Tag: terrorism

The Real Trouble With the Defense Authorization Bill

The Senate on Thursday passed the 2012 defense-authorization bill. It includes a controversial provision meant to put al-Qaeda suspects and their associates in military custody rather than prosecute them as criminals. The White House has rather weakly threatened a veto, complaining primarily that the bill undercuts their discretion in dealing with terrorists.

If the White House vetoes the bill, it will be for the wrong reasons. The trouble is not what the law mandates but what it affirms. It does not require the president to put any terrorists in military custody but rather to comply with a new bureaucratic process if he chooses not to do so. Even as we move toward the end of the wars in Iraq and Afghanistan, the law affirms a presidential power to detain anyone, including American citizens, in the name of fighting a nebulous and seemingly permanent terrorist menace. That is bad for both civil liberties and for our ability to think clearly about terrorism.

Most debate about the bill concerns section 1032. It says that the armed forces “shall hold” anyone that is part of al-Qaeda or an associated force and participants in an attack on the United States or its coalition partners for the course of hostilities authorized by Congress in 2001—and dispose of those suspects under laws of wars. American citizens are excluded. Thanks to a compromise negotiated by Armed Service Committee Chair Carl Levin (D-MI) and Ranking Member John McCain (R-AZ), the section now allows the secretary of defense, after consulting with the secretary of state and director of national intelligence, to keep the suspect in civilian courts by informing Congress that doing so serves national security.

The administration objects to 1032 largely because it undercuts their discretion. However, as Levin and McCain note in a recent op-ed, the administration still “determines whether a detainee meets the criteria for military custody.” The president could presumably just decline to label a detainee as someone fitting the requirements of military detention in the first place and try him in civilian court without getting a waiver from the secretary of defense.

The provision’s main relevance is as a talking point. Republicans already fond of castigating the president for allowing alleged terrorists to have their day in court can pretend that he is ignoring this law when he does so.

The real trouble with the bill is the preceding section, 1031. It “affirms” that the authorization of military force passed prior to the invasion of Afghanistan allows the president, through the military, to detain without trial al-Qaeda members, Taliban fighters, associated forces engaged in hostilities against the United States and those that support those groups. Nothing excludes American citizens.

The section says that it does not expand presidential war powers, but that contradicts its other language and common sense. By explicitly endorsing constitutionally dubious powers that the president already claims, Congress makes those claims more likely to survive legal challenge.

The 2001 Authorization of Military Force allows the president to make war on “nations, organizations, or persons” that he determines to have been involved in or aided the September 11 attacks and those that harbored these groups. Effectively, that meant al-Qaeda and the Taliban. Our last two presidents have used that authority to claim the right to kill or indefinitely detain anyone, anywhere that they decide is associated with some arm of al-Qaeda. The courts have trimmed these powers in ways that remain uncertain, particularly as applied to U.S. citizens. In Hamdi v. Rumsfeld, the Supreme Court held that the U.S. military has the power to detain without trial Americans captured on foreign battlefields but that the detainee can challenge the detention in court. Contrary to Carl Levin’s assertions, the ruling did not say that people seized in the United States fit that category.

This defense bill’s expansive list of enemies strengthens the president’s claim that he can detain almost anyone without trial in the name of counterterrorism. Future White House lawyers will cite it to justify those powers. Courts may tell Americans that challenge their detention on constitutional grounds that Congress’s endorsement of the president’s claims to detention powers makes them sounder.

The bill may even strengthen the president’s case for using other war powers, like killing citizens with drone strikes. That interpretation is bolstered by the detainee language’s similarity to the reauthorization of force contained in the House’s defense bill. That legislation explicitly gives the president the power to make war on al-Qaeda, the Taliban and associated forces. By using nearly identical language to describe who the president can detain under his war powers, the Senate bill may stealthily achieve the same end.

Liberalism means minimizing the exercise of war powers. To say, as backers of this legislation do, that the constitution allows our government to kill and detain people without trial is not an argument that we should do so often. Because those powers so offend liberalism, those that advocate them should have the burden of explaining why they are necessary, even if they are constitutional.

Instead, advocates of these extraordinary powers take it as nearly self-evident that military detention is somehow safer than criminal trials. But criminal proceedings, because they are adversarial, produce better information than military interrogations. That information makes the public better consumers of counterterrorism policies. Public debate does not always make better public policy, but it often helps.

