Tracking Terrorists: Too Much Information

Both the people and the machines at the National Counterterrorism Center have trouble digesting the huge volumes of data that the other intelligence agencies collect.

Saturday, Jan. 30, 2010
by Shane Harris, National Journal

When the news reached Washington that a Northwest Airlines passenger had been taken into custody in Detroit after, authorities alleged, he tried to set off a bomb aboard the plane, the staff at the National Counterterrorism Center outside Washington quickly huddled. During any critical terrorist incident, the NCTC becomes the central clearinghouse for information and updates across the government.

Within hours of the Christmas Day attack, officials organized a secure video teleconference that included more than 20 agencies that would have to respond to the incident. They began sharing what they knew and asking what they needed to find out. Using established protocols, the NCTC's staffers -- experts drawn from the CIA, the FBI, and other intelligence agencies -- tried to get their hands around the rapidly developing story line.

According to an official with knowledge of the day's events, once the NCTC analysts had a name, they began looking for whatever information they had in their databases on Umar Farouk Abdulmutallab, a young Nigerian man who would later assert he had been trained by Al Qaeda in Yemen to blow up the plane with a bomb hidden in his underwear. The analysts hunted for links to reporting on terrorist activity, which the center routinely collects. They first had to determine whether this was an isolated event or a part of a larger plot.

The White House directed the dozens of agencies participating in the secure teleconference, and soon they began reporting in. The FBI would start an investigation. The Homeland Security Department would step up airline passenger screening. The Federal Aviation Administration would have to adjust to the disruption in air travel schedules. The NCTC analysts began working the plot, just as they had after the July 2005 bombing of the London subway and bus system and the 2006 plan to sneak liquid bombs onto trans-Atlantic airliners. They searched for connections, leads, and clues, those notorious "dots" that made up the full narrative of an attack that, until that moment, had not been fully understood.

Crisis control is not the center's usual routine. It also has a portfolio of longer-term duties, including helping plan global counterterrorism strategy and keeping track of terrorism trends. Director Michael Leiter has said that the task that has grown the most in the past two years involves deep analysis of the root causes of radicalization. Academics have praised the NCTC for its terrorism research. If the government had a think tank for terrorism, this would be it.

The center's most immediate role, though, is in defending against attacks. It is a data hub, the one place in the government where streams of terrorist reports -- and warnings -- from dozens of agencies are supposed to come together. Since the Christmas Day attempt, many critics have questioned why the NCTC's analysts, who examine this information every day, failed to detect Abdulmutallab's plan. According to an Obama administration review, the analysts had received or were privy to intelligence about him from at least three agencies. They were also aware, more broadly, about a burgeoning terrorist threat in Yemen.

Last April, in a speech at the Aspen Institute, Leiter described a "resurgence of Al Qaeda in the Arabian Peninsula which is quite worrisome... and a stated desire in their propaganda to expand their reach beyond Yemen into the Kingdom of Saudi Arabia and elsewhere." Last year, the National Security Agency intercepted phone traffic of Qaeda operatives in Yemen talking about a "Nigerian" who was engaged in a new plot. And, as most of the country now knows, in November, Abdulmutallab's father, a prominent Nigerian banker, walked into the U.S. Embassy in Abuja and told officials he was afraid that his son had gone to Yemen and had become an Islamic radical.

In hindsight, if any one outfit was in a position to put all of these pieces together, it was the NCTC. That is, after all, why federal officials set it up in 2004, to be a "fusion center" for the intelligence community. But to describe the center as the place where all the dots are connected -- implying, as some unnamed officials have in recent press reports, that its staff are supposed to be able to predict the next attack -- is at best a misunderstanding of the NCTC's capabilities and at worst an attempt to pin the intelligence failures of Christmas Day on a single organization.

In the global fight against terrorism, the NCTC is mostly a passive participant. It cannot investigate terrorist suspects in the United States. (That's the FBI's job.) It cannot legally conduct covert operations overseas. (That's the CIA's domain.) It cannot intercept foreign communications. (That's the NSA's bailiwick.) And it cannot revoke visas. (That's up to the State Department.)

"NCTC, it's important to remember, is just an aggregator of information," said Rick (Ozzie) Nelson, who worked in the center's strategic operational planning directorate and is now at the Center for Strategic and International Studies. "Certainly, some criticism can be leveled that they didn't connect all the dots. But that can't fall all on NCTC's shoulders."

In his Aspen Institute speech, Leiter said that every threat report that his analysts write is available to more than 17,000 people at the federal, state, and local government levels. But even many in that vast network of colleagues, he said, don't always understand the NCTC's role. "I think it's important to remind people what we do, because, frankly, even the people with whom I work on a daily basis aren't always sure."

Drowning In The Flood

So what does the NCTC do? For starters, it tries to keep up. From within their headquarters at a new secure facility in Northern Virginia, the center's analysts can access at least 28 computer networks maintained by other agencies. They're supposed to pan these streams of dots for clues. But, according to former NCTC employees and current intelligence officials, that is a mostly manual process, and a time-consuming one.

In a 2006 interview with CBS News, Russell Travers, a deputy director responsible for the center's major database of terrorist names, said that most NCTC analysts need six or seven computers on their desks to plug into the different systems around the government. A Defense Department analyst at the center, for example, can read raw data from the CIA or the FBI. The NCTC is the only place where that kind of cross-agency sharing, a key recommendation of the 9/11 commission, actually happens, Travers said.

The data come into the center in huge floods, however. After the 9/11 attacks, the FBI, the CIA, and electronic spies such as the National Security Agency went into collection overdrive. If there was a way to get more information, they found it -- from interrogations, from computers, from the pocket detritus of Qaeda fighters killed in battle. After the NCTC was established, the intelligence agencies turned their data streams on the center with the ferocity of a rushing river. From 2004 to 2005, the master database of known or suspected terrorists doubled in size, Travers said. Then, it doubled again in 2006. Today, officials estimate that the system contains half a million names, all of which were poured in by other agencies.

"Right now, we are getting on a daily basis many thousands of names," Travers told CBS. (Outside experts have put the number between 4,000 and 8,000.) "Lots of them are undoubtedly duplicates. Some of them aren't really terrorists." Just to keep up with the names, Travers said, he employed "about 80 analysts," who spent their days sifting through "fragmentary," "ambiguous," and "conflicting" information. That is the nature of intelligence, but American analysts have never had to manage data on this scale. Travers seemed to be "drowning" in information, the CBS reporter commented.

"It's probably the single biggest challenge that the community's got right now," Travers replied. "The information that's out there is coming in a deluge."

Another senior intelligence official concurred. Ron Sanders, the top personnel official for the national intelligence director, told reporters this month, "The amount of information, the amount of dots that need to be connected, the needles in the haystack, it's just mind-numbing."

Disconnected Data

The master list is called the Terrorist Identities Datamart Environment, or TIDE. Before someone ends up on a no-fly list, or gets pulled aside at an airport for questioning or a special pat down, his name goes into this catchall repository. Other government agencies can add a name, but it's the NCTC analysts' job to cull through and suggest who needs further inspection.

If someone deserves blame for not keeping Abdulmutallab from boarding a plane, he or she probably doesn't work in the NCTC. Analysts there pass along names from the master database to another group, the Terrorist Screening Center, run by the FBI, which compiles the much-trumpeted no-fly list. After a review of the Christmas attack, President Obama said that had the government put together all the known information about Abdulmutallab, it "would have placed the suspect on the 'no-fly' list." The NCTC might have synthesized that information, but preventing the suspect from boarding an airliner would have been the FBI's call.

And there's more: Still another agency maintains the no-fly list that the FBI creates. The Transportation Security Administration, established after the 9/11 attacks, shares names with the airlines. The airlines control passenger manifests, and it's up to them to check their records against the no-fly list.

The airlines' track record in complying with TSA directives is flawed. Just recently, a tuberculosis patient whom the TSA had alerted airlines not to allow onboard any plane was permitted to take a U.S. Airways flight from Philadelphia to San Francisco. According to the Centers for Disease Control and Prevention, the flight was too short for the patient to have infected other passengers. But he should have been kept off the plane. The TSA defended itself, saying that it was the airlines' job to check and abide by the agency's lists. "We are just a conduit," an agency statement said. "We receive information and provide it to the airlines."

To be sure, names by themselves are practically useless. "If there's a name in a database with no other information, it's just a name in a database," Nelson said. "Unless there's a trigger, something that tells you to look at this individual, you're not going to do that." At the NCTC, he said, "there aren't enough analysts, and there are already so many other issues that they're working."

Abdulmutallab's father's report to the U.S. Embassy in Nigeria that his son might have become a radical in Yemen is arguably a triggering event. And in this case, CIA officials worked up a dossier on Abdulmutallab, and the embassy passed his name on to the counterterrorism center via the TIDE database. There was no failure to share information, to move around reports and names, to log entries in a computer. But no system existed to check what analysts were actually doing with that information. Who was following up on the CIA dossier? Did anyone bother to check the entry in the TIDE database against visa records?

According to current and former government officials who are familiar with the NCTC's tools, analysts can find information by searching databases for keywords. But no system is in place to alert them to potentially important linkages between those keywords. The best tool they have is similar to a Google News alert, which automatically searches particular databases for keywords and returns any results. But such a crude method for mining fragmentary, often incomplete, data does not produce very refined results.

Using the search tools and databases they have, it's difficult for analysts to conduct so-called dynamic searches, which involve looking for multiple variables and terms that are scattered across databases. To do that -- a fundamental requirement for "connecting the dots" -- analysts have to join the various systems in a technically demanding process that can take hours or days.

Further complicating the effort, many of the records in intelligence databases contain additional information in the form of written comments or notes attached to the main record. Sources familiar with these kinds of records said that the notes and comments aren't indexed and so the kinds of keyword searches that analysts perform can't find them. That's a problem because it's often these subsets of information that contain the nuance, context, and interpretation that might actually connect the dots.

Obama seemed to grasp the underlying problem when he said that the Christmas attack "was not a failure to collect intelligence; it was a failure to integrate and understand the intelligence that we already had." But why the failure? It's not because the analysts are incapable of fusing different pieces of a story. It's just that it is exceedingly difficult to do so using the tools now at their disposal. Compounding this problem, current and former officials say, is the lack of an auditing system. Agencies are throwing information into databases at a dizzying rate, but no one is keeping track of who uses the data and how, or whether proper follow-through takes place.

It's not clear whether the immediate corrections that the president has called for involve a new tool for keeping track of where those dots are in the system and who is looking at them. But Leiter told the Senate Homeland Security and Governmental Affairs Committee on January 20 that technology improvements -- including the ability to simultaneously search multiple databases -- is one of four areas on which Obama wants the center to direct its attention.

Enemies Within

If the NCTC has never quite become the seamless conductor for the government's vast terrorism-fighting apparatus, the shortcomings might have something to do with the agency's tortured history. The center was born amid internecine dissent. The Bush administration's plan was to carve the counterterrorism divisions out of the FBI and the CIA and "co-locate" them under one roof as the Terrorist Threat Integration Center. The year was 2003, and the administration was under public pressure to tear down the bureaucratic walls separating the many counterterrorism agencies. The TTIC was a prime example of the new order.

From a practical standpoint, it made sense to put the lead agencies for domestic and foreign counterterrorism in one house. But almost immediately, the G-men and the spies resisted the arrangement, fearful that the new center, and its director, would rob them of their coveted powers. Civil libertarians, meanwhile, warned that putting the FBI, a domestic law enforcement agency, in such proximity to spies, who labor under fewer and different laws when working abroad, was a recipe for abuse.

The essential compromise was that the two counterterrorism units would still report back to their respective bosses -- the directors of the FBI and the CIA. But another turf war erupted over who should oversee the center itself. Officials at the Homeland Security Department wanted the job, and some congressional overseers backed their bid. But the Bush administration planned to give control to the CIA director, who, at the time, was still the overall manager of the entire intelligence community.

Congress had passed legislation calling for a new "fusion center" at the Homeland Security Department. Sen. Joe Lieberman of Connecticut, then the top Democrat on the Senate committee that oversaw the department, accused the administration of doing nothing to break up the historic rivalries between the CIA and the FBI that had caused some of the missteps before the 9/11 attacks.

"CIA clearly has a lever of control; that is not going to help these entrenched rivalries," a Lieberman spokeswoman said at the time, referring to the White House plan to put the spy agency in charge. The administration didn't budge. When Congress established the Office of the Director of National Intelligence in 2005, the baton simply passed to that new spy chief. The National Counterterrorism Center, as it is now called, may be home to employees from across the government, but at its core, it is an intelligence organization. The Homeland Security Department's inability to get control of all the terrorist reporting -- all those "dots" -- damaged its standing in the pecking order and reinforced a growing perception that the department wasn't a major player in the war on terrorism.

