Briefing Book

License to Kill

When I advised the Israel Defense Forces, here's how we decided if targeted kills were legal -- or not.

Washington is abuzz over a recent report in the Wall Street Journal saying that former U.S. President George W. Bush had authorized the "capture or kill al Qaeda operatives," and that  "the CIA also examined the subject of targeted assassinations of al Qaeda leaders," though it's not clear if the two initiatives are related.

The revelations are sure to set off a renewed debate in the United States over the legality, utility, and morality of killing terrorists. I know a few things about this topic, because between 1994 and 1997, I advised Israel Defense Forces' (IDF) commanders regarding targeted killings as the IDF legal advisor to the commander of the Gaza Strip. To be clear: the decision to strike was the commander's. As the legal advisor, I provided just that: legal advice.

So, here's my legal advice for the United States as the Washington debate heats up: Counterterrorism, in civil democratic regimes, must be rooted in the rule of law, morality in armed conflict, and an analysis of policy effectiveness. There can be no "ifs, ands, or buts."

Targeted killings are indeed legal, under certain conditions. The decision to use targeted killing of terrorists is based on an expansive articulation of the concept of pre-emptive self defense, intelligence information, and an analysis regarding policy effectiveness. According to Article 51 of the U.N. Charter, a nation state can respond to an armed attack. Targeted killing, however, is somewhat different because the state acts before the attack occurs. In addition to self-defense principles, the four critical principles of international law -- alternatives, military necessity, proportionality, and collateral damage -- are critical to the decision-maker's analysis.

The basis for the attack is intelligence information that meets a four part test: Is it reliable, credible, valid, and viable? Given the stakes, corroborated information is significantly preferable to information that comes from a single source.

Israel instituted its targeted killing policy in large part in response to Palestinian suicide-bombing attacks.  But it's not just the bombers themselves that are a threat. Four actors -- the bomber, the planner, the driver/logistics person, and the financier -- form the basis of the suicide bombing infrastructure. Determining which of the four is a legitimate target, and when, is the critical question decision-makers face. As not all four are legitimate targets at all times, the commander is limited against whom he can act; that reality reflects the limits of self-defense.

This rearticulation of expansive self-defense is insufficient on its own, however, because the decision to authorize the "hit" is not made in a vacuum. Implementing the four international law principles referenced above requires the commander to ascertain that the "hit" is essential to national security and therefore proportional to the risk the individual presents. Furthermore, the commander must determine that any alternatives, such as capturing and detaining the individual, are not operationally possible. The commander must also seek to minimize the collateral damage -- harm to innocent civilians -- that is all but inevitable in such attacks.

When asked by a particular commander to authorize a targeted killing, I would ask the following factual questions:

»Who is the source?

»How reliable is the source?

»How timely is the information?

»What is the relationship between the source and the potential target?

»How precise is the information? (I was once told, for example, "he is wearing a blue shirt and blue jeans," but it was nighttime and the commander had night-vision equipment)

»When was the last time the unit conducted a nighttime ambush?

»How confident was the commander in his unit's capabilities?

»Did the commander receive the intelligence directly from the intelligence community and had he discussed the issue with a case officer?

Although I have advocated the effectiveness of targeted killings from an operational counterterrorism perspective and supported its legality as an expansive articulation of self-defense, in the case of the blue jeans I did not authorize the requested attack. The information about the individual unequivocally indicated that the danger posed to Israeli national security was palpable. I was also convinced that detaining him was operationally unfeasible. However -- and this is the core of the issue -- I was not convinced that the individual in the commander's scope was the right man.

Aggressive operational counterterrorism is lawful, but that is not enough. It must also be effective and moral. Understanding and implementing the limits of power is an essential aspect of aggressive self-defense; uncertainty is a fact of life in the counterterrorism business. Precisely for that reason, the four pillars of counterterrorism must include the applicable law, but also morality, policy effectiveness, and careful and cautious operational decisions.

Targeted killings decisions are among the most complicated and complex aspects of operational counterterrorism. The decision-maker literally faces an overwhelming amount of information. Before authorizing and firing, the commander must ascertain who the target is; otherwise, the policy is illegal, ineffective, and immoral. But if you're sure you've got the right guy, and you have no other viable options, fire away. The nation's safety may depend on it.


Briefing Book

The Workaround

With its supply routes in Pakistan in danger, the United States is turning to Russia for help in Afghanistan. Never mind the historical irony: It just might work.

Even in this era of drones and sophisticated air and satellite technologies, as long as there are boots on the ground, the basics of warfare still dominate: The troops need food, fuel, heavy equipment, weapons, construction material, medical treatment, and more. The tail of the modern military beast is weighty and as vital as its head.

