans never landed on the moon. If anything, AQ might wish for the photos to be released to keep the focus on them, and on bin Laden. Pakistan’s civilian and military leaders might prefer Americans to be talking about photos, and not the mounting evidence that Pakistan has been playing a double game. 

 But that is all speculation. The rest of the world seems to want to move beyond the actions of this mass murderer and his organization, and Americans should want that as well. We should revisit all of our policies pertaining to counterterrorism. We should review the policies and procedures that allowed U.S. personnel to deliver justice to bin Laden. We should examine the effect that similar policies have had on AQ, writ large, and inquire as to whether these should be continued or modified. And we should scrutinize the rationale for keeping 100,000 U.S. troops in Afghanistan. Bin Laden’s killing was not contingent upon the creation of a functioning state in Afghanistan, and effective counterterrorism going forward should not be made contingent on similar nation-building missions.

Bin Laden’s Death and the Debate over the U.S. Mission in Afghanistan

Osama Bin Laden’s death marks a significant achievement in the fight against al Qaeda. It also highlights the fact that our ostensible objective for continuing the war in Afghanistan has been achieved. Although some lawmakers have been quick to claim that bin Laden’s demise proves that our nation-building mission is showing signs of success, others recognize that this momentous achievement justifies scaling down our presence in Afghanistan. Indeed, rather than expansive counterinsurgency campaigns, targeted counterterrorism measures would suffice.

It is encouraging that Republican members of Congress are questioning the mission. Senator Richard Lugar (R-IN), ranking Republican on the Senate Foreign Relations Committee, expressed his concern yesterday:

[Senator Lugar] said Afghanistan no longer holds the strategic importance to match Washington’s investment. He cited recent comments from senior national-security officials that terrorist strikes on America are more likely to be planned in places like Yemen.

Lugar raised concerns that U.S. policy on Afghanistan is focused more on building up its economic, political and security systems. “Such grand nation-building is beyond our powers,” he said bluntly.

Most poignantly, he summed up the problem as such:

With Al Qaeda largely displaced from the country, but franchised in other locations, Afghanistan does not carry a strategic value that justifies 100,000 American troops and a $100 billion per year cost, especially given current fiscal constraints.

These realities have neither shifted the GOP establishment’s talking points on defense, nor the Obama administration’s “stay-the-course” policy in Afghanistan. Nevertheless, this debate, especially among Republicans, is important. As my Cato colleague Ben Friedman has pointed out in original research, the Tea Party Republicans that swept into office last November may have good instincts, but have done little to shift the overarching debate about the efficacy of nation-building. Perhaps increased calls for rethinking the mission will have to come from senior GOP types like Lugar. As my other Cato colleague, Gene Healy, trenchantly notes, “There was always something odd about conservatives jumping from ‘they hate us because we’re free’ to ‘if we make them free, then they won’t hate us.”

Cato scholars have been making the case for de-escalation from Afghanistan for the past several years. Hopefully, more Republicans will recognize, as most libertarians already do, that it is inconsistent to espouse talk of fiscal responsibility and limited government at home while engaging in social engineering and nation-building abroad. More republicans should recognize that there is nothing conservative about wasting taxpayer dollars on a mission that weakens America economically and militarily. As Cato founder and president Ed Crane has argued, it’s time for the GOP leadership to return to its non-interventionist roots.

Since 9/11, America’s mission in Afghanistan has evolved dramatically. It’s gone from punishing al Qaeda and the Taliban to paving roads and building schools. To imagine that the U.S.-led coalition can create a functioning economy and establish civilian and military bureaucracies through some “government in a box” highlights the ignorance and arrogance of our central planners in Washington.

Let’s hope that the landmark death of Osama bin Laden brings a swift end to our ongoing investment and sacrifice.