Today, the NCTC still has detractors and resisters. According to a former official, the CIA, the State Department, and Homeland Security are the top three carpers. "They've all done everything they can to ensure that NCTC has a difficult time working," the official said.

The CIA, the former official said, still resents having its counterterrorism group operating out of the NCTC, and Homeland Security still smarts over not having control. The State Department, meanwhile, has asserted that it has the ultimate legal authority to operate overseas.

"The CIA station and the embassies are very, very clear that they understand the threat because they're in the field," the former official said. "They always say, 'You people back in D.C. don't understand.' Now what's happening is that these individuals had a threat in Nigeria, and they're blaming D.C. for not figuring it out."

Still, the center has touted significant progress in making more information available to agencies that might need it. The NCTC operates a classified website that's open to more than 5,000 intelligence analysts around the world. "If the information is available to other agencies, it goes up on that website," former NCTC Director John Scott Redd told journalist Ronald Kessler for his book The Terrorist Watch: Inside the Desperate Race to Stop the Next Attack. Redd said, "Anybody with the right clearance can get on there and say, 'What do you make of this?' Or, 'How does this compare with that?' Nothing like this existed prior to 9/11."

In his Aspen Institute address, NCTC Director Leiter took offense at those who think "it has been an accident that we weren't attacked over the past eight years. I think that is flatly and completely false," he said. "We have disrupted plots, we have watched people, we have put things in place which make it less likely we will be attacked today than we were on 9/11."

But he cautioned that the system isn't perfect, and he seemed to predict the narrative that would overtake his organization in the event of another attack on the United States. "We've increased the odds in our favor against the terrorists. So, is it a success story that we haven't been attacked? I think, absolutely. If we are attacked, will it be a failure? Well, in some absolute sense, it will absolutely be a failure." But intelligence, Leiter said, "is an imperfect business. So it does not mean necessarily that the system failed if there is an attack. It means we had a failure, but it doesn't mean the system is a failure."

Reports Dissect “Unprecedented” Spike in US Defense Spending

Cite ambitious Pentagon goals, failed reforms, and weak priorities as causes

Since 1998 the Pentagon has spent more than $6.5 trillion. More than $2 trillion of this sum was above the levels set in 1998. But only half of the $2 trillion in added funds was for recent wars and military operations. Among other things, the surge in spending has allowed the Defense Department to re-inflate its workforce to Cold War levels. And almost all the expansion is contractor labor.

These are among the findings of two 18 January reports on the dynamics of recent defense spending from the Project on Defense Alternatives, a small think tank with offices in the Washington area and Cambridge, Massachusetts.

According to the reports, the boost in spending after 1998 is unmatched over a nearly 60-year period, edging out both the Reagan and the Kennedy-Johnson spending hikes. And the Obama administration, in a move likely to confound critics and supporters alike, plans to spend more on the Pentagon than any administration since 1948.

“The recent wars are only half the story,” says author Carl Conetta, “And their high price tag raises as many questions as it answers.” The report finds the recent wars to have cost $792,000 per deployed person per year, while the Vietnam war cost only $256,000 per person/year in today’s dollars.

Part of the reason for the relatively higher cost of current wars is that the United States today relies on an expensive professional military, rather than a conscript one. The cost-structure of today’s military is not well-suited to protracted, labor-intensive wars, concludes the report. Related to this, the proportion of private contractors used in today’s wars is five times higher than during the Vietnam war. Also adding to costs, DoD equipment purchases in the decade before the wars focused too heavily on the legacy systems favored by the services and on long-range strike weapons. So a new round of buying was needed to support counter-insurgency operations.

The reports find that DoD has been generally lax in setting priorities among contending acquisition programs. But the most serious problem cited in the studies was the adoption of ambitious new roles, missions, and strategies for a reduced military after the Cold War ended. A variety of reform and transformation efforts were supposed to make it possible for a smaller military to do more. But these efforts fell short of their promise. So costs rose with ambitions.

Since the mid-1990s, the Pentagon has turned increasingly to private contractors to help fill the gap between ambitious strategies and the available number of military personnel. The report finds that the Pentagon’s contractor workforce has probably grown by 40% since 1989, while the numbers of military personnel and civilian DoD employees have declined by more than 30%.

To avoid today’s exceptionally high budgets the reports suggest that national authorities would have to be more realistic in setting military missions and goals, more judicious in decisions about going to war, more forceful in pushing for Pentagon reform, and stricter in setting and enforcing budget priorities. There is a deeper political problem, warns Conetta: “At present, civilian leaders are politically disinclined to push the Pentagon hard or enact tighter budget constraints, and this stance undercuts reform.” In reviewing the economic landscape, however, the reports do conclude that fiscal realities may soon prompt a change in attitudes.

The reports are available on the website of the Project on Defense Alternatives:

An Undisciplined Defense: Understanding the $2 Trillion Surge in US Defense Spending

The President's Dilemma: Deficits, Debt, and US Defense Spending

F-35 Challenges Gates

Congress Daily

Tuesday, Jan. 19, 2010

An internal Navy briefing obtained by CongressDaily suggests, without saying it right out, that the F-35 Joint Strike Fighter ballyhooed by Defense Secretary Gates will cost so much to buy and fly that the service might have to find a cheaper plane to fill up its carrier decks.

For those of us who watched the reputation of Defense Secretary Robert McNamara as a manager nose dive in the 1960s when he could not produce a carrier plane the Navy would accept, these newly expressed Navy doubts about the F-35 have a familiar ring that challenges Gates.

McNamara's supposedly super-duper plane that he wanted the Air Force, Navy and, for a bit, the Marines to buy and fly was first called the TFX, for Tactical Fighter Experimental, and later the F-111. The F-35, the Pentagon's biggest aircraft program, is supposed to be flown by the same three services. But F-35 critics contend its cost -- pegged at $122 million a plane in the Pentagon's latest Selected Acquisition Report -- is out of control and its worth as a fighter is questionable.

The Naval Air Systems Command conducted a hush-hush briefing earlier this month on the cost of buying and flying the F-35. One of the dizzying briefing charts obtained by CongressDaily and shown to Navy leaders states that it will cost almost twice as much to fly the F-35 for an hour as it does the existing F/A-18A through D models and AV-8. The comparative per flying hour costs are $30,700 for the F-35 of the future and $18,900 for the other two. Aviation experts suspect Navy leaders felt using the new F/A-18 E and F flying hour costs would have reduced the shock value of the comparison.

"JSF will have a significant impact on Naval aviation affordability in the FYDP [future year defense plan] and beyond," another chart warns. That's the bureaucratic way for the Navy to warn Gates and other decision-makers that the F-35 will cost so much to buy and fly that there won't be enough money in future Navy budgets to procure enough of the planes to fill up the holes on carrier decks, according to veteran aerospace translators.

The GAO has complained about the murkiness of F-35 cost projections, expressing in one such report "concern about what we believe is undue concurrency of development, test and production activities and the heightened risk it poses to achieving good cost, schedule and performance outcomes."

Gates so far has been dismissive of such warnings, declaring last summer at the Lockheed plant in Fort Worth where the F-35 is being built that the United States "cannot afford not to have this airplane." But neither he nor anyone else knows for sure what the F-35 will cost or be able to do in the sky because no complete prototypes have been fully tested.

Winslow Wheeler, former cost analyst at GAO and the Senate Budget Committee and now director of the Straus Military Reform Project at the Center for Defense Information, is among those who believe the fly-before-buy approach to procurement is the only way the Pentagon will ever be able to give the taxpayer a deserved bang for his buck. Wheeler would stop production of the F-35 right now and fully test prototypes of the plane to see what they can actually do.

Some congressional committee or subcommittee should care enough about the taxpayer's buck to investigate the cost and performance problems on the F-35, as the Senate investigations subcommittee led by the late Sen. John McClellan, D-Ark., did for years in hearings on the TFX, which I covered first for Aviation Week and then for the Washington Post.

Among the many questions Congress needs to ask Gates and his deputies is why rush the F-35 into production before testing it fully, and what is the threat out there to our planes already flying that justifies pushing up the federal deficit by spending $298.8 billion on 2,456 F-35s, or $122 million each counting research and development costs?

Gates, before he signs any more checks for the F-35, would be well served by reading the McClellan subcommittee's final report of Dec. 18, 1970, on how that other multiservice plane, the TFX, turned out.

The Navy refused in the end to buy the TFX for its carriers. It bought the Grumman F-14 Tomcat instead.

Said the Senate report: "The history of the TFX program is one of a series of management blunders, a series of poor decisions at the highest levels of the Department of Defense which compounded error upon error as the TFX program stumbled along year after year. The TFX program has been a failure.

"Financial resources were squandered in the attempt to make the TFX program produce satisfactory results. The total failure of the attempt to produce a satisfactory F-111B [the Navy version of the TFX] has caused a long and unnecessary delay in filling the Navy's request for a new carrier-based fighter."

As McClellan might tell Gates if the senator were still with us: "There ain't no education in a second kick of a mule."

by George C. Wilson

New Wars, Cold War Prices

Inside Defense

As the Pentagon prepares to unveil its fiscal year 2011 budget request the first week of February, a new analysis of defense spending over the last three decades concludes the Obama administration's forthcoming military spending request “locks into place (an) unprecedented rise in defense spending -- 90 percent -- that began in the late 1990s, consolidating a return to Reagan-ear budget levels.”

Based on spending forecasts the White House detailed in May, the Project on Defense Alternatives calculates the Obama administration will allocate $5 trillion to military spending between fiscal years 2010 and 2017, “assuming it stays its current course” and the president is elected to a second term.

Indeed, by a substantial margin, it would represent the greatest amount allotted the Pentagon in any eight years since 1946 -- a period encompassing the Korean, Vietnam, and Cold Wars.

The 61-page report is titled "An Undisciplined Defense: Understanding the $2 Trillion Surge in U.S. Defense Spending."

-- Jason Sherman

Navy Concerned Total JSF Price Tag Could Squeeze Out Other Aviation Needs

Inside Defense

Jan. 13, 2009 -- A new Navy assessment of the cradle-to-grave costs for the Joint Strike Fighter program pegs the total at more than $700 billion, a sum so large that top brass are concerned that operational costs will gobble up future resources needed for other naval aviation programs.

Estimators at the Naval Air Systems Command, according to a Jan. 4 briefing obtained by InsideDefense.com, forecast the total operations and support cost for naval JSF variants to be 40 percent higher than similar costs to support today's F/A-18s and AV-8s -- fighters the JSF is intended to replace.

The Navy assessment concludes that the total cost to fly Air Force, Navy and Marine Corps JSF variants through 2054 will be $443 billion, bringing the total program cost -- when development and procurement are included -- to at least $704 billion. By comparison, the JSF joint program office puts operation and support costs at $383 billion and the total cost at $607 billion.

“JSF will have a significant impact on naval aviation” in the future years defense plan, covering fiscal years 2011 to 2015, “and beyond,” states the briefing. David Burgess, director of the Naval Air Systems Command cost department, prepared it.

“Current acquisition governance process does not manage total ownership cost in an integrated manner,” the document states.

The focus on total ownership cost of the Joint Strike Fighter, the Pentagon's largest acquisition effort, comes as the Office of the Secretary of Defense concludes an intense review of the program’s development and production costs, adopting recommendations in the fiscal year 2011 budget proposal of a quasi-independent assessment team that determined more time and money are required to produce the stealth combat jet.

The “time to influence operating and support costs is quickly slipping away,” the briefing warns. NAVAIR cost estimators -- some of whom were part of the OSD-led JSF Joint Estimate Team over the last two years -- argue that the “services must participate in planning and development of sustainment strategy 'war game.'”

The briefing also suggests that the JSF program office should “establish a JPO 'sustainment executive'” and work to identify factors that drive operations and support costs in order to develop mitigation strategies.

The NAVAIR review of JSF life-cycle costs was initiated in July at the request of then-Vice Chief of Naval Operations Adm. Patrick Walsh.

Walsh, now the commander of U.S. Pacific Fleet, on July 13 tasked the commander of NAVAIR and the assistant secretary of the Navy for research, development and acquisition to examine “how joint programs such as the JSF will affect the affordability of our future force,” according to an excerpt of the tasking quoted in the the Jan. 4 briefing.

The vice chief, who represents the sea service on the Joint Requirements Oversight Council, added that “it appears that many of the significant cost issues we face in joint programs are not fully addressed by the current acquisition governance process. [Chief of Naval Operations Adm. Gary Roughead] and I may choose to take these issues back to appropriate forums such as the JROC.”

