From: Berhane Habtemariam (Berhane.Habtemariam@gmx.de)
Date: Fri Sep 16 2011 - 13:59:23 EDT
At White House, Weighing Limits of Terror Fight
By
<http://topics.nytimes.com/top/reference/timestopics/people/s/charlie_savage
/index.html?inline=nyt-per> CHARLIE SAVAGE
Published: September 16, 2011
WASHINGTON — The Obama administration’s legal team is split over how much
latitude the United States has to kill Islamist militants in Yemen and
<http://topics.nytimes.com/top/news/international/countriesandterritories/so
malia/index.html?inline=nyt-geo> Somalia, a question that could define the
limits of the war against
<http://topics.nytimes.com/top/reference/timestopics/organizations/a/al_qaed
a/index.html?inline=nyt-org> Al Qaeda and its allies, according to
administration and Congressional officials.
The debate, according to officials familiar with the deliberations, centers
on whether the United States may take aim at only a handful of high-level
leaders of militant groups who are personally linked to plots to attack the
United States or whether it may also attack the thousands of low-level foot
soldiers focused on parochial concerns: controlling the essentially
ungoverned lands near the Gulf of Aden, which separates the countries.
The dispute over limits on the use of lethal force in the region — whether
from drone strikes, cruise missiles or commando raids — has divided the
State Department and the Pentagon for months, although to date it remains a
merely theoretical disagreement. Current administration policy is to attack
only “high-value individuals” in the region, as it has tried to do about a
dozen times.
But the unresolved question is whether the administration can escalate
attacks if it wants to against rank-and-file members of
<http://topics.nytimes.com/top/reference/timestopics/organizations/a/al_qaed
a_in_the_arabian_peninsula/index.html?inline=nyt-org> Al Qaeda in the
Arabian Peninsula, based in Yemen, and the Somalia-based
<http://topics.nytimes.com/top/reference/timestopics/organizations/s/al-shab
ab/index.html?inline=nyt-org> Shabab. The answer could lay the groundwork
for a shift in the fight against terrorists as the original Al Qaeda,
operating out of Afghanistan and Pakistan, grows weaker. That organization
has been crippled by the killing of Osama bin Laden and by a fierce campaign
of drone strikes in the tribal regions of Pakistan, where the legal
authority to attack militants who are battling United States forces in
adjoining Afghanistan is not disputed inside the administration.
One senior official played down the disagreement on Thursday, characterizing
it as a difference in policy emphasis, not legal views. Defense Department
lawyers are trying to maintain maximum theoretical flexibility, while State
Department lawyers are trying to reach out to European allies who think that
there is no armed conflict, for legal purposes, outside of Afghanistan, and
that the United States has a right to take action elsewhere only in
self-defense, the official said.
But other officials insisted that the administration lawyers disagreed on
the underlying legal authority of the United States to carry out such
strikes.
Robert Chesney, a law professor at the University of Texas at Austin who
specializes in the laws of war, said the dispute reflected widespread
disagreement about how to apply rules written for traditional wars to a
conflict against a splintered network of terrorists — and fears that it
could lead to an unending and unconstrained “global” war.
“It’s a tangled mess because the law is unsettled,” Professor Chesney said.
“Do the rules vary from location to location? Does the armed conflict exist
only in the current combat zone, such as Afghanistan, or does it follow
wherever participants may go? Who counts as a party to the conflict? There’s
a lot at stake in these debates.”
Counterterrorism officials have portrayed Al Qaeda in the Arabian Peninsula
— which was responsible for the attempted bombing of a Detroit-bound
airliner on Dec. 25, 2009 — as an affiliate of Al Qaeda that may be more
dangerous now than the remnants of the original group. Such officials have
also expressed worry about the Shabab, though that group is generally more
focused on local issues and has not been accused of attacking the United
States.
In Pakistan, the United States has struck at Al Qaeda in part through
“signature” strikes — those that are aimed at killing clusters of people
whose identities are not known, but who are deemed likely members of a
militant group based on patterns like training in terrorist camps. The
dispute over targeting could affect whether that tactic might someday be
used in Yemen and Somalia, too.
The Defense Department’s general counsel, Jeh C. Johnson, has argued that
the United States could significantly widen its targeting, officials said.
His view, they explained, is that if a group has aligned itself with Al
Qaeda against Americans, the United States can take aim at any of its
combatants, especially in a country that is unable or unwilling to suppress
them.
The State Department’s top lawyer, Harold H. Koh, has agreed that the armed
conflict with Al Qaeda is not limited to the battlefield theater of
Afghanistan and adjoining parts of Pakistan. But, officials say, he has also
contended that international law imposes additional constraints on the use
of force elsewhere. To kill people elsewhere, he has said, the United States
must be able to justify the act as necessary for its self-defense — meaning
it should focus only on individuals plotting to attack the United States.
The fate of detainees at Guantánamo Bay, Cuba, hangs heavily over the
targeting debate, officials said. In several
<http://topics.nytimes.com/top/reference/timestopics/subjects/h/habeas_corpu
s/index.html?inline=nyt-classifier> habeas corpus lawsuits, judges have
approved the detention of Qaeda suspects who were captured far from the
Afghan battlefield, as well as detainees who were deemed members of a force
that was merely “associated” with Al Qaeda. One part of the dispute is the
extent to which rulings about detention are relevant to the targeting law.
Congress, too, may influence the outcome of the debate. It is considering,
as part of a pending defense bill, a new authorization to use military force
against Al Qaeda and its associates. A version of the provision proposed by
the House Armed Forces Committee would establish an expansive standard for
the categories of groups that the United States may single out for military
action, potentially making it easier for the United States to kill large
numbers of low-level militants in places like Somalia.
In an interview, Senator Lindsey Graham, a South Carolina Republican on the
Armed Services Committee, said that he supported the House version and that
he would go further. He said he would offer an amendment that would
explicitly authorize the use of force against a list of specific groups
including the Shabab, as well as set up a mechanism to add further groups to
the list if they take certain “overt acts.”
“This is a worldwide conflict without borders,” Mr. Graham argued.
“Restricting the definition of the battlefield and restricting the
definition of the enemy allows the enemy to regenerate and doesn’t deter
people who are on the fence.”
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