Syria's Battle Royale

The struggle for Damascus looks poised to transform this bloody conflict.

In recent days, fighting has erupted in and around the Syrian capital. The intensification of violence suggests that what many have dubbed "the grand battle for Damascus" is gathering force -- a major rebel offensive that has been in the works for several months may soon begin.

This isn't the first time the rebels have made a bid to capture the Syrian capital. In less coordinated efforts in July and December, rebel forces advanced in several neighborhoods and even took restive towns surrounding Damascus. However, lacking adequate supplies and overpowered by the regime's air force and artillery, their advances were repelled or contained. The battle for Damascus is likely to see more such fluctuations -- buildups of rebel forces followed by regime counterattacks, with civilians caught in the middle.

It's a common misconception that Damascus has been immune to the political upheaval that has swept the country since March 2011. True, President Bashar al-Assad can count on a large base of support: state bureaucrats, employees of state-owned and regime-favored companies, relatives of members of the security forces, members of the country's religious minorities, and middle- and upper-class Sunni urbanites. The regime has taken care to maintain the loyalty of Damascus: Its Sunni merchant class benefited under former President Hafez al-Assad's rule for remaining loyal during the Islamist insurrection of the 1970s and 1980s, and from Bashar's liberalization policies in the 2000s.

But many of the outlying towns that have been incorporated into the capital's urban fabric have wholeheartedly joined the revolution. For instance, Christian and Alawite dissidents -- arguably a minority within their communities -- drove to Daraya and Douma to join demonstrations (the slain activist and filmmaker Bassel Shehade was among them). Inside the city, the conservative, middle-class neighborhoods of Barzeh and Midan -- whose residents did not benefit from the regime's largesse and from the growth of the previous decade -- also joined the uprising. The same goes for the poor Sunni area of Qaaboun, where protesters have long been coming out en masse.

While much of the urban Sunni clergy has remained loyal (at least publicly) to Assad, others have joined the revolution and opened their mosques to protesters. This is true of Moaz al-Khatib, the former imam of Damascus's Umayyad Mosque and current head of the opposition Syrian National Coalition.

The stakes for the two warring sides couldn't be higher. For Assad, holding the capital at any cost is vital. Its loss would amount to an enormous symbolic, military, and political blow. His self-portrayal as the head of a still-functioning state would be decisively shattered. Regardless of urbanites' skepticism toward the rebels, the loss of Damascus would mean that they could no longer cling to the president as their defender. The same holds true for those who still support him out of hostility to the rebels' presumed ideological and political beliefs, but who lack an organic link to the regime. Without Damascus, which Assad would never be able to retake, he will probably lose command-and-control over loyal units across the country -- except in the northwest, where his most loyal supporters reside.

Indeed, should he lose Damascus but physically survive, Assad and his top Alawite commanders may flee to "Alawistan" -- the presumptive statelet that many see as the Alawite community's last refuge. The geography of the fighting in the northwest suggests that such a strategy is already in the making: Sectarian cleansing and major battles are occurring on the outer edge of the mountainous region separating the Alawite heartland from the predominantly Sunni hinterland, and many Alawite families have moved back to this enclave. In the wake of such a defeat, however, Assad's leadership may well be contested from within the community, and his remaining forces could split into competing militias. Alawistan, moreover, might not be economically viable or military defensible.

For all these reasons, Assad is certain to mount a fierce defense of the capital. The very landscape of the conflict will be tilted in his favor: The French political geographer Fabrice Balanche refers to Damascus as a "controlled city," purposely surrounded by military and security garrisons and loyal neighborhoods (such as Mezze 86, a poor area populated by Alawite security personnel and families).

