Stratfor 2009 -- Global Intelligence & Analysis

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The Jihadist Strategic Dilemma
Obama's Plan and the Key Battleground
Deciphering the Mohammed Trial
Obama and the U.S. Strategy of Buying Time

The Jihadist Strategic Dilemma

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December 7, 2009
By George Friedman

With U.S. President Barack Obama’s announcement of his strategy in Afghanistan, the U.S.-jihadist war has entered a new phase. With its allies, the United States has decided to increase its focus on the Afghan war while continuing to withdraw from Iraq. Along with focusing on Afghanistan, it follows that there will be increased Western attention on Pakistan. Meanwhile, the question of what to do with Iran remains open, and is in turn linked to U.S.-Israeli relations. The region from the Mediterranean to the Hindu Kush remains in a war or near-war status. In a fundamental sense, U.S. strategy has not shifted under Obama: The United States remains in a spoiling-attack state.

The Devolution of Al Qaeda

As we have discussed, the primary U.S. interest in this region is twofold. The first aspect is to prevent the organization of further major terrorist attacks on the United States. The second is to prevent al Qaeda and other radical Islamist groups from taking control of any significant countries.

U.S. operations in this region mainly consist of spoiling attacks aimed at frustrating the jihadists’ plans rather than at imposing Washington’s will in the region. The United States lacks the resources to impose its will, and ultimately doesn’t need to. Rather, it needs to wreck its adversaries’ plans. In both Afghanistan and Iraq, the primary American approach consists of this tack. That is the nature of spoiling attacks. Obama has thus continued the Bush administration’s approach to the war, though he has shifted some details.

The Jihadist Viewpoint

It is therefore time to consider the war from the jihadist point of view. This is a difficult task given that the jihadists do not constitute a single, organized force with a command structure and staff that could express that view. It is compounded by the fact that al Qaeda prime, our term for the original al Qaeda that ordered and organized the attacks on 9/11 and in Madrid and London, is now largely shattered.

While bearing this in mind, it must be remembered that this fragmentation is both a strategic necessity and a weapon of war for jihadists. The United States can strike the center of gravity of any jihadist force. It naturally cannot strike what doesn’t exist, so the jihadist movement has been organized to deny the United States that center of gravity, or command structure which, if destroyed, would leave the movement wrecked. Thus, even were Osama bin Laden killed or captured, the jihadist movement is set up to continue.

So although we cannot speak of a jihadist viewpoint in the sense that we can speak of an American viewpoint, we can ask this question: If we were a jihadist fighter at the end of 2009, what would the world look like to us, what would we want to achieve and what might we do to try to achieve that?

We must bear in mind that al Qaeda began the war with a core strategic intent, namely, to spark revolutions in the Sunni Muslim world by overthrowing existing regimes and replacing them with jihadist regimes. This was part of the jihadist group’s long-term strategy to recreate a multinational Islamist empire united under al Qaeda’s interpretation of Shariah.

The means toward this end involved demonstrating to the Muslim masses that their regimes were complicit with the leading Christian power, i.e., the United States, and that only American backing kept these Sunni regimes in power. By striking the United States on Sept. 11, al Qaeda wanted to demonstrate that the United States was far more vulnerable than believed, by extension demonstrating that U.S. client regimes were not as powerful as they appeared. This was meant to give the Islamic masses a sense that uprisings against Muslim regimes not dedicated to Shariah could succeed. In their view, any American military response — an inevitability after 9/11 — would further incite the Muslim masses rather than intimidate them.

The last eight years of war have ultimately been disappointing to the jihadists, however. Rather than a massive uprising in the Muslim world, not a single regime has been replaced with a jihadist regime. The primary reason has been that Muslim regimes allied with the United States decided they had more to fear from the jihadists than from the Americans, and chose to use their intelligence and political power to attack and suppress the jihadists. In other words, rather than trigger an uprising, the jihadists generated a strengthened anti-jihadist response from existing Muslim states. The spoiling attacks in Afghanistan and Iraq, as well as in other countries in the Horn of Africa and North Africa, generated some support for the jihadists, but that support has since diminished and the spoiling attacks have disrupted these countries sufficiently to make them unsuitable as bases of operation for anything more than local attacks. In other words, the attacks tied the jihadists up in local conflicts, diverting them from operations against the United States and Europe.

Under this intense pressure, the jihadist movement has fragmented, though it continues to exist. Incapable of decisive action at the moment, it has goals beyond surviving as a fragmented entity, albeit with some fairly substantial fragments. And it is caught on the horns of a strategic dilemma.

Operationally, jihadists continue to be engaged against the United States. In Afghanistan, the jihadist movement is relying on the Taliban to tie down and weaken American forces. In Iraq, the remnants of the jihadist movement are doing what they can to shatter the U.S.-sponsored coalition government in Baghdad and further tie down American forces by attacking Shiites and key members of the Sunni community. Outside these two theaters, the jihadists are working to attack existing Muslim governments collaborating with the United States — particularly Pakistan — but with periodic attacks striking other Muslim states.

These attacks represent the fragmentation of the jihadists. Their ability to project power is limited. By default, they have accordingly adopted a strategy of localism, in which their primary intent is to strike existing governments while simultaneously tying down American forces in a hopeless attempt to stabilize the situation.

The strategic dilemma is this: The United States is engaged in a spoiling action with the primary aim of creating conditions in which jihadists are bottled up fighting indigenous forces rather than being free to plan attacks on the United States or systematically try to pull down existing regimes. And the current jihadist strategy plays directly into American hands. First, the attacks recruit Muslim regimes into deploying their intelligence and security forces against the jihadists, which is precisely what the United States wants. Secondly, it shifts jihadist strength away from transnational actions to local actions, which is also what the United States wants. These local attacks, which kill mostly Muslims, also serve to alienate many Muslims from the jihadists.