You can see how by looking at the footnotes of books about terrorism, like the 9-11 report. Many of sources are records of criminal trials of terrorists. Had all those suspects been held without trial, their testimony and the government’s claims about them might have remained secret. What did become public would be less trustworthy because it would not have been vetted by an institutional adversary, as in court.

Take the case of Umar Farouk Abdulmutallab, the Underwear Bomber, and its connection to the killing of Anwar al-Awlaki, the jihadist propagandist killed earlier this year in Yemen. Both before and after getting a Miranda warning, Abdulmutallab apparently told his FBI interrogators a great deal of information about his trip to Yemen to prepare the explosives he tried to detonate in plane over Detroit. Had he not plead guilty on the first day of trial, prosecutors were set to argue that Awlaki had aided the plot. The government would have had to substantiate its claim that Awlaki, an American citizen, had graduated from being a propagandist to plotting attacks and therefore become a combatant they could legally kill—something they still have not done. The trial would have shed light on how the White House decides which of its citizens it can kill in the name of counterterrorism. That information would at least inform debate.

Civil liberties are a sufficient reason to oppose handing the executive the power to detain more or less whomever it wants. But our system of government does not divide powers simply for fairness. Unilateral decisions are more likely to be foolish ones.

Cross-posted from the Skeptics at the National Interest.

Digging Our Grave in Af-Pak

Last week’s killing of two dozen Pakistani soldiers by a NATO airstrike shows why the war in Afghanistan will continue to weaken, not stabilize, neighboring Pakistan, contrary to what U.S. officials and analysts claim. Perhaps the gravest outcome from this latest “tragic, unintended incident” will be the widening gulf between Pakistan’s senior military leadership and its junior officer corps, a chasm that opened under President-General Pervez Musharraf (1999-2008) and threatens to open far wider.

Pakistan’s alliance with the United States has always been a liability. After 9/11, Musharraf forced the reassignment or resignation of officers regarded as pro-Taliban or Islamist, because his decision to support U.S. counterterrorism efforts undermined his support among key military officials. In 2003, he narrowly escaped two attempts on his life—within 11 days of each other—that involved the collaboration of junior officers. The attacks came two months after al Qaeda’s second-in-command, Ayman al-Zawahiri, released an audiotape urging Pakistanis to overthrow the military general.

B. Raman, the former head of the counterterrorism division for India’s external intelligence agency, Research and Analysis Wing (RAW), writes that while many in India might rejoice at this intra-military split and the further deterioration of U.S.-Pakistan relations, “This need not necessarily be a beneficial development for India. It is in our interest that the US retains the ability to influence the behaviour of the Pakistani military leadership.”

That is exactly what Washington risks losing the longer it prosecutes this ill-conceived quagmire in Afghanistan. “Imagine how we would feel if it had been 24 American soldiers killed by Pakistani forces at this moment,” said Sen. Dick Durbin (D-IL) on Fox News Sunday. Fanning public anger in Pakistan is Jamaatud Dawa, Hizb ut-Tehrir, and other organizations that stand to gain whenever anti-U.S. anger spikes. But is it any wonder why Pakistani streets and newspaper editorials were brimming with anti-American sentiment? Such escalating pressures against General Ashfaq Pervez Kayani, the chief of the army staff, come just after Pakistan’s security establishment was publicly humiliated for either being complicit or incompetent in America’s Osama bin Laden raid, and was accused of attempting to stage a coup in the recentmemogatescandal.

Compounding the partnership’s endless string of controversies are recurring incidents along the Af-Pak border. These incidents hurt the honor of Pakistan’s military, decrease the country’s resolve to cooperate with America, and highlight a glaringly obvious problem with America’s current strategy. U.S. officials claim the coalition cannot fight its way to victory in Afghanistan. But by continuing to attack indigenous insurgents before withdrawing or engaging in negotiations, the coalition is undermining the potential for a diplomatic solution. Look no further than Pakistan’s refusal to attend this week’s Bonn summit. As Pakistan’s foreign minister, Hina Rabbani Khar, told Dawn News television this week, “It is definitely not Pakistan’s intention to work against the rest of the world. But the rest of the world also has to understand that if they have pushed Pakistan into this corner, violated red lines, then they have denied the basis of partnership.”

