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9/22/2017 White House Weighs Limits of Terror Fight - The New York Times

U.S.

At White House, Weighing Limits of


Terror Fight
By CHARLIE SAVAGE SEPT. 15, 2011

WASHINGTON The Obama administrations legal team is split over how much
latitude the United States has to kill Islamist militants in Yemen and Somalia, a
question that could define the limits of the war against Al Qaeda and its allies,
according to administration and Congressional officials.

The debate, according to officials familiar with the deliberations, centers on


whether the United States may take aim at only a handful of high-level leaders of
militant groups who are personally linked to plots to attack the United States or
whether it may also attack the thousands of low-level foot soldiers focused on
parochial concerns: controlling the essentially ungoverned lands near the Gulf of
Aden, which separates the countries.

The dispute over limits on the use of lethal force in the region whether from
drone strikes, cruise missiles or commando raids has divided the State
Department and the Pentagon for months, although to date it remains a merely
theoretical disagreement. Current administration policy is to attack only high-value
individuals in the region, as it has tried to do about a dozen times.

But the unresolved question is whether the administration can escalate attacks
if it wants to against rank-and-file members of Al Qaeda in the Arabian Peninsula,
based in Yemen, and the Somalia-based Shabab. The answer could lay the
groundwork for a shift in the fight against terrorists as the original Al Qaeda,
operating out of Afghanistan and Pakistan, grows weaker. That organization has

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been crippled by the killing of Osama bin Laden and by a fierce campaign of drone
strikes in the tribal regions of Pakistan, where the legal authority to attack militants
who are battling United States forces in adjoining Afghanistan is not disputed inside
the administration.

One senior official played down the disagreement on Thursday, characterizing it


as a difference in policy emphasis, not legal views. Defense Department lawyers are
trying to maintain maximum theoretical flexibility, while State Department lawyers
are trying to reach out to European allies who think that there is no armed conflict,
for legal purposes, outside of Afghanistan, and that the United States has a right to
take action elsewhere only in self-defense, the official said.

But other officials insisted that the administration lawyers disagreed on the
underlying legal authority of the United States to carry out such strikes.

Robert Chesney, a law professor at the University of Texas at Austin who


specializes in the laws of war, said the dispute reflected widespread disagreement
about how to apply rules written for traditional wars to a conflict against a splintered
network of terrorists and fears that it could lead to an unending and
unconstrained global war.

Its a tangled mess because the law is unsettled, Professor Chesney said. Do
the rules vary from location to location? Does the armed conflict exist only in the
current combat zone, such as Afghanistan, or does it follow wherever participants
may go? Who counts as a party to the conflict? Theres a lot at stake in these
debates.

Counterterrorism officials have portrayed Al Qaeda in the Arabian Peninsula


which was responsible for the attempted bombing of a Detroit-bound airliner on
Dec. 25, 2009 as an affiliate of Al Qaeda that may be more dangerous now than
the remnants of the original group. Such officials have also expressed worry about
the Shabab, though that group is generally more focused on local issues and has not
been accused of attacking the United States.

In Pakistan, the United States has struck at Al Qaeda in part through signature
strikes those that are aimed at killing clusters of people whose identities are not

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known, but who are deemed likely members of a militant group based on patterns
like training in terrorist camps. The dispute over targeting could affect whether that
tactic might someday be used in Yemen and Somalia, too.

The Defense Departments general counsel, Jeh C. Johnson, has argued that the
United States could significantly widen its targeting, officials said. His view, they
explained, is that if a group has aligned itself with Al Qaeda against Americans, the
United States can take aim at any of its combatants, especially in a country that is
unable or unwilling to suppress them.

The State Departments top lawyer, Harold H. Koh, has agreed that the armed
conflict with Al Qaeda is not limited to the battlefield theater of Afghanistan and
adjoining parts of Pakistan. But, officials say, he has also contended that
international law imposes additional constraints on the use of force elsewhere. To
kill people elsewhere, he has said, the United States must be able to justify the act as
necessary for its self-defense meaning it should focus only on individuals plotting
to attack the United States.

The fate of detainees at Guantnamo Bay, Cuba, hangs heavily over the targeting
debate, officials said. In several habeas corpus lawsuits, judges have approved the
detention of Qaeda suspects who were captured far from the Afghan battlefield, as
well as detainees who were deemed members of a force that was merely associated
with Al Qaeda. One part of the dispute is the extent to which rulings about detention
are relevant to the targeting law.

Congress, too, may influence the outcome of the debate. It is considering, as


part of a pending defense bill, a new authorization to use military force against Al
Qaeda and its associates. A version of the provision proposed by the House Armed
Forces Committee would establish an expansive standard for the categories of
groups that the United States may single out for military action, potentially making
it easier for the United States to kill large numbers of low-level militants in places
like Somalia.

In an interview, Senator Lindsey Graham, a South Carolina Republican on the


Armed Services Committee, said that he supported the House version and that he
would go further. He said he would offer an amendment that would explicitly

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authorize the use of force against a list of specific groups including the Shabab, as
well as set up a mechanism to add further groups to the list if they take certain overt
acts.

This is a worldwide conflict without borders, Mr. Graham argued. Restricting


the definition of the battlefield and restricting the definition of the enemy allows the
enemy to regenerate and doesnt deter people who are on the fence.

A version of this article appears in print on September 16, 2011, on Page A1 of the New York edition with
the headline: At White House, Weighing Limits Of Terror Fight.

2017 The New York Times Company

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