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Red lines and the credibility arms race

Friday, April 26th, 2013

[The views and opinions expressed here are solely the responsibility of Lynn C. Rees. They may not necessarily reflect the official views or opinions of Zenpundit] 

To deter, Barack Obama has publicly drawn a red line between tolerable and intolerable. We now watch to see and (perhaps) learn if open signaling of red lines has deterrent effect.

Open red lines intended to stave off the intolerable without ending in blows are as ancient as territorial instinct. Red frequents coloration of animals who’ve evolved warning signals embedded in their anatomy. Lines, though marked more by scent or suggested by signal, are also abundant among Man and nature.

“Bear”, my brother’s late Shar-Pei, vociferously defended my brother’s chain-linked fence line. All his toing and froing facing down suspicious pedestrians even wore a second line into the front lawn that paralleled the fence. His vigorous bark emerged from wolven ancestors to draw lines red in tooth and claw in wolven mind so it didn’t come to lines red in tooth and claw in wolven reality. 

But, if bluffs are called and barks prove to have more volume than bite, a red line will prove only as substantial as the bite and fight beyond it. If warning is not credibly conveyed and things fall apart, nothing may remain except bite and fight.

Bear’s bark proved a poor red line. While it sounded loud and formidable, when you opened the front gate and entered the yard, Bear would casually mosey up, sniff you, and promptly return to the barking line. Shar Peis are renowned for even-tempers. Bred as guard dogs in China, they often had to be brutalized or drugged into fight and bite. Bear was neither brutalized nor drugged so he lacked credible fierceness.

There is no certain calculus in drawing red lines. My calculus teacher wisely taught that variables have only one invariable certainty: they tend to vary. Man is not only variable, he is contrary. His contrariness not only votes present, it votes with real impact. If it were otherwise, you’d have a sort of Clausewitzian “red line by algebra: tally up one side of a red line in one column and tally the other side in another column. Then, when clearly displayed in public, those on either side would be forced to agree on how substantial the red line was and openly acknowledge its deterrent psychology.

Politics, the division of power, varies most in the intensity in which its division of power escalates confrontation toward violence. Some political contestants’ escalation is too hot. Others’ escalation is too cold. For others, their escalation will be just right. Some draw red lines and aggressively escalate political intensity based on broken red line theory: one small crack in your red line, like someone publicly urinating on it, means the entire red line will be stripped down to its bare chassis overnight if small infractions aren’t predictably and promptly punished. Others use them to draw folks along, perhaps as bait, perhaps as stalling tactics, while they do something else somewhere else. Some red lines are implicitly understood by all as being for entertainment purposes only.

Unfortunately, we’re armed with only a few rules of thumb to guide us in drawing and escalating red lining, most centered on creating intrinsic credibility:

  • …every power ought to be commensurate with its object…
  • …the means ought to be proportioned to the end…
  • …there ought to be no limitation of a power destined to effect a purpose, which is itself incapable of limitation…
  • A government ought to contain in itself every power requisite to the full accomplishment of the objects committed to its care, and to the complete execution of the trusts for which it is responsible, free from every other control but a regard to the public good and to the sense of the people.
  • As the duties of superintending the national defense and of securing the public peace against foreign or domestic violence involve a provision for casualties and dangers to which no possible limits can be assigned, the power of making that provision ought to know no other bounds than the exigencies of the nation and the resources of the community.
  • As revenue is the essential engine by which the means of answering the national exigencies must be procured, the power of procuring that article in its full extent must necessarily be comprehended in that of providing for those exigencies.
Beyond that, it’s a matter of converting intrinsic credibility into fully mobilizable and then field-deployable credibility. Angelo M. Codevilla writes:

John Quincy Adams, a student as well as a practitioner of statesmanship, believed that governments understand their own and others’ interests quite well. His involvement in diplomacy, which lasted from 1778 to the end of his presidency in 1829, convinced him not that negotiations are superfluous, but rather that they ratify the several parties’ recognition of existing realities regardless of agreements or lack thereof. Diplomacy can make it more comfortable to live with reality by clarifying mutual understanding of it. On the other hand, Adams’ magisterial notes on his 1823 recommendation that America spurn the invitation to join Britain in a declaration disapproving any attempt to recover Spain’s American colonies—that jointness would have added nothing to the reality of parallel British and U.S. opposition to such a venture—underlines the central fact about diplomacy: though it conveys reality, it does not amend it.