Indeed, getting supplies into distant, landlocked, and mountainous Afghanistan, which has few workable road connections to its neighbors, is a primary challenge of the Af-Pak wars -- and help on this front may be one of the most significant achievements of U.S. President Barack Obama's Moscow meetings this week. Although there are highly contentious issues on the agenda, one significant agreement has emerged: Russia will formally support the expansion of land and air transit for lethal U.S. war supplies across its territories, headed for the Afghan theater.

Although some may argue that such an agreement creates an undue dependence on Russia, it comes at a critical juncture: In the past year, Taliban attacks went up nearly 60 percent in the first five months of this year, and such attacks are at their highest level since the ouster of the Taliban in 2001. The Taliban are advancing in the east, and even toward the north and nearer Kabul, and hold virtual sway over the rural south. Along with their Pakistani counterparts, they are also threatening supply routes through Pakistan that carry about 75 percent of U.S. food, fuel, vehicles, and other war materiel through the chaotic miniwars unfolding in the Waziristans. Reliable supply lines across Russia, however arduous and long -- or temporary -- are now a U.S. priority.

And with the first batches of Obama's promised troop expansion of up to 30,000 troops arriving in Afghanistan, rapidly expanding the United States' global logistics capability is even more critical. Last week, 4,000 marines, partnering with a modest Afghan contingent, began their surge into Helmand province. The United States already has 56,000 troops in Afghanistan, up from 32,000 less than a year ago. By the end of the year there will be 68,000 U.S. troops in the country. These soldiers must be equipped and ready for heavier fighting during the peak months of summer and fall, before the brutal winter virtually blocks land movement (although the air base at Bagram can and has increased the percentage of cargo moved, helping relieve some of the dramatically increased demands of supply, it is hardly enough).

As Gen. Duncan J. McNabb, head of the U.S. Transportation Command told Congress in March, establishing the Northern Distribution Network -- supply routes through Central Asia and the Caucasus to provide "alternative routes" to Afghanistan -- has become a "high priority." It is the requirements of this supporting command, and the Army engineers and related teams who build and protect roads, organize bases, and ensure the mobility of troops, materiel, and the injured, that have occupied Centcom commander Gen. David Petraeus and former Assistant Secretary of State Richard Boucher as they traversed Central Asia and the Caucasus in an effort to find secure supplements and alternatives to the two major land routes through Pakistan. Their travel footprint in the past year belies the necessarily careful, even sanguine statements of military spokesmen that logistically, all is well, as 60 to 90 days of fuel and food are available.

But when it comes to logistics in a place like Afghanistan, it's better to be safe than sorry. Access routes have long been the most contested arenas of Central and South Asian geopolitics, whether in the days of Alexander, the Anglo-Russian great game in Afghanistan and Pakistan during the 19th century, or in the 20th. In 1962, China and India went to war over the Aksai Chin -- a vast, 5,000 meters high, unpopulated and disputed Himalayan terrain. China fought to protect its single, crucial supply line from Xinjiang to newly taken Tibet. The ensuing Sino-Indian rift still dominates Asian geopolitics today, and the Tibetan violence of 2008 and this week's outbreak of deadly conflict in Xinjiang between Uighur and Han has made the Aksai Chin route even more relevant.

In the 21st century, safeguarding U.S. supplies to the Afghan theater means depending on Pakistan, through which about 2,000 to 3,000 containers move each month. The bulk of U.S. supplies must travel along a vulnerable, easily disrupted, 1,200-mile route from the unstable port city of Karachi through the Khyber Pass and onward along equally hazardous routes, up to Jalalabad and Kabul. The other major Pakistani route travels up to Chaman in Baluchistan and on to Kandahar.

Tribesmen paid by the Pakistani government used to be able to guarantee the security of the Khyber Pass, but no longer. Particularly in the past two years, the Pakistani Taliban have assaulted convoys frequently. Along both the routes, mostly in the mountainous frontier zones, bridges have been blown up, and trucks driven by frightened local Pashtun drivers have been ambushed, burned, and looted. Stolen U.S. Army goods -- including dozens of Humvees, helicopter parts, maps, laptops, and uniforms -- are sold openly in the bazaars near Peshawar. In one incident in 2008, 42 oil tankers were destroyed by guerrillas.

Much depends on whether the Pakistan Army can beat back these challenges. Despite Pakistani efforts, the insurgents usually melt away after hitting a convoy, only to return to attack the roads. And because the frontier operations in northern Pakistan are a complement to efforts to squeeze the Taliban in southern Afghanistan, what could happen to the security of the supply route as retreating Taliban fall back across the Durand Line (a nonborder if ever there was one) is anyone's guess. What's more, Pakistan has its hands full with its own spreading insurgencies. David Kilcullen, a former advisor to General Petraeus, told the Financial Times in May that the danger of Pakistan failing to quell its internal conflicts could destabilize NATO supplies so seriously as to have strategic consequences. "We could be creating a Stalingrad in the Hindu Kush, if we are not careful," he said.