The jihadists are currently playing directly into U.S. hands because, rhetoric aside, the United States cannot regard instability in the Islamic world as a problem. Let’s be more precise on this: An ideal outcome for the United States would be the creation of stable, pro-American regimes in the region eager and able to attack and destroy jihadist networks. There are some regimes in the region like this, such as Saudi Arabia and Egypt. The probability of creating such stable, eager and capable regimes in places like Iraq or Afghanistan is unlikely in the extreme. The second-best outcome for the United States involves a conflict in which the primary forces battling — and neutralizing — each other are Muslim, with the American forces in a secondary role. This has been achieved to some extent in Iraq. Obama’s goal is to create a situation in Afghanistan in which Afghan government forces engage Taliban forces with little or no U.S. involvement. Meanwhile, in Pakistan the Americans would like to see an effective effort by Islamabad to suppress jihadists throughout Pakistan. If they cannot get suppression, the United States will settle for a long internal conflict that would tie down the jihadists.

A Self-Defeating Strategy

The jihadists are engaged in a self-defeating strategy when they spread out and act locally. The one goal they must have, and the one outcome the United States fears, is the creation of stable jihadist regimes. The strategy of locally focused terrorism has proved ineffective. It not only fails to mobilize the Islamic masses, it creates substantial coalitions seeking to suppress the jihadists.

The jihadist attack on the United States has failed. The presence of U.S. forces in Iraq and Afghanistan has reshaped the behavior of regional governments. Fear of instability generated by the war has generated counteractions by regional governments. Contrary to what the jihadists expected or hoped for, there was no mass uprising and therefore no counter to anti-jihadist actions by regimes seeking to placate the United States. The original fear, that the U.S. presence in Iraq and Afghanistan would generate massive hostility, was not wrong. But the hostility did not strengthen the jihadists, and instead generated anti-jihadist actions by governments.

From the jihadist point of view, it would seem essential to get the U.S. military out of the region and to relax anti-jihadist actions by regional security forces. Continued sporadic and ineffective action by jihadists achieves nothing and generates forces with which they can’t cope. If the United States withdrew, and existing tensions within countries like Egypt, Saudi Arabia or Pakistan were allowed to mature undisturbed, new opportunities might present themselves.

Most significantly, the withdrawal of U.S. troops would strengthen Iran. The jihadists are no friends of Shiite Iran, and neither are Iran’s neighbors. In looking for a tool for political mobilization in the Gulf region or in Afghanistan absent a U.S. presence, the Iranian threat would best serve the jihadists. The Iranian threat combined with the weakness of regional Muslim powers would allow the jihadists to join a religious and nationalist opposition to Tehran. The ability to join religion and nationalism would turn the local focus from something that takes the jihadists away from regime change to something that might take them toward it.

The single most powerful motivator for an American withdrawal would be a period of open quiescence. An openly stated consensus for standing down, in particular because of a diminished terrorist threat, would facilitate something the Obama administration wants most of all: a U.S. withdrawal from the region. Providing the Americans with a justification for leaving would open the door for new possibilities. The jihadists played a hand on 9/11 that they hoped would prove a full house. It turned into a bust. When that happens, you fold your hand and play a new one. And there is always a hand being dealt so long as you have some chips left.

The challenge here is that the jihadists have created a situation in which they have defined their own credibility in terms of their ability to carry out terrorist attacks, however poorly executed or counterproductive they have become. Al Qaeda prime’s endless calls for action have become the strategic foundation for the jihadists: Action has become an end in itself. The manner in which the jihadists have survived as a series of barely connected pods of individuals scattered across continents has denied the United States a center of gravity to strike. It has also turned the jihadists from a semi-organized force into one incapable of defining strategic shifts.

The jihadists’ strategic dilemma is that they have lost the 2001-2008 phase of the war but are not defeated. To begin to recoup, they must shift their strategy. But they lack the means for doing so because of what they have had to do to survive. At the same time, there are other processes in play. The Taliban, which has even more reason to want the United States out of Afghanistan, might shift to an anti-jihadist strategy: It could liquidate al Qaeda, return to power in Afghanistan and then reconsider its strategy later. So, too, in other areas.

From the U.S. point of view, an open retreat by the jihadists would provide short-term relief but long-term problems. The moment when the enemy sues for peace is the moment when the pressure should be increased rather than decreased. But direct U.S. interests in the region are so minimal that a more distant terrorist threat will be handled in a more distant future. As the jihadists are too fragmented to take strategic positions, U.S. pressure will continue in any event.

Oddly enough, as much as the United States is uncomfortable in the position it is in, the jihadists are in a much worse position.

This report is republished with permission of STRATFOR

Obama's Plan and the Key Battleground

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Dec 2, 2009
By George Friedman

U.S. President Barack Obama announced the broad structure of his Afghanistan strategy in a speech at West Point on Tuesday evening. The strategy had three core elements. First, he intends to maintain pressure on al Qaeda on the Afghan-Pakistani border and in other regions of the world. Second, he intends to blunt the Taliban offensive by sending an additional 30,000 American troops to Afghanistan, along with an unspecified number of NATO troops he hopes will join them. Third, he will use the space created by the counteroffensive against the Taliban and the resulting security in some regions of Afghanistan to train and build Afghan military forces and civilian structures to assume responsibility after the United States withdraws. Obama added that the U.S. withdrawal will begin in July 2011, but provided neither information on the magnitude of the withdrawal nor the date when the withdrawal would conclude. He made it clear that these will depend on the situation on the ground, adding that the U.S. commitment is finite.