In 1968, Fred Ikle published How Nations Negotiate, which is used by diplomatic academies around the world. Too many graduates, however, forget its central teaching, which is that the diplomat’s first task is to figure out whether agreement is possible on the basis of “the available terms”—in short, whether both sides’ objectives, though different, are compatible. Only if they are can negotiations proceed according to what Ikle calls “rules of accommodation”—making sincere proposals, honoring partial agreements, etc. If the objectives are incompatible, the diplomats may choose to walk away, or to “negotiate for side effects”—to use the negotiations to undermine the other side’s government, sow dissention among its allies, deceive it, pocket partial agreements and renege on commitments, buy time, gather intelligence, etc. Disaster looms when one side follows the rules of accommodation while the other negotiates for side effects. The essence of Ikle’s teaching is that the negotiator’s primordial job is to judge correctly whether the other side is negotiating for “available terms” or is waging war through diplomatic means, and hence to choose whether to negotiate for agreement, walk away, or treat the diplomatic table as a battlefield. That choice is “perpetual,” he writes, because human motives are variable.

When the president publicly drew his red line:

Michelle and I have used a strategy when it comes to things like tattoos — what we’ve said to the girls is, ‘If you guys ever decide you’re going to get a tattoo, then Mommy and me will get the same exact tattoo in the same place,'” he said. “And we’ll go on YouTube and show it off as a family tattoo. And our thinking is that it might dissuade them from thinking that somehow that’s a good way to rebel.

He’s made his “primordial job” as a parent public. Under public scrutiny, he has to “judge correctly” whether Maliah or Sasha are negotiating for “available terms’ or “waging war” through tattooed means. He has to publicly choose whether to negotiate for agreement, walk away, or treat tattoos as a battlefield. As a parent, his choice is “perpetual”.

His credibility in deterring tattooed rebellion does have some fight and bite behind it. The Christian Science Monitor observes:

They’re still kind of young. Malia is 14 and Sasha is 11. They’re not marching into any tattoo parlor near Sidwell Friends School in upper northwest DC. First, there aren’t any – they can’t afford the rents there. Second, you’ve got to be 18 to get a tat in the city, we believe. The City Council approved that move recently.

This move may represent sufficient “provision for casualties and dangers to which no possible limits can be assigned” coupled with “the power of making that provision”. But whether tattoos escalate to where parent-child disagreement knows “no other bounds than the exigencies of the nation and the resources of the community” is the other half of Maliah and Sasha’s measure of President Obama’s credibility amd the deterrent quality of YouTubed shame over their coming teens.

The CSM doubts it. Conceding the president’s stratagem is “sort of based on assured mutual deterrence. Or preemption – you could call it that, too” and that it’s “interesting, in the sense that it’s a fairly coherent and intellectualized way to approach this common parental problem”, it observes:

…the real reason the preemption strategy probably appeals to the Obamas right now is that their daughters still listen to them. They can process cause and parental reaction and weigh options. They haven’t entered that period where common sense gets suspended, and they focus mostly on their own needs and wants, because that’s what teenagers do…

Once they are 18, they will be away from daily parental authority and tattoos might seem like a better idea. At that age, they don’t really think about long-term consequences, so they might get body art just to spite their parents. Or because they forgot their parents’ we-will-do-it-too vow. Or because they don’t care. Or just because… 

And then what happens? The president of the United States will probably feel obligated to get a tattoo of a butterfly at the base of his neck, because he vowed he would; and if he does not follow through, opponents will doubt his strength of will, or something like that.