Some of the details in the Jan. 4 briefing were reported this week on Military.com. -- Jason Sherman

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Casey ‘Pleased’ With Results Of Quadrennial Defense Review, FY-11 Budget

Inside the Army

While Army Chief Of Staff Gen. George Casey did not share any details of the fiscal year 2011 budget or the largely completed Quadrennial Defense Review, he did tell an audience last week he was satisfied with both.

“We worked very hard with the Department of Defense on both of those, and I’m pleased with the outcome of both of those,” Casey said at a Jan. 14 breakfast in Arlington, VA, hosted by the Association of the U.S. Army.

The Pentagon’s FY-11 budget, along with the QDR, will be sent to Congress at the beginning of February. Casey said there is continuity between Defense Secretary Robert Gates’ budget decisions for FY-10, the QDR’s findings and the FY-11 spending plan.

Of the QDR, Casey said it “recognizes the reality that we have to deal with the wars that we’re in.” In the FY-11 budget request, that translates to providing soldiers with the equipment they need in Iraq and Afghanistan, he added.

Casey also said the Army is on the same page with the QDR in how it views the future operational environment. “I think as the QDR comes out, you will see that [DOD] sees the strategic environment in much the same way that I have been describing it here for the last several years,” he said. “That we are, in fact, involved in a long-term ideological struggle against a global terrorist network and that we are in an era of persistent conflict. It doesn’t use the words, but the environment it describes is one of persistent conflict.”

The QDR outlines the capabilities the U.S. military will need in such an environment, according to Casey. “It goes far in talking about the need for flexible, adaptable forces,” he said.

Casey also listed some of the service’s priorities for the coming year, including a discussion of what mix of forces the Army will require during the next program objective memorandum cycle.

“Really what we need to do is have the intellectual discussion over the course of this year that will cause us to think through the changes we need to make in the Army for the [fiscal years 2012-2017] program, for the second decade of the 21st century,” said Casey. This includes looking at the mix of infantry, Stryker and heavy brigade combat teams, as well as the ratio of active, National Guard and Army Reserve forces and determining the right number of each, he added. -- Kate Brannen

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ROC Approves 4,000-Vehicle Increase In MRAP Requirement

Jan. 12, 2009 -- The Joint Requirements Oversight Council has once again increased the Mine Resistant Ambush Protected vehicle acquisition objective, this time by 4,000 vehicles, according to a source with knowledge of the program.

The source tells Inside the Army that the JROC approved increasing the objective to 26,882 at a Jan. 4 meeting. That figure includes both MRAP and MRAP All-Terrain Vehicles.

The focus of late has been on M-ATVs, designed specifically for Afghanistan's difficult terrain. After President Obama announced he would send 30,000 additional troops to the country, Defense Secretary Robert Gates testified on Capitol Hill that the Pentagon would likely increase its M-ATV buy to 10,000.

However, the source told ITA that U.S. Central Command and the Joint Staff have indicated they require only 1,400 more M-ATVs. Additionally, they are seeking 1,300 new category I MRAPs, the lightest type of the original MRAPs. The military plans to shift vehicles from Iraq to Afghanistan to make up the rest of the 4,000-vehicle requirement, according to the source.

Though there were five manufacturers in the original MRAP effort, Oshkosh is the only M-ATV builder. Now at its peak pace of 1,000 vehicles per month, Oshkosh has said it expects to sustain that rate through May to deliver more than 6,600 of the trucks.

In a statement provided to ITA in December -- before Gates spoke of increasing the M-ATV requirement -- the MRAP joint program office said it “is prepared to scale up as required to address the requirement provided us by the warfighter.” -- Marjorie Censer

New DSB Review Of Major Budget Growth Area: Services Contracting

Inside Defense

Jan. 12, 2010 -- Ashton Carter, the Pentagon's acquisition executive, has tapped Jacques Gansler, a Clinton-administration DOD procurement chief, to spearhead a new task force examining ways to improve a fast-growing area of the military budget -- services contracting.

On Dec. 4, Carter named Gansler, who was DOD acquisition executive from 1997 to 2001, to lead a task force to examine all aspects of how the Pentagon purchases services, a task Congress directed in the fiscal year 2010 Defense Authorization Act.

In 2007, Gansler led a commission that delivered a report on Army expeditionary contracting that called for “urgent reform” of the workforce, organizations, training and policies undergirding forward contracting activities.

Since the mid-1990s, the Defense Department has increased its reliance on contractors to perform tasks previously performed by government employees -- many of which are closely linked to inherent government functions, including contracting support, intelligence analysis, program management, as well as engineering and technical support for program offices.

Congressional investigators in 2008 pegged annual DOD spending on services contracts at more than $300 billion annually.

“With awards to contractors large and growing, DOD will continue to be vulnerable to contracting fraud, waste, or misuse of taxpayer dollars and abuse,” the Government Accountability Office stated in a Jan. 23, 2009, report.

Last June, the House Armed Services Committee included in its mark of the Pentagon's FY-10 spending plan, a requirement for the Pentagon acquisition executive to commission a study of ways to improve services contracting -- a provision eventually enacted last fall.

Accordingly, Carter asked the DSB -- in a two-page, Dec. 4 memo -- to assess the “quality and completeness” of guidance relating to services procurement, “including implementation of statutory and regulator requirements.”

The task force will review “the extent to which best practices are being developed for setting requirements and developing statements of work,” and assess “the contracting approaches and contract types used for the procurement of services” and whether these best serve DOD interests.

The task force should also consider the “effectiveness of peer review within the Department of Defense of contracts for services and whether such reviews are being conducted at the appropriate dollar threshold,” Carter writes.

In addition, the task force will examine DOD management structure for services acquisition and whether statutorily required performance savings goals are being achieved.

The review will examine the effectiveness of the Acquisition Center of Excellence for Services, established in accordance with the Services Acquisition Reform Act of 2003, “and the feasibility of creating similar centers of excellence in the military departments.”

Lastly, the Pentagon advisory panel -- according to Carter's request -- will weigh in on the “quality and sufficiency of the acquisition workforce for the procurement and oversight of services.” -- Jason Sherman

1122010_jan12b

Cracks in the Jihad

by Thomas Rid, Wilson Quarterly Winter 2010

“Get ready for all Muslims to join the holy war against you,” the jihadi leader Abd el-Kader warned his Western enemies. The year was 1839, and nine years into France’s occupation of Algeria the resistance had grown self-confident. Only weeks earlier, Arab fighters had wiped out a convoy of 30 French soldiers en route from Boufarik to Oued-el-Alèg. Insurgent attacks on the slow-moving French columns were steadily increasing, and the army’s fortified blockhouses in the Atlas Mountains were under frequent assault.

Paris pinned its hopes on an energetic general who had already served a successful tour in Algeria, Thomas-Robert Bugeaud. In January 1840, shortly before leaving to take command in Algiers, he addressed the French Chamber of Deputies: “In Europe, gentlemen, we don’t just make war against armies; we make war against interests.” The key to victory in European wars, he explained, was to penetrate the enemy country’s interior. Seize the centers of population, commerce, and industry, “and soon the interests are forced to capitulate.” Not so at the foot of the Atlas, he conceded. Instead, he would focus the army’s effort on the tribal population.

Later that year, a well-known military thinker from Prussia traveled to Algeria to observe Bugeaud’s new approach. Major General Carl von Decker, who had taught under the famed Carl von Clausewitz at the War Academy in Berlin, was more forthright than his French counterpart. The fight against fanatical tribal warriors, he foresaw, “will throw all European theory of war into the trash heap.”

One hundred and seventy years later, jihad is again a major threat—and Decker’s dire analysis more relevant than ever. War, in Clausewitz’s eminent theory, was a clash of collective wills, “a continuation of politics by other means.” When states went to war, the adversary was a political entity with the ability to act as one body, able to end hostilities by declaring victory or admitting defeat. Even Abd el-Kader eventually capitulated. But jihad in the 21st century, especially during the past few years, has fundamentally changed its anatomy: Al Qaeda is no longer a collective political actor. It is no longer an adversary that can articulate a will, capitulate, and be defeated. But the jihad’s new weakness is also its new strength: Because of its transformation, Islamist militancy is politically impaired yet fitter to survive its present crisis.

In the years since late 2001, when U.S. and coalition forces toppled the Taliban regime and all but destroyed Al Qaeda’s core organization in Afghan­istan, the bin Laden brand has been bleeding popularity across the Muslim world. The global jihad, as a result, has been torn by mounting internal tensions. Today, the holy war is set to slip into three distinct ideological and organizational niches. The U.S. surge in Afghanistan, whether successful or not, is likely to affect this development only marginally.

The first niche is occupied by local Islamist insurgencies, fueled by grievances against “apostate” regimes that are authoritarian, corrupt, or backed by “infidel” outside powers (or any combination of the three). Filling the second niche is terrorism-cum–organized crime, most visible in Afghanistan and Indonesia but also seen in Europe, fueled by narcotics, extortion, and other ordinary illicit activities. In the final niche are people who barely qualify as a group: young second- and third-generation Muslims in the diaspora who are engaged in a more amateurish but persistent holy war, fueled by their own complex personal discontents. Al Qaeda’s challenge is to encompass the jihadis who drift to the criminal and eccentric fringe while keeping alive its appeal to the Muslim mainstream and a rhetoric of high aspiration and promise.

The most visible divide separates the local and global jihadis. Historically, Islamist groups tended to bud locally, and assumed a global outlook only later, if they did so at all. All the groups that have been affiliated with Al Qaeda either predate the birth of the global jihad in the early 1990s or grew later out of local causes and concerns, only subsequently attaching the bin Laden logo. Al Qaeda in the Islamic Maghreb, for example, started out in 1998 as the Salafist Group for Preaching and Combat, an offshoot of another militant group that had roots in Algeria’s vicious civil war during the early 1990s. Pakistan’s Lashkar-e-Taiba, the force allegedly behind the 2008 attacks in Mumbai, India, that killed more than 170 people, was formed in the 1990s to fight for a united Kashmir under Pakistani rule. In Somalia, Egypt, Saudi Arabia, and other countries, the Al Qaeda brand has been attractive to groups born out of local concerns.

By joining Al Qaeda and stepping up violence, local insurgents have long risked placing themselves on the target lists of governments and law enforcement organizations. More recently, however, they have run what may be an even more consequential risk, that of removing themselves from the social mainstream and losing popular support. This is what happened to Al Qaeda in Iraq during the Sunni Awakening, which began in 2005 in violence-ridden al-Anbar Province and its principal city, Ramadi. Al Qaeda had declared Ramadi the future capital of its Iraqi “caliphate,” and by late 2005 it had the entire city under its control. But even conservative Sunni elders became alienated by the group’s brutality and violence. One prominent local leader, Sheikh Sattar Abdul Abu Risha, lost several brothers and his father in assassinations. Others were agitated by the loss of prestige and power to the insurgents in their traditional homelands. In early 2006, Sattar and his sheikhs decided to cooperate with American forces, and by the end of the year they had helped recruit nearly 4,000 men to local police units. “They brought us nothing but destruction and we finally said, enough is enough,” Sattar explained.

The awakening (sahwa in Arabic) was not limited to al-Anbar. One after another, former firebrand imams, in so-called revisions, have started questioning the theological justifications of holy war. The trend may have begun with Gamaa al-Islamiya, Egypt’s most brutal terrorist group, which was responsible for the assassination of Egyptian president Anwar el-Sadat in 1981 and the slaughter of 58 foreign tourists in Luxor in 1997. As the Iraq war intensified during the summer of 2003, several of Gamaa al-Islamiya’s leaders advised young men not to participate in Al Qaeda operations and accused the organization of “splitting Muslim ranks” by provoking hostile reactions against Islam “and wrongly interpreting the meaning of jihad in a violent way.”

Another notable revision came in September 2007, when Salman al-Awda, an influential Saudi cleric who had previously declared that fighting Americans in Iraq was a religious duty, spoke out against Al Qaeda. He accused bin Laden in an open making terror a synonym for Islam.” Speaking on a popular Saudi TV show on the sixth anniversary of 9/11, al-Awda asked, “My brother Osama, how much blood has been spilt? How many innocent people, children, elderly, and women have been killed . . . in the name of Al Qaeda?”

Other ideologues have followed, including Sajjid Imam al-Shareef, one of Al Qaeda’s founding leaders, who used the nom de guerre Dr. Fadl. “Every drop of blood that was shed or is being shed in Afghanistan and Iraq is the responsibility of bin Laden and Zawahiri and their followers,” he wrote in the London-based newspaper Asharq Al Awsat.