In understanding this strategy, we must begin with an obvious but unstated point: The extra forces that will be deployed to Afghanistan are not expected to defeat the Taliban. Instead, their mission is to reverse the momentum of previous years and to create the circumstances under which an Afghan force can take over the mission. The U.S. presence is therefore a stopgap measure, not the ultimate solution.

The ultimate solution is training an Afghan force to engage the Taliban over the long haul, undermining support for the Taliban, and dealing with al Qaeda forces along the Pakistani border and in the rest of Afghanistan. If the United States withdraws all of its forces as Obama intends, the Afghan military would have to assume all of these missions. Therefore, we must consider the condition of the Afghan military to evaluate the strategy’s viability.

Afghanistan vs. Vietnam

Obama went to great pains to distinguish Afghanistan from Vietnam, and there are indeed many differences. The core strategy adopted by Richard Nixon (not Lyndon Johnson) in Vietnam, called “Vietnamization,” saw U.S. forces working to blunt and disrupt the main North Vietnamese forces while the Army of the Republic of Vietnam (ARVN) would be trained, motivated and deployed to replace U.S. forces to be systematically withdrawn from Vietnam. The equivalent of the Afghan surge was the U.S. attack on North Vietnamese Army (NVA) bases in Cambodia and offensives in northern South Vietnam designed to disrupt NVA command and control and logistics and forestall a major offensive by the NVA. Troops were in fact removed in parallel with the Cambodian offensives.

Nixon faced two points Obama now faces. First, the United States could not provide security for South Vietnam indefinitely. Second, the South Vietnamese would have to provide security for themselves. The role of the United States was to create the conditions under which the ARVN would become an effective fighting force; the impending U.S. withdrawal was intended to increase the pressure on the Vietnamese government to reform and on the ARVN to fight.

Many have argued that the core weakness of the strategy was that the ARVN was not motivated to fight. This was certainly true in some cases, but the idea that the South Vietnamese were generally sympathetic to the Communists is untrue. Some were, but many weren’t, as shown by the minimal refugee movement into NVA-held territory or into North Vietnam itself contrasted with the substantial refugee movement into U.S./ARVN-held territory and away from NVA forces. The patterns of refugee movement are, we think, highly indicative of true sentiment.

Certainly, there were mixed sentiments, but the failure of the ARVN was not primarily due to hostility or even lack of motivation. Instead, it was due to a problem that must be addressed and overcome if the Afghanistation war is to succeed. That problem is understanding the role that Communist sympathizers and agents played in the formation of the ARVN.

By the time the ARVN expanded — and for that matter from its very foundation — the North Vietnamese intelligence services had created a systematic program for inserting operatives and recruiting sympathizers at every level of the ARVN, from senior staff and command positions down to the squad level. The exploitation of these assets was not random nor merely intended to undermine moral. Instead, it provided the NVA with strategic, operational and tactical intelligence on ARVN operations, and when ARVN and U.S. forces operated together, on U.S. efforts as well.

In any insurgency, the key for insurgent victory is avoiding battles on the enemy’s terms and initiating combat only on the insurgents’ terms. The NVA was a light infantry force. The ARVN — and the U.S. Army on which it was modeled — was a much heavier, combined-arms force. In any encounter between the NVA and its enemies the NVA would lose unless the encounter was at the time and place of the NVA’s choosing. ARVN and U.S. forces had a tremendous advantage in firepower and sheer weight. But they had a significant weakness: The weight they bought to bear meant they were less agile. The NVA had a tremendous weakness. Caught by surprise, it would be defeated. And it had a great advantage: Its intelligence network inside the ARVN generally kept it from being surprised. It also revealed weakness in its enemies’ deployment, allowing it to initiate successful offensives.

All war is about intelligence, but nowhere is this truer than in counterinsurgency and guerrilla war, where invisibility to the enemy and maintaining the initiative in all engagements is key. Only clear intelligence on the enemy’s capability gives this initiative to an insurgent, and only denying intelligence to the enemy — or knowing what the enemy knows and intends — preserves the insurgent force.

The construction of an Afghan military is an obvious opportunity for Taliban operatives and sympathizers to be inserted into the force. As in Vietnam, such operatives and sympathizers are not readily distinguishable from loyal soldiers; ideology is not something easy to discern. With these operatives in place, the Taliban will know of and avoid Afghan army forces and will identify Afghan army weaknesses. Knowing that the Americans are withdrawing as the NVA did in Vietnam means the rational strategy of the Taliban is to reduce operational tempo, allow the withdrawal to proceed, and then take advantage of superior intelligence and the ability to disrupt the Afghan forces internally to launch the Taliban offensives.

The Western solution is not to prevent Taliban sympathizers from penetrating the Afghan army. Rather, the solution is penetrating the Taliban. In Vietnam, the United States used signals intelligence extensively. The NVA came to understand this and minimized radio communications, accepting inefficient central command and control in return for operational security. The solution to this problem lay in placing South Vietnamese into the NVA. There were many cases in which this worked, but on balance, the NVA had a huge advantage in the length of time it had spent penetrating the ARVN versus U.S. and ARVN counteractions. The intelligence war on the whole went to the North Vietnamese. The United States won almost all engagements, but the NVA made certain that it avoided most engagements until it was ready.

In the case of Afghanistan, the United States has far more sophisticated intelligence-gathering tools than it did in Vietnam. Nevertheless, the basic principle remains: An intelligence tool can be understood, taken into account and evaded. By contrast, deep penetration on multiple levels by human intelligence cannot be avoided.

