More on the Harvard Symposium on Preemptive Action

I attended the symposium at Harvard Law School I mentioned in the previous post. The panels were great, with high-powered speakers and interesting discussions. However, I was disappointed in the scenarios presented. My guess is that they were written by as legal hypotheticals by law school students, who perhaps then ran them past Richard Clarke to see if they were vaguely realistic. The scenarios were short and handed out to the audience, so I'm going to reprint most of both of them here, to illustrate.

Scenario 1: A high-profile Al Qaeda leader begins operations in Yemen in mid-2006. He is very generous and has been paying local militias to defend and work for him, so the local government is aware that he is there. In general, due largely to bin Laden's fiscal generosity, the local government has been supportive of him. The Yemeni national government, on the other hand, has no idea that he is in the country.

In January, based on reliable human intelligence, the United States uncovers this information. however, it appears as if the Yemeni government does not have a lot of control over the region in which he is located. The United States would like to intervene militarily to capture the Al Qaeda leader, but believes that if it tells the Yemeni government about the intervention, the local government will find out and tip him off so that he can escape. Moreover, the United States is not entirely sure that Yemen would be willing to cooperate and permit military action.

This scenario was followed by a brief comment about the 2002 Predator drone Hellfire missile attack on a car in Yemen carrying six Al Qaeda members (including one of the leaders of the group responsible for the bombing of the USS Cole in October 2000), which was undertaken with the approval of the Yemeni government.

Although this was labeled scenario #1, the panel started its discussion with the scenario listed below instead:

Scenario 2: On February 27, 2007, seven Americans (tourists, businessmen, etc.?) were taken hostage on the border between Colombia and Ecuador by an unknown terrorist/rebel group. Last night, on March 1, the responsible group broadcast online a beheading of one of the hostages and threatened that more beheadings would follow if the United States did not agree to stop funding coca eradication programs in the region. The group provided no other relevant information and its demands are thus far relatively vague.

Although both Ecuador and Colombia have expressed public outrage at the hostage situation and have demanded the release of the hostages, neither government is willing to take action. Ecuador is hesitant to move in because they say the group is actually in Colombia, and Colombia refuses to move in because they think the group is technically in Ecuador. In reality, neither country has total control over the jungle region. Additionally, each is probably incapable of safely rescuing the American hostages. For a variety of reasons, both countries object to allowing American troops to intervene. In each country, the domestic political situation weighs heavily against permitting American intervention. Moreover, both countries claim that allowing American troops to rescue the hostages would constitute a violation of their sovereignty.

There is no evidence that either government is actively supporting the terrorist/rebel group nor is there any evidence that either government has extensive knowledge of the group. The United States has reliable intelligence about the location of the hostages and thinks that a military intervention to rescue them would be successful.

The last paragraph of the scenario talks about the "variety of interesting questions related to preemptive action and international law" that the hypothetical situation raises. In fact, there appeared to be very few interesting questions raised for the panelists by this scenario. They basically agreed that international law did not prohibit the U.S. from using military force without the consent of the two countries (though for different reasons, the discussion of which was interesting), and the precedent of the Entebbe Raid was discussed at length.

Beyond that, the panelists all stressed that this sort of decision would not be made by international legal experts, but by policymakers concerned with much more than just what international law did or did not allow. That was a valuable point, and the panel emphasized it during their discussions of both of the scenarios. That makes sense, since the chair of the panel, Antonia Chayes, teaches a well-regarded class at the Fletcher School on just that subject (one which I wish I had found time to take during my time there).

Several panelists suggested that there would be tremendous public pressure on the administration to "do something" in the Colombia/Ecuador scenario after the kidnapping and the beheading video. What the scenario did not mention is that there are a number of American citizens currently held hostage in Colombia already. Three contractors working under the Department of Defense were taken captive by the FARC in 2003 after their plane crashed. A Colombian colleague and another American citizen were shot, execution style, and their bodies were left at the crash site. While it didn't pack quite the punch of an internet-broadcast beheading of a tourist, in the event there was little public outcry. In the last two years, about 18 American citizens have been kidnapped in Colombia, mostly by terrorist groups. While the beheading would be a new wrinkle, and might generate more attention, the idea that there would be a massive public outcry in the wake of the scenario just doesn't seem likely.

Another issue that the panel rightly addressed was the offhand way the scenario assures that "the United States has reliable intelligence about the location of the hostages and thinks that a military intervention to rescue them would be successful." The panel in general urged skepticism about any claims of this sort, given how difficult it is to make a meaningful and accurate assessment of intelligence data, and given the challenges posed by mounting an operation deep in the Amazon rainforest. The Amazon rainforest that the scenario suggests is the location of the hostages is an incredibly impenetrable area. The canopy foliage in the rainforest can be so thick that GPS will not function through it. Locating anything or anyone from the air is ridiculously difficult, and getting from the air to the ground through the dense foliage presents its own challenges. The scenario tried to wish away such concerns in the interest of focusing on the legal issues involved, but it did so in such a ham-handed way that the panel was obliged to comment on their skepticism of any such confidence. And what no one mentioned but I found very odd about the scenario was that if the U.S. had sufficient intelligence data to know where the hostages were, presumably they could generate map coordinates for the location sufficient to prove to Colombia or Ecuador on which side of the border the terrorists were holed up.

It is true that both in the case of Colombia and the case of Yemen, there are areas within the country that are not under the control of the central government. In Colombia, history and geography are the main reasons why, with a combination of a state that has historically never truly controlled its borders or territory and nearly impassible terrain that makes it extremely difficult for any central authority to assert itself in large portions of the country. I know much less about the situation in Yemen, but my understanding is that there are areas over which, for reasons largely related to tribal dynamics, the central government exerts authority in name only. It was in such an area where the Predator drone attack in 2002 took place.

A term that comes up occasionally in gaming literature is the tendency of participants to "fight the scenario" at times. This is usually held up as something to be avoided, both through careful scenario construction (with an eye towards credibility) and through explicit requests to the participants themselves to refrain from such activity and simply try to play the game as written. This is one of the reasons a debriefing session is so important after a game: participants who had objections to certain aspects of the scenario can raise them at the debrief, where they will still be considered by the group. In a short session like this panel discussion, however, it was precisely the right time to fight this sort of scenario, which the participants did to some extent. It was still a high-quality discussion, thanks to the panelists, but it could have gotten off to a better start with a better set of scenarios.