Examining the Evidence of a Detention-Drone Strike Tradeoff

Yesterday Jack linked to this piece by Noah Feldman, which among other things advances the argument that the Obama administration has resorted to drone strikes at least in part in order to avoid having to grapple with the legal and political problems associated with military detention:

Guantanamo is still open, in part because Congress put obstacles in the way. Instead of detaining new terror suspects there, however, Obama vastly expanded the tactic of targeting them, with eight times more drone strikes in his first year than in all of Bush’s time in office.

Is there truly a detention-drone strike tradeoff, such that the Obama administration favors killing rather than capturing? As an initial matter, the numbers quoted above aren't correct according to the New America Foundation database of drone strikes in Pakistan, 2008 saw a total of 33 strikes, while in 2009 there were 53 (51 subsequent to President Obama's inauguration).  Of course, you can recapture something close to the same point conveyed in the quote by looking instead to the full number of strikes conducted under Bush and Obama, respectively.  There were relatively few drone strikes prior to 2008, after all, while the numbers jump to 118 for 2010 and at least 60 this year (plus an emerging Yemen drone stike campaign).  But what does all this really prove? Not much, I think.  Most if not all of the difference in drone strike rates can be accounted for by specific policy decisions relating to the quantity of drones available for these missions, the locations in Pakistan where drones have been permitted to operate, and most notably whether drone strikes were conditioned on obtaining Pakistani permission.  Here is how I summarize the matter in my forthcoming article on the legal consequences of the convergence of military and intelligence activities:

According to an analysis published by the New America Foundation, two more drone strikes in Pakistan’s FATA region followed in 2005, with at least two more in 2006, four more in 2007, and four more in the first half of 2008.[1]  The pattern was halting at best.  Yet that soon changed.  U.S. policy up to that point had been to obtain Pakistan’s consent for strikes,[2] and toward that end to provide the Pakistani government with advance notification of them.[3] But intelligence suggested that on some occasions “the Pakistanis would delay planned strikes in order to warn al Qaeda and the Afghan Taliban, whose fighters would then disperse.”[4]  A former official explained that in this environment, it was rare to get permission and not have the target slip away: “If you had to ask for permission, you got one of three answers: either ‘No,’ or ‘We’re thinking about it,’ or ‘Oops, where did the target go?”[5] Declaring that he’d “had enough,” Bush in the summer of 2008 “ordered stepped-up Predator drone strikes on al Qaeda leaders and specific camps,” and specified that Pakistani officials going forward should receive only “‘concurrent notification’...meaning they learned of a strike as it was underway or, just to be sure, a few minutes after.”[6]  Pakistani permission no longer was required.[7]  The results were dramatic.  The CIA conducted dozens of strikes in Pakistan over the remainder of 2008, vastly exceeding the number of strikes over the prior four years combined.[8]  That pace continued in 2009, which eventually saw a total of 53 strikes.[9] And then, in 2010, the rate more than doubled, with 188 attacks (followed by 56 more as of late August 2011).[10]  The further acceleration in 2010 appears to stem at least in part from a meeting in October 2009 during which President Obama granted a CIA request both for more drones and for permission to extend drone operations into areas of Pakistan’s FATA that previously had been off limits or at least discouraged.[11] 

There is an additional reason to doubt that the number of drone strikes tells us much about a potential detention/targeting tradeoff:  most of these strikes involved circumstances in which there was no feasible option for capturing the target.  These strikes are concentrated in the FATA region, after all.  Having said all that: it does not follow that there is no detention-targeting tradeoff at work.  I'm just saying that drone strikes in the FATA typically should not be understood in that way (though there might be limited exceptions where a capture raid could have been feasible).  Where else to look, then, for evidence of a detention/targeting tradeoff? Bear in mind that it is not as if we can simply assume that the same number of targets emerge in the same locations and circumstances each year, enabling an apples-to-apples comparison.  But set that aside. First, consider locations that (i) are outside Afghanistan (since we obviously still do conduct detention ops for new captures there) and (ii) entail host-state government control over the relevant territory plus a willingness either to enable us to conduct our own ops on their territory or to simply effectuate captures themselves and then turn the person(s) over to us.  This is how most GTMO detainees captured outside Afghanistan ended up at GTMO.   Think Bosnia with respect to the Boumediene petitioners, Pakistan's non-FATA regions, and a variety of African and Asian states where such conditions obtained in years past.  In such locations, we seem to be using neither drones nor detention.  Rather, we either are relying on host-state intervention or we are limiting ourselves to surveillance.    Very hard to know how much of each might be going on, of course.   If it is occuring often, moreover, it might reflect a decline in host-state willigness to cooperate with us (in light of increased domestic and diplomatic pressure from being seen to be responsible for funneling someone into our hands, and the backdrop understanding  that, in the age of wikileaks, we simply can't promise credibly that such cooperation will be kept secret).  In any event, this tradeoff is not about detention versus targeting, but something much more complex and difficult to measure.  Second, consider non-Afghanistan circumstances that are effectively ungoverned, but where it is relatively safe for the US to put boots-on-the-ground at least for purposes of a capture operation.  This would include the high seas, and perhaps certain portions of Somalia.  And as noted above, it might on rare occasions be true in the FATA (or Yemen, for that matter).  Again, very hard to know how many such occasions there may have been.  We do know of at least one helicopter-based airstrike in Somalia, which cuts one way, but then again the capture of Ahmed Warsame on the high seas cuts the other (unless one does not count it on the ground that Warsame was only held in military custody temporarily, before transfer to civilian custody for prosecution).   This seems, at any rate, to be the scenario most warranting scrutiny in terms of killing versus capturing (as well as the other dimensions mentioned above, such as non-intervention).