I disagree. Rather than being “obligated”, the president retains his God-given agency. America’s greatest strategic thinker of the last fifty years will give him some advice:

You got to know when to hold ’em, know when to fold ’em,
Know when to walk away, know when to run.
You never count your money when you’re sittin’ at the table,
There’ll be time enough for countin’ when the dealin’s done

His choices as a parent are there “because human motives are variable”. As such, they will tend to vary, moment by moment, place by place, tattoo by tattoo. The president should carefully consider where and when he draws red lines, especially in public and especially when publicity is a key component of his red line’s hypothetical deterrent effect. Better to learn to gauge when to hold ’em and when to fold ’em now before the sarin calls of adolescence come around. Only then maybe there will be time enough for counting when the teenage years are done.

Only Amateurs Negotiate in Public

Friday, April 26th, 2013

There is much buzz right now about whether the cruel Syrian Baathist-Alawite regime of Bashar Assad, struggling to hold on to power in the midst of civil war against rebel Sunni forces, crossed   President Obama’s “red line” by using Sarin gas, a war crime. That is not really the important point for Americans. There are two things to consider here.

First, specifically how would intervening militarily in Syria’s awful civil war be in American national interest?

It is important to get a clear cut answer here because everyone arguing that Assad has “crossed a red line” that we will “not tolerate” is making a de facto argument for some kind of intervention on our part. Maybe if no one can define such an interest it is because there isn’t any and intervening will bring the US nothing but costs in blood and treasure without gaining anything of strategic value. I’m not against intervention per se but there really ought to be a coherent reason so we can rationally measure it against the potential costs which, from where I sit, look rather large.

Secondly, in important matters of state, you don’t negotiate in public with a potential adversary if you really hope to gain a concession from them and if you reach the point of issuing a public ultimatum, you don’t bluff.

The people who have advised President Obama to make these “red line” statements to Syria through the media instead of quietly through diplomatic channels are either professionally incompetent at statecraft or they were hoping to manipulate the President by getting him to back himself into a corner with tough rhetoric so that if Assad did not blink then Obama would have the choice of looking weak and foolish or of approving some kind of action against Syria. Either way, the President was poorly served by this advice. Maybe he needs some new foreign policy and national security advisers who actually know something more about the world than domestic politics and being lawyer-lobbyists.

As a result that the President never really had any intentions of, say, invading Syria this year, we are now being treated to nervously asserted, lawyerly parsing of what really counts as “red lines” and what technical level of Sarin gas particulates constitutes “use”. It is an embarrassing climb down for the administration but also for the United States that never needed to happen. Empty posturing is not a substitute for a policy. Saying “Do something!” is not a strategy.

This is no brief for Assad’s regime. He’s definitely a bad actor and runs a nasty and now democidal police state he inherited from his mass-murdering father, Hafez Assad. I’m open to hearing why the US should aid in a regime change because the outcome will be in our interests in some concrete and definable way. Oh, yeah, and it might help if the person making the pitch knew something about Syria and regional geopolitics, or was at least consulted about it.

Let’s think long and hard this time.

Chechnya: of flags, prayers and swords, wolves, dogs, and hyenas

Thursday, April 25th, 2013

[ by Charles Cameron — powered by a 2009 post from Ibn Siqilli ]

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As you know by now, I am fascinated by the oblique-angled windows on current affairs offered us by mythology, folklore, iconography… and for the record, I’ll specifically include flags under iconography.

Thus Amjad Jaimoukha‘s The Chechens: A Handbook (available here for Kindle at $135, a price every scholar can surely afford) caught my eye with the following quote:

The wolf (borz) is a potent national symbol, and its character traits are considered paragons to be emulated. Chechen men would be proud to be compared to wolves. ‘He was nursed by the She-Wolf,’ is a compliment implying adroitness and courage. Legend has it that it was the wolf that redeemed the world by standing heroically in face of the fury unleashed on doomsday. According to the Chechen ethos, the wolf is the only animal that would enter into an unequal match, making up for any disadvantage by its agility, wit, courage and tenacity. If it loses the battle, it lies down facing the foe in full acceptance of its fate — Chechen poise equivalent to the famed British ‘stiff upper lip’. This wolfish analogy is a depiction of how the Chechens have dealt with outside invaders for millennia.