Pakistan’s Role

Obama mentioned Pakistan’s critical role. Clearly, he understands the lessons of Vietnam regarding sanctuary, and so he made it clear that he expects Pakistan to engage and destroy Taliban forces on its territory and to deny Afghan Taliban supplies, replacements and refuge. He cited the Swat and South Waziristan offensives as examples of the Pakistanis’ growing effectiveness. While this is a significant piece of his strategy, the Pakistanis must play another role with regard to intelligence.

The heart of Obama’s strategy lies not in the surge, but rather in turning the war over to the Afghans. As in Vietnam, any simplistic model of loyalties doesn’t work. There are Afghans sufficiently motivated to form the core of an effective army. As in Vietnam, the problem is that this army will contain large numbers of Taliban sympathizers; there is no way to prevent this. The Taliban is not stupid: It has and will continue to move its people into as many key positions as possible.

The challenge lies in leveling the playing field by inserting operatives into the Taliban. Since the Afghan intelligence services are inherently insecure, they can’t carry out such missions. American personnel bring technical intelligence to bear, but that does not compensate for human intelligence. The only entity that could conceivably penetrate the Taliban and remain secure is the Pakistani Inter-Services Intelligence (ISI). This would give the Americans and Afghans knowledge of Taliban plans and deployments. This would diminish the ability of the Taliban to evade attacks, and although penetrated as well, the Afghan army would enjoy a chance ARVN never had.

But only the ISI could do this, and thinking of the ISI as secure is hard to do from a historical point of view. The ISI worked closely with the Taliban during the Afghan civil war that brought it to power and afterwards, and the ISI had many Taliban sympathizers. The ISI underwent significant purging and restructuring to eliminate these elements over recent years, but no one knows how successful these efforts were.

The ISI remains the center of gravity of the entire problem. If the war is about creating an Afghan army, and if we accept that the Taliban will penetrate this army heavily no matter what, then the only counter is to penetrate the Taliban equally. Without that, Obama’s entire strategy fails as Nixon’s did.

In his talk, Obama quite properly avoided discussing the intelligence aspect of the war. He clearly cannot ignore the problem we have laid out, but neither can he simply count on the ISI. He does not need the entire ISI for this mission, however. He needs a carved out portion — compartmentalized and invisible to the greatest possible extent — to recruit and insert operatives into the Taliban and to create and manage communication networks so as to render the Taliban transparent. Given Taliban successes of late, it isn’t clear whether he has this intelligence capability. Either way, we would have to assume that some Pakistani solution to the Taliban intelligence issue has been discussed (and such a solution must be Pakistani for ethnic and linguistic reasons).

Every war has its center of gravity, and Obama has made clear that the center of gravity of this war will be the Afghan military’s ability to replace the Americans in a very few years. If that is the center of gravity, and if maintaining security against Taliban penetration is impossible, then the single most important enabler to Obama’s strategy would seem to be the ability to make the Taliban transparent.

Therefore, Pakistan is important not only as the Cambodia of this war, the place where insurgents go to regroup and resupply, but also as a key element of the solution to the intelligence war. It is all about Pakistan. And that makes Obama’s plan difficult to execute. It is far easier to write these words than to execute a plan based on them. But to the extent Obama is serious about the Afghan army taking over, he and his team have had to think about how to do this.

This report is republished with permission of STRATFOR

Deciphering the Mohammed Trial

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November 16, 2009
By George Friedman

U.S. Attorney General Eric Holder has decided that Khalid Sheikh Mohammed will be tried in federal court in New York. Holder’s decision was driven by the need for the U.S. government to decide how to dispose of prisoners at Guantanamo Bay, a U.S. Naval base outside the boundaries of the United States selected as the camp in which to hold suspected al Qaeda members.

We very carefully use the word “camp” rather than prison or prisoner of war camp. This is because of an ongoing and profound ambiguity not only in U.S. government perceptions of how to define those held there, but also due to uncertainties in international law, particularly with regard to the Geneva Conventions of 1949. Were the U.S. facility at Guantanamo a prison, then its residents would be criminals. If it were a POW camp, then they would be enemy soldiers being held under the rules of war. It has never really been decided which these men are, and therefore their legal standing has remained unclear.

War vs. Criminal Justice

The ambiguity began shortly after 9/11, when then-U.S. President George W. Bush defined two missions: waging a war on terror, and bringing Osama bin Laden and his followers to justice. Both made for good rhetoric. But they also were fundamentally contradictory. A war is not a judicial inquiry, and a criminal investigation is not part of war.

An analogy might be drawn from Pearl Harbor. Imagine that in addition to stating that the United States was at war with Japan, Franklin Roosevelt also called for bringing the individual Japanese pilots who struck Hawaii to justice under American law. This would make no sense. As an act of war, the Japanese action fell under the rules of war as provided for in international law, the U.S. Constitution and the Uniform Code of Military Justice (UCMJ). Japanese pilots could not be held individually responsible for the lawful order they received. In the same sense, trying to bring soldiers to trial in a civilian court in the United States would make no sense. Creating a mission in which individual Japanese airmen would be hunted down and tried under the rules of evidence not only would make no sense, it would be impossible. Building a case against them individually also would be impossible. Judges would rule on evidence, on whether an unprejudiced jury could be found, and so on. None of this happened, of course — World War II was a war, not a judicial inquiry.

It is important to consider how wars are conducted. Enemy soldiers are not shot or captured because of what they have done; they are shot and captured because of who they are — members of an enemy military force. War, once launched, is pre-emptive. Soldiers are killed or captured in the course of fighting enemy forces, or even before they have carried out hostile acts. Soldiers are not held responsible for their actions, but neither are they immune to attack just because they have not done anything. Guilt and innocence do not enter into the equation. Certainly, if war crimes are in question, charges may be brought; the UCMJ determines how they will be tried by U.S. forces. Soldiers are tried by courts-martial, not by civilian courts, because of their status as soldiers. Soldiers are tried by a jury of their peers, and their peers are held to be other soldiers.

