Over the years, I have warned that the attempts to shoehorn wartime operations against terrorists through criminal courts would produce distorted decisions on fighting, especially on the desirability of capturing terrorists. By treating terrorists captured abroad (as opposed to arrested in the US) the same as criminals arrested in the US, the government and the courts turn military and intelligence personnel into cops, and in doing so put at risk both the personnel and the tactics used to find, capture, and interrogate terrorists. It sets all of the incentives towards killing terrorists rather than capturing them, which not only results in higher collateral casualties but also denies the US critical intelligence on other terrorists.
David Ignatius came to the same realization in yesterday’s Washington Post, wondering how we got to the new default, and wondering why no one seems particularly concerned about it:
Every war brings its own deformations, but consider this disturbing fact about America’s war against al-Qaeda: It has become easier, politically and legally, for the United States to kill suspected terrorists than to capture and interrogate them. …
The pace of drone attacks on the tribal areas has increased sharply during the Obama presidency, with more assaults in September and October of this year than in all of 2008. At the same time, efforts to capture al-Qaeda suspects have virtually stopped. Indeed, if CIA operatives were to snatch a terrorist tomorrow, the agency wouldn’t be sure where it could detain him for interrogation.
Michael Hayden, a former director of the CIA, frames the puzzle this way: “Have we made detention and interrogation so legally difficult and politically risky that our default option is to kill our adversaries rather than capture and interrogate them?”
It’s curious why the American public seems so comfortable with a tactic that arguably is a form of long-range assassination, after the furor about the CIA’s use of nonlethal methods known as “enhanced interrogation.” When Israel adopted an approach of “targeted killing” against Hamas and other terrorist adversaries, it provoked an extensive debate there and abroad.
This isn’t a deformation of war; it’s a deformation of politics. And it really isn’t directly related to the enhanced interrogation techniques at all, but to the insistence of political leadership and the federal courts to insist on a jurisdiction that flies in the face of two centuries of American military and legal tradition. Pushing terrorists like Khalid Sheikh Mohammed and Ahmed Ghailani through federal courts perverts the normal operation of war, especially by imposing the same kind of legal liabilities used to restrict law enforcement in regard to American citizens and residents.
We have made it more costly and more difficult to capture terrorists, a task with plenty of difficulty already. Once we capture them, the courts and this administration have made it clear that they have to be treated like a suspect in a criminal investigation rather than a foreign enemy of war. Thanks to exposures in the media over the past few years, we can no longer hold them in secure and secret facilities while we get intel from them. Barack Obama has all but made adding to Gitmo’s population impossible, so where do we hold terrorists if we do manage to capture them? The only other option is rendition, which the current administration has left as a possible option but which is almost as politically impossible as adding to Gitmo.
Ignatius still doesn’t quite understand how we got here:
Don’t misunderstand me: It’s not that the Obama administration’s limits on detention and interrogation are wrong. They have applied clear guidelines to what had been, before 2006, a murky area. The problem is that these rules, and the wariness of getting into more trouble, have had the perverse effect of encouraging the CIA to adopt a more lethal and less supple policy than before.
The limits on interrogation are debatable, but those aren’t the problem. We’re not killing terrorists rather than capturing them because we’re restricting interrogation to the Army Field Manual, which has nothing to do with later adjudication; we’re killing them because we have no real rational place to put them. That’s due entirely to Obama’s detention policies and the judiciary’s arrogation of jurisdiction. Thanks to the mess created by the Holder DoJ, we have no way to process them even if we did.
All of this was utterly predictable …. as is the befuddlement of Ignatius as to how we came to this pass.