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Kill Lists, the Disposition Matrix, and the Permanent War: Thoughts on the Post Article

Robert Chesney
Wednesday, October 24, 2012, 10:52 AM
Splayed across the front page of the Washington Post this morning is the headline "U.S.

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Splayed across the front page of the Washington Post this morning is the headline "U.S. Set to Keep Kill Lists for Years: 'Disposition Matrix' Secretly Crafted: Blueprint Would Guide Hunt for Terrorists."   The piece, by Greg Miller, is part I of a three part series, and it is quite an interesting and important read--though for different reasons than the headline suggests. Is the "Disposition Matrix" Really Significant?  The headline's focus on the "disposition matrix" is a bit of a red herring, I think.  The article's title and sequence of topics suggests that the "disposition matrix" is itself a significant policy innovation (one that has been "secretly" developed over the past two years).  It seems to me, however, that it is a mistake to focus on the matrix as such.  The matrix appears to be a management tool to improve the efficiency of how existing policy gets implemented, not a substantive policy change in its own right.  Here is how the matrix is described at various points in the article:
The matrix contains the names of terrorism suspects arrayed against an accounting of the resources being marshaled to track them down, including sealed indictments and clandestine operations. U.S. officials said the database is designed to go beyond existing kill lists, mapping plans for the “disposition” of suspects beyond the reach of American drones. ... The matrix was developed by the NCTC, under former director Michael Leiter, to augment those organizations’ [CIA and JSOC] separate but overlapping kill lists, officials said.  The result is a single, continually evolving database in which biographies, locations, known associates and affiliated organizations are all catalogued. So are strategies for taking targets down, including extradition requests, capture operations and drone patrols. ... The database is meant to map out contingencies, creating an operational menu that spells out each agency’s role in case a suspect surfaces in an unexpected spot. “If he’s in Saudi Arabia, pick up with the Saudis,” the former official said. “If traveling overseas to al-Shabaab [in Somalia] we can pick him up by ship. If in Yemen, kill or have the Yemenis pick him up.”
It certainly is a good thing to create an information management tool that makes certain that officials across agencies and departments can have real-time, comprehensive understanding of the options available (practically, legally, diplomatically, etc.) in the event specific persons turn up in specific places.  A critical thing, in fact.  But the management tool itself isn't the policy, and it isn't what determines the policy.  The interesting question is whether and why the policy is what it is, and whether it is changing. So What Did We Know About the Policy Before this Article?  We have long known that when it comes to counterterrorism policy, the Obama administration embraces the use of an array of options, as had the Bush administration before it.  The current options clearly include the use of lethal force, trial by civilian court or military commission are possible, transfers to third-country custody, and encouraging or assisting third countries to capture in the first instance.   The status of the military detention option is a bit fuzzier; the administration defends the legality of detention in GTMO habeas cases, and the NDAA FY'12 recently reaffirmed that option, but in actual practice it seems no new detainees enter the system if not captured and held in Afghanistan (barring the two-month period of detention of Ahmed Warsame after his capture in the Gulf of Aden). So What Is the Interesting New Information Here, Other Than the Database?  I don't think there are any new substantive policies described in this piece, though I need to re-read it to be sure.  I do think, though, that there are some novel and important details in regarding the process by which the administration structures decisions regarding who may be targeted for the use of lethal force.  We get glimpses of the substantive criteria being used, insight into the centrality of NCTC to the management of that criteria (though it is unclear just what this role entails), and indications of increasing White House centralization of the process as well.  All of this is important in terms of the details, and it is also worth noting that it seems to bethe latest in a long-running and important process whereby the administration attempts to provide transparency in connection with these classified, in-the-shadows activities. Obviously it won't be enough to satisfy many observers, but at least some attempts are being made. Well, Is There Anything Really Important at Stake In this Article? Yes, I think so.  The article runs under the header "The Permanent War," and emphasizes that senior officials have reached agreement that there will be a need to continue with existing policies, including the use of lethal force, for another decade or perhaps even longer--perhaps even perpetually.  Personally, I don't think this is surprising.  But insofar as the general public might have the impression that the use of lethal force and other such policies are a fleeting thing, soon to go away, then I think it is deeply important for stories like this to draw attention to the fact that this is not likely to occur. This is a necessary condition for a serious public debate about what the substantive policies ought to be, what sort of transparency is sufficient, what sort of checks-and-balances are needed, and so forth.   Particularly as al Qaeda continues to evolve and as other groups follow in its path, and all the more so as we reduce our overt combat presence in Afghanistan, the legal and policy questions that will arise in the next decade are bound to grow ever more difficult (I take up many of these questions in this article).  I hope that in the next two installments in this series, Miller will come to grips with some of these questions.  That is precisely where the counterterrorism debate needs to be heading, from a legal and a policy perspective, in my view. The Dog That Didn't Bark: I wish there had been deeper exploration in this article of the decline in reliance on military detention at a time when reliance on lethal force has become ever more central.  There is a lot of blame to go around for this state of affairs, and it is important to bear in mind that in many if not most instances involving drone strikes it is far from clear that there was a realistic alternative permitting capture.  But still.  The GTMO issue lurks in the background of much of the discussion.

Robert (Bobby) Chesney is the Dean of the University of Texas School of Law, where he also holds the James A. Baker III Chair in the Rule of Law and World Affairs at UT. He is known internationally for his scholarship relating both to cybersecurity and national security. He is a co-founder of Lawfare, the nation’s leading online source for analysis of national security legal issues, and he co-hosts the popular show The National Security Law Podcast.

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