Jan. 14 (Bloomberg) -- The debate over U.S. President Barack Obama’s nomination of John Brennan to be director of the Central Intelligence Agency has become a debate on how to run the war on terrorism.
The focus right now is on Brennan’s role, as the White House’s counterterrorism adviser, in the government’s “targeted killing” strategy, carried out mostly by drones but also in special operations such as the one that caught Osama bin Laden.
Although this is a crucial part of the counterterrorism mission, it can’t be discussed without addressing a critical component: creating a legal, effective detainment policy to arrest, hold and, one hopes, put on trial those suspected of committing or planning actions of terrorism. This means shifting the priority from targeted killings to targeted captures.
In the early days of the terrorism war, the U.S. government relied on a process called extraordinary rendition to capture suspected terrorists and move them either to CIA “black sites” or to countries known to abuse inmates. The thinking was that harsher interrogation techniques would generate intelligence about future attacks. These interrogations led to a global outcry, and in 2009 Obama signed an executive order ending the practice. Yet aspects of it have continued under Obama, including the transfer of prisoners to countries known to abuse inmates and the indefinite detainment of suspects without trial.
If the U.S. had a clearer, more accountable detainment policy, it might not have to resort as much to drone operations. In Pakistan, for example, the U.S. targets terrorists through drone strikes because it has no other options for opposing the militants. The Pakistani government declines to sweep known terrorist redoubts, and even if militants could be captured, Pakistanis would prevent their extradition to the U.S. for trial.
Last year, the Washington Post reported that U.S. officials were trying to institutionalize a “disposition matrix” to determine how the government could handle suspected terrorists. Brennan has spearheaded the development of this “playbook,” which would link the names of suspected terrorists with the methods the government can use to track them down and either capture or kill them. These target lists “were regarded as finite emergency measures after the attacks of Sept. 11, 2001,” wrote Washington Post reporter Greg Miller. Now, Miller said, they are “fixtures of the national security apparatus.”
Critics say this matrix indicates the U.S. is adopting a permanent war footing to address terrorism and still includes the option for summarily killing suspects. But codifying the process of how names are added to the kill-capture lists, and determining standard practices and policies for how those names are handled, seems like a step in the right direction. The problem is that it might not go far enough.
Right now, the incentives of the global counterterrorism mission favor the kill missions. Although few policy makers really think their countries should just kill people around the world, the process of capturing suspects, and then transferring them either to a partner country or even to U.S. custody, is rarely simple.
In Somalia, the U.S. doesn’t have a policy of holding the militants it captures -- they are handed over to Somali prisons that subject prisoners to hellish conditions. In Yemen, too, the U.S. passes suspected terrorists on to the local prisons. In the early 2000s, at least one Yemeni prison held a network of al-Qaeda members who radicalized other inmates. A better option would have been to move them elsewhere and hold them in more secure conditions.
No, this isn’t easy, either. Last year, Ahmed Abdulkadir Warsame, a Somali militant suspected of having ties to terrorists, was captured in international waters aboard a fishing boat. The U.S. held him on a Navy vessel for two months, interrogating him before transferring him to the U.S. for trial.
That transfer sparked criticism from members of Congress, such as House Armed Services Committee Chairman Howard “Buck” McKeon, who wanted Warsame kept at Guantanamo Bay, Cuba, under a military commission. In 2011, the House passed a bill preventing the president from moving detainees to civilian courts for trial.
At the same time, because of the international outcry, prisoners are no longer sent to Guantanamo. They are transferred to foreign prisons. Because Guantanamo can’t be feasibly shut down and new prisoners can’t be sent there, it’s unclear how the U.S. can process the suspected terrorists it captures.
A U.S. solution should have three parts: changing the threshold for taking action to capture terrorists, building domestic political support for holding and trying them in U.S. federal courts, and establishing an international legal framework to manage detainees.
The first one would involve accepting some risk to U.S. personnel. If an intelligence agency identifies a member of al-Qaeda in the Arabian Peninsula, there aren’t the people or assets in place to fly out to the Yemeni desert and capture him. The mission to capture the target would be risky and politically complex.
If it failed, or if some Americans died in the attempt, there could be a political backlash for the administration, making future attempts less likely. No leader wants to risk American lives, but if the U.S. is to shift from its dependence on targeted kills, these risks have to be taken.
Once the suspect is captured, there aren’t legal provisions for the immediate transfer to U.S. custody and trial. Current procedures would have him transferred to Yemeni custody. A bilateral agreement with Yemen, and other countries where terrorists operate, could address that.
Ultimately there needs to be a treaty governing how suspects can be transferred to U.S. custody. Modifying traditional extradition treaties to allow specific exemptions for terrorists would address part of the challenge. But for countries that don’t have such agreements with the U.S. -- such as the United Arab Emirates or Yemen -- a bilateral pact governing the capture and transfer of suspected terrorists to U.S. custody is a first step.
Most important, Obama needs to make the case for civilian courts more forcefully. It won’t be easy: Polls suggest a majority of Americans favor military tribunals for these suspects. Those tribunals are fraught with legal issues and have a relatively low conviction rate compared with federal courts, and few politicians have been willing to expend political capital to force the issue.
But the continued existence of Guantanamo and military tribunals makes other countries less likely to agree to extradite terrorism suspects. Obama should appoint a high-level White House official to be responsible for building Congressional support for closing Guantanamo.
There must also be a bipartisan effort to convince Congress and the public that trying suspected terrorists in a U.S. court would make the country safer by convicting more -- while costing far less -- than the current system.
A civilian-court alternative would not only ensure more oversight for the suspect’s treatment during detention. It would also make the U.S. legal process more open and more likely to be perceived globally as legitimate, strengthening the case for a global agreement on detainees.
If the U.S. shifts from killing suspected terrorists to capturing them, it will create a counterterrorism policy that is not only more ethical and legitimate, but also more effective and sustainable for the long war.
(Joshua Foust is a fellow at the American Security Project, and a contributor to the Atlantic. He writes a weekly national-security column for PBS’s “Need to Know” newsmagazine. The opinions expressed are his own.)
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