Winding Down or in for the Long Haul? The emergence of a new US counter-terrorism strategy
The great behemoth of US counter-terrorism strategy is shifting. President Barack Obama has said he wants to end the war, not just in Afghanistan, but also, ultimately against al-Qaida. Congress has also been making its first attempts to claw back some of the unprecedented powers it gave the president to wage war when, just after the 9/11 attacks, it passed the Authorization of the Use of Military Force (AUMF) – this is the law which still governs military operations in Afghanistan and elsewhere. At the same time, though, Pentagon officials and generals and members of the powerful Senate Armed Services Committee showed no sign of wanting to reign in US military operations. In a hearing on the AUMF in May, there was talk about going after al-Qaida â€˜affiliatesâ€™ in Syria, Yemen and even the Congo. AAN Senior Analyst Kate Clark has been trying to assess what all of this means, especially for Afghanistan.
President Obama has signalled a turning point in what his predecessor called the â€˜war on terrorâ€™, saying he wants to amend and ultimately get rid of the Authorization of the Use of Military Force (AUMF), the law which Congress passed a week after the 9/11 attacks which gave the president the authority to use, â€˜all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001…â€™ Both Bush and Obama have used it (see full text here) as the domestic legal basis for a progressively widening war. The AUMF underpins US military action, not just in Afghanistan, but in Pakistan, Somalia and Mali. It covers the targeting of groups and individuals which the administration refers to as â€˜associated forcesâ€™ or â€˜affiliatesâ€™ of al-Qaida; some, like al-Shabab in Somalia, did not exist in 2001.
What Obama said
In a major speech on counter-terrorism delivered on 29 May, Obama said:
The AUMF is now nearly twelve years old. The Afghan War is coming to an end. Core al Qaeda is a shell of its former self. Groups like [al-Qaida in the Arabian Peninsula] must be dealt with, but in the years to come, not every collection of thugs that labels themselves al Qaeda will pose a credible threat to the United States. Unless we discipline our thinking and our actions, we may be drawn into more wars we donâ€™t need to fight, or continue to grant Presidents unbound powers more suited for traditional armed conflicts between nation states. So I look forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the AUMFâ€™s mandate. And I will not sign laws designed to expand this mandate further. Our systematic effort to dismantle terrorist organizations must continue. But this war, like all wars, must end. Thatâ€™s what history advises. Thatâ€™s what our democracy demands.
At least until 2014, Afghanistan is in a different position from other â€˜targetâ€™ countries: the US is fighting an overt, declared war here and has troops on the ground. However, after 2014, any continuing military action in Afghanistan and the legal basis for it will more closely resemble that of other countries where the US carries out operations with either the overt, covert or indeed no agreement of their governments (for detail on the legal basis for the war in Afghanistan and how it may change in 2014, see AANâ€™s previous reporting here. Obama also spoke specifically about Afghanistan after 2014:
Our troops will come home. Our combat mission will come to an end. And we will work with the Afghan government to train security forces, and sustain a counter-terrorism force which ensures that al Qaeda can never again establish a safe-haven to launch attacks against us or our allies.
The apparent contradiction â€“ Obama saying the combat mission in Afghanistan will end and a counter-terrorism force will be â€˜sustainedâ€™(1) â€“ is not new. Given the unpopularity of the war in Afghanistan, Obama may not be keen to spell out the possibility that a Bilateral Security and Defence Agreement (BSDA), as it is now called, for after 2014 will be signed.(2) However, he did give clear signals that the war would be different after 2014. For example, this is what he said on drones:
In the Afghan war theatre, we must support our troops until the transition is complete at the end of 2014. That means we will continue to take strikes against high value al Qaeda targets, but also against forces that are massing to support attacks on coalition forces. However, by the end of 2014, we will no longer have the same need for force protection, and the progress we have made against core al Qaeda will reduce the need for unmanned strikes.
