Jack Goldsmith on the Lawfare blog has an interesting response to Mary DeRosa and Marty Lederman’s take on the implications of the al-Libi and Ikrima operations. I agree with Jack that Mary and Marty’s take was overly-optimistic and probably read too much into just two operations, which aren’t likely to become the norm. Their view also ignored the fact that the administration barraged Yemen over the summer with drone strikes that killed dozens of people in response to a vague and ill-defined threat and have continued to use drones to bomb suspected “militants” in the Federally Administered Tribal Areas of Pakistan, who may not have even been affiliated with al Qaeda.
But Jack’s comparison of the reluctance to use massive air power to fight a domestic insurgency in Yemen, Pakistan or elsewhere that presents only a vague and intermittent threat to U.S. interests to Obama’s threat to intervene in Syria to stop the mass slaughter of civilians with chemical weapons falls flat. Regardless of what one thinks of the potential efficacy (or lawfulness, without UN Security Council approval) of adding limited US air strikes to the Syrian conflict, the gassing of large numbers of civilians by Syrian forces was a far more concrete, specific and immediate threat than is the potential of a suspected AQAP-affiliated insurgent in Yemen to attack the United States. It’s just not a comparable situation.
There’s a similar explanation for why the Administration is so eager to say it’s acting within the AUMF when it’s going after terrorists, yet willing to invoke Article II powers in cases of large-scale humanitarian atrocities. First, the president has the AUMF, and as long as Congress leaves it intact, he can easily rely on his administration’s incredibly broad interpretation of it to use lethal military force against suspected terrorists abroad, whether or not that’s actually the wisest course. Second, unless the target poses an imminent threat to human life, as the Assad and Qadaffi governments clearly did, the U.S. will be hard-pressed to invoke that Article II power with any international legitimacy. In the case of suspected members of al Qaeda affiliates around the world who are either in hiding from the United States or engaged in an insurgency against their own governments, the “imminent threat” necessary to justify an attack under human rights law will rarely exist.
As for the differences between the al-Libi capture and the so-called “Warsame model”, I would add another very important difference that we’ve seen just today: rather than hold al-Libi at sea for months the administration has transferred him to a federal court for arraignment within one week. That’s a huge improvement.
Jack is right that the capture itself still raises international law concerns, which Gabor Rona explains in this post today. But the Obama administration’s decision to treat al-Libi lawfully at least after his seizure is still an important step forward from the use of torture and years-long secret detention under the previous administration, and the ongoing cases of indefinite detention at Guantanamo today.
There will be those, of course, who will criticize this administration no matter what it does – see Senators Inhofe, Graham and Ayotte’s absurd criticisms of the government for transferring al-Libi to a court of justice, rather than indefinite detention in Cuba. But even Jack doesn’t attempt to argue that al-Libi’s transfer to federal court will inhibit the government’s ability to extract useful information from him about al Qaeda threats, or the likelihood of a successful prosecution.
Jack is right, however, that the al-Libi operation (and failed capture attempt of Ikrima) will likely remain the exceptions, not the rules. And that’s how it should be. In most cases, foreign governments can capture their own terrorists, and the U.S. can support them to do that if there’s an American interest involved. Drone strikes should be limited to when they’re absolutely necessary to respond to a specific and imminent threat.
But contrary to Jack’s conclusion, Article III prosecutions of foreign terrorists will continue, often following lawful extraditions. The Justice Department has prosecuted at least 67 foreign terrorists captured abroad since 9/11; there’s no reason to believe that won’t continue.
Of course, neither prosecutions, nor drone strikes, nor daring commando raids will end the terrorist threat around the world. But they will all need to be parts of a much broader, more comprehensive counterterrorism strategy that relies far less on the flexing of U.S. military muscle, which tends to foment foreign terrorism, and much more on addressing the problem’s root causes.