9-16-2011By Daphne Eviatar
Senior Associate, Law and Security Program
As if we didn’t have enough wars already, a battle is now reportedly taking place within the Obama administration over whether the U.S. government has the legal authority to kill low-level suspected terrorist supporters in Yemen, Somalia and elsewhere outside of Afghanistan and Iraq, where the U.S. now has troops on the ground. Although Pentagon and State Department officials apparently agree that the U.S. has the authority to target and kill leaders of terrorist groups who are plotting attacks against us, there is a growing debate over whether the U.S. government can lawfully target the footsoldiers of insurgent groups from alleged al Qaeda “affiliates” such as the Somalia-based Shabaab, who pose no direct threat to the United States.
As reported by Charlie Savage in Friday’s New York Times, the resolution to this dispute will likely lay the groundwork for how far the U.S. expands its “war on terror” beyond the al Qaeda that orchestrated the September 11, 2001 terrorist attacks.
While the controversy is framed as a theoretical legal one, its consequences reach well beyond international law treatises. Indeed, how the Obama administration resolves this dispute could determine the length, scope and breadth not only of the U.S. “war on terror,” but of anti-U.S. terrorism itself.
As a legal matter, the State Department has the far better argument. While the Pentagon and legislators such as Sen. Lindsey Graham argue that the United States can legally target suspected members of any group that has “aligned itself with al Qaeda against Americans” regardless of the threat they pose, the State Department cautions that international law permits killing beyond the zones of active hostilities in Afghanistan and Pakistan only those individuals known to pose a direct threat to the United States.
The latter interpretation is far more consistent with the laws of war, which are designed to protect innocent civilians. The laws of war therefore only allow the U.S. to kill those who directly participate in hostilities against us, or perform a continuous combat function for any of our declared enemies.
Of course, the law can be manipulated, and it’s likely that no court would ever touch this dispute. But how the United States interprets this law now has immediate consequences for U.S. national security (as well as the national budget), and should be taken very seriously.
So far, the U.S. government has reportedly followed the State Department’s legal interpretation, although given the secrecy of the CIA’s and Special Forces targeting processes that’s impossible to verify.
Assuming that’s true, though, for the United States to now decide that it has the right to target low-level insurgents anywhere in the world affiliated with al Qaeda or its alleged associates would be to expand the war on terror not only to the entire globe, but for the indefinite future. It would invite war against the United States by any insurgents anywhere, anytime, who can be convinced by al Qaeda’s anti-U.S. rhetoric. And it would be delivering to al Qaeda the best propoganda of all: that the U.S. has declared war against thousands of unnamed Muslims around the world, who, for their own survival, now must take up arms to fight back.
As former national security advisor Dennis Blair noted recently in arguing against unilateral drone strikes in Pakistan, terrorists killed by drone strikes will be replaced; meanwhile, the strikes, which inevitably kill civilians, increase hatred of America.
Even if Senator Graham or Defense Department General Counsel Jeh Johnson can make a legal argument that the United States has the right to expand the war that wide, as a practical matter, does it really want to?
Such an expanded war would also quickly overstretch the already tight U.S. defense budget, which Congress now has to scramble to cut back to meet basic domestic needs and stem a growing financial crisis.
While the legal battle may be brewing behind closed doors in the White House, more immediately, it’s already coming up as a budgetary matter in the pending defense spending bill. One version of the National Defense Authorization Act, which authorizes annual funding to the defense department, contains a measure that would essentially rubber-stamp the Pentagon’s reported wish-list for the war: it would extend the current war far beyond al Qaeda and those who attacked the United States on September 11, to include a limitless number of groups that the United States may deem the enemy, allowing the United States to target large numbers of low-level supporters of insurgent groups in countries like Somalia or Yemen, whether or not they’re actually participating in hostilities against the United States.
That would far more than a legal mistake; it would be a national security nightmare.
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