The Shores of Tripoli

What we did in Somalia and Libya was wrong.  Not the operations themselves, which were carried out with precision and discretion.  Not in the intent, which was to carry out a “hot pursuit” with the purpose of preventing both immediate and subsequent loss of life.  The raid in Somalia was aborted after gunfire showed it could not be completed without loss of life to “civilians” and causing killing of rather than capturing the target, and the Libyan raid was accomplished after first rejecting a drone strike because it would have caused civilian loss of life.  What was wrong was the failure to operate clearly within a protocol which recognized, and caused others to recognize, that we were both determined to capture those who had murdered our citizens and to do so in a way which honored international norms regarding respect for sovereignty.  The ex post facto explanation given was that we were operating under the authority of the 2002 Authorization for Use of Military Force (AUMF) against Al Qaeda.  It was the first explicit use of the AUMF since its passage, and The President himself in May had spoken of the hope of eventually repealing it.  It had been passed by Congress in a lather following the 9-11 attacks, and was controversial even then.

Remember 2002?  It was a time of heated discussions, not only of whether to invade Iraq (I supported going after Al Qaeda in Afghanistan and was firmly opposed to invading Iraq), but also of how to designate the whole situation – pursuit of criminals or “War on Terror.”  Rather than just an empty exercise in semantics, it was an important distinction in international law.  Criminals are outlaws and can, in “hot pursuit”, be followed across boundaries.  They merit no respect on either side of an international line, nor do they merit protection.  A government that shelters them is perceived as lacking in the rule of law.  For example, the Somali “pirates” were criminals, and the navies of several nations congregated off Somalia to capture or kill them.  There was no controversy.   Back around 1800, we invaded “the shores of Tripoli” in pursuit of the corsairs, and were justified by the international perception of Tripoli, the predecessor of Libya, as itself an outlaw nation.  Terrorists in a “War on Terror”, on the other hand have had imputed to them a strange kind of sovereignty, a kind of floating nationality which merges or conflicts with the sovereignty of any nation where they happen to be located.  Is an attack on terrorists in Libya an invasion of modern Libya?  Is it a hostile act against the Libyan government?  At the least it is an offense to Libya’s sovereignty.  What has been the Libyan offense that merits such action?    When we invaded Afghanistan, we were in hot pursuit of criminals, and first warned the Afghani government that we were doing so.  We consequently had full international support for our action and at least the token support of the government of Afghanistan. 

We now inherit the consequences of declaring a “War on Terror.”  By raiding without any noisily public effort to have Libya jail or expel the Al Qaeda leaders we are after, we become perceived in the Arab world as not respecting the sovereignty of Arab nations, a kind of outlaw ourselves.  We seek to position ourselves as a standard bearer for Liberty and the Rule of Law, yet fail to live up to the standards we espouse.  We have an obligation to do better than that.