Assad has also amassed considerable firepower in and around Damascus. The regular army is only the first line of his defenses: The Republican Guard and the 4th Division, which has been at the forefront of the fighting in the city's vicinity, remain fiercely loyal and formidable fighting units. The number of such troops is unknown, but estimates vary between 50,000 and 80,000. Reports have also emerged that residents in the predominantly Christian neighborhood of Bab Touma -- and more importantly, Hezbollah-backed Shia in Sayyida Zeinab, southeast of the city -- have formed local militias supplementing the regime's forces. And much of Assad's artillery and his air force is located in and around the capital -- the regime's incessant pounding of Daraya in the southwest has much to do with the proximity of the Mezzeh military airport.

To preempt a major offensive, government forces have attempted in recent weeks to clear many of the suburban areas where rebel units are active. The insurgents, however, have held much of the eastern suburbs and make frequent appearances in the city, such as in Jobar and nearby Abbassiyyin Square. There have also been vicious -- and so far inconclusive -- clashes in and around the southern Palestinian refugee camp of Yarmouk.

Assad himself allegedly spends most of his time holed up in his palace on Mount Qassioun, which overlooks the city. He is believed to have left his private office, located in his father's old abode, and his private house in the neighborhood of Malki -- the fact that he lived there instead of his perched-up marbled palace once stood for some as evidence of his humility. Conscious of the need to demonstrate he still controls the capital, Assad has recently shown his face outside, though near, his palace. He delivered an uncompromising speech at the Opera House on central Umayyad Square on Jan. 8, and attended prayers on the occasion of Prophet Mohammad's birthday at the al-Afram mosque, in the northern neighborhood of al-Muhajereen, on Jan. 24.

In public, Assad has continued to present a defiant face to the world. Al-Akhbar, a Lebanese newspaper that serves a mouthpiece for Assad and his Lebanese allies, quoted the Syrian president in late January saying that pockets of resistance in the countryside around the capital were being "dealt with" by the army. Damascus itself, he assured his supporters, remained firmly under control. "Its strategic points -- despite all the attempts by the militants -- remained safe, especially the airport road."

The president's position is more tenuous than he lets on. The airport road has come under regular rebel shelling, such that in late November and early December, these attacks led to the momentary suspension of air traffic, a humiliation for a regime intent on projecting a sense of normalcy.

Assad is probably counting on the fact that a unified rebel strategy may well collapse under the brutality and cost of the battle. Once that happens, he expects rebel ranks to fragment and more radical opposition elements, like the al Qaeda-linked Jabhat al-Nusra, to come to the fore. Assad would then be in a position to market himself as the sole guarantor against Islamist extremism and chaos. Given the turn of events in Aleppo -- where a similar chain of events took place -- this is not implausible.

The rebels have as much at stake in the battle for Damascus as Assad. They certainly long for the city -- in recent months, they have operated ever closer to the capital's center, and seized large parts of its eastern vicinity. In September, they mounted a daring attack against the Army General Command in a heavily guarded part of the city. Several YouTube videos show rebels taunting Assad with Mount Qassioun in the background.

But the shadow of Aleppo, which stands as the rebels' worst mistake, hangs over them. In the northern city, Syria's largest, the insurgents went in divided and overconfident. They lacked a military strategy and adequate logistical support, and the mostly rural fighters made no attempt at outreach and offered no guarantees to the city's terrified residents and anxious minorities. They displayed a lack of discipline and little preparedness to address the ensuing humanitarian crisis, which alienated many civilians. The rise of radical groups has made it even more difficult to swing Syrians still on the fence into the opposition camp.

A repeat of that scenario in Damascus would work to Assad's short-term advantage. Urban warfare in the capital will likely take an enormous humanitarian toll. It will send tens if not hundred of thousands of refugees on the road, many of whom will try to make it to the border with Lebanon roughly 25 miles away.

