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Is there a detention/drone trade-off?

May 19, 2010

Reuters:

By some accounts, the growing reliance on drone strikes is partly a result of the Obama administration’s bid to repair the damage to America’s image abroad in the wake of Bush-era allegations of torture and secret detentions.

Besides putting an end to harsh interrogation methods, the president issued executive orders to ban secret CIA detention centers and close the Guantanamo Bay prison camp.

Some current and former counterterrorism officials say an unintended consequence of these decisions may be that capturing wanted militants has become a less viable option. As one official said: “There is nowhere to put them.”

A former U.S. intelligence official, who was involved in the process until recently, said: “I got the sense: ‘What the hell do we do with this guy if we get him?’ It’s not the primary consideration but it has to be a consideration.”

This argument echoes the more controversial assertion by Marc Thiessen that “Dead terrorists tell no tales.” However, unlike Thiessen, I would not criticize Obama for “killing too many terrorists,” nor do I think that detention and interrogation in places such as Guantanamo is valuable enough to justify the undermining of American law nor the lost opportunities of a successful strike to serve as a pretext to ending the Predator campaign. However, it does sharpen the problem the Obama administration has had with reinventing the “war on terror” as a principled, law-bound counter-terrorism campaign. Upholding the rule of law makes terrorists more difficult to detain, prosecute, and convict because of the inadequacies and intricacies of American and international law for dealing with al Qaeda operatives in Pakistan. The drone strikes remind me of another common South Asian practice for dealing with criminals who might not face justice – encounter killings.

In an encounter killing, police shoot a suspect who might otherwise be taken alive because they believe the court system will not properly punish them for their presumed wrongs. They are incompatible with the legal principles of presumed innocence, but so too is the nature of terrorism, where there is a premium on preventative action. It is difficult to situate a policy that permits the airborne obliteration of a suspect sleeping at home, but mandates that once captured, he has the full scope of Constitutional rights, within American law. Gitmo provided a functional, if heinous, gray area between those alternatives. Given the limitations of America’s law enforcement capacities in Pakistan, in the absence of that gray area, killing will become more preferable. But realistically, capture is not a real option for America in the NWFP or FATA, or the rest of Pakistan for that matter. Guantanamo Bay has no bearing on that issue. But what happens when you take a practice such as an “encounter killing” and do it in another country? What happens when you do it with attack aircraft, hundreds of times over?

The illuminating contrast this article demonstrates is between the Obama administration’s rhetoric of replacing the “war on terror” with a Constitutional framework that respects the law. Instead, what we are really seeing is a war. Conducting huge numbers of extrajudicial killings using military equipment in a foreign country is not law enforcement. It is not even counter-terrorism. It is war. Drone strikes are useful, but they are not a replacement for the necessary adjustments to American and international law needed to accommodate counter-terrorism. Just because the aircraft are unmanned and CIA-operated does not make them legal, nor does it make the damage they do any less controversial in Pakistan. Given the legal ambiguities and potential for blow-back, we cannot continue pushing their use without developing viable alternatives. We cannot wantonly use a tool of war and continue proclaiming our adherence to the rule of law.

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