An iteration of this discrepancy comes from Pakistani columnist Ejaz Haider, who wrote last year:

Behind all the nice talk about setting the world right through a Lockean cooperative framework lurks Mr. Hobbes… Mr. Obama… (de-hyphenated) Pakistan and India by not including Pakistan on this visit even as Pakistan is supposed to be a vital strategic partner and a state that is, presumably, going to determine, by his own admission, not only the future of this region but of the entire world. This would be amusing if it did not indicate a deep policy flaw.

Only America’s hubris can explain why officials continue to believe that they can win a war in which the neighboring state—with legitimate security interests—actively assists elements of the insurgency, denies transit routes for delivery of war supplies, and uses its leverage to increase the costs of America’s military presence. The 10-year war’s latest casualty is the ongoing effort to bring insurgent networks into a broader power-sharing arrangement in Kabul. U.S. militarism has deprived diplomatic efforts of a key regional player. Absent the cooperation of Pakistan, the United States continues to dig its own grave.

Cross-posted from “The Skeptics” at the National Interest.

John Mueller Joins Cato

I am pleased to announce that John Mueller, a leading scholar in the fields of political science, international relations, and national security, has joined the Cato Institute as a senior fellow.

All of us at Cato are very excited to have John as a colleague. Over the last decade as a professor of political science and as the Woody Hayes Chair of National Security Studies at the Ohio State University’s Mershon Center for International Security Studies, John has taken on the conventional wisdom in the national security arena with a rare combination of accessible, breezy prose and meticulous cost-benefit analysis. In particular, he has focused on how policymakers inflate national security threats at home and abroad.

His newest book, Terror Money and Security, which he presented at a recent Cato forum, examines whether the gains in security over the past decade were worth the funds expended. For the vast majority of U.S. homeland security and counterterrorism policies, John and his co-author, Mark Stewart, resoundingly conclude “no.”

As a member of the Cato Institute, John will contribute to our multitude of programs and publications while furthering his work on the subjects of security, defense, and U.S. foreign policy. Cato is fortunate to have such a brilliant scholar join its staff.

For more Cato Institute work on foreign policy and national security, go here.

How Much Homeland Security Is Enough? Monday Book Forum

At noon Monday, Professors John Mueller and Mark Stewart will be here to discuss their new book: Terror Security and Money: Balancing the Risks, Benefits and Costs of Homeland Security. Register here.

The question in this post’s title is the book’s. It quantifies Mueller’s skepticism about the utility of homeland security spending with cost-benefit analysis, which is Stewart’s specialty. They use this analysis, which is employed by various federal agencies as part of the regulatory review process, to show that little of what the Department of Homeland Security does is a good investment. That is, the bulk of its activities cost more—measured in lives or dollars— than they save. In the conclusion, where you find most of the book’s political science, Mueller and Stewart discuss why DHS avoids this sort of analysis—neither it nor its political advocates have much reason to advertise its wastefulness—and why that should change.

Alan Cohn, Deputy Assistant Secretary for Policy at DHS, has boldly agreed to join the proceeding. DHS rules prohibit him from commenting directly on the book, but he will presumably defend his department and discuss how it considers policies’ cost and benefits, or what it calls risk management.

That all sounds very wonky, I know. Here is why the book and forum should interest those not particularly concerned with homeland security or risk analysis: the book calls a bluff. One of the great myths about U.S. national security is that it aims to maximize safety. Almost everyone speaks about security as if this were so.

The truth is instead that every security policy, indeed every government policy, is a choice among risks. Most policies aim to mitigate risk in some way and by expending resources expose us to other risks. Our policy preferences and ideologies are largely beliefs about which risks to combat socially and which to leave to individuals, or least how much attention we should pay to competing risks. Our society, it turns out, is willing to pay far more to save lives from terrorism than most other dangers. That is, we value lives lost from it far more highly than those lost in other ways. We trade small gains in protection from terrorists for substantial losses in our ability to combat other troubles.

By asking what U.S. homeland security would look like it if truly aimed to maximize safety against all dangers, Mueller and Stewart’s book makes plain that we have chosen to do otherwise. People that disagree about the merit of that choice should agree at least that it is one we should make openly. Democracies make better choices when they perceive them.