If this is the case, the number of drone strikes should decrease. This is significant especially when taking into account that the â€˜Afghan war theatreâ€™ generally includes the FATA. Obama said he had drawn up new, classified guidelines on drone strikes and also proposed more oversight of them.(3)
The US president discussed what he called theâ€™ legacy problemâ€™ of detainees still at Guantanamo Bay prison (they include more than a dozen Afghans) and once again requested Congress to cooperate on closing the camp. He wants to repatriate detainees or put them on trial in US courts wherever possible. Those deemed both too dangerous to be released and unprosecutable, for example because a judge would throw out cases where the defendant had been rendered or tortured, should still, he said, be brought to â€˜justiceâ€™, in their case in the military justice system. In what sounded like an advertising slogan from hell, he said there would be a â€˜judicial reviewâ€¦ available for every detaineeâ€™, followed by detention on the mainland.(4)
Obama did not mention the men the US still holds in Bagram. They are the few dozen third country nationals who were captured in Afghanistan or â€˜renderedâ€™ here and were not handed over to the Afghan government on 25 March 2013 when Afghan detainees and the facilities housing them on Bagram Airbase were transferred. (See AAN reporting on the handover here, here, here, here and here. Unlike the men in Guantanamo, the US has not named the men it holds in Bagram, although details about some can be found in the Open Societies Foundationâ€™s epic 2013 report on the CIAâ€™s post-2001 global torture and rendition programme.
Obama may not have mentioned the Bagram detainees, but Congress has done. For the first time, it has asked for information about them. The demand came in an important draft proposal for the 2014 National Defence Authorization Act, called the Chairmanâ€™s Mark,(5) which is produced by the powerful House Armed Services Committee (which, along with its counterpart in the Senate, has a role on military matters â€“ in oversight, legislation and directing spending). (See reporting of proposals in the Chairmanâ€™s Mark here and the text here.)
Congress flexes its muscles
Generally, Congress uses the defence budget to leverage some control over the executive, stipulating conditions and obligations as to how it conducts operations and decides policy. Not all the proposals in the Chairmanâ€™s Mark will end up as law; indeed the bargaining started quickly (see the administrationâ€™s push back on some of the Chairmanâ€™s Markâ€™s proposals here). Nonetheless, this important draft of the Act which will authorise funding or 2014 â€“ a key year for Afghanistan – show how the debate over the war is shaping up.
The Chairmanâ€™s Mark proposal on the Bagram detainees is that the executive should provide an â€˜unclassified summary relating to individuals detained by the Department of Defence at Bagram airbase [who] are considered to represent an enduring security threat to the United Statesâ€™. Using the term â€˜enduring threatâ€™ suggests that these men, like 46 of the detainees held in Guantanamo Bay are deemed both too dangerous to release and unprosecutable. As of yet, no-one on the US side appears to have any idea what to do with the men at Bagram at the end of 2014 when the combat mission ends and they should, legally, be released or handed over to their home countries. Alternatives – continuing US detention on Afghan soil or rendering the men to Guantanamo Bay â€“ look unpalatable or illegal. (A future dispatch will look at these menâ€™s fates in more detail.)
Other significant proposals in the Chairmanâ€™s Mark include a requirement for the Pentagon to review who it considers to be an â€˜associated forceâ€™ of al Qaida or the Taleban and on what criteria this is based. There is also a demand for the Pentagon to notify Congressional defence committees in writing about each capture-or-kill operation conducted outside Afghanistan. The draft act proposes that the executive must give an explanation of the â€˜â€¦legal and policy considerations and approval processes used in determining whether an individual or group of individuals could be the target.â€™ In Afghanistan ongoing hostilities would make it impractical to demand an explanation after each targeting operation but, if such explanations became standard practice, they could apply here too after 2014.(6)
It can be very difficult for journalists, civilians and politicians in Afghanistan to hold to account those carrying out targeted killing or capture operations, whether military or CIA. At least here, there is declared war with spokesmen to demand answers from. Even so, as AAN documented,(7) the US does, at least sometimes, brazenly deny it has killed civilians in targeted operations in the face of overwhelming evidence. How much more difficult it is to get answers when there is no overt war, but drones are still used to target suspected enemies â€“ in Pakistan, Somalia or Yemen (and this could also be the case after 2014 in Afghanistan). The question is whether Congress could provide a valuable oversight role.
