Kill Capture Missions and the Privileges of the World’s Policeman

Many commentators are welcoming the news that President Obama ordered special operations forces into Somalia and Libya to “capture” suspected terrorists because at least he didn’t drone bomb them instead.

Granted, capturing suspects with the intention of trying them in federal courts (at least eventually) is a welcome step back from what has been Obama’s predominant tactic for handling terror suspects abroad – to bomb them secretly with remote-controlled planes. But Obama’s newfound love for kill-capture missions has its own problems.

The JSOC mission in Somalia failed, as U.S. troops retreated without nabbing the target. But in Libya, U.S. troops grabbed Abu Anas al-Libi, accused of involvement in the 1998 bombings of the U.S. Embassies in Tanzania and Kenya, and put him on a U.S. warship for interrogation.

The test case for this is Ahmed Abdulkadir Warsame, a Somali who was caught in the Gulf of Aden back in 2011 and held on the USS Boxer and interrogated for two months without a access to a lawyer or being informed of his rights.

Writing in The New Republic at the time, Joseph Margulies, a professor of law and author of Guantanamo and the Abuse of Presidential Power, argued Warasme’s detention was “illegal.”

Not so long ago, just as we would have been shocked at the thought of indefinite detention or trial by military commission, we would have been scandalized at the idea that a defendant could be interrogated for nearly three months before being indicted and brought to court. The former avoids a real trial altogether, while the latter makes the trial a sham. Both are illegal, and it is not evident to me which is worse.

There is another reason this capture-him-and-put-him-on-a-boat tactic Obama is adopting should be troubling: in order to buy into its legitimacy, one must accept America’s self-righteous declaration of itself as the policeman of the world and to bestow rights and privileges on the United States that no other nation possesses.

Administration officials and others have claimed al-Libi’s capture and detention is legal under the 2001 AUMF. “Assuming [al-Libi] has not since abandoned his role in al Qaeda, then, he is almost certainly covered by the AUMF,” writes Marty Lederman, a former senior Justice Department official.

But the AUMF hardly grants the power to take police actions on any corner of the planet without regard to national sovereignty, especially when the target is wanted for crimes committed before 9/11 (thus inapplicable under the AUMF). As Margulies wrote, it’s “silly to suppose the AUMF and the laws of war are anything other than legal fig leaves in the current controversy.”

Robert Chesney over at Lawfare also argues that the AUMF covers the capture and detention of al-Libi. But that’s difficult coming from him given that it was only back in May that he argued while the AUMF is the most immediate official justification for the programs of indefinite detention and borderless drone strikes, the president has acquired so much unprecedented power since 9/11 that the AUMF isn’t even necessary anymore.

According to Chesney, “the current shadow war approach to counterterrorism doesn’t really require an armed-conflict predicate – or an AUMF, for that matter.” So, apparently the president holds inherent, unchecked power to roam the world with JSOC and drones.

For what it’s worth, former Bush lawyer Jack Goldsmith argues “it would be an unprecedented expansion of Article II authority if the scope and scale of current military and paramilitary operations outside Afghanistan today were justified under Article II,” instead of the notoriously broad AUMF.

And finally, Obama isn’t really one to talk about the powers granted by the AUMF. In a speech in May, he said he “look[s] forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate.”

“This war, like all wars,” he said, “must end.” Right…on someone else’s watch, I guess.

“The al-Liby operation also signals that the ‘battlefield’ of the war on terror, as the United States sees it, is broadening,” writes Shane Harris at Foreign Policy. A far cry from ending.

Beyond the legal justifications, I find it hard to believe the core argument for these kill-capture missions is anything more than “Because we’re America.” Libya called the mission a “kidnapping” and demanded clarification. If some other country used force on U.S. soil without Washington’s permission to capture a suspect, you can bet that would be the minimum of our reaction. This simple thought experiment renders the whole justification as a “might makes right” kind of thing – as opposed to a “legal” kind of thing.