The Briefing

Capture Over Kill? - The President’s Counterterrorism Speech and the Detention Conundrum

Monday, June 10, 2013

President Obama’s May 23 speech on counterterrorism policy at the National Defense University declared that the U.S. government prefers to capture terrorist suspects, where feasible, rather than kill them with drone strikes.  The president (and the White House Fact Sheet on drone warfare policies that accompanied his speech) was addressing a widespread criticism made from the beginning of the Obama administration’s first term.  Having announced in advance that Guantanamo was to be closed — and with Congress having cut off nearly completely the ability to bring detainees captured abroad into the United States (whether for detention or trial) — the Obama administration found itself with no politically acceptable location for detention.  It therefore appeared to have a preference for killing terrorist adversaries with drone strikes.

The administration has been struggling for several years to articulate a response to this perception.  It has been hampered by official secrecy around the drone programs, as well as by its own failure to challenge critics’ implicit assumption that there is a moral, perhaps even legal, obligation to seek capture over kill. The administration seems reluctant to explain clearly that those targeted are already in the legal category of being subject to lethal force as a first — not second or last — resort.  When it comes to deciding whether to kill or to capture these people, having a place to detain them is legally and morally neither here nor there; they are in fact lawful targets for lethal force in an armed conflict, even without evaluation of imminent threat or feasibility of capture, without being given any warning or option of surrender, and regardless of the available options for detention or any other related considerations.

Criticism of the presumed kill-over-capture preference takes one form on the right and another on the left.  For conservative critics — particularly former Bush administration officials such as John Yoo — the issues are threefold.  One is the hypocrisy of what conservative critics see as a draconian use of force by an administration that is supposedly morally purer than its predecessor yet prefers kill over capture simply because it means not paying the political price of accepting the continued utility of Guantanamo. In this view, the Bush administration was more humanitarian because it sought to capture suspects rather than kill them outright, even if it meant detaining them indefinitely outside of the criminal justice system.  A second issue is the assumed loss of valuable intelligence that live suspects could provide. At the same time, Yoo and other conservative critics also argue that it is a mistake for the administration to concede that it prefers capture over kill, because eschewing the full scope of targeting authority on political grounds weakens the legal claim that this is an armed conflict like any other.

For the domestic and international left, by contrast, the issue is that there is a moral obligation and indeed (drawing on human rights law) a legal requirement to seek capture over kill in a sort of parsimony of force. This line of reasoning has the potential to become a means of drawing the judiciary into reviewing lethal targeting decisions; if detainees captured abroad and held at Guantanamo are permitted habeas review of the decision to detain them, surely there is an even greater requirement of habeas or judicial review prior to the decision to kill, rather than capture, them?

The administration has not brushed off its critics by pointing to the legal authorities of the laws of war. Instead, ever since it became possible to address directly the drone programs, it has said — the president said it, the Fact Sheet said it, and numerous earlier speeches by senior officials and general counsels have said it — that the U.S. government prefers to capture where feasible rather than kill.  The public response has been widespread laughter, derision even, and one reason is that people wonder where on Earth the U.S. government would put anyone actually captured.  The only high-profile instance of capture under the Obama administration, after all, was in the Warsame case in 2011, in which the suspect was kept on a U.S. Navy ship in international waters, and transferred to federal court when a guilty plea was in the making.  That won’t work very often.

These criticisms set the stage for what President Obama said after solemnly declaring that the United States prefers capture over kill where feasible.  He went on to make a series of plain and practical observations about why, even given this preference, capture would only rarely be feasible.  He observed correctly that many times, the target would be some place in which an attempt to capture would put many more lives at risk — both civilians and U.S. personnel — than would a drone attack.  He noted that the bin Laden raid, with SEALs on the ground, would be the rare exception rather than the rule.

The president is right about these practical realities, and we can add one other. An announced and widely believed policy of truly preferring capture over kill alters the planning incentives of those who figure they are probably on a U.S. targeting list.  If you believe that a U.S. attack is almost certainly going to be by means of a drone, why expend the effort to plan against an operation by SEALs to capture you?  There’s little point to it.  If, on the other hand, you believe the United States will seek capture, your incentives to plan for a capture operation, and to deter it by making it as costly to U.S. forces as possible, are substantially greater.  Terrorists believing themselves on a target list will have strong motives to try to create a gauntlet of death for SEALs coming after them, as well as motives to increase the harms to civilians near them — motives they wouldn’t have if the near certainty were unpredictable death from a missile.  Ironically, capture operations by the United States are made most possible by using them only rarely and without creating any reason to believe, in perception or fact, that the United States will attempt capture in any but the rarest, essentially unpredictable, cases.