|Many of those who criticised the use of ‘aggressive interrogation’ techniques failed to display a parallel concern for the victims of targeted killings [EPA]|
Nine years into what the US used to call the “global war on terror,” the nation still cannot agree on how to describe the struggle, how to characterise it, or on a logically consistent set of tools and procedures to conduct it. To some, this might seem unacceptable. I, however, would be far more critical if I did not harbor some degree of ambivalence myself.
The issue is usually framed as a dispute between those who think of the struggle against terrorism as a war, properly so called, with rules and procedures to suit, and those who see it as a law enforcement challenge, subject to the normal rules of civilian due process. This dispute is hardly new; and yet the number of situations in which the same issues arise in slightly different form only increase over time, as the nature of the struggle morphs, and its geographic and political contexts shift.
War versus law enforcement
The Obama administration, in trying to distinguish itself from the Republican administration which preceded it, signaled early on a clear discomfort with the bellicose language of years past, eschewing references to a ‘war on terror,’ and indicated a clear preference for the language and the legal trappings of law enforcement. In this, however, Obama has been anything but consistent.
For some time, beginning well before the policy changes of the current administration regarding terrorist detention and interrogation policies, intelligence practitioners in the US have been bemused over the apparent lack of parallel concern regarding targeted killings – such as “alleged” drone attacks in Pakistan. Congressmen and others who were caterwauling over the claimed abuse of detainees who were subject to “aggressive interrogation” appeared to have no such concern for the fate of reputed al-Qaeda terrorists who abruptly disappeared in a cloud of smoke in Pakistan’s tribal areas.
Such inconsistency seemed unlikely to persist forever; and indeed, with the sharp increase in the apparent number of drone attacks against militants in northwest Pakistan since the Obama administration’s arrival, press scrutiny of these attacks has greatly increased. Most recently, stories alleging the inclusion of Anwar al-Awlaki, a US citizen currently at large in Yemen, on the list of authorised targets for directed attacks have generated much more pointed questions regarding the criteria employed for inclusion on such lists and, indeed, the appropriateness of such attacks under any circumstances.
Thus, it was not a great surprise to see that on August 30, the American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (CCR) filed suit in a US court challenging the legality of such targeted killings. As described in a Washington Post op-ed by the executive directors of the two organisations, the suit primarily concerns the rights of al-Awlaki, but raises a far broader issue concerning the legality of attacks against known and identified individuals outside of a zone of armed conflict.
Such attacks, they allege, amount “to the imposition of a death sentence without charge, trial or conviction”. In their estimation, such extrajudicial killings can be legal “only as a last resort and in the face of a truly imminent threat to life – and then only because the immediacy of the threat makes judicial process infeasible”.
‘Grave and imminent threat’
|The Obama administration has shown clear ambivalence in how it conducts its ‘war against al-Qaeda’ [EPA]|
As an American, I can easily understand, and indeed share, concerns over the processes governing lethal attacks being conducted in my name. Even if much regarding the targets and the circumstances of such attacks must remain secret, I should want assurances that there was some process in place, with adversarial checks and balances, to ensure that established – and known – criteria were being adhered to.
And yet, when they attempt to make the case that such attacks outside clearly designated war zones should not be legal, I find the arguments put forward by the ACLU and CCR unconvincing. The US government, they indicate, need not engage in such directed attacks, as it already “has the tools it needs to address the threat”. The US, they say, can seek the extradition of suspected terrorists, and facilitate the process by sharing intelligence and providing financial and technical support to concerned governments.
All of this, of course, misses the point entirely. The US government is doing all these things and more in close cooperation with dozens of countries. The perceived need for targeted killings such as drone strikes arises precisely in those areas of “ungoverned space,” where there are no responsible officials capable of enforcing law and order. The US is not conducting drone strikes in Belgium – or, for that matter, in the settled areas of Pakistan – where duly constituted authorities hold sway and can operate freely. Such is not the case in North Waziristan or, for that matter, in much of Yemen.
Apparently sensing this, the ACLU and CCR concede that “in a truly extraordinary case, the government may have no choice but to use lethal force to address a threat that is both grave and imminent”. In such cases, however, the threat must truly be imminent; citing reports that some targets remain on “direct action” lists for months, they assert that in such cases, the threat cannot be considered imminent.
Again, I find the argument unpersuasive. Clearly, rules governing the use of lethal force outside war zones must be narrowly drawn and rigorously applied, and imminence of threat would necessarily be an important element among the applied criteria. In the case of a militant who has indicated his intent to carry out terrorist attacks against civilian targets – in some cases by having stated that intent openly – while having the potential means at hand to carry out perhaps multiple attacks, the fact that such a person may not have successfully struck in a brief period of time is certainly no indication that the threat he poses is not imminent.
The ACLU and CCR do not say so clearly, but suggest that in cases where time would allow, there should be some sort of judicial process to determine whether a terrorist suspect merits use of directed lethal force. But that would imply some sort of trial in absentia, with a death sentence being handed down as a result. Given the ACLU’s virulent opposition to the death penalty, that becomes a bit awkward; in any case, the US has never considered trials in absentia to be valid, and is unlikely to change now. Moreover, as a practical matter, the standard of proof required in a court of law where witnesses can be freely called and suspects questioned directly can never realistically be met in the context of conflict in a remote haven.
But as regards other complaints, such as the Obama administration’s refusal to disclose the standard under which persons can be targeted, and the process whereby those standards are applied, I am much in sympathy with the ACLU. In insisting, as it apparently does in this case, on applying rules of warfare to directed killings, the Obama administration would do well to heed the cautionary example of the Bush administration with regard to detention and interrogation policies.
For many years, the previous administration refused to reveal publicly what it was doing and to seek open support for it – either in Congress or among the electorate. When it ultimately made such revelations, it did so only grudgingly and under duress – and far too late to galvanise support. Even if such support had proved ephemeral, as it probably would have, the administration would not then have faced allegations of criminal conduct when congressional and public attitudes shifted.
All of which brings us back to where we started. Its early rhetoric notwithstanding, the Obama administration has shown clear ambivalence in the way in which it thinks about and conducts what it chooses to refer to as the “war against al-Qaeda”. Though exercising the “sovereign right of self-defence” even outside war zones, it nonetheless insists on attempting to try high-profile terrorist suspects in federal courts with constitutional protections, while still reserving the right to indefinitely detain those considered dangerous, as though they were prisoners of war.
It may well be that, in the words of Ralph Waldo Emerson, “a foolish consistency is the hobgoblin of little minds,” but if the administration is to employ mixed standards, particularly as regards to the more controversial aspects of its counter-terrorism policy, it would be well advised to clearly explain what it is doing, and why.
Robert Grenier was the CIA’s chief of station in Islamabad, Pakistan, from 1999 to 2002. He was also the director of the CIA’s counter-terrorism centre.
The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial policy.