Aulaqi lawfare case is an example of military adaptation

An editorial in yesterday's Washington Post on the legality of targeted killings of terror suspects is an interesting pairing with my August 20 prediction in Foreign Policy that covert action, counterterrorism raiding, and proxy wars will be growth businesses for the U.S. government. America's adversaries have continuously adapted to the tactics, techniques, and procedures the U.S. military and U.S. intelligence agencies have employed against them. The current position of this chess match of adaptation is illustrated with the legal case of Anwar al-Aulaqi, a U.S.-born cleric living in Yemen who has been designated a terrorist for his alleged role in the Fort Hood massacre, the foiled Christmas Day "underwear bomber" attack near Detroit, and the attempted car bombing of Times Square. Since Aulaqi is hiding out in Yemen's badlands, inaccessible to either Yemeni or U.S. legal authorities, the U.S. government has ostensibly selected a Hellfire missile to close out his case, once it can confirm his position. In August, the American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (CCR) filed a lawsuit in federal court seeking to prevent the U.S. government from ever firing that missile.

The Aulaqi case is the latest, but certainly not the last, move on the adaptation chess board. The 9/11 attacks and others in Madrid, London, and elsewhere were maneuvers that bypassed Western conventional military power. The United States and some of its allies responded by attempting to bring governance to ungoverned territories where terror groups found sanctuary. Terror groups have in turn defended their sanctuaries by making deals with the locals and by displacing to new areas that the U.S., for either political or intelligence reasons, finds difficulty attacking.

As I explained in my August 20 essay, the U.S. government has also adapted its tactics. In the future it will strive mightily to avoid interventions involving the large-scale use of general purpose ground forces. Covert action, raids, and proxy battles will be preferred. Here "lawfare" has left its mark. In recent years the U.S. government has acquired few new terrorism prisoners. After the U.S. Supreme Court's interventions into Guantanamo, targeted killing or custody by foreign governments are now the only options the U.S. government employs (prisoners the U.S. holds at Bagram or elsewhere in Afghanistan will surely go over to the Afghan government).

Intelligence-sharing, electronic surveillance, tough visa restrictions, and higher airline and border security have made it difficult for foreign terrorists to get into the United States. Adversaries like Aulaqi have responded by using electronic means to recruit other Americans (or visa-holders like the Christmas bomber).

Having found a sanctuary where he is nearly impossible to apprehend, the Obama administration appears content to simply kill Aulaqi with a missile. The ACLU and the CCR fear the bottom of a steep slippery slope where a U.S. president is ordering Predator hits against any U.S. citizen anywhere for any reason without legal restraint. These groups want a court to define the "recognized war zone" (Afghanistan in, Yemen not in) and to apply judicial process to the president's war powers outside that zone. Adversaries like Aulaqi are not limited to the ACLU's view of the war zone; these adversaries would obviously take advantage of such a definitional system to establish new sanctuaries.

With techniques such as major combat operations and large ground force counterinsurgency campaigns in decline, covert action, counterterrorism raiding, and proxy wars will be in ascendance. The United States will make these adjustments to its tactics in response to its enemies' previous adjustments. But as we have seen many times before in history, covert action, counterterrorism raiding, and proxy wars are vulnerable to legal and political attack, resulting in new opportunities for adversary adaptation. The adaptation chess match goes on.