In Afghanistan, coalition soldiers see the global-local split replicated as a fissure between what they call “big T” Taliban and “small t” Taliban. The “big T” ideologues fight for more global spiritual or political reasons; the “little t” opportunists fight for power, for money, or just to survive, to hedge their bets. A family might have one son fighting for the Taliban and another in the Afghan National Army; no matter which side prevails, they will have one son in the right place. U.S. Marines in Helmand Province say that 80 to 85 percent of all those they fight are “small t” Taliban. The U.S. counterinsurgency campaign aims to co-opt and reintegrate many of these rebels by creating secure population centers and new economic opportunities, spreading cleared areas like “inkblots.” But the Taliban have long been keen to spread their own inkblots, with a similar rationale: attracting more and more “accidental” guerrillas, in the famous phrase of counterinsurgency specialist David Kilcullen, not just hardliners.

Yet even Afghanistan’s “big T” Taliban, the ideologues, cannot simply be equated with Al Qaeda. Last fall, Abu Walid, once an Al Qaeda accomplice and now a Taliban propagandist, ridiculed bin Laden in the Taliban’s official monthly magazine al-Sumud, for, among other things, his do-it-yourself approach to Islamic jurisprudence. A number of veterans had criticized bin Laden in the past, among them such towering figures as Abu Mus’ab al-Suri, one of the key architects of the global jihad. But Abu Walid’s criticism was more biting. Bin Laden’s organization lacks strategic vision and relies on “shiny slogans,” he told Leah Farrall, an Australian counterterrorism specialist, in a much-noted dialogue she reported on her blog. Consequently the Taliban would no longer welcome the terrorists in Afghanistan, he said, because “the majority of the population is against Al Qaeda.”

At the root of the disagreement between the two groups is the question of a local, or even national, popular base. Last September, Mullah Omar, the Taliban’s founding figure and spiritual overlord, issued a message in several languages. He called the Taliban a “robust Islamic and nationalist movement” that had “assumed the shape of a popular movement.” Probably realizing that pragmatism and a certain amount of moderation offer the best chance of a return to power, Omar vowed “to maintain good and positive relations with all neighbors based on mutual respect.”

Al Qaeda’s reaction was swift and harsh. Turning the jihad into a “national cause,” in the purists’ view, was selling it out. Prominent radicals, in a remarkable move, compared the Taliban’s turnabout to the efforts by Hezbollah in Lebanon and Hamas in Gaza to distance themselves from Al Qaeda. Hamas in particular, perhaps because it is, like Al Qaeda, a Sunni organization, has been the subject of “relentless” criticism in Al Qaeda circles, says Thomas Hegghammer of the Institute for Advanced Study in Princeton, New Jersey. When a self-proclaimed Al Qaeda faction appeared in Gaza, Hamas executed one of its leading imams and many of his armed followers. Jihadi ideologues were aghast. The globalists shuddered at the thought that local interests could compromise their pan-Islamic ambitions. “Nationalism,” declared Ayman al-Zawahiri, Al Qaeda’s number two, “must be rejected by the umma [Muslim community], because it is a model which makes jihad subject to the market of political compromises and distracts the umma from the liberation of Islamic lands and the establishment of the Caliphate.”

A few weeks later, Mullah Omar pointedly reiterated his promise of good neighborliness and future cooperation with Afghanistan’s neighbors, including China, Uzbekistan, and Turkmenistan—all of whom face their own jihadi insurgencies and are on Al Qaeda’s target list.

The Taliban’s new tactics are throwing an “ideological bridge” not only to nearby countries but to parts of the current Kabul elite, most notably politically mobilized university students, notes Thomas Ruttig of the Afghanistan Analysts Network. Even the newly moderate Taliban, it should be clear, remains wedded to inhumane and medieval moral principles. Yet Omar’s pragmatism immediately affects the question of who and what is a desirable target of attacks.

Perhaps the greatest tension between the local and global levels of the jihad grows out of a divide over appropriate targets and tactics. Classical Islamic legal doctrine sees armed jihad as a defensive struggle against persecution, oppression, and incursions into Muslim lands. In an attempt to mobilize Muslims around the world to fight the Soviets in Afghanistan, Abdallah Azzam, an influential radical cleric who was assassinated in 1989, helped expand the doctrine of jihad into a transnational struggle by declaring the Afghan jihad an individual duty for all Muslims. Azzam also advocated takfir, a practice of designating fellow Muslims as infidels (kaffir) by remote excommunication in order to justify their slaughter. Al Qaeda ideologues upped the aggressive potential of such arguments and expanded the defensive jihad into a global struggle, effectively blurring the line between the “near” enemy—the Arab regimes deemed illegitimate “apostates” by the purists—and the “far” enemy, these regimes’ Western supporters.

In the remote areas of Pakistan and Afghanistan that produce many of today’s radicals, however, local and tribal affiliations are powerful. One U.S. political adviser who worked in Afghanistan’s Zabul Province, a hotbed of the insurgency, describes prevailing local sentiment as “valleyism” rather than nationalism. It is a force that drives the tribes to oppose anybody who threatens their traditional power base, foreign or not—a problem not just for the Taliban and Al Qaeda but for any Afghan government. Al-Zawahiri complained of this in a Even the students (talib) themselves had stronger affiliations to their tribes and villages . . . than to the Islamic emirate.” The provincial valleyists, to the distress of Al Qaeda’s more cosmopolitan agitators, are selfishly eyeing their own interests, with little appetite for international aggression and globe-spanning terrorist operations.

The contrast with the character of jihad in the Muslim diaspora could not be starker. For radical Islamists in Europe, the local jihad doesn’t exist. And they understand that toppling governments in, say, London or Amsterdam is a fantasy. These radicals are less interest driven than identity driven. Many young European Muslims are out of touch with their ancestral countries, yet not fully at home in France or Sweden or Denmark. For some, the resulting identity crisis creates a hunger for clear spiritual guidelines. The ideology of global jihad, according to a report by EUROPOL, the European Union’s police agency, “gives meaning to the feeling of exclusion” prevalent among the second- and third-generation descendants of Muslim immigrants. For these alienated youth, the idea of becoming “citizens” of the virtual worldwide Islamic community may be more attractive than it is for first-generation immigrants, who tend to retain strong roots in their native countries.

The identity problems of these young people seem to have affected the character of the jihad itself. Like the disoriented Muslim youth of the diaspora, the global jihad has loose residential roots and numb political fingertips. One sign of this disconnection from the local is that Al Qaeda’s rank and file does not include many men who could otherwise join a jihad at home: There seem to be few Palestinians, Chechens, Iraqis, or Afghans among the traveling jihadis, who tend to come from countries where jihad has failed, such as Egypt, Saudi Arabia, Libya, and Syria.

Al Qaeda’s identity crisis is also illustrated by how it treats radicalized converts, often people without religious schooling and consolidated personalities. Olivier Roy, one of France’s leading specialists on radical Islamism, has pointed out that convert groups assume responsibilities “beyond all comparison with any other Islamic organization.” Roy has put the proportion of converts in Al Qaeda at between 10 and 25 percent, an indicator that the movement has become “de-culturalized.”

These contrary trends, in turn, create chinks in Al Qaeda’s recruitment system. The most extreme Salafists, deprived of identity and cultural orientation, have an appetite for utopia, for extreme views that appeal to the margin of society, be it in Holland or Helmand. Recruitment in the diaspora, as a result, follows a distinctive pattern, not partisan and political but offbeat and outré. The grievances and motivations of European extremists and the rare American militants tend to be idiosyncratic, the product of unstable individual personalities and a history of personal discrimination. Many take the initiative to join the movement themselves, and because they are not recruited by a member of the existing organization, their ties to it may remain loose. In 2008 alone, 190 individuals were sentenced for Islamist terrorist activities in Europe, most of them in Britain, France, and Spain. “A majority of the arrested individuals belonged to small autonomous cells rather than to known terrorist organizations,” EUROPOL reports.

As a result of the change in its membership, the global Al Qaeda movement is encountering strong centrifugal forces. The rank and file and the center are losing touch with each other. The vision of Abu Mus’ab al-Suri, who laid much of the ideological foundation for Al Qaeda’s global jihad, blends a Marxist-inspired focus on popular mass support with 21st-century ideas of networked, individual action. Al-Suri’s aim was to devise a method “for transforming excellent individual initiatives, performed over the past decades, from emotional pulse beats and scattered reactions into a phenomenon which is guided and utilized, and whereby the project of jihad is advanced so that it becomes the Islamic Nation’s battle, and not a struggle of an elite.” The global jihad was to function like an “operative system,” without vulnerable, old-fashioned organizational hierarchies. That method is intuitively attractive for a Facebook generation of well-connected young sympathizers, but the theory contains an internal contradiction. Self-recruited and “homegrown” terrorists present a wicked problem for Al Qaeda. As a bizarre type of self-appointed elite, they undermine the movement’s ambition to represent the Muslim “masses.”

The problem is embodied in the online jihad. For Al Qaeda, Web forums operated by unaffiliated Islamists have been the most important distribution platform for jihadi materials. But after the arrest of a top-tier online activist in London two years ago, the connection between the forums and Al Qaeda’s official media center, al-Sahab, began to loosen. Al Qaeda has lost more and more control of the online jihad. And, just like others online, jihadi Web administrators face increasingly tough competition for visibility. Within the forums the tone has become harsher. Brynjar Lia, a specialist on Salafism at the Norwegian Defense Research Establishment, says that “interjihadi quarrels seem to have become more common and less ‘brotherly’ in tone in recent years.”

Some far-flung jihadi groups are enjoying newfound independence of another kind, as a result of criminal ventures they have established to fund their efforts. This too is intensifying the centrifugal forces within the global movement. Some groups are tipping into a more purely criminal mode.

A cause is what distinguishes an insurgency from organized crime, as David Galula, an influential French author on counterinsurgency, noted decades ago. Organized crime does not have to be incompatible with jihad. It may even be justified in religious terms: Baz Mohammed, an Afghan heroin kingpin and the first criminal ever extradited from Afghanistan, bragged to his co-conspirators that selling heroin in the United States was jihad because it killed Americans while taking their money.

A budding insurgency has only a limited window of opportunity to grow into a serious political force. If the cause withers and loses its popular gloss, what remains as a rump may be nothing but a criminal organization, attracting a following with criminal energy rather than religious zeal, thus further damaging jihad’s status in the eyes of the broader public. For some groups, this already appears to be happening. Al Qaeda in the Islamic Maghreb funds itself through the drug trade, smuggling, extortion, and kidnappings in southern Algeria and northern Mali. Indonesia’s Abu Sayyaf Group and the Philippines’ Jamiyah Islamiyah engage in a variety of criminal activities, including credit card fraud. The terrorist cell behind the 2004 Madrid bombings earned most of its money from criminal activities; when Spanish police raided the home of one of the plotters, they seized close to $2 million in drugs and cash, including more than 125,000 Ecstasy tablets, according to U.S. News and World Report. The Madrid bombings had cost the terrorists just $50,000.

The goal of leading Islamists has always been to turn their battle into “the Islamic Nation’s battle,” as al-Suri wrote. Far from reaching this goal, the jihad is veering the other way. Eight years after 9/11, support for Islamic extremism in the Muslim world is at its lowest point. Support for Al Qaeda has slipped most dramatically in Indonesia, Pakistan, and Jordan. In 2003, more than 50 percent of those surveyed in these countries agreed that bin Laden would “do the right thing regarding world affairs,” the Pew Global Attitudes Project found. By 2009 the overall level of support had dropped by half, to about 25 percent. In Pakistan, traditionally a stronghold of extremism, only nine percent of Muslims have a favorable view of Al Qaeda, down from 25 percent in 2008. Even an American failure to stabilize Afghanistan and its terror-ridden neighborhood would be unlikely to ease Al Qaeda’s crisis of legitimacy.

But it would be naive to conclude that the cracks in Al Qaeda’s ideological shell mean that the movement’s end is near. Far from it. Islamist ideology may be losing broad appeal, and the recent global crop of extremists may be disunited and drifting apart. Yet in the fanatics’ own view, the ideology remains a crucial cohesive force that binds together an extraordinarily diverse extremist elite. Salafism, despite its crisis, continues to be attractive to those at the social margins. One of the ideology’s most vital functions appears to be to resolve the contradictions of jihad in the 21st century: being a pious Muslim, yet attacking women and children; upholding the authority of the Qur’an, yet prospering from crime; depending on Western welfare states, yet plotting against them; having no personal ties to any Islamic group, yet believing oneself to be part of one.