According to mythology, god had created sheep for the wolf to enjoy, but man tricked it out of its ‘patrimony’, so it had to resort to ruse and robbery to reclaim its right.

That’s Chechen wolf-imagery in the upper flag, above.

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Three things to note in those two paragraphs from Jaimoukha:

What calling a Chechen a “lone wolf” does to self-esteem:

Chechen men would be proud to be compared to wolves.

the deft touch of apocalypse:

Legend has it that it was the wolf that redeemed the world by standing heroically in face of the fury unleashed on doomsday.

and asymmetric warfare:

According to the Chechen ethos, the wolf is the only animal that would enter into an unequal match, making up for any disadvantage by its agility, wit, courage and tenacity.

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As to prayers, the use of the takbir, “Allahu Akbar” above the swords in the lower flag is part of the muezzin’s call to prayer, and recited during the prayers themselves.

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It was Ibn Siqilli‘s post, Portraits of Resistance & Jihad in Chechnya & the Islamic Emirate of the Caucasus with its three flags at the head of the post that set me off on this pilgrimage — and I’d also like to pay tribute to the sincerity of belief which gives rise to such a photo as this one, also taken from that post:

We’re back at prayer again…

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On the topic of lone wolves — as I hope the quote above illustrates, word choices can have unintended impacts! Of note, Brian Michael Jenkins in Stray Dogs and Virtual Armies: Radicalization and Recruitment to Jihadist Terrorism in the United States Since 9/11 makes a distinction between stray dogs and lone wolves:

Analysts have tended to call such individuals “lone wolves,” in my view, a romanticizing term that suggests a cunning and deadly predator. A few of those recorded here display this kind of lethal determination, but others, while still dangerous, skulk about, sniffing at violence, vocally aggressive but skittish without backup. “Stray dogs,” not lone wolves, more accurately describes their behavior.

JM Berger talks about lone wolves in The Utility of Lone Wolves, or lack thereof:

If there were any doubts that lone wolves can be deadly, they were dispelled by Anders Breivik, the Norwegian anti-Muslim crusader who in July killed 69 young people in a coordinated attack using guns and a car bomb.

and again in The Boy Who Cried Lone Wolf:

Does it matter that some (but not all) of the terrorist network members described above were actually undercover law enforcement agents or informants? It doesn’t change the fact that none of these individuals was working alone. They were receiving advice, concrete assistance, and passive reinforcement from people they believed — rightly or wrongly — to be part of larger terrorist organizations.

None of this means that these guys aren’t dangerous, and none of this is to argue that they shouldn’t have been arrested. But they are not lone wolves. They are essentially al Qaeda volunteers …

But I’ll let Tim Furnish have the last word on nomenclature. In a comment here on Zenpundit he told us he’d originally entitled his HNN blog post “The Brothers Tsarnaev: Hyenas in the Service of the Mahdi” — and in the post itself he writes:

But viewing them from outside, analytically, as lone wolves may give them too much credit; while classifying them as stray dogs neutered of religious ideology gives the Islamic element too little. Perhaps a new paradigm, one of roaming hyenas, best describes the Tsarnaevs — characterized by anomie (fitting into neither domestic nor foreign contexts), the ability to feign surrender when necessary, and a propensity for attacking only the defenseless.

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And oh, by way of cosmic irrelevance, my googling brought me here:

It’s a web-wild-world we live in!

Octavian Manea interviews MIT’s Roger D. Peterson

Friday, April 19th, 2013

Another installment of Octavian Manea’s excellent COIN interview series at SWJ. This one focuses on social science and varieties of insurgency:

Breaking Down “Hearts and Minds”: The Power of Individual Causal Mechanisms in an Insurgency 

….OM: In your research you pointed out to a spectrum of conceivable individual roles in an insurgency. What is the methodology behind this typology?