International law is actually not particularly ambiguous about the status of the members of al Qaeda. The Geneva Conventions do not apply to them because they have not adhered to a fundamental requirement of the Geneva Conventions, namely, identifying themselves as soldiers of an army. Doing so does not mean they must wear a uniform. The postwar Geneva Conventions make room for partisans, something older versions of the conventions did not. A partisan is not a uniformed fighter, but he must wear some form of insignia identifying himself as a soldier to enjoy the conventions’ protections. As Article 4.1.6 puts it, prisoners of war include “Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.” The Geneva Conventions of 1949 does not mention, nor provide protection to, civilians attacking foreign countries without openly carrying arms.

The reasoning behind this is important. During the Franco-Prussian war, French franc-tireurs fired on Prussian soldiers. Ununiformed and without insignia, they melded into the crowd. It was impossible for the Prussians to distinguish between civilians and soldiers, so they fired on both, and civilian casualties resulted. The framers of the Geneva Conventions held the franc-tireurs, not the Prussian soldiers, responsible for the casualties. Their failure to be in uniform forced the Prussians to defend themselves at the cost of civilian lives. The franc-tireurs were seen as using civilians as camouflage. This was regarded as outside the rules of war, and those who carried out such acts were seen as not protected by the conventions. They were not soldiers, and were not to be treated as such. An Ambiguous Status

Extending protections to partisans following World War II was seen as a major concession. It was done with concerns that it not be extended so far that combatants of irregular forces could legally operate using their ability to blend in with surrounding civilians, and hence a requirement of wearing armbands. The status of purely covert operatives remained unchanged: They were not protected under the Geneva Conventions. Their status remained ambiguous.

During World War II, it was U.S. Army practice to hold perfunctory trials followed by executions. During the Battle of the Bulge, German commandos captured wearing U.S. uniforms — in violation of the Geneva Conventions — were summarily tried in field courts-martial and executed. The idea that such individuals were to be handed over to civilian courts was never considered. The actions of al Qaeda simply were not anticipated in the Geneva Conventions. And to the extent they were expected, they violated the conventions.

Holder’s decision to transfer Khalid Sheikh Mohammed to federal court makes it clear that Mohammed was not a soldier acting in time of war, but a criminal. While during times of war spies are tried as criminals, their status is precarious, particularly if they are members of an enemy army. Enemy soldiers out of uniform carrying out reconnaissance or espionage are subject to military, not civilian, justice, and frequently are executed. A spy captured in the course of collecting information is a civilian, particularly in peacetime, and normally is tried as a criminal with rules of evidence.

Which was Mohammed? Under the Geneva Conventions, his actions in organizing the Sept. 11 attacks, which were carried out without uniforms or other badges of a combatant, denies him status and protection as a POW. Logically, he is therefore a criminal, but if he is, consider the consequences.

Criminal law is focused on punishments meted out after the fact. They rarely have been preventive measures. In either case, they follow strict rules of evidence, require certain treatments of prisoners and so on. For example, prisoners have to be read the Miranda warning. Soldiers are not policeman. They are not trained or expected to protect the legal rights of captives save as POWs under the UCMJ, nor protect the chain of custody of evidence nor countless other things that are required in a civilian court. In criminal law, it is assumed that law enforcement has captured the prisoner and is well-versed in these rules. In this case, the capture was made without any consideration of these matters, nor would one expect such consideration.

Consider further the role of U.S. covert operations in these captures. The United States conducts covert operations in which operatives work out of uniform and are generally not members of the military. Operating outside the United States, they are not protected by U.S. law although they do operate under the laws and regulations promulgated by the U.S. government. Much of their operations run counter to international and national law. At the same time, their operations are accepted as best practices by the international system. Some operate under cover of diplomatic immunity but carry out operations incompatible with their status as diplomats. Others operate without official cover. Should those under unofficial cover be captured, their treatment falls under local law, if such exists. The Geneva Conventions do not apply to them, nor was it intended to.

Spies, saboteurs and terrorists fall outside the realm of international law. This class of actors falls under the category of national law, leaving open the question of their liability if they conduct acts inimical to a third country. Who has jurisdiction? The United States is claiming that Mohammed is to be tried under the criminal code of the United States for actions planned in Afghanistan but carried out by others in the United States. It is a defensible position, but where does this leave American intelligence planners working at CIA headquarters for actions carried out by others in a third country? Are they subject to prosecution in the third country? Those captured in the third country clearly are, but the claim here is that Mohammed is subject to prosecution under U.S. laws for actions carried out by others in the United States. And that creates an interesting reciprocal liability.

A Failure to Evolve

The fact is that international law has not evolved to deal with persons like Mohammed. Or more precisely, most legal discussion under international law is moving counter to the Geneva Conventions’ intent, which was to treat the franc-tireurs as unworthy of legal protection because they were not soldiers and were violating the rules of war. International law wants to push Mohammed into a category where he doesn’t fit, providing protections that are not apparent under the Geneva Conventions. The United States has shoved him into U.S. criminal law, where he doesn’t fit either, unless the United States is prepared to accept reciprocal liability for CIA personnel based in the United States planning and supporting operations in third countries. The United States has never claimed, for example, that the KGB planners who operated agents in the United States on behalf of the Soviet Union were themselves subject to criminal prosecution.