Al Qaeda’s altered design has a number of immediate consequences. The global jihad is losing what David Galula called a strong cause, and with it its political character. This change is making it increasingly difficult to distinguish jihad from organized crime on the one side and rudderless fanaticism on the other. This calls into question the notion that war is still, as Clausewitz said, “a continuation of politics by other means,” and therefore whether it can be discontinued politically. Second, coerced by adversaries and enabled by the Internet, the global jihadi movement has dismantled and disrupted its own ability to act as one coherent entity. No leader is in a position to articulate the movement’s will, let alone enforce it. It is doubtful, to quote Clausewitz again, whether war can still be “an act of force to compel the enemy to do our will.” And because jihad has no single center of gravity, it has no single critical vulnerability. No matter what the outcome of U.S.-led operations in Afghanistan and other places, a general risk of terrorist attacks will persist for the foreseeable future.

In combating terrorism, therefore, quantity matters as much as quality. But some numbers matter more than others. How many additional American and European troops are sent to Afghanistan matters less than the number of terrorist plots that don’t happen. Success will be found subtly in statistics, in data curves that slope down or level off, not in one particular action, one capitulation, or even one leader’s death. It will be marked not by military campaigns and other events but by decisions not taken and attacks not launched. Because participation in the holy war in both its local and global forms is an individual decision, these choices have to be the unit of analysis, and influencing them must be the goal of policy and strategy. As in crime prevention, measuring success—how many potential terrorists did not join an armed group or commit a terrorist act—is nearly impossible. Success against Islamic militancy may wear a veil.
Thomas Rid is a visiting scholar at the Shalem Center in Jerusalem and coauthor of War 2.0 (2009). He was a public policy scholar at the Woodrow Wilson Center in 2009.

Reprinted from Winter 2010 Wilson Quarterly

'Wanted: Dead' Obama significantly steps-up targeted assassinations

Saturday, Jan. 9, 2010
by James Kitfield, National Journal

Hidden behind walls of top-secret classification, senior U.S. government officials meet in what is essentially a star chamber to decide which enemies of the state to target for assassination. There is no single master list, but all names pass through an elaborate, multi-agency vetting process that ends at the level of the National Security Council and ultimately requires presidential approval.

The high-level group draws its authority from a post-9/11 presidential finding and executive order authorizing government agents to use lethal covert action in the global war on terrorism. Since inheriting the program from the Bush White House, the Obama administration has dramatically increased such actions, ordering a record 50 drone strikes on suspected terrorists in 2009 compared with 31 the year before.

According to a knowledgeable source, names that make the final cut go to an interagency task force that includes representatives from the CIA and the military's Special Operations Command, the designated lead agencies for counter-terrorism operations. Depending on the target's priority, the intelligence on his or her whereabouts, and the potential legal authorities involved at the likely point of contact, either the CIA or a Special Forces direct-action unit may get the job.

This machinery operates in the utmost secrecy. Despite a body count that has grown significantly in recent years, senior U.S. officials still decline to publicly acknowledge key aspects of the targeted assassination program. This much is known, however: The surest qualification for getting designated for "lethal covert action" is to have any link or connection whatsoever to Al Qaeda. In a single 48-hour period on December 17 and 18, for instance, a barrage of Predator drone strikes killed 22 suspected Qaeda terrorists and allied militants in Pakistan's lawless tribal region of North Waziristan.

"As its reply to the 9/11 attacks, the United States officially declared war on the terrorists and authorized the CIA to kill Qaeda militants in a presidential directive that was briefed to Congress," Vincent Cannistraro, the CIA's former counter-terrorism chief, wrote recently on National Journal's blog of national security experts. The Special Operations Command, he said, has also operated anti-terrorist hit squads.

"In an official wartime environment," Cannistraro wrote, "there is no definition for what the media calls 'assassination.' There's just the killing of the enemy, wherever and however found. The CIA's regular program of launching drone attacks against Qaeda members emphasizes this objective of killing terrorists, whether in Pakistan and Afghanistan, or in other areas, like Yemen and Somalia. Sometimes these attacks are unilateral, and sometimes [they are] briefed and approved by the host government in advance but publicly denounced by them for domestic political reasons. But the purpose -- the elimination through killing of terrorists -- is authorized by presidential dictate and congressional briefings."

Making The List

On Tuesday, December 8, a car carrying two men approached the village of Spalga in North Waziristan, where remnants of Al Qaeda's leadership have found sanctuary. Tribal sources reported to local media that the car disintegrated after being hit by two missiles and that body parts scattered in all directions. As of this writing, U.S. intelligence sources have confirmed only that a "high-level" Qaeda operative was killed in an attack by an armed Predator drone on that date. Various media have reported, however, that the dead included Saleh al-Somali. If the reports are accurate, there is little doubt how he made it onto the assassination list. Somali, a chief Qaeda operations planner, was thought to be plotting attacks against the United States and Europe.

On the evening of August 5, Baitullah Mehsud, the infamously ferocious head of the Pakistani Taliban, was resting on the roof of his father-in-law's house in the country's ungoverned South Waziristan region. Mehsud was Pakistan's most-wanted man, linked to a host of terrorist attacks, including the assassination of former Pakistani Prime Minister Benazir Bhutto and the bombing of the Marriott Hotel in Islamabad that killed more than 50 people in September 2008.

Mehsud had also forged increasingly close ties to Al Qaeda, and intelligence implicated him in a failed 2008 plot to bomb the subway system in Barcelona, Spain, suggesting that he was embracing the terrorist group's strategy of direct attacks on the West. All of which may explain how Mehsud's name appeared on the targeted assassination list.

Roughly 2 miles above the roof on which Mehsud was reclining, receiving an intravenous drip for diabetes or a kidney ailment, an unseen armed Predator drone circled and observed. The robot was piloted from thousands of miles away at CIA headquarters in Langley, Va. The drone fired two Hellfire missiles that engulfed the house in a fireball, killing 12 people, including Mehsud's wife and in-laws, as recently reported in The New Yorker magazine. When the dust settled, all that was left of Mehsud was a torso.

On September 14, Saleh Ali Saleh Nabhan, a Kenyan who was a top Qaeda operative in Africa, traveled in a convoy in southern Somalia. Nabhan was wanted by the FBI for his involvement in an attack on a hotel and an attempt to shoot down an Israeli airliner in Kenya in 2002, and for links to the 1998 Qaeda bombing of the U.S. embassies in Kenya and Tanzania. Nabhan was also a leader of the Somali Al Shabab terrorist group, which has close ties to Al Qaeda. In recent years Al Shabab has begun successfully recruiting and training Americans of Somali origin for suicide operations. All of which may explain how Nabhan's name made it onto what the Pentagon calls the "Joint Integrated Prioritized Target List."

As Nabhan's convoy pulled over for breakfast, U.S. Special Forces helicopters swarmed in with machine guns blazing. After the shooting stopped, Navy SEAL commandos rappelled to the ground and collected the bodies of Nabhan and another terrorist; the choppers then flew back to U.S. warships patrolling off the Somali coast, as reported by the Associated Press.

Shadow War

By every indication, the Obama administration has markedly expanded the government's program of targeted assassinations of terrorists. According to a recent report by the New America Foundation, the number of drone attacks between January and October 2009 exceeded the total in all of 2008, which had been a record year for such strikes. According to The Long War Journal, a blog that tracks the drone program, of the 99 attacks carried out inside Pakistan since the first one in 2004, 89 occurred after January 2008. That's on top of targeted assassinations of terrorists and militants in Iraq, Somalia, Yemen, and elsewhere.

The escalation raises important questions about the efficacy of the assassination program and about its legal and moral underpinnings. (See next story, p. 21.) Recent controversies and media reports already provide ample evidence of the difficulties in managing and legally containing a program of extrajudicial killings that is cloaked in such secrecy.

Why, for instance, after long criticizing Israel for its targeted assassination program, did the United States so decisively reverse course under a Republican president, and significantly escalate the program under a Democratic president who almost never refers to a "global war on terrorism"? What exactly are the distinctions between a Special Forces unit shooting a terrorist first and asking questions later; a CIA drone firing Hellfire missiles at a faraway target; and proposed CIA hit squads conducting "find, fix, and finish" operations? How high are the intelligence and evidentiary bars that land someone on the targeted list? Why has government contracted out its most profound responsibility -- using lethal force in the name of the state -- to private parties? How accountable and legitimate is a program of targeted killings that officials will not even publicly acknowledge?

Answers to those questions are all the more important, given that the program's success and the lack of better options for targeting terrorists in ungoverned spaces have garnered widespread support in Washington for continuing and even escalating the operation.

"I believe, short of war, targeted assassination has no place in U.S. policy or in its arsenal," Brian Michael Jenkins, a longtime counter-terrorism expert and author at the Rand thank tank, said. "But today we are at war with a deadly enterprise called Al Qaeda, and that's why I supported the U.S. government openly declaring war after 9/11."

The campaign against Al Qaeda has many facets and fronts, he noted, involving law enforcement, diplomacy, military force, and even political warfare. "And our policy should be that where the rule of law applies and the long arm of the law can reach, we should rely on diplomacy and law enforcement," Jenkins said. "And where it does not, I think assassination is a legitimate response against leaders of the enemy camp."

Sen. Christopher (Kit) Bond, R-Mo., is the vice chairman of the Select Intelligence Committee. "In law enforcement, where a suspect enjoys certain constitutional rights, a federal agent could never kill a suspect except in self-defense, but on the battlefield, against terrorists bent on our nation's destruction, different rules must prevail," he wrote on National Journal's National Security experts blog. "We must use every available tool at our disposal to defeat the enemy. That means that our military and intelligence operators must have the authority to take out our enemies, through any lawful means, at any range. This is not assassination. This is war."

State-Sponsored Killings

Israel pioneered the use of targeted assassination of terrorists after the Palestinian Black September group murdered 11 Israeli athletes at the 1972 Summer Olympics in Munich. Israel's intelligence agency, Mossad, subsequently launched Operation Wrath of God to track down and kill those responsible, leading to assassinations in Beirut, Lebanon; Paris; and Lillehammer, Norway. Israel carries out targeted assassinations to this day, including strikes in recent years against leaders of the Hamas terrorist group in the Gaza Strip.

Before the 9/11 attacks, the United States criticized Israel for its policy of extrajudicial killings. Critics noted that Israel's strikes frequently killed innocent civilians and occasionally targeted the wrong people. As part of the Wrath of God operation, for instance, Mossad agents mistakenly killed a Moroccan immigrant in Norway in 1973 based on faulty intelligence from an informant; the Norwegian government arrested and imprisoned the Israeli agents.

Although Israel's assassination program has brought considerable international criticism, its leaders early on confronted an agonizing question: When deadly terrorist groups who wear no uniforms and hide in the shadow of anonymity declare war on your civilians, both at home and abroad, where does the battlefield end?

Daniel Byman is a counter-terrorism expert and the director of Georgetown University's security studies program. He has closely investigated the Israeli program. "Israel has actually set up a pretty accountable system of targeted killings," he said. "The criteria for operations are decided at the Cabinet level, and a decision to kill is usually made by the prime minister. The intelligence standards for such operations also appear to be quite high, and Israel takes pains to avoid killing noncombatants. Despite those precautions, a fair amount of civilians still die in these operations because the terrorists always seem to be around family members or noncombatants, or in crowded urban settings where any explosion is bound to kill civilians."

Byman believes that the United States could take valuable and cautionary lessons from the Israeli program, beginning with the need for accountability and greater sensitivity to the collateral deaths of civilians. Although U.S. officials estimate that targeted strikes in Pakistan have killed just 20 civilians and 400 militants, the New America Foundation's report puts the counts at 250 civilians and 500 militants; some estimates of civilian deaths range much higher. The civilian death count has contributed to record levels of anti-Americanism in Pakistan in recent years.

"I argue, you need someone to effectively act as a devil's advocate within the system who ideally is outside the decision loop of such programs," Byman said. "It could be a U.S. attorney, or something like the [Foreign Intelligence and Surveillance Act] court that makes judgments on secret wiretaps, because the simple requirement of going before a judge or independent official to make a case for a targeted killing introduces a measure of accountability. Mistakes the U.S. intelligence agencies have made in the 'rendition' program, where individuals were apparently captured and rendered to third countries for interrogation, based mostly on a hunch, also suggest that we have set the bar far too low in terms of the intelligence basis for these types of operations."

Because of its status as a superpower with global interests and responsibilities, the United States pays for extrajudicial killings and the inadvertent death of innocent civilians in the court of world opinion in a way that Israel does not, Byman says. "I'm also deeply troubled by the outsourcing of parts of these operations to private contractors, because this is a fundamental national security responsibility that an accountable public official or political appointee should ultimately have to answer for -- because the consequences are huge."

Despite those misgivings, Byman believes that the U.S. program of targeted assassinations will continue, for the same reason that Israel's program has persisted for decades: It works. "The Israelis have found that by targeting terrorist leaders on a persistent basis they force terrorist organizations to go deep into their bench, until eventually they are forced to promote new people who are not as well trained and the effectiveness of the terrorist organization drops," he said. "I think the U.S. military discovered the same thing in Iraq when it decimated the cadre of terrorists that were led by [Abu Musab] al-Zarqawi with targeted killings, which greatly diminished the effectiveness of Al Qaeda in Iraq."