Generals, Pentagon officials, senators discuss the â€˜worldwide struggleâ€™
An insight into the likelihood of this happening came in a hearing on the AUMF by the influential Senate Armed Services Committee, on 19 May 2013. Unfortunately, the committee members showed a worrying ignorance about whom the US is currently fighting and can legally target. They showed little sign of wanting to reign in the conflict and nor did the Pentagon officials and generals who testified: Michael Sheehan, Assistant Secretary of Defence for Special Operations and Low-Intensity Conflict; Robert Taylor, the chief lawyer at the Pentagon and two generals; Michael Nagata, Deputy Director for Special Operations/Counterterrorism; Richard Gross, Legal Counsel for the Chairman of the Joint Chiefs of Staff and a number of constitutional and human rights lawyers who made interesting arguments. See a partial transcript of the question and answer session; video of the hearing and testimony of both administration and legal experts.
The Pentagonâ€™s top lawyer, Robert Taylor, agreed in response to questioning from Senator Lindsey Graham (Republican) that the US was facing a â€˜worldwide struggleâ€™ and that the battlefield was wherever the enemy chose to make it, â€˜from Boston to the FATAâ€™. Sheehan said he thought the war would go on for at least another ten or 20 years. All the officials were happy with the AUMF as it is currently constituted and saw no reason to change or repeal it. In Sheehanâ€™s words, they were â€˜comfortable with the AUMF as it is currently structured. Right now it does not inhibit us from prosecuting the war against al-Qaida and its affiliates.â€™ Hearing such comments, Senator John McCain (Republican) scathingly accused the administration of using the AUMF to give itself â€˜carte blancheâ€¦ [for] what you are doing throughout the worldâ€™.
It became clear during this hearing just how low a legal threshold the administration has set itself for judging a group to be an â€˜affiliateâ€™ of al-Qaida and therefore targetable and the easiness with which officials and senators spoke about possible military operations against such groups in other countries. Robert Taylor defined an â€˜al-Qaida affiliateâ€™ as â€˜an organized armed group that has entered the fight alongside al-Qaida, andâ€¦ is a co-belligerent with al-Qaida in hostilities against the United States or its coalition partnersâ€™.(8)
Under questioning from Senator McCain, Taylor said the AUMF could be read as sufficient to authorise lethal force against affiliates in Syria, Somalia and Libya. Sheehan affirmed, in response to questioning from Senator Graham, that the president, in â€˜going after these organisationsâ€™, had the domestic authorisation to put â€˜boots on the groundâ€™ in Yemen and also the Congo. There is currently, possibly the most minor problem with radical Islam in the Congo. We found a couple of not very conclusive reports here and here about a group called the ADF-NALU group which operates from the mountains of eastern Rwanda, but they are a long, long way from being the biggest problem in the area. Were Sheehan and Graham seriously thinking of sending in US troops here? And did no-one, even among reporters, let alone the generals and Pentagon officials, not find the idea of a deployment to Congo outlandish? Certainly, no-one commented.
It was not reassuring to see the membersâ€™ naivety and lack of expertise given the Senate Armed Services Committee oversight role which both Obama and proposals in the Chairmanâ€™s Markâ€™s version of the National Defence Authorization Act spoke about increasing. The chair of the Committee, Carl Levin (Democrat), did not know, for example, which groups the US military is currently targeting and, indeed, asked for a list of them. Sheehan agreed to draw one up (as he was not sure if one existed), but warned the committee they would find it difficult to understand:
Senator, I think that the appropriate role for the Congress is in its oversight regarding the designation of groups. A lot of these groups, as you know, Senator, have very murky membership and they also have very murky alliances and shifting alliances and they change their name and they lie and obfuscate their activities. So I think it would be difficult for the Congress to get involved in trying to track the designation of which are the affiliate forces. We know when we evaluate these forces what theyâ€™re up to. And we make that determination based on their co-belligerent status with al Qaida and make our targeting decisions based on that criteria rather than on the shifting nature of different groups and their affiliations.
