The Trouble With Ducks And Rabbits
Originally posted October 10, 2013
The failed October 2013 raid by U.S. special operations in Somalia offers a concrete example of the conceptual confusion we are facing in our conflict with Al-Qaeda and similar movements and how it harms us.
In the raid to capture Al-Shabaab leader Ikrima, failure to accomplish their goal resulted in a withdrawal of U.S. forces, rather than the killing of the target. If Ikrima was truly a valuable enough enemy target to be captured then he is also valuable dead. The raid force could have killed the target as soon as it was determined that they were unable/unlikely to capture him alive, but this was allegedly contrary to their orders.
This is likely the result of decision- makers that were captive of an “arrest mentality” which is not appropriate for combat in war but is inherent in criminal law. The consequence of this inappropriate mindset was that, not only did the U.S. fail to capture Ikrima, forfeiting any intelligence value he may have provided, but he is still able to operate. Moreover, Ikrima will be more difficult to target in the future, the enemy has been emboldened, and perhaps most damaging, the U.S. has demonstrated to its own people, to its enemies, and to the world that it is still conflicted in its approach to the War on Terror.
A nation’s highest moral order is to protect its own citizens and their interests. As a result different frameworks have emerged for how a nation deals with its own population and other nations/groups in the world. The first set of rules, the legal/criminal framework, exists to protect our liberties and prevent dangers to our citizens from within while the second set of rules, the military/war framework, enables us to be as effective as we can be in combating our enemies abroad, to protect the nation from external threats. But these pre-existing models emerged to address different challenges than those to which they are now being applied. If the current threats are not truly crime and not truly war then neither approach can sufficiently address them. In attempting to do so the two frameworks have been expanded, modified and stretched. The result has been confusion over approaches, indecision, and usurpation of liberty.
On the one hand, the excessive prohibitions of the war framework hamper our effectiveness in combating non-state actors outside our boundaries — as demonstrated in the failed raid in Somalia, rendition programs and the continuing problem of how to handle Guantanamo detainees. For most of history, those that refused to obey the established laws of war were not privy to being protected by them, yet under our current guidance, unlawful combatants are being treated as POWs or even more absurdly as criminal defendants. On the other hand, ironically, the legal framework is being perverted by increasingly oppressive measures, such as the classification of U.S. citizens as enemy combatants, drone killings of citizens, and unbridled government surveillance - clearly undermining civil liberty within our own borders.
These effects are the direct result of a confused policy. This contradictory mentality is explicitly laid out in the President’s May 2013 Speech on Counterterrorism at the National Defense University, where he made several problematic statements. The first group highlights restrictions on our ability to target terrorists:
“Beyond the Afghan theater, we only target al Qaeda and its associated forces.” This extremely narrow restriction on targeting not only allows a name change or break with al-Qaeda to have to require a legal debate before targeting but also focuses on the actor, not the threat.
“America does not take strikes when we have the ability to capture individual terrorists; our preference is always to detain, interrogate, and prosecute.” This clearly demonstrates the arrest mentality, and merely relying on ability does not take into account cost of execution, setting up increasingly difficult requirements.
“…we act against terrorists who pose a continuing and imminent threat to the American people.” This is an ambiguous and loose definition that can prevent the targeting of individuals because the threat is not “imminent” or “continuing” however these are defined, or because the threat is not against allies, not necessarily the American people.
“…there must be near-certainty that no civilians will be killed or injured — the highest standard we can set.” There is no specific definition for what “near-certainty” is but it is applied in an overly-constraining manner and opens the door for arbitrary limitations on ordinance, groups, and locations. It further will ensure that targeting is micromanaged, and will result in missed opportunities.
And yet, after laying out restrictions on the use of force against known enemy combatants, the President defends his ability to execute US citizens outside of any judicial process. He notes,
“I do not believe it would be constitutional for the government to target and kill any U.S. citizen — with a drone, or with a shotgun — without due process…” But when “due process” is defined as the President and his advisers then the Constitution is clearly being violated.