RDP: This methodology comes from my 2001 book (Resistance and Rebellion: Lessons from Eastern Europe) which focused on Lithuanian resistance to Soviets in the 1940’s. Insurgency is a complex phenomenon, especially in how violent organization and networks are created and sustained, and the methodology of that book involved breaking down this complexity into component parts and then building back up into a coherent whole. At the base of this process is the way individuals position themselves relative to the dramatic and violent events of insurgency. Most people may wish to remain neutral and just take care of their families but events push significant numbers of individuals into roles of unarmed support of insurgents, or local armed position of a militia, membership in a mobile non-local organization, or equivalent positions in support of the government.  Furthermore, individuals may move back and forth along this spectrum of roles. If one is skeptical of broad and vague theories at a high level of aggregation, as I am, then you need to get down and observe dynamics at a basic level. Observing movement along this spectrum of roles is one way to do that. 

…..Is it FM 3-24 and the whole contemporary Western COIN discourse too narrow, too much focused on rational, cost/benefit models of decision-making? Is it too restrictive when making this inventory of driving motivations or causal mechanisms?

RDP: I think there is a tendency in the Western academic analysis to focus on rational theories. Those theories are straightforward.  But they also might be too straightforward, too simple.  In Iraq, the coalition did not plan on the emotion of resentment stemming from a status reversal affecting Sunni calculations in the beginning stages of the conflict. We did not understand the revenge norms that exist in some of the places. We did not fully understand the social norms that helped to produce the tribal militias in Anbar province.  We did not understand the psychological mechanisms underlying the Sunni view of the new world they were living in. 

The last part is a curious lacuna.

The incompetence of the planning for the occupation of Iraq has been amply recorded – the high level disdain of General Tommy Franks and Secretary Rumsfeld for what befell the day after victory, the keeping of professional Arabists at arms length in preference for Beltway contractors and college kids with AEI connections, the haplessness of Jay Garner and the political obtuseness of Paul Bremer ad so on. This is not what I mean about lacuna.

I mean something more fundamental, in terms of understanding human nature as the root of political behavior and therefore political violence. We are all familiar with the Clausewitzian trinity (or should be) but less attention is paid to the motivational factors that make men decide to stand, fight and die or stand aside. Thucydides also had a trinity that did not attempt to capture the nature of war but rather explain why wars happened and it seems to me to be of particular use for evaluating the decision in small wars to pick up a gun or not, to side with the government or join the rebellion:

“Surely, Lacedaemonians, neither by the patriotism that we displayed at that crisis, nor by the wisdom of our counsels, do we merit our extreme unpopularity with the Hellenes, not at least unpopularity for our empire. That empire we acquired by no violent means, but because you were unwilling to prosecute to its conclusion the war against the barbarian, and because the allies attached themselves to us and spontaneously asked us to assume the command. And the nature of the case first compelled us to advance our empire to its present height; fear being our principal motive, though honour and interest afterwards came in. And at last, when almost all hated us, when some had already revolted and had been subdued, when you had ceased to be the friends that you once were, and had become objects of suspicion and dislike, it appeared no longer safe to give up our empire; especially as all who left us would fall to you. And no one can quarrel with a people for making, in matters of tremendous risk, the best provision that it can for its interest. 

Fear, honor and interest are ever present in “calculation” both by men and by the political communities they compose and the factions that threaten to tear them apart. All the more so in a defeated and broken country divided by ethnicity and sect where all parties were uneasily eyeing the conqueror. No special knowledge of Arab culture should have been required to anticipate that Iraqi men, if made desperate by uncertainty and circumstance, might have at least seen it in their interest to achieve some measure of security with the gun and to enact policies of carrots and sticks a priori to discourage that, before the insurgency gained critical mass.

Awareness of the universality of the Thucydidean trinity would not have in itself guaranteed success in Iraq but knowing it is a rudimentary minimum of political competence upon which you can at least build.

The White Paper and its Critics

Monday, February 11th, 2013

Someone for reasons unknown last week leaked the classified Department of JusticeWhite Paper” on targeting with drone attacks the numerically tiny number of US citizens overseas who have joined al Qaida or affiliated groups. The leak set off an outburst of public debate, much of it ill-informed by people who did not bother to read the white paper and some of it intentionally misleading by those who had and, frankly, know better.