Rebel commanders insist they have learned their lesson from Aleppo. They say many of the fighters who will participate in the assault are military defectors, under disciplined military command -- not rowdy civilian combatants. It is likely that high-level defectors who have found refuge in Jordan are involved in the preparations, have obtained good intelligence, and reached out to local contacts to prepare the ground. Recent YouTube footage suggests that insurgents in the south are receiving better quality arms, including anti-tank weaponry, rocket launchers, and more powerful rifles. The rebels also calculate that Assad will have to call regular and elite troops from other places to hold the city, thus ceding control over territories across Syria. But Islamist militias already operate in and around the capital, including Jabhat al-Nusra, which mounted car bombings last year. A repetition of the sudden collapse of the Libyan capital of Tripoli is highly unlikely.

There is an old adage that both Assad and his opponents no doubt know well: Whoever controls Damascus controls Syria. For that reason, the battle for the capital will be long and costly. Assad could check his opponents there, or exit the stage altogether. Given the ongoing fragmentation of the country, however, a rebel victory won't be the end of this struggle. At the end of this battle for Damascus, it just may be that nobody controls Syria.



Obama's Legal Netherworld

The president isn't claiming too much power to kill Americans who join al Qaeda -- but too little.

Suppose a U.S. military special operations unit came upon an al Qaeda training camp in Africa. It discovers terrorist trainers teaching recruits how to use automatic weapons, improvise explosive devices, and practice suicide attacks and small unit tactics. Though the personnel hail from different nations, reconnaissance suggests that some of them may be Americans.

What should the team do? Under the laws of war, the U.S. military unit can surprise the instructors and recruits with snipers and artillery as well as shooting at closer quarters. But under President Barack Obama's half-hearted approach to terrorism, revealed in Tuesday's leaked Justice Department memo, military units on the ground or drones in the air would have to pause and seek guidance from multiple bureaucrats. Instead of having the traditional authority to kill the enemy and destroy their resources, American soldiers and agents have entered a legal netherworld of Obama's creation. The speed and decisiveness of U.S. counterterrorism operations will suffer, even as the administration withdraws from Iraq and now Afghanistan, and gives up the intelligence networks there.

In place of the clarity of the rules of war, the administration has thrust American soldiers into the three- and four-factor balancing tests that govern police officers walking the beat in downtown New York. For the first time in the history of American arms, presidential advisers will sit and weigh the "due process" rights of enemy soldiers, judge whether they pose an "imminent" threat, or decide if capture "becomes feasible." Due process rights for the enemy, according to the DOJ memo, will require a careful balancing of the "nature and quality of the intrusion" on the enemy's constitutional rights against "the governmental interests." And Attorney General Eric Holder limits the target to "an operational leader continually planning attacks" against the United States.

To be clear, the memo, technically a "white paper," is correct in affirming that the United States is at war with al Qaeda. That conclusion rests on the actions of two presidents over four terms, Congress over the past decade, the Supreme Court, the U.N. Security Council, and NATO. It cannot be seriously disputed -- although some liberal critics cling to the belief that al Qaeda is simply a criminal conspiracy, not a true belligerent, and that only law-enforcement actions, not military ones, may be taken against it. Given that the United States is at war, it follows that it may legitimately use lethal force against enemy combatants, regardless of their nationality.  Enemy soldiers, even when not engaged in active hostilities, are legitimate targets during war. If that is true of enemy soldiers in uniform, it must be true also of al Qaeda operatives, who may not wear uniforms but who are the functional equivalent of regular troops. And just as a U.S. national serving in the German Army in 1944 or the Confederate Army in 1863 could be lawfully targeted and killed, so may a U.S. national performing a military function for al Qaeda.

Despite claims that the president is asserting a radically new and menacing authority, Obama's decision to target al Qaeda operatives who are U.S. nationals is by no means unprecedented. The fact is that American presidents (and state governors) have lawfully deployed military force against citizens in insurrection, rebellion, or war against the United States from the beginning of the nation. In 1787, the very year in which the Constitution was framed, the governor of Massachusetts deployed the state militia to put down Shay's Rebellion. President George Washington personally led federalized militia troops into western Pennsylvania to suppress the Whiskey Rebellion of 1794. President Andrew Jackson threatened to use force against South Carolina in the "nullification crisis" of 1832. During the Civil War, President Abraham Lincoln deployed Union armies and navies against the Confederates who, despite being in rebellion, remained U.S. citizens. President Franklin Roosevelt directed operations against U.S. citizens fighting for Axis forces during the Second World War. President Dwight Eisenhower sent federal troops into Little Rock Arkansas when angry mobs of segregationists threatened to prevent African-American children from attending the city's public schools.