Cillizza on Cain and Know-Nothing Foreign Policy

Asked on Meet the Press this weekend whether the alleged Iranian plot to assassinate the Saudi ambassador was an act of war, Herman Cain gave the following response:

After I looked at all of the information provided by the intelligence community, the military, then I could make that decision.  I can’t make that decision because I’m not privy to all of that information… I’m not going to say it was an act of war based upon news reports, with all due respect.  I would hope that the president and all of his advisers are considering all of the factors in determining just how much, how much the Iranians participated in this.

That struck me as a refreshingly reasonable position. Yet the Washington Post’s election handicapper, Chris Cillizza, decided to make that quote the centerpiece of an article on Cain’s “know-nothing foreign policy.” He then presents a poll showing that Republicans don’t care much about foreign policy this year, only to conclude that foreign-policy ignorance could be a fatal handicap for Cain. His evidence for that conclusion is a quote from Max Boot of the Council on Foreign Relations, who specializes in arguing for wars and imperialism. Boot, as it happens, just wrote a blog post for Commentary titled, “Iran Plot Goes Straight to the Top,” where he attacks those willing to question the evidence against Iran’s leaders and vaguely supports attacking them.

Cillizza’s article makes clear that foreign-policy ignorance is far preferable to the Washington Post’s idea of expertise. The worst part is that Cain, who claims not to know what neoconservatives are, seems likely to become one, call Boot for advice, and win the Post’s respect.

Tehran v. Riyadh

The alleged Iranian plot to kill the Saudi ambassador, Adel al-Jubeir, has served to underscore that Washington and Riyadh view Tehran as a common enemy. This plot has already heightened both parties’ persisting anxieties over Iran, but the U.S.-Saudi partnership has often tended to reinforce, rather than diminish, each side’s most hawkish tendencies.

After the U.S.-led invasion and occupation of Iraq, Iran developed far greater influence among its allies and co-religionists in Syria, Lebanon, the Palestinian territories, and the Gulf States. Demonstrating the fear that Iran’s expanded Shia influence has inspired among Saudi leaders, in February 2007 Foreign Minister Prince Saud Al-Faisal encouraged the United States to strengthen its naval presence in the Persian Gulf, telling a U.S. diplomat that the Saudis would supply the logic for America’s deployment if Washington supplied the pressure.

Of course it is the Kingdom that is alarmed by the possibility of an Iranian SCUD missile attack on Saudi oil facilities; it is the Kingdom that is petrified by the possibility of Iran’s nuclear program posing a threat to the House of Saud’s regional prestige; and it is the Kingdom that has claimed that Shia-Persian Iran has been stage-managing the massive, popular uprisings sweeping the region in order to undermine Sunni Arab regimes. If the United States moves to increase the scope of its political, economic, and military sticks against Iran, it will only serve to invite further Iranian and Saudi intrigues. It may also encourage Iran and other states like it to seek a nuclear deterrent. Responding swiftly to this alleged plot, as some political pundits have encouraged, will further entangle the United States in an intra-Islamic, Shia-Sunni, Arab-Persian rivalry divorced from America’s vital interests.

As an aside, to shed some new light on the scorn currently being heaped on Iran’s odious regime, let us remember that it is America’s strategic ally—the Kingdom of Saudi Arabia—that remains one of the most oppressive regimes in the Middle East. And as much as folks are fulminating over Tehran’s support for terrorism, in reality it is donors in Saudi Arabia who constitute the most significant source of funding to terrorist groups worldwide.

Cross-posed from the National Interest.

Four Thoughts on the Anwar Al-Awlaki Assassination

As Bob Levy has already ably probed the legal issues surrounding the killing of Anwar al-Awlaki, I’ll just append a few miscellaneous thoughts.

First, over the last decade we have been repeatedly told by foreign policy hawks that it is foolish, and even borderline offensive, to suggest that aggressive U.S. action abroad may have the counterproductive and unintended consequence of swelling the ranks of terror groups. When evaluating the wisdom of drone strikes or invasions of other countries, we need not even factor in the downside risk of “blowback” stemming from such actions, because “they hate us for our freedoms.” In other words, radical Islamist terrorists are fundamentally motivated by a vision of a global caliphate, not by any grievances stemming from real or perceived injuries inflicted by U.S. policy. I think of this as the “No Marginal Terrorist” Theory, because it posits that people are motivated to join terror groups strictly for reasons connected with either personal psychology or theology, such that reactions to specific U.S. actions never make the difference at the margin.

