Foggy Bottom Line

Politics, Economics, and Other Silly Things

Archive for category Taliban

Tied Down

Feb 28

Posted by R. Stanton Scott in Afghanistan, Taliban, War on Terror, al Qaeda

Soon after the successful attacks on the World Trade Center and Pentagon in September 2001, the United States faced a diplomatic and military challenge:  how to extradite those responsible for the attack from a state with a government largely seen as illegitimate, and certainly not a participant in global governance.  Since the Taliban refused to end its harboring of the terrorists responsible for the attacks, the US chose a military operation.

The invasion of Afghanistan went well, and soon toppled the Taliban as a government, but US forces failed to capture Osama bin-Laden, or destroy al-Qaeda as an organization.  It also lead in turn to an occupation of Afghanistan and an expensive exercise in nation-building which required, in the name of denying terrorists a safe haven, an ongoing commitment of wealth and military capability.  The invasion of Iraq in March 2003, and the rhetoric used to justify this attack, further militarized global efforts to disrupt terrorist activity, and incorrectly framed this campaign as requiring overwhelming military force.

To be sure, refusal to extradite a mass murderer like bin-Laden justifies the use of military force.  But nine years on, US military forces have still not successfully prosecuted this “war” to a conclusion.  Instead, a handful of extremists hiding in caves, with no military forces to speak of and few advance weapons, have occupied the most powerful military force in the world for almost a decade.  They have bled the US of almost a trillion dollars of its wealth in that time.  This commitment of military force and wealth limits US political, economic, and military flexibility, and strengthens the hand of potential enemies by allowing them more freedom to both build a balancing force and act without fear of US reprisal.

By any measure, this is a huge victory for Osama bin-Laden.

Tags: ,

6 Comments

War and Preventive Dentention II

Jul 10

Posted by R. Stanton Scott in Afghanistan, Edifying Blogs, IR Theory, Taliban, Terrorism, al Qaeda

Professor Kleiman continues to argue that the Geneva Conventions authorize dentention of fighters captured in Afghanistan as prisoners of war:

The key issues, in my mind, are:

1. Status hearings that honestly try to separate fighters from non-fighters.
2. Restriction of the “combatant” designation to members of named groups in actual armed conflict with the U.S., not some vague category of “terrorists.”
3. Restriction of the period of confinement to the period of actual armed confict with the group to which the detainee belongs.
4. POW treatment for all detainees except those convicted of war crimes.

The Professor’s core point is that the US should not simply free detainees who have been identified as Taliban or al Qaeda fighters, even if courts have acquitted them of war crimes.

This argument depends on a critical assumption: that a state of war exists between the United States and the Taliban and/or al Qaeda.  Arguably, such a state does exist, though undeclared, with Taliban forces who continue to resist occupation of the state they controlled before our invasion, even though they were not the recognized government of Afghanistan at the time.  But al Qaeda operatives have no such claim to legitimacy, and I challenge this core assumption.

To be sure, powers at war may consider militia or other non-traditional forces which fight in the name of enemy state forces as components of those forces and treat them accordingly.  But it is not clear that al Qaeda fighters had operationally joined with Taliban forces.

Further, the US Government itself, in February 2002, declined to classify the detainees at Guantanamo as prisoners of war.  This places them in the position of refusing these detainees the protection of that status, while claiming the right to hold them indefinitely as if they held it.  Trying to have it both ways indeed creates a situation where the President of the United States has arbitrarily classified human beings as dangerous to US security and detained them with no due process.

Finally, I would again make the point that by framing our conflict with al Qaeda as a “war” we have conferred on them a legitimacy we probably don’t want them to have: the power to use violence in an armed conflict framework, as if they were a territorial state.  In this respect, claiming armed conflict with the Taliban is no different, since this implicitly recognizes them as the pre-war government of Afghanistan.  In the event that the Taliban and al Qaeda have some success in this conflict, they could even transition from a quasi state with no territorial control to a territorial state, based in whatever parts of Afghanistan and Pakistan they happen to control.  Indeed, they may already have done so, given the level of support they enjoy from some local residents, and the fact that the Pakistani Government has already negotiated with them over control of parts of that state.