One of the strange things for an outsider to witness was how little insight also into the substance of the war the senators appeared to have. At the extreme end of support for the administration, Senator James Inhofe (Republican) basically kept asking what else the administration needed to wage the war effectively. But even those who had a bone to pick with the president over the â€˜War on Terrorâ€™ were mainly upset by the way the administration has impinged â€“ as they saw it – on Congressâ€™ constitutional powers to declare war, rather than being particularly upset over what the administration was doing with those powers. This is what Senator Angus King (Independent) said:
â€¦what Iâ€™m saying is we may need new authority but donâ€™t â€” if you expand [the AUMF] to the extent that you have, itâ€™s meaningless and the limitation and the war power is meaningless. Iâ€™m not disagreeing that we need to attack terrorism wherever it comes from and whoeverâ€™s doing it, but what Iâ€™m saying is letâ€™s do it in a constitutional way, not by putting a gloss on a document that clearly wonâ€™t support it. It just doesnâ€™t â€” it just doesnâ€™t work. Iâ€™m just reading the words [of the AUMF]. Itâ€™s all focused on September 11th and who was involved and you guys have invented this term associated forces thatâ€™s nowhere in this document. As I mentioned, in your written statement, you use that â€” thatâ€™s the key term, you use it 13 times. Itâ€™s the justification for everything and it renders the whole war powers of the Congress null and void.
It would seem that expecting this committee at least to effectively oversee how the president pursues the war against al-Qaida and its â€˜affiliatesâ€™ would be futile. At the same time, some members showed a desire to curb or repeal the presidentâ€™s powers to conduct hostilities based on the 2001 AUMF, which would seem to be the first small steps of a shift in how Congress deals with the war.
Ending the war?
But what of Obamaâ€™s own suggestion for amending or even repealing the 2001 AUMF and winding down the war? Robert Chesney, Professor of Law at Texas University, who has written extensively on the legal issues to do with the â€˜war on terrorâ€™, has been pondering what it would mean for the war against al-Qaida to be â€˜overâ€™:
Formally speaking, the answer is straightforward. With respect to detention, the end of the conflict by definition spells the end of authority to detain for the duration of hostilities (albeit subject to some reasonable wind-up period). And with respect to targeting, the end of the conflict would preclude invocation of status-based targeting.
In other words, according to the Laws of Armed Conflict, at the end of a conflict, military detainees like those held by the US in Bagram and Guantanamo should be released. As to lethal force, during wartime it is legal to target enemy soldiers because of their status, ie they are legal targets all the time whether fighting or sleeping. The same rule applies to civilians like the Taleban who have lost their legal protection from attack because they are engaged in hostilities. At the end of hostilities, however, targeting based on status must stop. Only in self-defence would firing or fighting be legal.
Even so, Chesney questions whether President Obamaâ€™s desire to get the AUMF amended and ultimately repealed and to end the war in Afghanistan and against al-Qaida would actually mean much in practice. His interpretation matches Assistant Secretary Sheehanâ€™s:
If we were to find a group or organization that was imminent â€” that was targeting the US, first of all, we would have other authorities to deal with that situation. I was in the government prior to 9/11 when we conducted strikes against groups before we had the AUMF specific post-9/11 authority. So we could use other [legal] authorities to take on those types of organizations. But for right now, for our war against al-Qaida, the Taliban and other â€” their affiliates, the AUMF serves its purpose.
In other words, even when the US president no longer has the AUMF, if he believes the US is under â€˜imminent threatâ€™, he could still order military operations.
The phrase â€˜imminent threatâ€™ here is key. It is not defined in the US militaryâ€™s Operational Law Handbook, but is a fundamental factor in deciding when an enemy is deemed to have a â€˜hostile intentâ€™, after which US forces can use lethal force.(9) â€˜Imminent threatâ€™ can, in practice, be defined surprisingly loosely(10) and can justify military actions in what is called â€˜anticipatory self-defenceâ€™.
Sheehanâ€™s legal arguments are not unusual. Together with the complacency about the scope and duration of the war shown at the Senate Armed Forces Committee hearing, they suggest some at least within the military elite expect it to be business as normal: the AUMF makes their lives easier, but they can live without. However, despite this, it still seems that what we are seeing from both the president and, haltingly, from Congress is the start of a greater consensus in the US on the need to wrap up and constrain the military from extending the fight to new parts of the world.