Generally, I’m a harsh critic of the Holder DOJ, but their white paper, though not without some minor flaws of reasoning and one point of policy, is – unlike some of the critics – solidly in compliance with the laws of war, broader questions of international law and the major SCOTUS decisions on war powers. It was a political error to classify this document in the first place rather than properly share it with the relevant Congressional committees conducting oversight

Here it is and I encourage you to read it for yourself:

Lawfulness of Lethal Operation Directed Against a US Citizen Who is a Senior Operational Leader of al-Qa’ida

Much of this white paper debate has been over a legitimate policy dispute (“Is it a good idea if we use drones to kill AQ terrorists, including American ones?”) intentionally being mischaracterized by opponents of the policy (or the war) as a legal or constitutional question. It is not. The law is fairly settled as is the question if the conflict with AQ rises to a state of armed conflict, which SCOTUS dealt with as recently as Hamdi and for which there are ample precedents from previous wars and prior SCOTUS decisions to build upon. At best, framed as a legal dispute, the opponents of the drone policy would have a very long uphill climb with the Supreme Court. So why do it?

The reason, as I discern it, is substituting a legalistic argument and judicial process (“FISA court to decide drone killings”) to conceal what is really a debate over American war policy   and the President’s war powers in order to accrue domestic political advantage or at least avoid paying the costs of advocating a potentially unpopular position. Otherwise, opponents have to argue on the merits that the US should not as a matter of policy kill al Qaida terrorists sheltered by Pakistan or beyond the reach of government control in Yemen. Or that we are not “really” at war or that Federal judges are better suited for picking bombing targets than Air Force and CIA analysts and that “due process” should apply to enemy combatants on the battlefield. Many of these arguments are valid ones to raise and debate but are unlikely to be persuasive to the public or Congress; if they were, they would have prevailed in 2010 (drones) or 2001 (“are we at war?).

