{"id":2562,"date":"2011-10-07T09:26:12","date_gmt":"2011-10-07T13:26:12","guid":{"rendered":"http:\/\/harvardnsj.com\/?p=2562"},"modified":"2013-02-15T17:32:23","modified_gmt":"2013-02-15T22:32:23","slug":"mopping-up-the-last-war-or-stumbling-into-the-next","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/nsj\/2011\/10\/mopping-up-the-last-war-or-stumbling-into-the-next\/","title":{"rendered":"Mopping up the Last War or Stumbling into the Next?"},"content":{"rendered":"

By Daniel Bethlehem<\/span><\/strong><\/p>\n

NEW YORK: The killing of Anwar Al-Awlaki last week has given sharper focus to a debate that was already raging about the use of drones, the scope of the September 18, 2001 Congressional Authorization for Use of Military Force<\/a>, and the wider issues raised by John Brennan\u2019s Harvard speech<\/a> of September 16, 2011 on security and values.\u00a0 These are important questions that admit of reasonable argument on either side of the point.\u00a0 It is a mark of democracy that this debate is taking place and that its touchstones are law and values rather than simply the effectiveness of the means used to secure the policy goals.<\/span><\/p>\n

They are not, however, the right questions for the moment.\u00a0 Focused on operational issues \u2013 choice of weapons, targeting, issues of co-belligerency \u2013 they obscure the broader strategic questions.\u00a0 Is the policy wise?\u00a0 Will its strategic trajectory, led by operational imperatives, leave us where we want to be?\u00a0 As we look to Yemen and Somalia, are we simply mopping up the last war or are we stumbling into the next?\u00a0 The policy in question is out-of-theater targeting, carrying the conflict into new and vulnerable geographic spaces, and who may be properly in the frame.<\/span><\/p>\n

It is no part of this comment to suggest that the strategic policy is wrong.\u00a0 That is a matter to be informed by the intelligence and threat assessments and the evaluation of risk, both immediate and longer-term.\u00a0 Rather, the purpose is to enquire whether, under the pressures of operational decision-making, we are asking ourselves the strategic questions and whether the framework of our policy is conducive to our doing so.<\/span><\/p>\n

John Brennan\u2019s Harvard speech was exactly the right speech, to be welcomed in both its detail and its tone and with which many will find it easy to agree.\u00a0 There is one element that invites comment here.\u00a0 He describes a difference between the U.S. and many of its allies over the geographic scope of the counter-terrorism conflict.\u00a0 The U.S. sees the conflict against Al Qaeda as without geographic limit, even if it is subject to other constraints.\u00a0 The self-defense gateway has already been passed.\u00a0 Key allies see it differently, as a conflict geographically limited to \u201chot\u2019\u201d battlefields.\u00a0 Imminent terrorist attack planning elsewhere requires a fresh self-defense analysis.\u00a0 While this description does not capture the nuance of a complex debate, it shines a light on the space between the strategic and the operational, on the questions that arise when it comes to carrying the conflict into new geographic spaces, and on whom may properly be targeted in those spaces.\u00a0 It goes therefore to the question of strategic trajectory.\u00a0 Where will we be in 12 or 24 months time?<\/span><\/p>\n

There are without doubt challenges to a self-defense framework of action against terrorist threats from abroad.\u00a0 The burden on real-time intelligence may be too great.\u00a0 It may not admit of a nimble enough response.\u00a0 The issue of \u201cimminence\u201d may be controversial.\u00a0 There is debate around the pre-emptive, dissuasive and punitive character of such action.\u00a0 But, such an analysis also brings the discipline of a strategic inquiry.\u00a0 It imposes a necessity, or exigent circumstances, gateway for action.\u00a0 It works with the grain of sovereignty rather than against it.\u00a0 It has a self-limiting operational framework.<\/span><\/p>\n

The use of armed force in Yemen and Somalia is easier to rationalise if Al Qaeda in the Arabian Peninsula and Al-Shabaab are construed as co-belligerents of Al Qaeda in Afghanistan and Pakistan\u2019s Federally Administered Tribal Areas.\u00a0 Targeting becomes more straightforward.\u00a0 Any opposing participant becomes targetable, whether or not a proximate threat is posed.\u00a0 The questions that follow are operational, addressed to commanders within the framework of targeting directives, rules of engagement and other authorizations to act.\u00a0 But, intrusion, escalation, collateral effects and wider instability may also follow more easily, and with them the challenges to the hearts and minds of those we want to persuade.<\/span><\/p>\n

A self-defense framework requires a different analysis and imposes different constraints.\u00a0 What is the nature of the threat, specifically rather than generically?\u00a0 From whom does it come, specifically rather than generically?\u00a0 Against whom is the self-defense action directed, specifically rather than generically?\u00a0 What is the purpose of that action?\u00a0 What is our relationship with the state in whose territory we are engaged?\u00a0 These and other questions do not of themselves guard against the slippery slope of operational decision-making.\u00a0 But, they accentuate the constraints and limitations of armed action.\u00a0 They underline the strategic character of the decision.\u00a0 And they implicitly communicate to the rest of the world that action is being taken in response to a specific threat rather than simply as part of an on-going armed conflict whose scope and limits many simply do not understand.<\/span><\/p>\n

In practical terms, Brennan noted that the U.S. position and that of key allies is more aligned than divergences of legal analysis may otherwise suggest.\u00a0 High threats allow a response under either analysis.\u00a0 But the divergence is important to the way in which this conflict is perceived, not simply amongst allies but perhaps more importantly by those whom we would seek to persuade if this conflict is ever to come to an end.<\/span><\/p>\n

Sir Daniel Bethlehem QC is Director of Legal Policy International Limited (LPI), a Consulting Senior Fellow at the International Institute for Strategic Studies (IISS), and a Senior Fellow and Scholar in Residence at Columbia Law School.\u00a0 He was the principal Legal Adviser of the UK Foreign & Commonwealth Office from May 2006 to May 2011.\u00a0 This is a personal comment.<\/em><\/span><\/p>\n

Image courtesy of <\/em>the U.S. Air Force.<\/em><\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

Sir Daniel Bethlehem considers whether policy makers are asking themselves the right questions regarding out-of-theater targeting.<\/p>\n","protected":false},"author":2,"featured_media":2853,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[4,24],"tags":[],"class_list":["post-2562","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-features","category-online"],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/journals.law.harvard.edu\/nsj\/wp-content\/uploads\/sites\/82\/2011\/10\/drone1.jpg?fit=800%2C571&ssl=1","jetpack_shortlink":"https:\/\/wp.me\/peZtUX-Fk","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/posts\/2562","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/comments?post=2562"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/posts\/2562\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/media\/2853"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/media?parent=2562"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/categories?post=2562"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/tags?post=2562"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}