In his speech, Obama made it clear he does not want to send troops to new countries and he wants to see soldiers home from Afghanistan. He spent a lot of time arguing why drones are an effective and legal way of dealing with threats while keeping US entanglement to a minimum. His two ways of dealing with al-Qaida and its â€˜affiliatesâ€™ globally are also interesting for Afghanistanâ€™s future after 2014.
Obama said the US should give aid to friendly states under threat, undercutting the attraction of â€˜jihadâ€™ and supporting them and their armed forces to take action themselves against violent extremists. This looks like the model if the Bilateral Security and Defence Agreement is signed with Kabul. One would see support to the Afghan government and its forces and US special operations forces and the CIA on the ground pursuing â€˜counter-terrorismâ€™, but this would still be a far more limited mission than the current one.
However, Obama also spoke of â€˜foreign governments [who] cannot or will not effectively stop terrorism in their territory.â€™ In such cases, he said, the US would take â€˜targeted, lethal actionâ€™, presumably on the grounds of imminent threat. This looks like the post-2014 scenario for Afghanistan if a security agreement with Kabul is not signed. Even in the case of the â€˜zero optionâ€™, with no US troops on the ground, a US president might still order military operations in Afghanistan. Obamaâ€™s paradoxical way of speaking about the future – ending the war and continuing the struggle – becomes a little clearer.
(1) The use of the comma after security forces (â€˜â€¦we will work with the Afghan government to train security forces, and sustain a counter-terrorism forceâ€¦â€™) suggests it is an American counter-terrorism force which will be â€˜sustainedâ€™, but the sentence is inherently ambiguous.
(2) Compare Obamaâ€™s remarks after meeting President Karzai in Washington in January 2013:
â€¦ by the end of next year, 2014, the transition will be complete – Afghans will have full responsibility for their security, and this war will come to a responsible end.
With respect to post-2014, weâ€™ve got two goals– and our main conversation today was establishing a meeting of the minds in terms of what those goals would be with a follow-on presence of U.S. troops. Number one, to train, assist, and advise Afghan forces so that they can maintain their own security; and number two, making sure that we can continue to go after remnants of al Qaeda or other affiliates that might threaten our homeland. That is a very limited mission, and it is not one that would require the same kind of footprint, obviously, that weâ€™ve had over the last 10 years in Afghanistan.
See AAN analysis here
(3) Obama spoke at length about drones. Below are edited sections:
Beyond the Afghan theatre, we only target al Qaeda and its associated forces. Even then, the use of drones is heavily constrained. America does not take strikes when we have the ability to capture individual terrorists – our preference is always to detain, interrogate, and prosecute them. America cannot take strikes wherever we choose â€“ our actions are bound by consultations with partners, and respect for state sovereignty. America does not take strikes to punish individuals â€“ we act against terrorists who pose a continuing and imminent threat to the American people, and when there are no other governments capable of effectively addressing the threat. And before any strike is taken, there must be near-certainty that no civilians will be killed or injured â€“ the highest standard we can set.
The very precision of drones strikes, and the necessary secrecy involved in such actions can end up shielding our government from the public scrutiny that a troop deployment invites. It can also lead a President and his team to view drone strikes as a cure-all for terrorism.
For this reason, Iâ€™ve insisted on strong oversight of all lethal action. After I took office, my Administration began briefing all strikes outside of Iraq and Afghanistan to the appropriate committees of Congress. Let me repeat that â€“ not only did Congress authorize the use of force, it is briefed on every strike that America takes.
Going forward, I have asked my Administration to review proposals to extend oversight of lethal actions outside of warzones that go beyond our reporting to Congress. Each option has virtues in theory, but poses difficulties in practice. For example, the establishment of a special court to evaluate and authorize lethal action has the benefit of bringing a third branch of government into the process, but raises serious constitutional issues about presidential and judicial authority. Another idea thatâ€™s been suggested â€“ the establishment of an independent oversight board in the executive branch â€“ avoids those problems, but may introduce a layer of bureaucracy into national-security decision-making, without inspiring additional public confidence in the process. Despite these challenges, I look forward to actively engaging Congress to explore these â€“ and other â€“ options for increased oversight.