A straightforward legal analysis begins and stops with ascertaining whether or not we are in a state of armed conflict with al Qaida. The white paper used a “kitchen sink” approach to try and cover all legal bases, perhaps to create a basis for a later freewheeling peacetime use of armed drones – which incidentally, I am not in favor of – but it is not required here and actually distracts from the strongest legal argument – the administration is lawfully fighting an enemy in an armed conflict declared by Congress.
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If we are in an armed conflict under international law with al Qaida – and the evidence appears here in fact, legislative action, context, historical and legal precedent to be overwhelming – renders most of the other justifications cited in the white paper for the policy regarding due process as well as nearly all of the criticisms of it moot, at least in terms of legality. Wartime enemy combatants are in a qualitatively different legal status vis-a-vis the United States government acting as a belligerent than are non-combatants or are civilians in peacetime (even civilians who commit criminal acts). No American citizen has a right to pick up arms and join an enemy army or armed group during a war, period. Or a subsequent right to be treated as anything but a combatant if they do. Combatant status is not determined by nationality under international law but by behavior and adherence to a belligerent party’s military forces and their physical disposition ( hors d’ combat, in the act of surrender etc.).
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American citizens fought in enemy armies, notably the Wehrmacht and Waffen-SS, against the United States in WWII and a handful defected to the enemy in the Korean and Vietnam Wars. While some of these men were tried for treason after these wars ended, others were treated as enemy POWs or simply allowed to come home at a later date, but none were accorded judicial due process *during* the conflict as potential targets of an American military attack. Only after capture, as with the saboteurs in the Ex Parte Quirin case, did judicial review and due process come in to play.. We see a similar phenomena with the Civil War where, even under the Lincolnian theory that the Confederacy merely represented “Combinations too powerful to be suppressed” (i.e. a private insurrectionist conspiracy and not the states themselves as corporate, legal, sovereign entities in rebellion), we do not see SCOTUS insisting on normal, civilian, judicial due process in Ex Parte Milligan except where “civil courts are in operation” (i.e. away from the battlefield). This was to prevent the application of martial law in civilian areas in the North, not to stop martial law in theater or occupational zones.
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Had this issue of due process for active enemy combatants been raised during WWII or even Vietnam, it would have been likely (and properly) regarded by US officials as ludicrous; if true, the logic would imply that enemy units could immunize themselves from attack (or substantially delay them)  by recruiting American citizens into their ranks. It would also beg the question why the US could lawfully bomb enemy targets and risk killing American POWs via collateral damage, but not directly target enemy fighters who happened to be American citizens. It would further beg the question why it would be lawful to indirectly target an American citizen in a group of enemy fighters with, say, artillery or gravity bombs from 52,000 feet but be an unlawful violation of due process to aim at him directly with a drone missile or a sniper rifle. Is a Marine rifleman who happens upon Adam Gadahn in Afghanistan and kills him therefore an “assassin” (to use Glenn Greenwald’s description of targeted killings) to be charged with murder?
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Even as a matter of “due process” (!) – never mind fighting a war – how could this legal argument possibly make any sense? What precedent under military law or international law from prior conflicts supports it?
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How would inserting judicial review – even SCOTUS – over operational planning and target selection as a step in the President’s exercise of his Constitutional authority as Commander-in-Chief likely to affect the Separation of Powers? This is not a trivial question – in military terms it is analogous to the judiciary usurping the position of the Rules Committee in the House of Representatives over legislative matters. How would this innovation impact our ability to fight our next war or wars?
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Much like the white paper’s lengthy, but entirely irrelevant discourse into the nature of threat “imminence” and “breadth”, this argument is sheer invention if a state of armed conflict with al Qaida exists. Most criticisms and not a few of the white paper’s own legal justifications consist of novel restraints alien to the historical practice of states prosecuting an armed conflict that we would be extremely unwise to adopt and sanctify as precedents for waging future wars.
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Let us take one of the more intellectually serious and responsible expert critics as an example, Steve Vladeck of American University. Not everything he has to say in his lengthy post is wrong and I even agree with some of his points, but things like this strike me as specious, or at least a very weak reed upon which to rest an argument that alters the constitutional balance:
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….First, many of us who argue for at least some judicial review in this context specifically don’t argue for ex ante review for the precise reasons the white paper suggests. Instead, we argue for ex postreview–in the form of damages actions after the fact, in which liability would only attach if the government both (1) exceeded its authority; and (2) did so in a way that violated clearly established law. Whatever else might be said about such damages suits, they simply don’t raise the interference concerns articulated in the white paper, and so one would have expected some distinct explanation for why that kind of judicial review shouldn’t be available in this context. All the white paper offers, though, is its more general allusion to the political question doctrine. Which brings me to…

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Second, and in any event, the suggestion that lawsuits arising out of targeted killing operations against U.S. citizens raise a nonjusticiable political question is almost laughable–and is the one part of this white paper that really does hearken back to the good ole’ days of the Bush Administration (I’m less sold on any analogy based upon the rest of the paper). Even before last Term’s Zivotofsky decision, in which the Supreme Court went out of its way to remind everyone (especially the D.C. Circuit) of just how limited the political question doctrine really should be, it should’ve followed that uses of military force against U.S. citizens neither “turn on standards that defy the judicial application,” nor “involve the exercise of a discretion demonstrably committed to the executive or legislature.” Indeed, in the context of the Guantánamo habeas litigation, courts routinely inquire into the very questions that might well arise in such a damages suit, e.g., whether there is sufficient evidence to support the government’s conclusion that the target is/was a senior operational leader of al Qaeda or one of its affiliates…