A pattern of congressional legislation reaching back to the early republic reinforces such authority. The Insurrection Act of 1807, which remains in force, authorizes the president in proper circumstances to put down insurrections and rebellions. And Supreme Court decisions are also in accord. In Moyer v. Peabody (1909), the court, speaking through Justice Oliver Wendell Holmes, Jr., ruled that the governor of Colorado had the right and duty to suppress a local insurrection, stating that "he shall make the ordinary use of the soldiers to that end; that he may kill persons who resist, and, of course, that he may use the milder measure of seizing the bodies of those whom he considers to stand in the way of restoring peace."

Where the white paper commits serious error is in positing that the "due process" clause of the Fifth Amendment applies to al Qaeda operatives at large. In Hamdi v. Rumsfeld (2004), the Supreme Court ruled that once suspected enemy combatants had been captured and detained, some measure of "process" was owed to them. But the court's decision applied to enemy combatants only after their capture, but not before it. The distinction makes perfect sense. It would be shocking to give a captured enemy combatant a drumhead trial on charges of committing war crimes and then shoot him moments later. But minutes before being captured, that same enemy combatant would have been a lawful target for lethal fire. Enemies reduced to captivity do not pose anything like the degree of danger of those under arms and at large.

The white paper's assumption that U.S. citizens who are enemy combatants are constitutionally entitled to due process even while engaged in, or available for, hostilities is both gratuitous and in error. It is not compelled by the language of the due process clause, which protects "persons," not "citizens." If the white paper were right in claiming that U.S. nationals in al Qaeda deserved due process rights, then it should logically have concluded that the same was true of Saudis or Yemenis in al Qaeda. Further, the white paper's extension of due process to enemy combatants at large is not dictated by any Supreme Court decision. It also has no basis in the traditional laws of war or state practice. And it carries significant operational disadvantages.

Some liberal critics of the white paper object to the fact that it allows senior executive branch officials to decide who appears on targeting lists, without the possibility of judicial review. That criticism is misplaced for several reasons. First, the Federal District Court correctly held in the Awlaki case that targeting decisions presented a "political question." In other words, the federal courts lacked the competence to decide which targets to select; that difficult assignment called for the specialized expertise of trained military and intelligence personnel, subject to the supervision of their civilian political superiors in the executive branch. Second, there is no basis for the suspicion that executive-branch officials have incentives to target U.S. citizens wantonly, without careful consideration of intelligence information (some of it from on the ground informants) linking them to al Qaeda's war against the United States. They may commit errors, but there is no reason to think that they act in bad faith or for careerist purposes.

The president and his senior advisors are fully entitled to rely on the work of their military and intelligence subordinates. In Scheuer v. Rhodes (1974), a case arising out of the 1970 killings of several Kent State students by the Ohio National Guard, the court wrote:

In the case of higher officers of the executive branch, however, the inquiry is far more complex since the range of decisions and choices . . . is virtually infinite. . . . [O]fficials with a broad range of duties and authority must often act swiftly and firmly at the risk that action deferred will be futile or constitute virtual abdication of office. . . . [T]hese officers are entitled to rely on traditional sources for the factual information on which they decide and act.

In short, the white paper is an odd hybrid of sound and unsound analysis. Although it is broadly correct in its conclusions, its account of constitutional law is flawed and its effect on U.S. counterterrorism operations could cause serious damage. In the end, it seems to be driven by the Obama administration's desire to straddle a difficult political issue rather than by a genuine concern for the nation's good.

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