Legal and ethical challenges of “counterterrorism-on-offense”

“Counterterrorism-on-offense” is a term I have sometimes used to describe use-of-force operations abroad in counterterrorism.  I’ve used it to refer to drone warfare and targeted killing, most obviously, but also including US efforts intended to deny territory to terrorist groups in such places as Yemen, Somalia and Mali, among others.

Denial of territory can mean two quite different things (as I noted last year at Lawfare, referring to this short Hoover Institution policy paper).  On the one hand, it can mean territorially small safe havens or base camps hidden in remote, ungoverned or lightly governed spaces – in Yemen, Somalia, Mali, or elsewhere.  On the other hand, it can refer to “governance territory” – the effort by a jihadist insurgency to seize an entire political territory and govern it and its population, while at the same time either having a transnational terrorist wing or else be hospitable to hosting one, as the Taliban did with Al Qaeda before 2001.

It is evident that US counterterrorism policy has taken on board the need to have an integrated strategy that embraces at least three combat pillars (leaving aside other aspects, such as diplomacy, aid, etc.).  (Benjamin Wittes and I detail these in Chapter 3 (free pdf) of our (serially published) book on the Obama administration’s national security addresses.) These three categories are:

  • a “raiding” strategy through armed drone attacks but also special ops using human teams;
  • a “persisting” strategy through drone surveillance to identify potential targets of raids, as part of integrated intelligence gathering including human intelligence on the ground; and
  • a variety of denial-of-territory strategies, particularly with regards to the most alarming (and, for the local population, often horrific) territorial threat, the seizure of whole political territories or what might be called “governance geographies.”

Press coverage in the last year or so, particularly from the Wall Street Journal, New York Times, and the Washington Post – plus a handful of others, such as Shane Harris at Foreign Policy and NPR’s Carrie Johnson – has gradually taken on board the integrated nature of US counterterrorism-on-offense.  Press reporting has gradually recognized that the strategy, and the use of targeted killing through drones, is very far from the still-repeated caricature of “whack-a-mole” in which one terrorist leader is killed and another pops up.  It is understood to be part of an integrated approach in which drones are combined with activities aimed to deny territory, particularly governance geographies, to groups that have both an internal and external aspect.

There are skeptical questions that can be raised about this integrated strategy, to be sure.  One can start, I suppose, with the question of whether the strategy can succeed in denying territory to insurgents-terrorists, if the US is not willing to do it through boots on the ground, full-on counterinsurgency conducted directly by US forces.  Whatever the argument over that, however, there’s little question that drone warfare can’t be considered apart from the larger strategy of which it is a crucial, but only one, pillar of operations.  Increasingly, the combined strategy puts US forces in the role of indirect counterinsurgency operations: advising and assisting local governments in their civil wars and counterinsurgency operations against their own domestic insurgent threats – with assistance that might range from weapons and logistics to supply of intelligence to acting as the local government’s air force, including through the use of drones.

This can be seen as a shift in US counterterrorism from its own thing to a much greater (re-)integration into US geopolitics and all the concerns a particular country or region might raise for the US, including its stability in the face of insurgent threats, on the one hand.  But one can also view it from the standpoint not of geopolitics, but more narrowly a “proxy” strategy for engaging in the counterinsurgency necessary to deny territory to internal-insurgent/external-terrorist groups but which the US is no longer willing to do with its own forces on the ground, on the other.  Both have elements of truth to them; it’s really a question of what one seeks to emphasize.

Well, these issues are discussed in part in my book with Benjamin Wittes, Speaking the Law.  I also plan to publish a (very) short book on “counterterrorism-on-offense” sometime later this year, as a policy essay looking beyond 2014.  Meanwhile … tomorrow night in New York City, the Carnegie Council and the Bard College Center for the Study of the Drone will be hosting a discussion addressed specifically to the drone warfare and targeted killing aspects of counterterrorism strategy.  It’s Tuesday, February 4, 6:00 pm, at the Carnegie Council in New York City (although relatively few readers are in NYC, the event will be live streamed from a link at the event website, in case you want to listen in).  

The discussants are Robert Grenier, Charles Blanchard, and me (with thanks to Bard’s Arthur Holland Michel for convening it).   Robert Grenier, today chairman of ERG Partners, had a long career in the CIA’s Clandestine Service, and Charles Blanchard, now a partner at Arnold & Partner, was General Counsel to the Air Force until stepping down at the end of 2013.  Both of these gentlemen have long and distinguished government service; I’m just a law professor who happens to write on these issues.

Kenneth Anderson teaches law at Washington College of Law, American University; he is also a non-resident senior fellow of the Brookings Institution, member of the Hoover Institution Task Force on National Security and Law, and senior fellow of the Rift Valley Institute.

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Eugene Volokh · February 3, 2014