My first criticism would be that Vladeck’s premise that the question of a targeting decision of an American citizen who is a senior leader of al Qaida during a state of armed conflict who is active outside the territory of the United States is a matter for adjudication by US courts is incorrect. He is essentially arguing that the political question doctrine does not cover the exercise of the Constitutionally specified war-making powers of the executive and legislative branches during a war. I am highly skeptical this is an argument any Supreme Court would entertain lightly, much less the Roberts Court.
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My second criticism is more practical – that Vladeck in seeking judicial review of the decision process by which an American citizen is determined to be senior or not senior leader in al Qaida leadership is a distinction without a difference from a court having a priori judicial review of the larger military operation in wartime but with the added detriment of exposing the intelligence process, to discovery. Targeting decisions involve assessment of intel about the target from a variety of perspectives – confidence, effect, probability of success/costs and the “fusion” of (usually) USAF and IC in a targeteering shop. Why  judicial scrutiny should apply only to drone strikes targeting a specific US citizen among other al Qaida operatives in wartime vice simply bombing an al Qaida safe house in which a US citizen might be employs a legal reasoning that is obscure to me. If a US citizen being a potential casualty is the critical constitutional variable here, then not also judicial review of a bayonet charge?
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The proposal for judicial review of potential attacks during an armed conflict (not peacetime) is rife with a host of counterproductive second and third order constitutional and military effects. It represents a sweeping change in our political order by a technical legal fiat. It would also be an exceedingly dumb way to run a war. It might test our powers of imagination, but somehow, we faced down Hitler and the Imperial Japanese without Federal judges running our strategic bombing campaigns.
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This preference for legalistic arguments is partly a product of over representation of lawyers among the American political elite. Highly competent attorneys are very skilled at framing arguments on behalf of clients so that they begin litigation not only from a favorable explicitly stated position but, where possible, with several layers of one-sided implicit premises built in that you accept uncritically only at your peril. When a lawyer comes into a public policy debate saying that a political question is a legal question, he is making a political argument to remove a political dispute in a democratic polity to the courts where the matter will be decided under very different procedures and will remain as a legal question thereafter.
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Sometimes, this is the constitutionally correct thing to do; more often, it is simply an expedient thing to do that diminishes democratic accountability while rendering policy and process needlessly more complex and adversarial than even open public debate. It is also a self-aggrandizing feedback loop for lawyers as a class – when all political questions are legal questions, then should we not all defer to their superior expertise and training? It is the road to technocracy and the rule of law becoming “rule by lawyers”.
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Does that mean the critics have no point whatsoever regarding the use of drones in “targeted killings”? No. The idea that targeting American citizens is bad *policy* because it might, for example, be poorly employed against innocent people by mistake or, in slippery slope fashion, lead to a normalization and extension of the practice of targeted killing outside of an officially recognized armed conflict is a completely valid *political* argument. It is even, in my view, a very wise caution. It just does not hold water as a legal argument on behalf American citizens who go overseas and pick up arms and wage war against the US by joining al Qaida.
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More importantly, there are better, simpler remedies to a “slippery slope” with drone attacks that can be employed legislatively and through vigorous oversight that can be enacted that will strengthen rather than undermine and confuse our constitutional system of governance. First, the Obama administration, for it’s part, should allay critics fears by removing “targeted killings” from the arbitrary hands of unnamed “senior officials” (code for the President? The National Security Adviser? A random White House lawyer?) and either return to a more traditional Pentagon target assessment procedure or use the NSC process with a PDD/NSDD and a properly and timely “finding” being presented to Congress.
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Secondly, the proper body to review the judgement of the administration in tactics, operations, and strategy is not the judicial branch, but the legislative, which has done so in prior conflicts and holds the power of the purse to control the extent of campaigns and the raising of armies. The Joint Committee on the Conduct of the War was the oversight mechanism the Congress employed during the Civil War to review and influence the actions of the Lincoln administration. I would argue that the US Congress is more than sufficient to do the same task today with a far less existential conflict, if it chose to do so. Congress could, if it wished, forbid these operations or cease funding them. Quite pointedly, they have done neither.
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If Congress does not engage in rigorous oversight, it does not follow that a Federal Court is the appropriate constitutional substitute for Congress abdicating it’s wartime responsibilities. Targeted killings of enemy combatants during a declared armed conflict is a question of war policy, not due process, and is the purview of the political branches, not the judiciary
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Thirdly, the “slippery slope” danger is genuine and should be interdicted with legislation prohibiting or severely restricting the use of armed drones at home or forbidding their use against civilians resident in the territory of the United States entirely. A definition from Congress of under which circumstances that terrorism is a matter for law enforcement or military action is something that is likewise years overdue.
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Congress should be taking up it’s weighty responsibilities in war policy and not punting them to the executive or the judiciary, so that the actions of the US government in a matter of extreme gravity like a war are constitutionally clothed in democratic consent.

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