Small Wars

This Week at War: Send in the Lawyers?

Why the president's legal advisors are in no hurry to justify the bin Laden raid. 

The SEALs did their job. Will the lawyers now do theirs?

Osama bin Laden's fourth son Omar along with some of his brothers have called for an international investigation into the killing of their father. A statement written by the sons and published in the New York Times calls for President Barack Obama to cooperate with their demand for a U.N.  inquiry into the question of "why our father was not arrested and tried but summarily executed without a court of law." Should there be no response within 30 days, the sons have pledged to assemble a "panel of eminent British and international lawyers" to pursue legal action against the U.S. government and its officials.

U.S. government officials have been brief in their legal defense of the raid. Attorney General Eric Holder laconically stated that the raid by Navy SEALs against bin Laden was "conducted in a way that was consistent with our law, with our values ... It's lawful to target an enemy commander in the field."

Bin Laden's sons as well as other analysts outside the United States view the raid in the context of the procedures of criminal law. By contrast, Holder and most observers inside the United States view the raid as a military mission with bin Laden just another combatant. Enemy military personnel are not subject to the rights due a suspect under criminal procedure but rather are at risk of ambush and sudden lethal attack without warning. In the military context, it doesn't matter if the combatant is not holding a weapon, is not in a military uniform, or is in an "unthreatening" posture (such as asleep). The only circumstances under which military forces are required to "give quarter" is after an enemy combatant has completed a surrender or is too wounded to resist, something very unlikely to have occurred in the bin Laden compound given the aggressive rules of engagement issued to the assault team. Bin Laden's sons reject this interpretation, viewing bin Laden as a criminal suspect deserving the rights of legal process.

Having won the kinetic battle at bin Laden's Abbottabad compound, will the United States now lose in the court of world public opinion? Some legal scholars are wondering why U.S. officials have not offered up a thorough legal defense of the bin Laden raid. In March 2010, Harold Koh, legal adviser to the State Department and previously dean of the Yale Law School, delivered such a defense for the U.S. policy of using drones to kill enemy combatants without warning or legal process. But Koh has been silent so far on the bin Laden raid.

The U.S. view is that the 9/11 attacks sparked an "armed conflict" between the United States and al Qaeda, a legal status that both the Congress and the United Nations quickly affirmed. The "armed conflict" status has allowed the United States to use its military power and the international laws of war to permit such techniques as lethal drone attacks and commando raids against combatants -- legally delivered without warning or legal process.

All modern conflicts involve irregular non-state actors as combatants. These combatants and their fellow travelers seek to emphasize their status as civilians when useful, both for defense against modern military technology and in an attempt to take advantage of legal rights. Conversely, the United States government will seek, when necessary, to achieve an international recognition of armed conflict status against its irregular adversaries in order to take advantage of the military and legal advantages it gains from such a status. The government's challenge will be justifying the particular circumstances that warrant unsheathing the government's armed conflict powers against specific adversaries.

For example, the U.S. government fights Latin American drug cartels on the basis of criminal law not armed conflict, even though the cartels are wealthier, larger, and better organized than al Qaeda and have penetrated deeper into U.S. society. Although the cartels are doing a better job than al Qaeda at suborning U.S. border security, no cartel leader has looked into a video camera and declared war on the United States or killed thousands of Americans in a single dramatic attack. U.S. officials seem to have concluded that it would be too much of a political stretch to use Hellfire missiles rather than law enforcement cooperation against the cartels.

With the United Nations and the Congress having ratified an armed conflict status against al Qaeda, the legal defense of the bin Laden raid seems air tight. This explains Koh's silence and Holder's terse answers. The justification for armed conflict status against other irregular adversaries will not likely measure up to the easy standard set by al Qaeda. By remaining vague or even silent, U.S. officials are hoping to leave their future options open.

Security partnerships are frustrating, but necessary

The successful raid on bin Laden's compound on May 2 contrasted sharply with the messy and ultimately failed hunt for the terror leader that occurred in Afghanistan's Tora Bora mountains in late 2001. Accounts of the 2001 operation, written by those who led that pursuit, such as Gary Berntsen's Jawbreaker and Dalton Fury's Kill bin Laden, make plain the stark difference between the failure in 2001 and the stunning success in 2011.

In 2001, senior U.S. policymakers insisted that local Afghan militias play a leading role in the final capture of bin Laden and his entourage. These policymakers thought that enlisting the support of local forces would increase the chance of success, bolster the legitimacy of the U.S. campaign against al Qaeda, and create more favorable political conditions inside Afghanistan after the campaign had achieved its goal. These policymakers also assumed that the Afghans would be highly motivated to get bin Laden.