Iraq Paradigm

Indeed, in terms of tactics, scope, and effectiveness, the U.S. government's targeted assassination program is largely a product of lessons learned from the counter-terrorism operations in Iraq and Afghanistan. Given free rein to operate in war zones by local U.S. commanders, the Joint Special Operations Command led secret, multi-agency task forces that combined the personnel and expertise of intelligence, military, and law enforcement agencies, including the CIA, the FBI, and the elite Delta Force counter-terrorism unit.

The task forces use an array of assets, including spy satellites, advanced computer network infiltration technology, wireless telephone intercepts, and human intelligence from Special Forces troops and local spies overseen by CIA field agents. Of particular use in the counter-terror mission are the Air Force's small, slow-flying robotic drones that can loiter over targets for many hours, pinpoint them with state-of-the-art video imaging, and shoot Hellfire missiles with precision.

The seven CIA operatives killed and six wounded in a suicide bombing attack at Forward Operating Base Chapman in Afghanistan's Khost province in December were engaged in just such a paramilitary campaign: They were running informants and collecting intelligence on the militant network of Sirajuddin Haqqani. Such intelligence is critical to finding targets for the drones. CIA operatives have also been sent, press reports say, to Yemen to assist the government there in strikes against Al Qaeda in the Arabian Peninsula, the group that is thought to be behind the unsuccessful Christmas Day bombing plot against a Detroit-bound airplane that resulted in the arrest of a Nigerian, Umar Farouk Abdulmutallab.

Task Force 121 in Iraq and Task Force 714 in Afghanistan synthesize all of those capabilities into "hunter-killer" teams that track terrorists and in many cases kill them on sight. Such was the case of Zarqawi, who was tracked by drones and then killed by a laser-guided bomb in 2006. Significantly, the commander in charge of Task Force 121 was Gen. Stanley McChrystal, then the head of the Joint Forces Command and now the top commander of U.S. and allied forces in Afghanistan.

A recent report by the Senate Foreign Relations Committee revealed the expansion of the targeted assassination program as an element in counter-terrorism operations in Afghanistan. The classified list of people targeted for capture or killing on the Joint Integrated Prioritized Target List for Afghanistan, the report notes, has expanded well beyond Al Qaeda and Taliban leaders to finger major drug traffickers whose operations help to finance the insurgency. According to the report, as of August 2009, the list named 367 "kill or capture" targets, about 50 of them drug traffickers.

Given that the roster of Afghan officials suspected of major involvement in the drug trade includes Ahmed Wali Karzai, brother of Afghan President Hamid Karzai, and other regional officials and warlords with ties to the Kabul government, the potential complications of adding drug traffickers to the targeted assassination list are obvious. A senior officer involved in the program told Senate investigators that the evidentiary bar for putting a name on the list includes at least two "verifiable human sources" and "substantial additional evidence." The report said that the military "places no restrictions on the use of force" for those targets.

Paul Pillar, a former top official in the CIA's Counterterrorism Center, told National Journal, "Just because of the nature of covert operations, there is much that goes on that you cannot see from the outside. But for the sake of oversight, responsible people should certainly be testifying in a closed session of Congress on exactly what criteria are applied to warrant targeted assassinations." He contended, "Officials may justify their actions by saying 'We're at war,' because then the public has less heartburn about the use of force. Whether you call what we're doing a 'war on terror' or not, however, we've seen that it doesn't solve a lot of knotty, nasty problems like how we interrogate and treat detainees, or handle extraordinary renditions of terrorist suspects. And it certainly doesn't absolve you from the issue of what exact criteria you apply in pulling the trigger and firing a missile at someone."

Although the CIA has long had a paramilitary branch called the Special Activities Division, before the 9/11 attacks it was small and rarely active. Even today, targeted killings fall outside the CIA's core competency of collecting and analyzing information. For that reason, Pillar said that the program raises the issue of whether participants are "blue badge" (CIA personnel), or "green badge" (private contractors). The CIA's secret interrogation program for terrorists involved similar issues, he noted. "These programs and the use of contractors inevitably raise issues of personal accountability."

Contracting Out Death Squads

The difficulties of limiting participation in a top-secret program of extrajudicial killings and keeping it within acceptable legal bounds were amply demonstrated in June 2009, when CIA Director Leon Panetta met in a closed session with the House and Senate Intelligence committees to inform them of a nascent program to field CIA covert-action teams to capture or kill terrorists around the world. Many lawmakers recalled the CIA's assassination plots and abuses in the 1960s and 1970s that led to a congressional ban on assassinations. Reportedly, then-Vice President Cheney had insisted that the Bush administration keep Congress in the dark about the more recent program, which never achieved operational status under either the Bush or the Obama White House. Predictably, however, the revelations prompted a political firestorm.

Subsequent reporting has revealed that the CIA was building an internal capability to conduct assassinations using in-house hit squads and also thinking about contracting out the job. The New York Times, The Washington Post, and other news outlets reported, for instance, that leaders of the proposed program were subcontracting much of the work to the controversial private company Blackwater (since renamed Xe Services). Despite being involved in a court case involving allegations that its security personnel in Iraq wrongfully murdered 17 Iraqis in an unprovoked shooting spree, a case recently dismissed by a federal judge, Blackwater and its affiliates are heavily involved in providing security, conducting logistics, and collecting intelligence for the CIA's drone assassination program.

A recent Vanity Fair article details how major elements of the nascent CIA hit squad program began to migrate to Blackwater in 2004 and 2005, after the company hired three of the CIA's top counter-terrorism officials: Rob Richer, the former No. 2 in the agency's clandestine service; J. Cofer Black, former head of the agency's Counterterrorism Center; and Enrique (Ric) Prado, former chief of operations at the CTC. In an interview with the magazine, Blackwater founder and former Navy SEAL Erik Prince confirmed that he was creating an "off-the-books" team to conduct the CIA's mission to "find, fix, and finish" terrorists.

"We were building unilateral, unattributable capability," fully under the CIA's operational control, Prince told the magazine. "If it went bad, we weren't expecting the chief of station, the ambassador, or anyone to bail us out."

The news that the CIA was seriously considering getting back into the assassination game with direct-action teams and also moving to contract out such missions prompted some old hands to raise warning flags.

"Who could possibly question that targeted killings were considered an option by the CIA in the post-9/11 atmosphere?" retired senior CIA officer and Middle East expert Milt Bearden wrote on National Journal's blog. "Of course the option should have been in the mix, and it still should. But the crunch is in the implementation.... There are those at Langley who know there is precious little intelligence reliable enough to be the basis for a death sentence. When human intelligence is involved, the odds against reliability become even more daunting, as the intelligence sources sometimes try and get us to do their heavy lifting by passing off their enemies as our own."

The CIA's well-documented mistakes in its "extraordinary rendition" program -- including the 2003 rendition and torture of Abu Omar for which an Italian court this year convicted 22 CIA agents in absentia -- probably added to internal delays in green-lighting the hit squad program. "Those failures would have prompted caution, if not passive resistance, at CIA when it came to launching operations to kill based pretty much on the same kinds of intelligence," Bearden wrote on the blog. "Old Langley hands would also have remembered the heated debates inside Mossad on its targeted assassination programs. Could we actually do any better? Maybe, but maybe not."

Ungoverned And Sovereign

Having carte blanche to operate in war zones and "in preparation of the battlefields" of Iraq and Afghanistan, the Pentagon has given the Joint Special Operations Command the lead in counter-terrorist operations and targeted assassinations in those theaters. The Special Forces assassination of Saleh Ali Saleh Nabhan in Somalia last September suggests that the JSOC's counter-terrorism writ also extends to ungoverned spaces with little or no functioning government authority. Meanwhile, Congress's reaction and some internal reluctance to activate the CIA hit squad program indicate that the United States has so far rejected the kind of broad assassination program that Israel ran against Black September in the 1970s, which included bombings and shootings in the streets of Middle Eastern and European cities.

Pakistan represents a gray area at the heart of the controversies surrounding the current program. Since 2001, the remnants of Al Qaeda's core leadership have found sanctuary in the lawless tribal regions along the border between Afghanistan and Pakistan, and U.S. officials believe that Osama bin Laden and his deputy Ayman al-Zawahiri operate there to this day. The leaders of the Afghan and Pakistan Taliban groups allied with Al Qaeda are also headquartered there. Yet despite Islamabad's unwillingness or inability to contest those terrorist sanctuaries, Pakistan's leaders and citizens remain adamantly opposed to U.S. operations on its sovereign soil.

Finally frustrated by that standoff, President Bush reportedly signed an executive order in mid-2008 authorizing Task Force 714, then operating in Afghanistan, to cross into Pakistan in pursuit of top terrorist and insurgent targets. The administration also significantly ramped up the CIA drone strikes on terrorist targets in Pakistan's tribal areas. But the military, according to reports, halted such ground raids after a Special Forces raid in Pakistan in 2008 mistakenly killed 15 members of a pro-government tribe and infuriated Pakistan's public and politicians.

The U.S. response to Islamabad's sensitivities has been to redouble its counter-terrorism operations in Pakistan's tribal areas but to rely almost totally on the CIA's drones as its weapons. For domestic political consumption, Pakistan's leaders promote the image of CIA agents flying drones from its American headquarters, but the program clearly involves a high degree of involvement by Americans inside Pakistan, and by the Pakistani government.

Last March, for instance, the Obama administration reportedly reached a secret deal with the Islamabad government to greatly increase the intensity of the Predator strikes in exchange for giving Pakistani President Asif Ali Zardari greater control over the target list. That deal was responsible for the 15 strikes aimed at Pakistan's public enemy No. 1, Baitullah Mehsud, according to the New America Foundation report. The CIA also gained White House approval for expanding the drone strikes into Pakistan's Baluchistan Province, where the leadership of the Afghan Taliban is headquartered.

Rising Body Count

The dramatic escalation in the number of drone strikes and the increased intelligence cooperation between Washington and Islamabad have no doubt improved the track record of the targeted assassination program. According to U.S. counter-terrorism officials, "lethal covert actions" have killed 14 senior Qaeda leaders just since January 2008, eliminating more than half of the CIA's 20 most-wanted high-value targets. An additional 16 midlevel Qaeda and Taliban operatives and commanders have been killed in that time.

Though bin Laden remains at large, the list of those targeted and killed reads like a Who's Who of Al Qaeda's executive ranks. It includes the likes of Abu Laith al-Libi, the No. 3 in the Qaeda hierarchy, who orchestrated an unsuccessful suicide attack against Cheney during a February 2007 visit to Afghanistan; Abu Sulayman al-Jaziri, a former chief of Al Qaeda's external operations branch who reportedly had planned terrorist operations in Europe and the United States; Abu Khabab al-Masri, the group's expert in weapons of mass destruction; Ilyas Kashmiri, Al Qaeda's chief of paramilitary operations in Pakistan; Abu Jihad al-Masri, the group's propaganda chief; Usama al-Kini and Sheik Ahmed Salim Swedan, Qaeda operatives connected to the U.S. embassy bombings in Africa in 1998; former bin Laden lieutenant Nazimuddin Zalalov; and Saad bin Laden, Osama's son.

Counter-terrorism experts argue that the assassination program has kept Qaeda leaders looking over their shoulders, focusing their attention on survival and sowing dissension and suspicion in the ranks as caution interferes with the plotting of new attacks. The Washington Post recently reported that markets in Peshawar, the capital of Pakistan's North-West Frontier Province, are littered with DVDs of the beheadings of people suspected of informing against Al Qaeda.

"By making a safe haven feel less safe, we keep Al Qaeda guessing. We make them doubt their allies; question their methods, their plans, even their priorities," then-CIA Director Michael Hayden testified in November 2008. Commenting on the effect of Predator drone strikes, he said, "We force them to spend more time and resources on self-preservation, and that distracts them, at least partially and at least for a time, from laying the groundwork for the next attack."

Though Pakistan officially denies knowledge of the CIA's drone program, The Times of London and The New York Times have reported that many of the Predators take off from a secret base in the Baluchistan province of Pakistan, where Xe Services contractors load them with Hellfire missiles and provide logistics support. The Nation recently said that the Joint Special Operations Command controls a forward operating base in the Pakistani port city of Karachi, from where Xe agents collect intelligence and direct Predator strikes. Because Xe personnel operate in Pakistan on subcontracts with the CIA, the JSOC, and the Pakistani government, they provide all concerned plausible deniability of knowledge about any specific assassination strike.

