President Obama refuses to refer to a “global war on terror” as his predecessor did, or to a war on “radical Islam” as his successor does. He has nevertheless presided over a robust set of counter-terror measures that have been implemented across the world. The CIA and the military’s Special Operations Command have continued what they started after 9/11, waging a covert war to kill or capture terrorist leaders belonging to groups ranging from al-Qaeda, ISIS, or al-Shabaab. The ascension of President Trump offers an opportunity to make some important tweaks that will improve the effectiveness of this effort.
One change that should not be made is to return to the use of torture, as Trump promised during the campaign. Torture is likely to remain off-limits even in a Trump administration, as noted by Matt Apuzzo and James Risen of the New York Times. They point out that it would be hard in the future for government lawyers to claim with a straight face that “enhanced interrogation techniques” do not cause any lasting harm—the position taken by the Bush administration after 9/11—given the copious evidence of the psychological damage inflicted on detainees who have been subjected to waterboarding and other techniques. There is also legislation on the books now that will make it difficult if not impossible to return to waterboarding. Plus, there is simply internal resistance in the CIA and the Defense Department, as well as external resistance in Congress, that will be hard for any president to override.
But, even if torture isn’t reinstated, the government presumably will be more willing to send detainees to Guantanamo under President Trump, where they now receive exemplary treatment. This would be a big improvement over the Obama status quo, which leads U.S. forces de facto to prefer killing suspects rather than capturing them because the president refuses to hold captured terrorists as unlawful combatants.
As things stand now, suspects must either be turned over to American allies (most of dubious reliability) or tried as criminal suspects, a procedure which requires establishing guilt beyond a shadow of a doubt. Assuming Trump opens up Gitmo once again for new detainees, U.S. forces may be more likely to capture and interrogate rather than simply kill terrorists, thus producing both a net win for the war on terrorism (captured terrorists can provide invaluable intelligence) and for human rights (capturing is more humane than killing).
The campaign of air strikes and Special Operations raids against terrorist suspects is likely to continue undiminished or even be enhanced given that the new National Security Adviser will be retired Lieutenant General Michael Flynn, who made his reputation as a targeter for the Joint Special Operations Command, which is composed of units such as Delta Force and SEAL Team Six. The administration and Congress will have an opportunity, however, to place this campaign on a firmer legal footing than it now enjoys.
The Obama administration has become increasingly inventive in applying the Authorization for the Use of Military Force (AUMF) passed after 9/11 and designed to target Aal-Qaeda to groups such as al-Shabaab and ISIS that are far removed from the conspirators who brought down the Twin Towers. Obama has now authorized the U.S. military and intelligence agencies to target the Syrian group formerly known as Jabhat al-Nusra and the Somali group al-Shabaab.
A former law professor, Obama recognizes that this is a bit of stretch. That’s why he pressed Congress to pass a new AUMF focused on ISIS. The problem is that the language he proposed was extremely restrictive. It limited the AUMF to just three years, named only ISIS, and prohibited “the use of the United States Armed Forces in enduring offensive ground combat operations.” The resolution was so weak that it was anathema to most Congressional Republicans—but strong enough that it also generated little enthusiasm on the part of most Democrats. That has left Obama waging war based on his inherent authority as commander-in-chief and on his expansive reading of the 2001 AUMF.
With Republicans already in control of the Senate and House and about to take control of the White House, it would make a lot of sense for congressional leaders to reach an agreement with the appropriate officials in the Trump administration, once they are appointed, to pass a new AUMF that will give U.S. forces clear and unrestricted authority to wage war on all manner of terrorist groups that are deemed a threat to the United States and its interests—not just ISIS and al-Qaeda but also various other Sunni and Shiite groups. That will place this semi-covert campaign on a stronger legal footing even if it will not win over civil libertarians who are intent on shutting down this offensive altogether.
The Trump administration will join the Bush and Obama administrations in pressing on with offensive operations overseas—and for good reason. Recent experience shows that purely defensive measures will never succeed in stopping the terrorist threat entirely—attackers can pop up in too many places, even a tranquil university campus like Ohio State. Going on the offensive allows American authorities to pull off coups such as physically eliminating ISIS’s top social media experts, i.e., the English-speaking jihadists who recruit terrorists in the West.