A new variety of warfare has emerged in which treatment as a traditional POW doesn’t apply and criminal law doesn’t work. Criminal law creates liabilities the United States doesn’t want to incur, and it is not geared to deal with a terrorist like Mohammed. U.S. criminal law assumes that capture is in the hands of law enforcement officials. Rights are prescribed and demanded, including having lawyers present and so forth. Such protections are practically and theoretically absurd in this case: Mohammed is not a soldier and he is not a suspected criminal presumed innocent until proven guilty. Law enforcement is not a practical counter to al Qaeda in Afghanistan and Pakistan. A nation cannot move from the rules of counterterrorism to an American courtroom; they are incompatible modes of operation. Nor can a nation use the code of criminal procedures against a terrorist organization operating transnationally. Instead, they must be stopped before they commit their action, and issuing search warrants and allowing attorneys present at questioning is not an option.

Therefore — and now we move to the political reality — it is difficult to imagine how the evidence accumulated against Mohammed could enter a courtroom. Ignoring the methods of questioning, which is a separate issue, how can one prove his guilt beyond a reasonable doubt without compromising sources and methods, and why should one? Mohammed was on a battlefield but not operating as a soldier. Imagine doing criminal forensics on a battlefield to prove the criminal liability of German commandos wearing American uniforms.

In our mind, there is a very real possibility that Mohammed could be found not guilty in a courtroom. The cases of O.J. Simpson and of Jewish Defense League head Rabbi Meir Kahane’s killer, El Sayyid Nosair — both found not guilty despite overwhelming evidence — come to mind. Juries do strange things, particularly amid what will be the greatest media circus imaginable in the media capital of the world.

But it may not be the jury that is the problem. A federal judge will have to ask the question of whether prejudicial publicity of such magnitude has occurred that Mohammed can’t receive a fair trial. (This is probably true.) Questions will be raised about whether he has received proper legal counsel, which undoubtedly he hasn’t. Issues about the chain of custody of evidence will be raised; given that he was held by troops and agents, and not by law enforcement, the chances of compromised evidence is likely. The issue of torture will, of course, also be raised but that really isn’t the main problem. How do you try a man under U.S. legal procedures who was captured in a third country by non-law enforcement personnel, and who has been in military custody for seven years?

There is a nontrivial possibility that he will be acquitted or have his case thrown out of court, which would be a foreign policy disaster for the United States. Some might view it as a sign of American adherence to the rule of law and be impressed, others might be convinced that Mohammed was not guilty in more than a legal sense and was held unjustly, and others might think the United States has bungled another matter.

The real problem here is international law, which does not address acts of war committed by non-state actors out of uniform. Or more precisely, it does, but leaves them deliberately in a state of legal limbo, with captors left free to deal with them as they wish. If the international legal community does not like the latter, it is time they did the hard work of defining precisely how a nation deals with an act of war carried out under these circumstances.

The international legal community has been quite vocal in condemning American treatment of POWs after 9/11, but it hasn’t evolved international law, even theoretically, to cope with this. Sept. 11 is not a crime in the proper sense of the term, and prosecuting the guilty is not the goal. Instead, it was an act of war carried out outside the confines of the Geneva Conventions. The U.S. goal is destroying al Qaeda so that it can no longer function, not punishing those who have acted. Similarly the goal in 1941 was not punishing the Japanese pilots at Pearl Harbor but destroying the Japanese Empire, and any Japanese soldier was a target who could be killed without trial in the course of combat. If it wishes to solve this problem, international law will have to recognize that al Qaeda committed an act of war, and its destruction has legal sanction without judicial review. And if some sort of protection is to be provided al Qaeda operatives out of uniform, then the Geneva Conventions must be changed, and with it the status of spies and saboteurs of all countries.

Holder has opened up an extraordinarily complex can of worms with this decision. As U.S. attorney general, he has committed himself to proving Mohammed’s guilt beyond a reasonable doubt while guaranteeing that his constitutional rights (for a non-U.S. citizen captured and held outside the United States under extraordinary circumstances by individuals not trained as law enforcement personnel, no less) are protected. It is Holder’s duty to ensure Mohammed’s prosecution, conviction and fair treatment under the law. It is hard to see how he can.

Whatever the politics of this decision — and all such decisions have political dimensions — the real problem faced by both the Obama and Bush administrations has been the failure of international law to evolve to provide guidance on dealing with combatants such as al Qaeda. International law has clung to a model of law governing a very different type of warfare despite new realities. International law must therefore either reaffirm the doctrine that combatants who do not distinguish themselves from noncombatants are not due the protections of international law, or it must clearly define what those protections are. Otherwise, international law discredits itself.

This report is republished with permission of STRATFOR

Obama and the U.S. Strategy of Buying Time

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November 2, 2009
By George Friedman

Making sense of U.S. President Barack Obama’s strategy at this moment is difficult. Not only is it a work in progress, but the pending decisions he has to make — on Iran, Afghanistan and Russia — tend to obscure underlying strategy. It is easy to confuse inaction with a lack of strategy. Of course, there may well be a lack of strategic thinking, but that does not mean there is a lack of strategy.

Strategy, as we have argued, is less a matter of choice than a matter of reality imposing itself on presidents. Former U.S. President George W. Bush, for example, rarely had a chance to make strategy. He was caught in a whirlwind after only nine months in office and spent the rest of his presidency responding to events, making choices from a menu of very bad options. Similarly, Obama came into office with a preset menu of limited choices. He seems to be fighting to create new choices, not liking what is on the menu. He may succeed. But it is important to understand the overwhelming forces that shape his choices and to understand the degree to which whatever he chooses is embedded in U.S. grand strategy, a strategy imposed by geopolitical reality.