At the same time—and often by the same people—we are told that Anwar al-Awlaki posed a grave threat to the United States, not so much because of any particular logistical genius he possessed, but because he was so dangerously effective as a recruiter and propagandist who could inspire people already living in the West to jihad. Surely, then, it’s relevant to inquire into the nature of this lethally effective propaganda. Here is an excerpt from what The Guardian calls one of ”his most direct, English-language statements endorsing terror attacks on Americans”:

With the American invasion of Iraq and continued U.S. aggression against Muslims, I could not reconcile between living in the U.S. and being a Muslim, and I eventually came to the conclusion that jihad against America is binding upon myself just as it is binding on every other Muslim….

To the Muslims in America, I have this to say: How can your conscience allow you to live in peaceful coexistence with a nation that is responsible for the tyranny and crimes committed against your own brothers and sisters?

Possibly al-Awlaki is just a sort of Salafist James Earl Jones, and the sheer hypnotic beauty of his voice is what compels people to sacrifice their lives for him, without regard to the specific contents of his sermons. Still, it seems to be a problem for the No Marginal Terrorist Theory if a propagandist who was believed to be uniquely effective at motivating people to become terrorists used rhetoric like this to do it.

Second, a good deal of the coverage I’ve been seeing has treated the conclusions of U.S. intelligence analysts about al-Awlaki’s role and status within al Qaeda in the Arabian Peninsula (AQAP) as ironclad facts rather than contestable inferences from necessarily patchy data—even though the past decade should have made it abundantly clear that analysts sometimes get it wrong. Certainly al-Awlaki is no “innocent” in any sense of the word, but on the crucial claim that he’d progressed from terrorist mascot to mastermind, it’s worth noticing how much of the case depends on plots that the cleric was “linked to” or “believed to have had a hand in planning.” At least one Yemen expert has argued that al-Awlaki’s status within AQAP has been wildly inflated, describing him as a “midlevel religious functionary.”

While there is some public evidence that certainly seems to support the conclusion that al-Awlaki had gone “operational”—that he did not merely advocate jihad in principle, but played a key role in planning and directing terrorist acts—the bulk of it remains classified. As we learned to our great cost after the invasion of Iraq, a top secret clearance does not actually grant omniscience, and sometimes a case that seems like a slam-dunk on the surface falls apart under impartial scrutiny. Paradoxically, the administration’s refusal to submit to that scrutiny seems to have given its determinations an aura of oracular certainty.

Third, the case for targeted killing here relies very heavily on the fact that al-Awlaki had put himself beyond the reach of feasible arrest. The most ardent hawk would recoil at the prospect of simply dropping a bomb on a citizen suspected of al Qaeda ties in New Jersey, or London. But as Robert Farley notes, what is “feasible” is at least in part a matter of judgments about the risks and benefits of attempting a capture. So we’re required to entrust to the executive branch to determine not just when a particular citizen has joined the enemy, but under what conditions it’s worth the risk of attempting to take them alive.

In al-Awlaki’s case, one can at least say—as the judge who rejected a lawsuit brought by his father did—that the target was plainly aware the government was after him, and in theory could have offered to surrender himself if he’d been interested in seeking his day in court. (I stress “in theory” because it’s hard to imagine AQAP looking favorably on such a decision in the wildly improbable event al-Awlaki had been inclined to make it.)

But remember that this was supposed to be a wholly covert operation, and would (according to the administration) imperil national security if discussed in any way—even though the national security risk appears to have diminished a great deal now that it’s a matter of taking credit rather than blocking litigation. There was an advance leak in this instance, but the next citizen on the list may have no idea there’s a Hellfire missile with his name on it. What we think about the specific instance of al-Awlaki, then, seems less important than how we feel about a case in which everything goes according to plan. That is, an American citizen is simply killed abroad with no advance warning, on the basis of an executive determination that he has joined an enemy power and poses an imminent threat, and no guarantee that the United States will acknowledge (let alone justify) the operation even after the fact.

Fourth and finally, the debate after the fact has been a reminder of how utterly useless conventional war metaphors are for grappling with the unique problems presented by the present conflict. Anyone who imagines the very thorny issues presented in the current case are somehow illuminated by analogies from World War II is just kidding themselves: if this conflict were not so plainly unlike World War II and other conventional conflicts between nation states, on so many salient dimensions—if we could straightforwardly treat an ever-shifting array of emerging terror groups as equivalent to a sovereign country’s uniformed military—everything would be a good deal simpler.