As long as Pakistan's lawless tribal regions remain what President Obama recently called the "epicenter of violent extremism," and as long as Al Qaeda continues to gravitate to the dark, ungoverned corners of the world, the U.S. government will almost certainly continue sending hard men and deadly force after them. The challenge for America is to avoid cutting so many corners along the way that it loses sight of the principles that distinguish the hunters from the hunted.

Robert Baer is a noted former CIA field officer in the Middle East and the author of See No Evil: The True Story of a Ground Soldier in the CIA's War on Terrorism. "I can tell you from being there recently that it's impossible for foreigners to operate effectively in Pakistan's tribal areas, because you stand out and everyone is suspicious now; so you can be sure that taking out someone like Baitullah Mehsud involved a joint U.S.-Pakistan operation," he told National Journal. "I can also tell you that Hollywood depictions of CIA ninjas notwithstanding, these kinds of paramilitary operations are not what the CIA is organized for or does well, which is why it hires contractors. And to rely on contractors and mercenaries to help carry out state assassinations is inherently a bad idea."

The CIA conducts polygraphs and has inspectors general to filter out miscreants and misdeeds, Baer notes, and the Pentagon has its own military justice system to provide oversight. "With contractors, you lose all that control," he said. "And typically there is no independent verification from many of these ungoverned places to even confirm whether they pulled the trigger on the right guy. There are no questions asked."

Are Drone Strikes Murder?

A growing number of experts say the legal foundations for targeted drone killings are shaky at best.

Saturday, Jan. 9, 2010
by Shane Harris, National Journal

Baitullah Mehsud was a bad guy. The commander of the Pakistani Taliban, he terrorized the Islamabad government for years, kidnapped soldiers, and sent an army of suicide bombers into the streets. He is suspected of masterminding the assassination of Pakistan Prime Minister Benazir Bhutto in 2007. He was also implicated in attacks on U.S. military forces in Afghanistan.

On August 5 of last year, two Hellfire missiles shot from a Predator drone that was piloted by someone at CIA headquarters in Langley, Va., hit his father-in-law's house in a village in Pakistan's South Waziristan province while Mehsud was lying on the roof. His wife was there, as was his uncle, who was administering an intravenous drip, probably for Mehsud's diabetes or kidney condition. The drone missile killed everyone on the roof and in the house; his mother-in-law, father-in-law, and eight others, including Mehsud's bodyguards, died. In Washington, counter-terrorism experts, administration officials, and journalists greeted news of Mehsud's death as a hard-won victory.

Was it also murder? The question may seem absurd on its face. Under international laws of war -- to which the United States trains its military forces -- Mehsud and people like him might be righteous targets. In a speech announcing the surge of 30,000 additional troops in Afghanistan, President Obama declared that a "cancer" of terrorism and violence "has also taken root in the border region of Pakistan," where Mehsud made his home.

"There is no doubt that the United States and Pakistan share a common enemy," Obama said. Mehsud's death could hasten the end of a war that has claimed thousands of American lives, so it arguably was necessary and may also have justified the deaths of those around him. The attack even appeared humane because it killed far fewer innocent people than a conventional bombing run or ground assault might have.

But consider some other facts. The CIA -- not the military -- killed Mehsud in Pakistan, a country with which the United States is not at war. He was the commander of the Pakistani Taliban, a separate group from the Taliban in neighboring Afghanistan, with which, most of the world agrees, the United States is engaged in an armed conflict. Mehsud died not in combat but while receiving medical treatment. And few outside the Central Intelligence Agency know what steps the agency took to positively identify the man seen through the drone's camera lens or what calculation officials made of the acceptable loss of other lives. The rules of engagement for the CIA -- whose civilian employees are not trained in the laws of war -- are secret.

Was Mehsud's death legal under the laws of war, or was it simply murder? This is not an academic debate. Quietly, and with little apparent notice from the Obama administration, a broad range of important international actors are raising fundamental questions about the legality of drone strikes, particularly in countries where the United States does not have a military presence. The critics are not fringe players. Their ranks include special investigators with the United Nations; scholars of international law whose work has already influenced judicial decisions in the United States; mainstream human-rights organizations that raised early doubts about the legality of Predator killings under President Bush; and even intelligence and security officials from some of the United States' most stalwart allies.

Presumably, this growing list of critics could also include some senior Obama administration officials who once argued that Bush-era programs of interrogation and detention violated the Constitution. The drone program shares a legal history with those maligned policies, a fact those officials might be eager to point out were they not serving this president.

Many of these experts believe that some drone attacks could rightly be called "extrajudicial killings." That idea may also seem absurd, the product of some perverse reading of unenforceable rules espoused by those who want to undermine U.S. domestic law or foreign policy. A political consensus is building in Washington that drone attacks are effective, safe, and palatable tools for killing foreign terrorists. During the 2008 presidential campaign, the only difference on the matter between Barack Obama and John McCain was whether to talk about such operations publicly -- McCain said he wouldn't.

And yet the skeptics' complaints boil down to some basic questions about standards that the United States has long followed in wartime and that the Obama administration has promised to uphold. Chief among them is whether a state of armed conflict -- usually a prerequisite for the legal use of violent force -- actually exists in the places outside Afghanistan where the United States is using drones to kill its enemies. Critics also say that so little is known about how decision makers create target lists and minimize collateral deaths, it's impossible to say whether the administration is following the law.

The debate hasn't impeded Obama's use of drones for "targeted killings" of suspected terrorists and others deemed a threat to national security. The president ordered more strikes in his first year in office than Bush did in his two terms. During the presidential campaign, Obama promised to pursue terrorists around the world, ridiculed Bush for failing to act "aggressively enough to go after Al Qaeda's leadership," and vowed to attack targets in Pakistan with or without that government's permission.

As president, Obama has made good on his promise. The Predators have become the central component of his global counter-terrorism campaign. Without them, he has few good options for hunting down terrorists where they live. According to CIA Director Leon Panetta, the drone program is "the only game in town."

It's precisely Obama's embrace of this convenient, modern weapon, however, that threatens to undermine his adherence to international law. So far, critics are keeping their powder not exactly dry but in reserve. The president's popularity abroad -- and, ironically, among the international-law thinkers who are part of the growing opposition -- may have shielded him from public condemnation. But in the trenches of influential legal scholarship and in overlooked public statements by those capable of ratcheting up the pressure on the White House, evidence is growing that Obama's drone program rests on a creaky legal foundation. Whether the president realizes that is an open question.

The Seeds Of Dissent

Kenneth Anderson, a professor at American University's Washington College of Law in D.C., was one of the first to identify the incipient legal threat to the Predator program. In a paper for the Brookings Institution, "Targeted Killing in U.S. Counterterrorism Strategy and Law," Anderson cited prominent and respected scholars, including a former law professor at the U.S. Military Academy, to conclude that the current justification for targeted killing is far too narrow to support the ever-expanding use of drones. Several national security and international-law authorities have been reading Anderson's paper in recent months and have found his insights arresting.

Following the 9/11 attacks, Congress passed the Authorization for Use of Military Force, which gave the president broad powers to combat terrorism around the world. The Bush administration justified targeted killings under those powers and under the laws of armed conflict, asserting that the United States was engaged in a "global war on terror." The Obama administration has dropped that label for its struggle against terrorists, but it has not disavowed the claims of legal authority to kill terrorists.

Absent an armed conflict between two parties, Anderson wrote, the use of lethal force at first looks criminal. But this perception is wrong according to international and U.S. law, he says, because it neglects the law of self-defense. The customary right to use force in self-defense even outside an armed conflict was reaffirmed in a major address in 1989 by Abraham Sofaer, then the legal adviser to the State Department, who laid out the United States' legal position on terrorists and states that support them. But neither Bush nor Obama has invoked self-defense to justify the use of drones.

Anderson says he finds the "strategic and humanitarian logic" for drone killings persuasive. The remotely guided aircraft can strike where soldiers can't, and their precision limits the risk of casualties to military forces and civilians -- the people whom the laws of war are meant to protect. Targeted killing can be a legitimate tool, but as the program is currently conducted, "the legal space for it and the legal rationales on which it has been traditionally justified are in danger of shrinking," Anderson writes, "in ways that might surprise members of Congress and the Obama administration."

Who Can Be Killed?

"Under international law, the question of what constitutes an armed conflict is in a state of flux, because of the nature of these asymmetric wars and the involvement of nonstate entities," William Banks, a professor at the Syracuse University College of Law, said in an interview. In Afghanistan, fighters who aren't members of any recognized military routinely strike U.S. forces and then flee into neighboring Pakistan. "If the nonstate entity can simply duck across the border... you don't have a realistic concept of the battlefield."

No one asserts that the United States may not legally target and kill legitimate combatants, but international-law experts hotly debate the definition of "armed conflict." Some argue that if two forces are not engaged in constant, ongoing hostilities, the authority to use lethal force lurks in a gray zone. To shed some light on this murky way of war, the International Committee of the Red Cross last year published guidance on the legal concept of direct participation in hostilities and the criteria for determining whether someone is "continuously" engaged in combat and therefore a legitimate target. Terrorists, insurgents, and guerrilla fighters have long fallen into a fuzzy zone -- farmers by day, fighters by night -- and the guidance was meant to bring the law of war in line with the realities of modern combat.

The Red Cross spent several years developing its guidance, with input from several countries and nongovernmental organizations. In the end, though, the participants failed to reach a consensus. People who were involved in the writing process described it as highly contentious. Three sources who were close to the proceedings said that the U.S. representative, a Defense Department official and legal scholar, refused to sign off on the published document.

The guidance suggests that people who are more than one step removed from combat are not valid targets. By that logic, many of the individuals whom the Bush administration targeted over eight years -- including terrorist financiers, logistical personnel, even drivers for major Qaeda figures -- might not be considered combatants. Anyone who is not party to an armed conflict would certainly be out of bounds.

"The United States uses a much more expansive definition of direct participation than most countries that interpret the laws of war use," said Gabor Rona, the international legal director for Human Rights First, the global nonprofit based in New York City and Washington. "In its decisions on targeting, the United States uses concepts of membership, rather than conduct, and uses concepts of support for enemy forces rather than simply participation in hostilities."

The Obama administration has not divulged its standards for deciding whom to target with drones. "We'd like to see their legal theory," said Jonathan Manes, a legal fellow with the American Civil Liberties Union. "And that would include who could be targeted, how they're discriminating between civilians and non-civilians, measures to minimize civilian casualties, and under what circumstances drones can be used."

The United Nations' special rapporteur on extrajudicial killings, who monitors nations' adherence to the laws of war, said he can't get that information. "The administration continues to say that these are matters of armed conflict [and], therefore, human-rights investigators have no role," Philip Alston told the independent TV and radio news program Democracy Now in October. "In other words, their suggestion is that the U.N. Human Rights Council should not be looking at what the U.S. is doing."

It's a technical point -- international humanitarian law, distinct from human-rights law, governs armed conflict. But withholding the legal underpinnings for drone strikes fits a pattern, several authorities say, that flouts Obama's campaign promises of more transparency in national security decision-making. Alston's comments suggest that the Obama administration, like the previous one, views drone strikes as legitimate under the laws of armed conflict. (The U.N. council's members include countries with a history of severe human-rights abuses, something that members of Congress from both sides of the aisle pointedly mention whenever U.S. policy comes in for criticism.)

If the United States has failed to follow the targeting guidance and the laws of war, officials could be in jeopardy, Rona said. "If the people [conducting drone attacks] are making deliberate decisions to target individuals who the law of war does not permit to be targeted, then they're committing war crimes."

Americans In The Dock?

CIA employees or others involved in Predator strikes could conceivably face legal scrutiny and prosecution. Spanish Judge Baltasar Garzon has pursued torture investigations against former Bush administration officials, including lawyers who drafted memos supporting the "enhanced interrogation techniques" that the CIA used on detainees. The International Criminal Court also appears to be scrutinizing the drone strikes.

In a November interview with The Wall Street Journal, Chief Prosecutor Luis Moreno Ocampo said that American and NATO troops in Afghanistan fall under the ICC's jurisdiction to investigate war crimes, regardless of whether their home countries are members of the court. Afghanistan ratified the court's founding treaty in 2003; the United States has never done so, but the ICC asserts jurisdiction over all forces operating within its member states. Ocampo told The Journal that he was conducting a "preliminary examination" that could include NATO and American soldiers.

"There are different reports about problems with bombings, and there are also allegations about torture," Ocampo said. Asked whether drone strikes in Afghanistan and Pakistan were among the "bombings" he would investigate, Ocampo chuckled and replied, "We have people around the world concerned about this.... Whatever the gravest war crimes are that have been committed, we have to check."