The international community needs a legal framework for dealing with terrorism and terrorist organizations.  So far, we have chosen to structure this framework around war and armed conflict, and the conventions which outline treatment for combatants.  This has the effect of legitimizing criminal organizations as war-making powers, and normalizing the conflict as between the West and Muslims generally, who al Qaeda claims to represent.  The way to divide terrorist organizations from the civil societies where they hide is to classify them as criminals, and fight them using criminal justice techniques.  We are not at war with al Qaeda, nor with the Taliban, because criminal organizations have no international legal standing for waging war.  By calling this a war, we risk creating one for them (as we would for insurrectionists rebelling against the US government here).

We have no power to hold detainees as prisoners of war because Taliban and al Qaeda fighters have no status as war-making powers, and we have at any rate chosen not to so classify them.  And by using an “armed conflict” legal framework for prosecuting our anti-terrorist operations we legitimize their techniques and goals.  We need to change that framework, and the first step is a program to try, convict, and either jail or release the detainees as the alleged criminals they are.

No Comments

War and Preventive Detention

Jul 8

Posted by R. Stanton Scott in Afghanistan, IR Theory, Taliban, Terrorism, Transnational Law, US Military, al Qaeda

I normally agree with Mark Kleiman–his views are, after all, reality based–but I have to take issue with this post on two grounds.

Dr. Kleiman argues that Taliban and al-Qaeda fighters, whether or not in uniform, are prisoners of war, and the US Government may therefore keep them incarcerated for the duration of hostilities.  He rightly points out two problems with this: that some prisoners were not combatants at all, and that hostilities have no apparent end point.  But his central argument remains: that we are at war with terrorist organizations, and we may therefore hold captured supporters of these organizations until hostilities cease to keep them from returning to the battlefield.

First, I would challenge the assumption that a state of war exists between the United States and al Qaeda.  Congress made no such declaration (a careful reading of the September 18, 2001  resolution authorizing military force suggests that Congress intended only to facilitate compliance with the War Powers Resolution), and non-state actors like al Qaeda cannot by definition commit acts of war, nor can they be “at war,” any more than a drug cartel could, for example, or Doctors Without Borders.  We would look unkindly, I think, on a state detained captured Red Cross indefinitely as prisoners of war on the grounds they they supported an insurrection against the recognized authorities.

Non-state actors can, however, commit crimes, like the murder of three thousand innocent people.  The hiding or protecting of such criminals by state authorites may justify declared or undeclared war against that state–as protection of drug lords might call for military operations against Columbia, or Mexico–but murder is not war, and states cannot by definition wage war on criminal gangs.  Just because we use military forces to disrupt their criminal activity or capture them does not make these operations a “war.”

Unless we want to confer on them the authority to wage war.  My second challenge is that our insistence on characterizing terrorist operatives as “combatants” places them on an equal footing with sovereign states with respect to the use of violenct to achieve their goals.  The concept of sovereignty evolves, largely because of the actions of states (see e.g., Martha Finnemore’s The Purpose of Intervention, and Stephen Krasner’s Sovereignty: Organized Hypocrisy).  If powerful states like the US treat organized terrorist groups as quasi states by fighting them under the rubric of “war,” we run the risk of legitimizing them.  Few would argue that only a formal declaration creates a state of war, but accepting the  idea that such a state can exist between states and non-state actors implies that actors other than states can legitimately use violence to achieve its goals.

Every conflict carries a normative component: each side will attempt to demonize the other, both to rally its citizens to the cause and create a justification for using extraordinary (and often bystander unfreindly) methods.  Our normative efforts with regard to al Qaeda have heretofore depended on ethnic and religious arguments.  We  should instead delegitimize their efforts by characterizing them as the criminals they are, and treating them so.

This could have two ancillary benefits: it dissacoiates their claims against individual states from their methods, stigmatizes their activity.  By classifying them as criminals instead of quasi states capable of making war, we place them outside of the international system and make recruiting more difficult.  It also shows the world that we can manage an international violence problem using established legal systems, making other states less suspicious of our motives and more willing to negotiate the expansion of those systems (since others will be more likely to use them to solve their own conflicts).

Classifying al Qaeda operatives as wartime combatants so we can detain them indefinitely would seem to solve some difficult criminal justice, jurisdiction, and secret evidence issues by simply pushing them to the side.  But it legitimizes al Qaeda by confering upon it at least one component of sovereignty: the power to make war.  By characterizing our fight with them as a “war,” we have taken the first step toward making actors like them members of the international system.  We should shut them out instead, and treat them as criminal gangs.

Tags:

No Comments