The Trouble With Ducks And Rabbits

The failed October 2013 raid by U.S. special operations in Somalia offers an example of the conceptual issues we are facing in our conflict with Al-Qaeda and similar movements.  In the raid to capture Al-Shabaab leader Ikrima,  failure to accomplish their goal resulted in a withdrawal of U.S. forces, rather than the killing of the target. If Ikrima was truly a valuable enough enemy target to be captured then he is also valuable dead. The raid force could have killed the target as soon as it was determined that they were unable/unlikely to capture him alive, but this was contrary to their orders.  I submit that decision- makers were captive of an “arrest mentality” that is not appropriate for combat in war but is inherent in criminal law.  The result was that, not only did the U.S. fail to capture Ikrima, forfeiting any intelligence value he may have provided, but he is still able to operate.  Moreover, Ikrima will be more difficult to locate in the future, the enemy has been emboldened, and perhaps most damaging, the U.S. has demonstrated to its own people, to its enemies, and to the world that it is still conflicted in its approach to the War on Terror.  This type of confusion, and the resulting undesirable results, are a natural outcome of the application of inappropriate conceptual frameworks to real-world problems.

In an article on ForeignPolicy.com, Mrs. Brooks accurately identifies the problem as confusion over which of the two pre-existing philosophical and legal approaches we should adhere to while combating Violent Non-State Actors (VNSAs), but offers no real resolution.  She uses Wittgenstein's philosophical toy, the duck-rabbit, to portray the crux of the problems by identifying that there are both those who view terror as crime and those who view it as warfare, and implies that its categorization is subjective, that both are wrong and right depending on how they are viewed.  

Mrs. Brooks then attempts to simply rephrase the false dilemma between the two frameworks, focusing on the implications/consequences of each,

"Do we prefer a world in which there are few constraints on the state's use of lethal force, which creates one set of dangers -- or do we want a world in which the state is more constrained, which creates a different set of dangers?" 

 This line of reasoning assumes that because the problem does not fit into either of our current models, it must be forced into one or the other.

These pre-existing frameworks [the legal framework and the military framework] emerged to address different challenges than those to which they are now being applied.  This is not crime, this is not war and neither approach can sufficiently address the problem when the threat does not fall fully into either category. As such these approaches have been expanded, modified and essentially stretched. The result has been confusion, indecision, and usurpation.  On the one hand, the excessive prohibitions of the war framework hamper our effectiveness in combating non-state actors outside our boundaries, as seen in the failed raid in Somalia, rendition programs and the continuing problem of how to handle Guantanamo detainees.  On the other hand, the legal framework is being perverted by increasingly oppressive measures, such as the classification of citizens as enemy combatants, drone killings of citizens, and unbridled government surveillance - clearly undermining civil liberty within our borders.   

For most of history, those that refused to obey the established laws of war were not privy to being protected by them. So, in dealing with many contemporary VNSAs, why are we trying to decide between two equally inappropriate solutions in the legal-criminal framework or the war-enemy nation framework? When the enemy here doesn't fit into either category, why do we think either category is the right solution?  Contrary to Mrs. Brooks’ assertion, we do not have to choose between these two unsatisfactory results.

Mrs. Brooks never considers that perhaps there should be different sets of rules - those that apply to US citizens and non-citizens inside the borders of the United States, and others that apply to non-citizens outside our borders (or if you wish to be more specific: in war zones, or outside sovereign nations, or in failed states, or in VNSA controlled areas, or wherever it is decided to draw this line).  

What is critical is the ability to draw this line.  A nation's highest moral order is to protect its own citizens and their interests.  As a result different frameworks have emerged for how a nation deals with its own population and other nations/groups in the world.  The first set of rules exists to protect our liberties and prevent dangers to our citizens from within, while the second set of rules enables us to be as effective as we can be in combating our enemies abroad, to protect the nation from external threats.  It is naive to think that a nation should treat its own citizens and its enemies in a similar manner.  The international system is one of anarchy.  There is no higher government, there are merely states, and  increasingly non-state organizations and individuals acting in the international arena.  There is no rule of law outside of the nation that provides, guarantees and adjudicates it.  There are international agreements and customs, but these are law only the extent that nations treat them as such. They may abided by as they suit a nation and may be discarded when they do not.  International organizations are not legal entities, but merely organs with which to garner and coordinate the power of their member states - they are the pretty face to disguise placed on the power derived from an international tyranny of the majority.  The reality is that the true law in anarchy is always power.  A government that is capable of killing anyone, anywhere on earth, and can accept the consequences of this (such as the international community uniting against it), can do so...as long as is not violating the only law that truly binds it, the constitutional law that created it.  The law of war may be the right approach under certain enemies, civil law may be the right approach under others, but to address the outliers, these two concepts cannot be stretched without detrimental effects. 

The truth is that we are facing neither a duck nor a rabbit.  We must flip the image again. We need another framework.