By Daniel Bethlehem
NEW YORK: The killing of Anwar Al-Awlaki last week has given sharper focus to a debate that was already raging about the use of drones, the scope of the September 18, 2001 Congressional Authorization for Use of Military Force, and the wider issues raised by John Brennan’s Harvard speech of September 16, 2011 on security and values. These are important questions that admit of reasonable argument on either side of the point. It is a mark of democracy that this debate is taking place and that its touchstones are law and values rather than simply the effectiveness of the means used to secure the policy goals.
They are not, however, the right questions for the moment. Focused on operational issues – choice of weapons, targeting, issues of co-belligerency – they obscure the broader strategic questions. Is the policy wise? Will its strategic trajectory, led by operational imperatives, leave us where we want to be? As we look to Yemen and Somalia, are we simply mopping up the last war or are we stumbling into the next? The policy in question is out-of-theater targeting, carrying the conflict into new and vulnerable geographic spaces, and who may be properly in the frame.
It is no part of this comment to suggest that the strategic policy is wrong. That is a matter to be informed by the intelligence and threat assessments and the evaluation of risk, both immediate and longer-term. Rather, the purpose is to enquire whether, under the pressures of operational decision-making, we are asking ourselves the strategic questions and whether the framework of our policy is conducive to our doing so.
John Brennan’s Harvard speech was exactly the right speech, to be welcomed in both its detail and its tone and with which many will find it easy to agree. There is one element that invites comment here. He describes a difference between the U.S. and many of its allies over the geographic scope of the counter-terrorism conflict. The U.S. sees the conflict against Al Qaeda as without geographic limit, even if it is subject to other constraints. The self-defense gateway has already been passed. Key allies see it differently, as a conflict geographically limited to “hot’” battlefields. Imminent terrorist attack planning elsewhere requires a fresh self-defense analysis. While this description does not capture the nuance of a complex debate, it shines a light on the space between the strategic and the operational, on the questions that arise when it comes to carrying the conflict into new geographic spaces, and on whom may properly be targeted in those spaces. It goes therefore to the question of strategic trajectory. Where will we be in 12 or 24 months time?
There are without doubt challenges to a self-defense framework of action against terrorist threats from abroad. The burden on real-time intelligence may be too great. It may not admit of a nimble enough response. The issue of “imminence” may be controversial. There is debate around the pre-emptive, dissuasive and punitive character of such action. But, such an analysis also brings the discipline of a strategic inquiry. It imposes a necessity, or exigent circumstances, gateway for action. It works with the grain of sovereignty rather than against it. It has a self-limiting operational framework.
The use of armed force in Yemen and Somalia is easier to rationalise if Al Qaeda in the Arabian Peninsula and Al-Shabaab are construed as co-belligerents of Al Qaeda in Afghanistan and Pakistan’s Federally Administered Tribal Areas. Targeting becomes more straightforward. Any opposing participant becomes targetable, whether or not a proximate threat is posed. The questions that follow are operational, addressed to commanders within the framework of targeting directives, rules of engagement and other authorizations to act. But, intrusion, escalation, collateral effects and wider instability may also follow more easily, and with them the challenges to the hearts and minds of those we want to persuade.
A self-defense framework requires a different analysis and imposes different constraints. What is the nature of the threat, specifically rather than generically? From whom does it come, specifically rather than generically? Against whom is the self-defense action directed, specifically rather than generically? What is the purpose of that action? What is our relationship with the state in whose territory we are engaged? These and other questions do not of themselves guard against the slippery slope of operational decision-making. But, they accentuate the constraints and limitations of armed action. They underline the strategic character of the decision. And they implicitly communicate to the rest of the world that action is being taken in response to a specific threat rather than simply as part of an on-going armed conflict whose scope and limits many simply do not understand.
In practical terms, Brennan noted that the U.S. position and that of key allies is more aligned than divergences of legal analysis may otherwise suggest. High threats allow a response under either analysis. But the divergence is important to the way in which this conflict is perceived, not simply amongst allies but perhaps more importantly by those whom we would seek to persuade if this conflict is ever to come to an end.
Sir Daniel Bethlehem QC is Director of Legal Policy International Limited (LPI), a Consulting Senior Fellow at the International Institute for Strategic Studies (IISS), and a Senior Fellow and Scholar in Residence at Columbia Law School. He was the principal Legal Adviser of the UK Foreign & Commonwealth Office from May 2006 to May 2011. This is a personal comment.
Image courtesy of the U.S. Air Force.
Sir Daniel Bethlehem QC is Director of Legal Policy International Limited (LPI), a Consulting Senior Fellow at the International Institute for Strategic Studies (IISS), and a Senior Fellow and Scholar in Residence at Columbia Law School. He was the principal Legal Adviser of the UK Foreign & Commonwealth Office from May 2006 to May 2011.