The President continues, “…when a U.S. citizen goes abroad to wage war against America and is actively plotting to kill U.S. citizens, and when neither the United States, nor our partners are in a position to capture him before he carries out a plot, his citizenship should no more serve as a shield than a sniper shooting down on an innocent crowd should be protected from a SWAT team.” There are many problems with this statement. First, even when a person planning on shooting an innocent crowd, it is still not legal to execute him. If he were in the act, then of course, but this is a false equivalence. Second, it is a subjective judgement call on whether one is in a “position to capture him” or whether one’s partners are. This leaves too much room for interpretation. Third, “actively plotting” is a loose definition that can be (and has been_ stretched far beyond what a reasonable person would assume it to mean — al Awlaki is a case in point, which is coincidentally what the President was referencing. The problems with due process have already been mentioned.
What has essentially occurred is that we are providing more limitations on targeting terrorists while reducing limitations on targeting our own citizens. This type of confusion, and the resulting undesirable effects, are a natural outcome of the application of inappropriate conceptual frameworks to real-world problems.
In an article on ForeignPolicy.com, Rosa Brooks identifies this problem, focusing on the confusion over which of the two pre-existing philosophical and legal approaches we should adhere to while combating Violent Non-State Actors (VNSAs). She uses Wittgenstein’s philosophical model, the duck-rabbit, to portray the crux of the problems by identifying that there are both those who view terror as crime and those who view it as warfare, and she implies that each categorization is subjective, that each interpretation is wrong or right depending on how it is viewed.
Mrs. Brooks then simply rephrases the false dilemma between the two frameworks, this time focusing on the implications/consequences of each, “Do we prefer a world in which there are few constraints on the state’s use of lethal force, which creates one set of dangers — or do we want a world in which the state is more constrained, which creates a different set of dangers?”
Rather than continue to suffer this loss of both security and liberty, Mrs. Brooks desires to return us to the classic trade-off between the two. This line of reasoning assumes that because the problem does not discretely fit into either of our current models, it must be forced into one or the other and the choice should rest on which set of consequences are most easily stomached.
Most of the current dialogue follows Mrs. Brooks logic and is focused on trying to determine which which category is the right solution to apply.
But contrary to this narrow thinking, we do not have to choose between these three unsatisfactory results. Mrs. Brooks never considers that perhaps there should be different sets of rules - tailored on whether one is a US citizen, or a non-citizen within the borders or a non-citizen outside our borders (or if one wishes to be more specific: in war zones, or outside sovereign nations, or in failed states, or in VNSA controlled areas, or wherever it is decided to draw this line). These different sets of rules should coem with appropriate authorities for how to address each threat. The problem with the current guidance and with the recommendations of Mrs. Brooks, is that current authorities are not appropriate. One of the main reasons for this is our treatment of international law.
It is naive to think that a nation should treat its own citizens and its enemies in a similar manner or that the nation should subordinate protecting its citizens to accord to an ideal international law.
The international system is anarchy. There is no “law,” only convention. There are international agreements and customs, but these are law only the extent that nations treat them as such. They may abided by as they suit a nation and may be discarded when they do not — they are the equivalent of social pressure and fear of retaliation rather than law. They are only enforced through the force or threat of force by other agents. Despite what Mrs. Brooks argues in another piece, there is no rule of law outside of the nation that provides, guarantees and adjudicates it. International organizations are not legal entities, but merely organs with which to garner and coordinate the power of their member states - they are the pretty lie painted over power derived from an international tyranny of the majority. The reality is that the true law in anarchy is always power. A government that is capable of killing anyone, anywhere on earth, and can accept the consequences of this (such as the international community uniting against it), can do so. The only laws that truly bind a state are not international but domestic — the constitutional law that created and empowered it, and the will of its citizens to allow it to exist. A nation’s actions should be constrained only by the results its actions will have on the liberty and security of its citizens, and protecting them from external threats and securing their liberties can not be treated as mutually exclusive.
The law of war may be the right approach against certain enemies, civil law may be the right approach against others, but to address the outliers, these two concepts cannot be stretched without further detrimental effects in both arenas. Both frameworks must be strictly defined and constrained and new approaches must be developed for those gaps between them.
The truth is that we are facing neither a duck nor a rabbit. We must flip the image again. We need another framework.