With the Pakistan Army's apparent new commitment to stay the course on its frontier battlefronts, and billions of dollars in new economic and military aid approved by the U.S. Congress for this impoverished and fragmented country, there may be new impetus in Pakistan to secure the supply routes. Given the high civilian casualties of the drone attacks, however, and the concomitant anti-Americanism that is kept on a high burn -- and the remaining long-term disagreements between the United States and various Pakistani constituencies over policy toward India and Afghanistan, there can be no longer-term assurances. It seems wise for America to hedge its bets.

Russia knows, better than any other country, the challenges of securing and building major land routes in Afghanistan's high terrain and harsh climate. In the 1980s, despite physical proximity, more than 100,000 troops, air power, and rapid resupply, the Soviets could not defeat the mujahideen and their allies. Even with the major roads and tunnels that they themselves had built since the 1950s in Afghanistan -- including the majority of the ring road, and the Hindu Kush-defying Salang Tunnel built by Soviet engineers at altitudes of around 11,000 feet -- the Soviet Union was confounded by challenges of accessibility in Afghanistan. Like the United States and NATO today, their convoys were a principal target of the mujahideen, and protecting the highways became a major undertaking. Then as now, despite the most advanced reconnaissance, the Taliban hold the advantage in knowledge of the terrain, using high and narrow passes, footpaths, and animal trails for their own supplies of men and materiel. The Afghan mujahideen leader Gulbuddin Hekmatyar said during that earlier war, "Just as the Americans could not compete with the Vietnamese in the jungle, the Russians will fail in the mountains." He was right.

Today, though, the Russians -- and also the Chinese, Indians, Iranians, and the mostly dictatorial regimes of Central Asia -- do not want to see the United States fail in Afghanistan. The return of extremist Islamist fighters to Kabul is viewed as a near and present danger. For Russia, this view requires balancing a desire to retain overlordship in Central Asia while cooperating with the United States and NATO to win the Af-Pak wars.

In the recent case of Kyrgyzstan, the Russians originally thought a $2 billion aid package would convince the Kyrgyz government to stand by its February threat to shut down the vital U.S. air base at Manas within six months. Yet, though all Central Asian states still pursue their relations with the United States with one eye on Moscow's reactions, the Kyrgyz government chose to renegotiate its arrangements with the United States. Despite congressional testimony in April by General Petraeus stating that "decent alternatives" had been found to the loss of Manas, the Kyrgyz negotiations went intensely forward. Manas is a highly useful regional air resupply hub for the Afghan war and a major transit point for troops (healthy and injured), weapons, ammunition, and refueling for tanker planes. About 15,000 troops and 500 tons of cargo move monthly to the Afghan theater through the facility.

But as the Taliban looked resurgent in Afghanistan and U.S.-Russia relations improved under Obama, Russia removed its apparent earlier objections to the renegotiation of the "transit center" agreement. In the end, the United States agreed to triple its rent for use of the Manas base to $60 million per year, plus millions more to upgrade Manas's airport facilities and combat drug trafficking and terrorism and support development. The price will undoubtedly go up in Manas and elsewhere if instability in Pakistan further increases U.S. reliance on Russian, Central Asian, and Caucasian routes -- especially if the Iranian routes out of Afghanistan and to their port of Chah Bahar remain out of the equation.

Then there are the serious nonfinancial costs to consider. For example, a road link to Afghanistan that depends upon Uzbekistan, with its highly developed transportation infrastructure, requires the assent of one of the worst dictators and human rights abusers in the region: Islam Karimov. He summarily threw out U.S. troops from the Karshi-Khanabad air base in July 2005 after being accused of massacring his own citizens and following the subsequent flap over a U.N. airlift of Uzbek refugees. But in April, the United States signed an agreement for the transit of nonlethal supplies via rail, road, and air.

Afghan and Chinese officials are reportedly studying the opening up of the Wakhan Corridor, a tiny wedge of mountainous land that holds the 76-km Sino-Afghan border. Active U.S. efforts are also being made (including at a March meeting in Baku) to link Azerbaijani transport networks to supply routes to Afghanistan.

For now, though, U.S. military planners are breathing a sigh of relief. On July 6, the Moscow summit's first day, Obama and Russian President Dmitry Medvedev agreed to supplement the existing Russia-NATO land transit agreement with a new one for 4,500 free military transit flights across Russian territory toward the Afghan theater. Troops and military supplies including weapons, ammunition, and vehicles, will travel this route, reducing time and distance, and saving the United States millions in costs. Greater cooperation in the Afghan war marks an improvement in the U.S.-Russia relationship and an enhanced role for Russia in the international coalition. Most importantly perhaps, the U.S. military is rapidly expanding its overall logistics capability at an urgent time in a critical war zone and eliminating its solitary dependence on a volatile Pakistan. In this respect at least, the Af-Pak battles of the coming year can be approached with greater confidence.

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