I appreciate the kind words in my friend Kevin D. Williamson’s characteristically insightful column on Sunday about Afghanistan. I’m in complete agreement with Kevin regarding how we got to this awful point and how the consequences transcend Afghanistan itself.
He is also right that we are headed back to the pre-9/11 law-enforcement model of counterterrorism. Putting Afghanistan to the side for a moment, that is a significant blow to national security overall.
The post-9/11 model did not supplant law-enforcement measures against terrorist organizations and their state sponsors (sovereign states cannot be prosecuted in our courts, but their operatives usually may). Rather, it shifted law-enforcement to a subordinate position — no longer “the point of the spear” as it was in the Clinton years.
This was a good arrangement. Alien enemies, even if their hostile acts happen to be crimes under the penal code (e.g., international-terrorism conspiracies, weapons-of-mass-destruction offenses), are effectively insulated from criminal prosecution because our agencies do not police, and the writ of our courts does not run, in the foreign strongholds where they plot against America. Nevertheless, if the laws of war are in effect, they can be reached by military and intelligence operations. Consequently, the post-9/11 model enabled us both to neutralize the enemy overseas before the enemy could strike our homeland and interests around the world, and to continue prosecuting in our courts any hostile operative who could be arrested. In the main, the Justice Department targeted material supporters of terrorism, as well as terrorists and would-be terrorists in the U.S. who are “inspired by,” but not operationally affiliated with, jihadist organizations.
Yet another consequence of abruptly ending “forever wars” that does not seem to have been thought through is that if there is no war, then the law of war no longer applies. We would no longer have legal authority to use combat force against enemy combatants, to detain them without trial, to question them without counsel, and so on. We are back to courtroom due process, and its presumptions of privacy and innocence, even if our enemies continue to wage war.
This does not just convey provocative weakness (the old mismatch of responding to bombs with subpoenas); it will have a pronounced, deleterious effect on intelligence-gathering. Obviously, terrorist organizations do not function like nation-states: they attack in stealth, they don’t wear uniforms, they target and hide among civilians, you can’t conquer them by capturing territory, etc. Ergo, the degree to which they imperil us is directly related to our capacity to collect the intelligence that enables us to map their membership, conduct surveillance, thwart plots at an early stage, and dry up their funding and recruitment. Intel operations are significantly better on a war-footing, in which it is easier to capture and interrogate operatives.
Kevin is right that the Taliban resembles a crime syndicate. I’ve long thought the same thing about Putin’s regime in Russia — it ain’t your father’s Soviet Union. But the crimes of a regime, which has sovereign privileges in international law, are harder to deal with than those of a mafia family. The Taliban’s crimes will help it consolidate power, which will enable its allied jihadists to enjoy safe haven and project power.
On the other hand, maybe we can dust off the Noriega model. In the late Eighties, a grand jury in Florida indicted Panama’s strongman, General Manuel Antonio Noriega, and some of his henchmen on narcotics and racketeering charges. Our government then essentially kidnapped him and brought him to the U.S. for trial. He was found guilty, the convictions were upheld on appeal over his sovereign-immunity claims, and he served a long sentence (a 40-year term was imposed, and he served nearly half of it).
I always worry that, because our country is so active on the world stage and so despised by the world’s rogues, the United States has the most to lose in an arrangement in which governments are encouraged to start capturing and trying each other’s officials. Clearly, our officials would not receive the quality of due process that was afforded to Noriega. I cannot say, though, that the Taliban’s narcotics trafficking and other rackets won’t present prosecution opportunities. I can only say that President Biden, in exhibiting the poor judgment and impulsiveness that we’ve come to know over the last century, has — as Kevin relates — emboldened our enemies and unnerved our friends.