Ocampo declined an interview with National Journal to discuss the legality of Predator strikes and whether he thinks they merit investigation. But a spokeswoman offered a list of "prerequisites" for the prosecutor's office "to take into consideration before taking any steps to open an investigation." First among them was jurisdiction -- whether the crimes were committed in the territory of a party to the ICC or by its nationals. Pakistan, the spokeswoman noted, is not a party to the court. She did not mention Afghanistan.

Some scholars believe that the United States could legally defend the drone strikes in Pakistan if the government there had requested them. But the Pakistanis have never explicitly condoned the attacks. Indeed, according to a former senior American intelligence official who worked on the program, the United States has gone to great lengths to give Pakistani officials plausible deniability within their own country. After some drone strikes, Pakistani troops and helicopters arrived at the scene moments later, so that Islamabad could claim that its forces had carried out the attack, the former official said.

"The United States has put itself in a vulnerable position," Mary Ellen O'Connell, a professor at Notre Dame Law School, wrote in a recent paper. "Without express consent, Pakistan is in a position to claim the U.S. is acting unlawfully, even bringing a future legal claim for compensation."

The United States could not justify all of its drone strikes on the basis of self-defense, O'Connell contended, because the United Nations charter permits such violence only if an armed attack has occurred. "That means significant force may only be used on the territory of a state that is responsible for an armed attack.... There simply is no right to use military force against a terrorist suspect far from any battlefield."

The Yemen Precedent

Pakistan is hardly far from the Afghanistan battlefield. No one doubts that legitimate parties to that conflict are moving back and forth across the rugged and essentially ungoverned frontier between the two countries. But what about drone strikes hundreds or thousands of miles away from the active combat zones of the "Af-Pak" region?

A well-reported drone strike in Yemen gets to the heart of that question. In November 2002, the CIA fired a Hellfire missile at a vehicle traveling in a sparsely populated part of the country, killing the suspected head of Al Qaeda in Yemen and five others. Before striking, the CIA waited for surrounding traffic to get clear of the car, apparently to avoid killing innocent people.

The Qaeda figure, Qaed Salim Sinan al-Harethi, also known as Abu Ali, had reportedly known Osama bin Laden for more than 20 years, serving once as his bodyguard and later as the communications coordinator for the 9/11 attacks. U.S. and Yemeni officials believed that Abu Ali, along with his five companions, had played roles in the October 2000 attack on the USS Cole in Yemen's port of Aden, which killed 17 American sailors.

The drone strike bore the hallmarks of a legal killing. The Bush administration had authority from Congress to pursue those who had participated in the 9/11 attacks. The Yemeni government had given permission for the drone to fly in its airspace. The strike was arguably justified on the basis of self-defense because officials could reasonably conclude that Al Qaeda was still plotting attacks against the United States. Nevertheless, a report for the United Nations Commission on Human Rights found the strike to be "a clear case of extrajudicial killing." In the eyes of the U.N.'s special rapporteur, as well as some analysts who have reviewed the strike in the years since, the United States had a legal obligation to capture, rather than kill, Abu Ali.

Yemeni officials told the U.N. they had tried to apprehend him and his cohorts and that they would have respected the men's legal rights upon capture. Scholars still debate whether the United States could have used a helicopter force or found some other means of taking Abu Ali alive. The special rapporteur, who called the attack "truly disturbing," was unmoved by the Yemeni claims, and wrote that "an alarming precedent might have been set for extrajudicial execution by consent of government." In other words, Yemen couldn't apprehend the men, so it allowed the United States to kill them.

Caution At The CIA

The drones' extraordinary reach enables them to go where soldiers can't. It also means that the drone pilots, far from the battlefield, are in no physical danger. According to former officials as well as sources familiar with the drones' technology, CIA strikes are directed from a room at agency headquarters in suburban Washington. Predator operators have immediate, easy access to sources of information across the intelligence community and the military. The pilots can loiter over their target for hours, verify his identity using cameras and sometimes voice-recognition software, and call in support from other reconnaissance drones if necessary.

The drones' particular attributes require operators to exercise greater caution than do soldiers, according to John Radsan, who was assistant general counsel at the CIA from 2002 to 2004 and has written about the legality of targeted killing. The United States could, and should, insist on better targeting, he said. Because the drone pilots have more information at their disposal than a soldier on the ground, the acceptable margin of error in their targeting is smaller.

According to the former CIA official who worked on the Predator program, the agency assesses each target and calculates collateral damage before any strike. Another source familiar with the technology said that operators have the benefit of multiple feeds, from live video to sensor reports, as well as visual contacts in areas where U.S. or allied forces are on the ground. The CIA's defenders say that the agency is not shooting from the hip, but rather is following a regimen that at least appears to be based on the law of war.

Nevertheless, "the military has much more experience than the CIA in killing during armed conflict," said Radsan, who is a professor at the William Mitchell College of Law in St. Paul, Minn. "The Defense Department blends the laws of war and policy concerns into rules of engagement. I trust the CIA is using something very similar to these rules."

Asked whether the agency was making adequate decisions when targeting people for drone attacks, Radsan responded, "I'm confident that they're trying their best. I'm not sure that they're succeeding."

Every Target Is Different

Perhaps frustratingly for the critics of the drone kills, the program's legality cannot be determined across the board. The U.S. uses the Predators in so many contexts -- by the military in Afghanistan and Iraq, by the CIA elsewhere -- and against such a variety of targets that each case must be individually assessed.

Nils Melzer, the legal adviser for the International Committee of the Red Cross, is perhaps the best qualified to judge the merits of each strike; he authored the committee's guidance on direct participation in hostilities. Asked to assess the killing of Baitullah Mehsud, Melzer declined to comment or speculate about any particular individual. But speaking in his personal capacity, he said that such attacks raise specific questions. "Is the individual in question a legitimate military target in relation to the surrounding armed conflict, such as the conflict in Afghanistan? If the individual is a combatant member of an organized armed group fighting against the U.S. in Afghanistan, then he is no longer a civilian and can be attacked at all times unless he surrenders, [or] is captured or wounded. If he is not a member of the fighting force," Melzer said, "he's a civilian and can only be targeted while directly participating in hostilities."

Mehsud was the commander of Pakistan's Taliban. Although his group is often blurred with the one in neighboring Afghanistan, the two forces are distinct. Mehsud's Taliban, moreover, was reportedly a jumble. It had some 12,000 local fighters, including some from his own tribe, but also 4,000 foreigners, such as Arabs and Central Asians. And Mehsud had a crew of teenage boys whom he used as suicide bombers. At first, Mehsud's forces had mostly attacked the Pakistani military and other targets in his country. But in a theatrical press conference at a remote base in South Waziristan in May 2008, Mehsud declared a jihad against U.S. forces in Afghanistan. The United Nations directly blamed him for the vast majority of terrorist attacks there.

While not speaking directly to Mehsud's case, Melzer said, "It is conceivable that there may be Taliban groups in Pakistan that are armed and organized but that are not involved in the war fighting in Afghanistan and, therefore, are not legitimate targets in that conflict." In general, "in order for a person to be a legitimate military target, you always need a definite link to an existing armed conflict, such as the one in Afghanistan or Iraq, or you would need a separate armed conflict in the country where the attack takes place."

Dissension In The Ranks?

If the Obama administration has an explanation for why drone strikes in places where the United States is not at war nonetheless comport with international law, officials have not made the case publicly. National Journal requested an interview with the senior administration figure responsible for promoting the development of international law, State Department legal adviser Harold Koh. He is a prolific writer and authority on human rights, civil liberties, and the application of international law. In his former position as the dean of Yale Law School, Koh was a vocal critic of Bush's counter-terrorism policies.

Koh declined the interview request, but a survey of his writings suggests that he might take issue with the drone program, at least as it is currently designed. In a 2002 paper for the St. Louis University Law Journal, Koh asserted that the United States was not in a war with terrorists, because Congress had never declared one. "If we choose to treat this as a war," he wrote, "it follows that we must obey the international laws of war."

In a May 2003 article for the Stanford Law Review, Koh maintained that the Bush administration's "insistence upon labeling suspected terrorists as 'enemy combatants' " was one issue "driving a wedge between the United States and its allies." The administration used the term to justify targeted killings, labeling suspected terrorists as parties to a legitimate global conflict. But merely using the term, Koh wrote, "does not relieve the United States of its Geneva Convention obligations" under international law.

Six years later, in a 2009 speech that was republished in the Western New England Law Review, Koh argued that the United States should "stop pushing for double standards in human rights. If we believe that human rights are universal, we must respect them, even for suspected terrorists. If human rights are universal, we should not have law-free zones, like Guantanamo. We should not have law-free courts, like military commissions. We should not have law-free practices, like extraordinary rendition. And we should not have law-free persons whom we call 'enemy combatants.' "

Although Koh has apparently not directly addressed targeted killing, the policies that he ridiculed during the Bush administration and the current drone program are linked. Notre Dame's O'Connell said, "The same rules that govern the prohibition of coercive interrogation also prohibit killing by persons who are not members of the regular armed forces. These are rules of international humanitarian law found in the Geneva Conventions and other international law sources."

Matthew Waxman, an associate professor at Columbia Law School who was deputy assistant secretary of Defense for detainee affairs in the Bush administration, said that detention policy is linked to targeted killing. "Drone attacks generally rest on similar legal premises as military detention, but detention has attracted much more legal controversy. Perhaps drone attacks are more easily viewed as akin to traditional combat activities, but detention is a traditional combat activity, too, and many drone attacks have reportedly occurred far from what many would typically call a combat zone."

Koh is not the only senior administration official with an extensive background in human-rights advocacy and international law. Michael Posner, the founder and past president of Human Rights First, is the assistant secretary of State for democracy, human rights, and labor. (Koh held that position in the Clinton administration.) And Sarah Cleveland, a professor at Columbia Law School and an authority on the application of international law in the United States, is on leave to serve as the counselor on international law in Koh's office. The Obama administration is not short on experts to help determine whether the drone program comports with the laws of armed conflict. Whether any of these people would advise that the strikes continue, however, is another matter.

The Risks For Obama

If it's mostly international professors, activists, and special rapporteurs who are fussing about targeted killings, why should the White House care? "The broad political movements in the United States can't agree about detention, interrogation, or surveillance, but they can agree that if you shoot a Hellfire missile from a Predator drone through the bad guy's window, that's at worst a one-day story that goes away, doesn't produce litigation, and doesn't produce great problems for the United States," said Benjamin Wittes, a senior fellow with the Brookings Institution and the author of the book Law and the Long War: The Future of Justice in the Age of Terror.

But the legality and ethics of detaining and interrogating suspected terrorists were also first debated in the rarified circles of scholars and activists. That discourse eventually changed U.S. law and undermined a president's authority. "What starts as academic papers becomes the position of human-rights groups and international NGOs," Wittes said. "And then over time, they make their way first into foreign legal opinions, and eventually into U.S. legal opinions, either migrating generally through academic authority or through institutions. That's what happened with detention."

The Supreme Court eventually ruled that detainees at Guantanamo Bay have the right to petition for habeas corpus, an argument that human-rights lawyers had been pushing since the island prison first opened. Giving detainees access to U.S. courts turned the Bush detention policy on its head, and now the Obama administration is grappling with the possibility that these rights might extend to detainees held in Afghanistan.

"Nobody who's watched over the last eight years what happened in the detention arena," Wittes said, "can be too sanguine now looking at a similar degree of ferment in the same community about the legality of the drone program."

The ferment is growing, even among some of the United States' staunchest allies. In an article last year in Survival, a journal published by the International Institute for Strategic Studies, two former high-ranking officials in the British intelligence and security apparatus wrote that the drone missile strikes "epitomize the difference between the American and European approaches" to fighting terrorism. The authors recognized that the strikes in Afghanistan "are permitted under the law of armed conflict.... But for Europeans, Pakistan, in contrast to Afghanistan, is not part of a designated combat zone."

This difference of opinion has a real consequence, the article pointed out: "In the (admittedly unlikely) event that a European intelligence service had access to location intelligence on senior Qaeda targets in Pakistan, passing such intelligence to the Americans in the knowledge that this would result in a lethal attack might render them liable to prosecution as accessories to an unlawful killing."

Presumably, the Obama administration is internally comfortable with the drone program, and with whatever legal theory may have been developed to support it. "But you have not seen [officials] anywhere explaining to either allies or critics or critical allies what the theory will be," John Bellinger, Koh's predecessor at the State Department, said. "And the question is, will they be forced to do that at some point?"

O'Connell wonders whether scholars and activists are giving the Obama administration a pass. "We have to admit that Obama has had a honeymoon," she said. "If it had been Bush doing what Obama has done this year, believe me, there would be a greater hue and cry. If Bush had escalated [drone strikes] the way Obama has, on top of all the other scandals, more people would have been very, very critical."