Regrettably, that assumption was wrong. U.S. ground commanders reported crippling foot-dragging by the Afghan militias in the Tora Bora area. They requested quick U.S. reinforcements -- a Ranger battalion or Marines -- to interdict escape routes into Pakistan and launch a ground assault on the al Qaeda redoubt that was under heavy U.S. bombardment. The requests were denied, the Afghan militias refused to move forward, and bin Laden, assisted by local friends, escaped.

When the United States got another chance 10 years later, there was no attempt to share the glory with any local partners -- and no risks taken with operational security. The results spoke for themselves; apparently, if the U.S. government wants a job like killing bin Laden done properly, it has to do it all by itself.

Self-reliance may be fine for discrete actions like the bin Laden raid. But when it comes to chores like global security and conflict prevention, partnerships are mandatory. The Pentagon's 2010 Quadrennial Defense Review (QDR) recognized this and elevated building the security capacity of partner states into a major defense priority. In order to improve security force assistance, the QDR calls for reform of the Pentagon and State Department security assistance programs, better language and cultural training for U.S. soldiers, and an increased use of general purpose military forces for partner training.

The goal of security force assistance is to improve indigenous security institutions so that violent non-state actors such as al Qaeda will have fewer sanctuaries. In the past decade, U.S. assistance programs have made significant improvements in places such as Colombia, the Philippines, West Africa, and Southeast Asia. At a huge cost, Iraq's security forces seem capable of enforcing a tolerable level of internal security. By contrast, the U.S. programs for Afghanistan and northwest Pakistan have far to go and other places like Somalia remain ignored and ungoverned.

Most recent defense reform proposals, made in the context of cutting government spending, call for sharp reductions in the forward basing of U.S. forces. In addition to boosting the credibility of security alliances, forward basing facilitates better and more efficient training of partner security forces. Those advocating a much smaller global footprint for the U.S. military must reckon with a more limited and inefficient security force assistance program, meaning poorer indigenous security forces and more ungoverned spaces.

Some may view that outcome as an acceptable consequence of lower defense spending. As noted above, the recent record of security force assistance has been spotty with the concept yet to be definitively proved. After all, the ten-year hunt for bin Laden showed that the U.S. military does best when it does the job itself. But the decade has also showed that large U.S. military expeditions are incredibly expensive. Perhaps preventive maintenance, achieved through forward engagement and security force assistance, may be the cheapest way to go. Policymakers will have to decide whether they want to pay a little now or risk having to pay a lot more later.

JOEL SAGET/AFP/Getty Images

Small Wars

This Week at War: Pakistan Loses the Upper Hand

With bin Laden dead, Islamabad's leverage over Washington may also be gone.

Bin Laden's death will change Washington -- and Pakistan won't like it

The day after U.S. special operations forces dramatically raided Osama bin Laden's compound in Abbottabad, Pakistan, White House counterterrorism adviser John Brennan seemed to invite an investigation into whether elements of the Pakistani government were complicit in sheltering bin Laden. During a briefing, Brennan asserted, "I think it's inconceivable that bin Laden did not have a support system in the country that allowed him to remain there for an extended period of time. I am not going to speculate about what type of support he might have had on an official basis inside of Pakistan ... I think people are raising a number of questions, and understandably so."

But a day later, the administration seemed more eager to limit the damage the raid might cause to its relationship with Islamabad. The Pentagon and the Pakistani military issued a joint statement reaffirming their cooperation against terrorism. And according to the Wall Street Journal, senior administration officials urged restraint in blaming Pakistan's leaders for the embarrassing presence of bin Laden and his family within a few hundred meters of Pakistan's army academy and in the same neighborhood as many retired army officers.

From this perspective, the bin Laden raid is now a matter for historians to ponder: serious policymakers on both sides should focus on the future and on those practical interests shared by the United States and Pakistan. From this point of view, the raid didn't change the interests each side seeks or the leverage each side can deploy against the other and the United States still needs Pakistan's cooperation against terror networks that threaten the West. The U.S. also needs Pakistani support to move supply convoys through Pakistan to its forward operating bases in Afghanistan. For its part, Islamabad still seeks to maintain its connections to the West, to retain its diplomatic options, and to receive financial assistance from Washington and elsewhere. The death of bin Laden hasn't changed any of these facts.

