Where the ACLU/CCR Arguments Eventually Lead

Ok, this exchange is funny--in a macabre, morbid sort of way. It's also deadly serious. Foreign Policy magazine has published 14 suggestions for President Obama by 14 prominent people concerning how the President can get his mojo back. One of those people is Human Rights Watch Executive Director Kenneth Roth. His proposal reads in its entirety as follows:

GET TOUGH ON HUMAN RIGHTS In the 1990s, the United States, though hardly perfect, did more than any other country to promote the responsibility to protect people facing mass atrocities. In Bosnia and Kosovo, though tragically not Rwanda, leaders learned that the slaughter of their people risked a forceful response from Washington. Unfortunately, President George W. Bush tainted such action when, finding no weapons of mass destruction, he tried to justify the invasion of Iraq retrospectively in humanitarian terms. Yet as Barack Obama recognized in his Nobel Peace Prize acceptance speech, "Force can be justified on humanitarian grounds, as it was in the Balkans." Obama needs to put this principle into practice, and there is no better case for the humanitarian use of force than the urgent need to arrest Joseph Kony, the ruthless leader of the Lord's Resistance Army (LRA), and protect the civilians who are his prey. And far from requiring a non-consensual intervention, Kony's apprehension would be welcomed by the governments concerned. The LRA began as a rebel movement in northern Uganda, but it now terrorizes the civilian population of northern Democratic Republic of the Congo as well as southern Sudan and the Central African Republic. Its cadre often descends on a remote village, slaughters every adult in sight, and then kidnaps the children, some shockingly young--the boys to become soldiers slinging AK-47s, the girls to serve as "bush wives." Over more than two decades, many thousands have fallen victim to these roving mass murderers. The International Criminal Court has issued arrest warrants for Kony and other LRA commanders, charging them with war crimes and crimes against humanity, but the court depends on governments to make arrests. So far Uganda has done the most to pursue the LRA, but ineffectively. The LRA is not large--an estimated 200 to 250 seasoned Ugandan combatants, plus at least several hundred abductees--but as Ugandan President Yoweri Museveni recently told me, Uganda lacks the special forces, expert intelligence, and rapid-deployment capacity needed to stamp out this enemy. In May, Obama signed a bill committing the United States to help arrest Kony and his commanders and protect the affected population. Now it is high time to act. Arresting Kony would reaffirm that mass murder cannot be committed with impunity. And it would show that, despite the difficulties in Iraq and Afghanistan, the humanitarian use of force remains a live option at the Obama White House.

This provoked the following response from the Abu Maqawama blog. It is entitled "The Worst Idea on the Internet Today":

It's not quite New Coke, and it's not as ill-advised as signing up to be al-Qaeda's #3, but this is a pretty bad idea. Wrap your head around this one: the executive director of Human Rights Watch, an organization for which I have much respect, has suggested the United States wage a counter-guerrilla campaign in the dense jungles of not one but four central and east African states to defeat the Lord's Resistance Army and arrest Joseph Kony. What could go wrong, right? I mean, this would surely be one of those in-and-out things. And our efforts to track down and arrest two dudes in the border region between Afghanistan and Pakistan went off without a hitch in 2001, so we probably don't need to do any contingency planning or anything. This is what we call a fail-safe plan. . . . Kenneth Roth is literally suggesting the United States act as the world's policeman here. I have a tremendous amount of respect for both Roth and his organization, but this is a terrible, terrible idea. Roth mentions Bosnia and Kosovo as precedents for humanitarian intervention, but those were massive expeditionary operations supported by tens of thousands of soldiers. What he says is needed in this particular case is for the United States to send "special forces, expert intelligence, and rapid-deployment capacity" to a state in East Africa for humanitarian purposes. Oh:

The post concludes with a YouTube video: the studio preview for Black Hawk Down. I'm not going to belittle Roth's proposal here. I am not a foe of humanitarian interventions or of taking risks for them at times. That said, it is without question an audacious proposal for the use of military force in support of a criminal warrant. And for that reason, the exchange bears an important relationship to the one that I have been having with Kevin Jon Heller, Spencer Ackerman, Adam Serwer and others. In that debate, after all, my bottom line has been that the question of the available alternatives to targeted killing are key to determining its legitimacy. If someone like Anwar Al-Aulaqi is launching attacks against the United States from the safe harbor of an ungoverned space, where the writs of the courts don't run and the FBI has no power to make arrests, there has to be some legal way to reach him. If we make the use of highly-targeted killing legally impossible or especially difficult, what do we have to fall back on? The LRA example shows clearly what Human Rights Watch has to fall back on, and it is not pretty. It is a much greater, not a lesser use of force--one that is so audacious that the response it triggers is ridicule. It is politically unthinkable. I don't mean to draw too close a parallel between these two cases. They are not similar. The LRA people aren't citizens. They're not attacking America. We have no vital interests in the relevant countries. There are a lot of differences and they're big. The biggest is that with the LRA, we have the option of doing nothing and we have no real option of minimal force. We are either going to do nothing or we're going to do something big--and that means we're very likely to do nothing. That's why the situation has festered so long. By contrast, in Yemen, we have to do something, because people are attacking us, and we do have an option short of major military operations (either in support of judicial warrants or not). That option is targeted killing. And here's where this issue collides with the one presented by the ACLU/CCR suit on behalf of Al Aulaqi. If we make this sort of targeted killing unlawful outside of pure battle spaces, the situation in Yemen grows all of a sudden dramatically more similar to the situation presented by the LRA. All of a sudden, we would have a choice between a significant military operation and doing nothing. The trouble is that it's not at all clear that in Yemen, if the choice is that stark, that the answer will be to do nothing. It certainly wasn't in Afghanistan. One of the huge strategic benefits of intermediate uses of force is that they can reduce the pressure to use force on a grander scale. Broadly speaking, that's a good thing for human rights--as well as for all sorts of other goods. So here's my question to Ken Roth: If we could get Joseph Kony with a Predator, would you support it? You approvingly quoted the President declaring that "Force can be justified on humanitarian grounds, as it was in the Balkans." Does that mean that only lots of force can be justified on humanitarian grounds or can humanitarian grounds also justify micro-, targeted-uses of force?