(4) Obama said:
To repeat, as a matter of policy, the preference of the United States is to capture terrorist suspects. When we do detain a suspect, we interrogate them. And if the suspect can be prosecuted, we decide whether to try him in a civilian court or a Military Commission. During the past decade, the vast majority of those detained by our military were captured on the battlefield. In Iraq, we turned over thousands of prisoners as we ended the war. In Afghanistan, we have transitioned detention facilities to the Afghans, as part of the process of restoring Afghan sovereignty. So we bring law of war detention to an end, and we are committed to prosecuting terrorists whenever we can. The glaring exception to this time-tested approach is the detention centre at Guantanamo Bay.
(5) There may be a number of other versions, but the Chairmanâ€™s Mark will be the starting point for finalising the National Defence Authorization Act which has to be passed by October 2013 (see here).
(6) Selected excerpts of the 2014 National Defence Authorization Act: CHAIRMANâ€™S MARK
Section 1037â€”Unclassified Summary of Information Relating to Individuals
Detained at Parwan, Afghanistan
This section would require the Secretary of Defence to make publicly
available an unclassified summary relating to individuals detained by the
Department of Defence at the Detention Facility at Parwan, Afghanistan pursuant to the Authorization for Use of Military Force (Public Law 107â€“40; 50 U.S.C. 1541 note) at any time during the past 2 years who have been determined to represent an â€˜enduring security threatâ€™ to the United States.
Section 1038â€”Assessment of Affiliates and Adherents of Al-Qaeda Outside the
This section would require an assessment to be conducted by the President,
acting through the Secretary of Defence, of: any group operating outside the United States that is an affiliate or adherent of, or otherwise related to, Al Qaeda; a summary of relevant information relating to each such group; an assessment of whether each group is part of or substantially supporting Al Qaeda or the Taliban, or constitutes an associated force that is engaged in hostilities against the United States or its coalition partners; and the criteria used to determine the nature and extent of each groupâ€™s relationship to Al Qaeda. The assessment would be required to be submitted to the congressional defence committees within 120 days after the date of the enactment of this Act.
Section 1041â€”Congressional Notification of Sensitive Military Operations
This section would require the Secretary of Defence to promptly submit to
the congressional defence committees notice in writing of any sensitive military
operation following such operation. This section would also require the Secretary of Defence to establish procedures not later than 60 days after the date of the enactment of this Act for providing such notice in a manner consistent with the national security of the United States and the protection of operational integrity.
The term â€˜sensitive military operationâ€™ would include lethal and capture
operations conducted by the U.S. Armed Forces outside of the United States
pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50
U.S.C. 1541 note) or any other authority except a declaration of war or a specific statutory authorization for the use of force other than the 2001 authorization.
This section is not intended to create or alter reporting requirements of any
other agency or department outside of the Department of Defence.
Section 1042â€”Report on Process for Determining Targets of Lethal Operations
This section would require the Secretary of Defence to submit a report
within 60 days after the date of the enactment of this Act containing an explanation of the legal and policy considerations and approval processes used in determining whether an individual or group of individuals could be the target of a lethal operation or capture operation conducted by the Armed Forces of the United States outside the United States.
Section 1043â€”Counterterrorism Operational Briefings
This section would require the Secretary of Defence to provide quarterly
briefings to the congressional defence committees outlining Department of Defence counterterrorism operations and related activities. Each briefing would include: a global update on activity within each geographic combatant command; an overview of authorities and legal issues including limitations; an outline of interagency activities and initiatives; and any other matters the Secretary considers appropriate.
(7) See AANâ€™s investigation in 2010-2011 into US intelligence and targeted killing The Takhar attack: Targeted killings and the parallel worlds of US intelligence and Afghanistan (May 2011).
