Targeted Killing

Carter and Pearlstein on Prosecution and Counterterrorism (and the Question of Denied Areas)

By Robert Chesney
Tuesday, March 26, 2013, 12:52 AM

Philip Carter and Deborah Pearlstein have posted a thoughtful essay at Foreign Policy that emphasizes the utility of civilian criminal prosecution as a counterterrorism option.  I very much agree with their positive take on DOJ's track record, and I agree too that it is desirable to rely on the criminal justice system for long-term disposition when it is plausible to do so (as in the case of Ahmed Warsame, the successful conclusion to which I touted earlier today).  That said, I was struck by the fact that their examples of DOJ's success seem to all involve a key simplifying factor:  these persons were not located in denied areas at the time of their capture.  Given that the status quo approach to the use of lethal force seems concentrated entirely on denied areas--regions of the FATA in Pakistan, certain areas of Yemen, possibly areas in Somalia--this is a critical omission.  Unless, of course, the larger thrust of the essay is to critique the Obama administration for continuing to use military force even in those places.

It does appear that the latter is what the authors have in mind.  I was not sure about that midway through the essay, as the following passage might be read in a couple of different ways:

This is not a call for a law-enforcement-only approach. It is not a rejection of military force (including the power to detain) when a public case can be made that force is necessary to U.S. national security and in keeping with our obligations under domestic and international law. America's targeting capability, our special operations teams, and our ability to deploy force globally may at times play a critical role.

A later passage seems to settle the issue, however:

As with the end of World War II or the end of the Cold War, we are at a historic inflection point. The war in Iraq is over, the war in Afghanistan is ending, and the United States and its allies have disrupted, dismantled, and degraded al Qaeda and many of its confederates. We now have a wealth of tools and capabilities to fight terrorism -- tools that did not exist in 2001. The time has come for the United States to transition from its current war footing to a long-term, sustainable counterterrorism strategy.

For what it is worth, my read of the public record is different; it appears to me that we've made great progress in dismantling al Qaeda, but also that the job is not complete as to the core network or those parts of its increasingly far-flung network that seek to harm the United States.  Insofar as such threats remain, and especially insofar as they arise in locations in which arrests are not feasible (like many parts of Pakistan's FATA, and possibly some parts of Yemen or Somalia), the military option would seem to remain quite important.  Of course, things may look quite differently to those on the inside with access to the best information and expertise.  Assuming that those persons conclude that the threat continues, however, then I think it is past time to confront the question whether the status quo of the domestic law architecture should continue to rest on the 2001 AUMF (plus an Article II fallback argument).