Empires and Grand Strategy

American grand strategy, as we have argued, is essentially that of the British Empire, save at a global rather than a regional level. The British sought to protect their national security by encouraging Continental powers to engage in land-based conflict, thereby reducing resources available for building a navy. That guaranteed that Britain’s core interest, the security of the homeland and sea-lane control, remained intact. Achieving this made the United Kingdom an economic power in the 19th century by sparing it the destruction of war and allowing it to control the patterns of international maritime trade.

On occasion, when the balance of power in Europe tilted toward one side or another, Britain intervened on the Continent with political influence where possible, direct aid when necessary or — when all else failed — the smallest possible direct military intervention. The United Kingdom’s preferred strategy consisted of imposing a blockade — e.g., economic sanctions — allowing it to cause pain without incurring costs.

At the same time that it pursued this European policy, London was building a global empire. Here again, the British employed a balance-of-power strategy. In looking at the history of India or Africa during the 19th century, there is a consistent pattern of the United Kingdom forming alliances with factions, whether religious or ethnic groups, to create opportunities for domination. In the end, this was not substantially different from ancient Rome’s grand strategy. Rome also ruled indirectly through much of its empire, controlling Mediterranean sea-lanes, but allying with local forces to govern; observing Roman strategy in Egypt is quite instructive in this regard.

Empires are not created by someone deciding one day to build one, or more precisely, lasting empires are not. They emerge over time through a series of decisions having nothing to do with empire building, and frequently at the hands of people far more concerned with domestic issues than foreign policy. Paradoxically, leaders who consciously set out to build empires usually fail. Hitler is a prime example. His failure was that rather than ally with forces in the Soviet Union, he wished to govern directly, something that flowed from his ambitions for direct rule. Particularly at the beginning, the Roman and British empires were far less ambitious and far less conscious of where they were headed. They were primarily taking care of domestic affairs. They became involved in foreign policy as needed, following a strategy of controlling the seas while maintaining substantial ground forces able to prevail anywhere — but not everywhere at once — and a powerful alliance system based on supporting the ambitions of local powers against other local powers.

On the whole, the United States has no interest in empire, and indeed is averse to imperial adventures. Those who might have had explicit inclinations in this direction are mostly out of government, crushed by experience in Iraq. Iraq came in two parts. In the first part, from 2003 to 2007, the U.S. vision was one of direct rule relying on American sea-lane control and overwhelming Iraq with well-supplied American troops.

The results were unsatisfactory. The United States found itself arrayed against all Iraqi factions and wound up in a multipart war in which its forces were merely one faction arrayed against others. The Petraeus strategy to escape this trap was less an innovation in counterinsurgency than a classic British-Roman approach. Rather than attempting direct control of Iraq, Petraeus sought to manipulate the internal balance of power, aligning with Sunni forces against Shiite forces, i.e., allying with the weaker party at that moment against the stronger. The strategy did not yield the outcome that some Bush strategists dreamed of, but it might (with an emphasis on might) yield a useful outcome: a precariously balanced Iraq dependent on the United States to preserve its internal balance of power and national sovereignty against Iran.

Many Americans, perhaps even most, regret the U.S. intervention in Iraq. And there are many, again perhaps most, who view broader U.S. entanglement in the world as harmful to American interests. Similar views were expressed by Roman republicans and English nationalists who felt that protecting the homeland by controlling the sea was the best policy, while letting the rest of the world go its own way. But the Romans and the British lost that option when they achieved the key to their own national security: enough power to protect the homeland. Outsiders inevitably came to see that power as offensive, even though originally its possessors intended it as defensive. Indeed, intent aside, the capability for offensive power was there. So frequently, Rome and Britain threatened the interests of foreign powers simply by being there. Inevitably, both Rome and Britain became the targets of Hannibals and Napoleons, and they were both drawn into the world regardless of their original desires. In short, enough power to be secure is enough power to threaten others. Therefore, that perfect moment of national security always turns offensive, as the power to protect the homeland threatens the security of other countries.

A Question of Size

There are Obama supporters and opponents who also dream of the perfect balance: security for the United States achieved by not interfering in the affairs of others. They see foreign entanglements not as providing homeland security, but as generating threats to it. They do not understand that what they want, American prosperity without international risks, is by definition impossible. The U.S. economy is roughly 25 percent of the world’s economy. The American military controls the seas, not all at the same time, but anywhere it wishes at any given time. The United States also controls outer space. It is impossible for the United States not to intrude on the affairs of most countries in the world simply by virtue of its daily operations. The United States is an elephant that affects the world simply by being in the same room with it. The only way to not be an elephant is to shrink in size, and whether the United States would ever want this aside, decreasing power is harder to do than it might appear — and much more painful.

Obama’s challenge is managing U.S. power without decreasing its size and without imposing undue costs on it. This sounds like an attractive idea, but it ultimately won’t work: The United States cannot be what it is without attracting hostile attention. For some of Obama’s supporters, it is American behavior that generates hostility. Actually, it is America’s presence — its very size — that intrudes on the world and generates hostility.

On the domestic front, the isolationist-internationalist divide in the United States has always been specious. Isolationists before World War II simply wanted to let the European balance of power manage itself. They wanted to buy time, but had no problem with intervening in China against Japan. The internationalists simply wanted to move from the first to the second stage, arguing that the first stage had failed. There was thus no argument in principle between them; there was simply a debate over how much time to give the process to see if it worked out. Both sides had the same strategy, but simply a different read of the moment. In retrospect, Franklin Roosevelt was right, but only because France collapsed in the face of the Nazi onslaught in a matter of weeks. That aside, the isolationist argument was quite rational.

Like that of Britain or Rome, U.S. grand strategy is driven by the sheer size of the national enterprise, a size achieved less through planning than by geography and history. Having arrived where it has, the United States has three layers to its strategy.