This view may be correct for now but it is not likely to hold. First, with the bin Laden raid such a spectacular success, Obama will likely come under increasing pressure to repeat its success. Previous U.S. direct action incursions into Pakistan were met with harsh reactions from Islamabad, including the temporary shutdown of the supply pipeline through the Khyber Pass. But with the raid's success and the now nearly universal assumption that the Pakistani government is not a trustworthy partner, there will be growing political pressure inside the United States for Obama to treat Pakistan as an "open range" for military operations against terrorist targets.

Second, political pressure will mount on Obama to wind down the war in Afghanistan, something that the president seems willing to accommodate. Bin Laden's death will deliver finality to many in the U.S. electorate. The sense of an end to the 9/11 story will clash with calls to continue the costly counterinsurgency campaign against the Taliban in Afghanistan's villages. Should Obama accede to an accelerated departure from Afghanistan, it would be another demonstration that the "post-Gates" era has arrived, a point my FP colleague Peter Feaver mentioned this week.

The more forces the United States withdraws from Afghanistan, the more leverage it gains over Pakistan; fewer forces in Afghanistan mean less reliance on the supply line through Pakistan. The bin Laden raid set a precedent for U.S. ground operations inside Pakistan, which Obama will now come under increasing pressure to repeat. It is true that the bin Laden raid didn't change for now the fundamental interests and leverage in the U.S.-Pakistani relationship. But the raid did set in motion political forces inside the United States that won't please Pakistan.

Are the Navy's big aircraft carriers too risky?

In my March 18 column, I discussed how China's rapidly growing inventories of ballistic and cruise missiles will threaten the existing U.S. defense strategy in the western Pacific. The latest issue of Proceedings, the journal of the United States Naval Institute, contained an article written by two Pentagon strategists that argued for the gradual phasing out of the Navy's large aircraft carrier fleet. The arguments against the supercarriers go back decades and regularly recur, especially when money gets tight. But this time, the authors argue, the missile threat is too serious to ignore. They argue for a new fleet design. And in doing so, they expose how some of the other defense-cut proposals recently floated in Washington were not thought through.

In "Twilight of the $UPERfluous Carrier," Navy Captain Henry Hendrix and retired Marine Lt. Col. J. Noel Williams explain why the growing anti-ship missile threat makes it too risky for the Navy to continue to rely on a handful of large aircraft carriers to control the sea and project power ashore. Hendrix and Williams instead recommend distributing naval air power over a larger number of smaller carriers which would reduce risk and complicate an adversary's planning. The authors call for retaining the current fleet of large carriers but not building any more. The existing carriers would gradually phase out over the next 50 years. To replace them, the authors recommend expanding purchases of an amphibious assault ship currently being produced for the Marine Corps. This ship is an aircraft carrier about half the size of the Navy's largest carriers, but at one-third the cost.

But in order to make the Hendrix and Williams proposal work, the Pentagon would have to make its full planned purchase of the troubled Marine Corps version of the Joint Strike Fighter, the F-35B, which does not need the large carrier's catapults to get into the air. The F-35B has been a favorite target lately of defense reformers and those hoping to make further cuts to the defense budget. Hendrix and Williams also foresee the Navy's future unmanned drone jets operating from the small carrier, as well as the full range of helicopters, Marines, special forces personnel, and more.

In addition to reducing risk and complicating an adversary's planning, employing a much larger fleet of small carriers would make it easier for the United States to maintain a forward presence, show the flag, engage with foreign partners, and deter conflicts. The small carriers can also perform a much greater variety of missions than can the large carriers. In the meantime, over the next 50 years the large aircraft carriers would transition to a mobile reserve, for contingencies requiring heavy power projection capability.

The Hendrix and Williams proposal is a sharp contrast to the other recently released defense reform proposals. Proposals from the president's Fiscal Commission, the Dominici-Rivlin panel, and Gordon Adams at the Stimson Center all go in the opposite direction. They would cancel the F-35B but apparently retain the Navy's plans for maintaining indefinitely its fleet of large aircraft carriers. The result of these plans would be the concentration of all of the Navy and Marine Corps strike aircraft at sea on a handful of increasingly vulnerable ships.

The other plans targeted the F-35, the Osprey aircraft, the Expeditionary Fighting Vehicle, and other programs that have been hobbled with cost overruns. By comparison, the Navy's large aircraft carrier program seems much less troubled. But picking program winners and losers by these criteria and not in the context of mission requirements, adversary capabilities, and combat risk could be a recipe for disaster when contractor efficiency is disconnected from combat requirements. Hendrix and Williams have proposed a fleet design with the future battlefield in mind. How the defense contractors measure up delivering that fleet, they leave to others.

Arif Ali/AFP/Getty Images