(8) Sheehan explained why they used an â€˜affiliated forcesâ€™ model:
Iâ€™m not a constitutional lawyer or a lawyer of any kind, but let me talk to you a little â€” take a brief statement about al-Qaida and the organization that attacked us on September 11, 2001. In the two years prior to that, Senator King, that organization attacked us in East Africa and killed 17 Americans at our embassy in Nairobi with loosely-affiliated groups of people in East Africa. A year prior to 9/11, that same organization, with its affiliates in Yemen, almost sunk a US ship, the USS Cole, a $1 billion warship, killed 17 sailors in the port of Aden.
The organization that attacked us on 9/11 already had its tentacles around the world with associated groups. That was the nature of the organization then. It is the nature of the organization now. In order to attack that organization, we have to attack it with those affiliates that are its operational arm that have previously attacked and killed Americans and high-level interests and continue to try to do that.
(9) To give a flavour of some of the legal thinking behind these concepts, the US military lawyersâ€™ manual, Operational Law Handbook says, among other things:
Anticipatory Self- defence. As discussed above, some States embrace an interpretation of the UN Charter that extends beyond the black letter language of Article 51, under the [Customary International Law] principle of anticipatory self- defence. Anticipatory self- defence justifies using force in anticipation of an imminent armed attack. Under this concept, a State is not required to absorb the first hit before it can resort to the use of force in self- defence to repel an imminent attack.
Because the invocation of anticipatory self- defence is fact-specific in nature, and therefore appears to lack defined standards of application, it remains controversial in the international community. Concerns over extension of anticipatory self- defence as a pretext for reprisal or preventive actions (i.e., the use of force before the coalescence of an actual threat) have not been allayed by contemporary use. It is important to note, however, that anticipatory self- defence serves as a foundational element in the [Chairman of the Joint Chiefs of Staff Standard Rules of Engagement] as embodied in the concept of hostile intent, which makes it clear to commanders that they do not, and should not, have to absorb the first hit before their right and obligation to exercise self- defence arises.
A modern-day legal test for imminence, consistent with the above, was perhaps best articulated by Professor Michael Schmitt in 2003. He stated that States may legally employ force in advance of an attack, at the point when (1) evidence shows that an aggressor has committed itself to an armed attack, and (2) delaying a response would hinder the defenderâ€™s ability to mount a meaningful defence.
Anticipatory self- defence, whether labelled anticipatory or pre-emptive, must be distinguished from preventive self- defence. Preventive self- defenceâ€”employed to counter non-imminent threatsâ€”is illegal under international law.
Self- defence Against Non-State Actors. Up to now, this handbook has discussed armed attacks launched by a State. Today, however, States have more reasons to fear armed attacks launched by non-state actors from a State. The law is still grappling with this reality. While the answer to this question may depend on complicated questions of state responsibility, many scholars base the legality of cross border attacks against non-state actors on whether the host State is unwilling or unable to deal with the non-state actors who are launching armed attacks from within its territory.19 Some scholars have posited that a cross border response into a host State requires the victim State to meet a higher burden of proof in demonstrating the criteria that establish the legality of a Stateâ€™s use of force in self- defence.
The Handbook defines Hostile Intent as:
The threat of imminent use of force against the United States, U.S. forces, or other designated persons or property. It also includes the threat of force to preclude or impede the mission and/or duties of U.S. forces, including the recovery of U.S. personnel or vital U.S. government property.
It defines Imminent Use of Force as:
The determination of whether the use of force against U.S. forces is imminent will be based on an assessment of all facts and circumstances known to U.S. forces at the time and may be made at any level. Imminent does not necessarily mean immediate or instantaneous.
(10) Once individuals have made it onto the JPEL â€“ the capture-or-kill list, according to senior Special Operations Forces commanders speaking to AAN for our investigation on US intelligence and targeted killing (see footnote 7), those individuals are considered to be always an imminent threat and therefore targetable. Short of officially reconciling, it is very difficult to get off the JPEL. One commander who was asked how someone on the JPEL could be deemed hors de combat said:
â€¦ someone [on the capture-or-kill list] who was injured and without a gun could still be deemed a threat, â€˜maybe not that day, but tomorrow or the next day â€“ itâ€™s the same basis as the original targeting.â€™