First, the United States must maintain the balance of power in various regions in the world. It does this by supporting a range of powers, usually the weaker against the stronger. Ideally, this balance of power maintains itself without American effort and yields relative stability. But stability is secondary to keeping local powers focused on each other rather than on the United States: Stability is a rhetorical device, not a goal. The real U.S. interest lies in weakening and undermining emergent powers so they don’t ultimately rise to challenge American power. This is a strategy of nipping things in the bud.

Second, where emergent powers cannot be maintained through the regional balance of power, the United States has an interest in sharing the burden of containing it with other major powers. The United States will seek to use such coalitions either to intimidate the emerging power via economic power or, in extremis, via military power.

Third, where it is impossible to build a coalition to coerce emerging powers, the United States must decide either to live with the emerging power, forge an alliance with it, or attack it unilaterally.

Obama, as with any president, will first pursue the first layer of the strategy, using as little American power as possible and waiting as long as possible to see whether this works. The key here lies in not taking premature action that could prove more dangerous or costly than necessary. If that fails, his strategy is to create a coalition of powers to share the cost and risk. And only when that fails — which is a function of time and politics — will Obama turn to the third layer, which can range from simply living with the emerging power and making a suitable deal or crushing it militarily.

When al Qaeda attacked what it saw as the leading Christian power on Sept. 11, Bush found himself thrown into the third stage very rapidly. The second phase was illusory; sympathy aside, the quantity of military force allies could and would bring to bear was minimal. Even active allies like Britain and Australia couldn’t bring decisive force to bear. Bush was forced into unilateralism not so much by the lack of will among allies as by their lack of power. His choice lay in creating chaos in the Islamic world and then forming alliances out of the debris, or trying to impose a direct solution through military force. He began with the second and shifted to the first. Obama’s Choices

Obama has more room to maneuver than Bush had. In the case of Iran, no regional solution is possible. Israel can only barely reach into the region, and while its air force might suffice to attack Iranian nuclear facilities, and air attacks might be sufficient to destroy them, Israel could not deal with the Iranian response of mining the Strait of Hormuz and/or destabilizing Iraq. The United States must absorb these blows.

Therefore, Obama has tried to build an anti-Iranian coalition to intimidate Tehran. Given the Russian and Chinese positions, this seems to have failed, and Iran has not been intimidated. That leaves Obama with two possible paths. One is the path followed by Nixon in China: ally with Iran against Russian influence, accepting it as a nuclear power and dealing with it through a combination of political alignment and deterrence. The second option is dealing with Iran militarily.

His choice thus lies between entente or war. He is bluffing war in hopes of getting what he wants, in the meantime hoping that internal events in Iran may evolve in a way suitable to U.S. interests or that Russian economic hardship evolves into increased Russian dependence on the United States such that Washington can extract Russian concessions on Iran. Given the state of Iran’s nuclear development, which is still not near a weapon, Obama is using time to try to head off the third stage.

In Afghanistan, where Obama is already in the third stage and where he is being urged to go deeper in, he is searching for a way to return to the first stage, wherein an indigenous coalition emerges that neutralizes Afghanistan through its own internal dynamic. Hence, Washington is negotiating with the Taliban, trying to strengthen various factions in Afghanistan and not quite committing to more force. Winter is coming in Afghanistan, and that is the quiet time in that conflict. Obama is clearly buying time.

In that sense, Obama’s foreign policy is neither as alien as his critics would argue nor as original as his supporters argue. He is adhering to the basic logic of American grand strategy, minimizing risks over time while seeking ways to impose low-cost solutions. It differs from Bush’s policies primarily in that Bush had events forced on him and spent his presidency trying to regain the initiative.

The interesting point from where we sit is not only how deeply embedded Obama is in U.S. grand strategy, but how deeply drawn he is into the unintended imperial enterprise that has dominated American foreign policy since the 1930s — an enterprise neither welcomed nor acknowledged by most Americans. Empires aren’t planned, at least not successful empires, as Hitler and Napoleon learned to their regret. Empires happen as the result of the sheer reality of power. The elephant in the room cannot stop being an elephant, nor can the smaller animals ignore him. No matter how courteous the elephant, it is his power — his capabilities — not his intentions that matter.

Obama is now the elephant in the room. He has bought as much time as possible to make decisions, and he is being as amiable as possible to try to build as large a coalition as possible. But the coalition has neither the power nor appetite for the risks involved, so Obama will have to decide whether to live with Iran, form an alliance with Iran or go to war with Iran. In Afghanistan, he must decide whether he can recreate the balance of power by staying longer and whether this will be more effective by sending more troops, or whether it is time to begin withdrawal. In both cases, he can use the art of the bluff to shape the behavior of others, maybe.

He came into the presidency promising to be more amiable than Bush, something not difficult given the circumstances. He is now trying to convert amiability into a coalition, a much harder thing to do. In the end, he will have to make hard decisions. In American foreign policy, however, the ideal strategy is always to buy time so as to let the bribes, bluffs and threats do their work. Obama himself probably doesn’t know what he will do; that will depend on circumstances. Letting events flow until they can no longer be tolerated is the essence of American grand strategy, a path Obama is following faithfully.

It should always be remembered that this long-standing American policy has frequently culminated in war, as with Wilson, Roosevelt, Truman, Johnson and Bush. It was Clinton’s watchful waiting to see how things played out, after all, that allowed al Qaeda the time to build and strike. But this is not a criticism of Clinton — U.S. strategy is to trade time for risk. Over time, the risk might lead to war anyway, but then again, it might not. If war does come, American power is still decisive, if not in creating peace, then certainly in wreaking havoc upon rising powers. And that is the foundation of empire.

This report is republished with permission of STRATFOR