Analyzing the Afghanistan disaster (Part I): Was President Biden bound by the Trump administration’s agreement with the Taliban?
More than three months ago when I wrote “Brace for Impact” Americans should prepare for terrible scenes coming out of Afghanistan, I said I hoped I was wrong. Sadly, as yesterday’s horrific events amply demonstrate, I wasn’t. Today’s post is the first in a series which will unpack some of the key aspects to this debacle so you can make your own assessment.
Regardless of what one might think about the wisdom (or not) of the withdrawal decision, the Administration’s carrying out of that determination has not only been shockingly inept, it has also been marred by misstatements and erroneous assertions that need clarification as they carry the dangerous potential to hobble America’s future actions as the crisis continues.
Need for current analysis
To be clear, such clarifications should come sooner rather than later, particularly since lives remain at risk. Thus, I think Vice President Harris is not quite right when she argues that we should defer “analysis of what has happened” and “focus” on evacuation of American citizens and Afghans.
Actually, the U.S. should take a military-style approach in which both efforts proceed concurrently… and do so with dispatch. In the 21st century, it is imperative that the U.S. do difficult and demanding things simultaneously as otherwise we may continue down the wrong path at what could be great and unnecessary cost. There is much wisdom in the adage that we need to be able to ‘walk and chew gum’ at the same time.
Current analysis can – and should – inform ongoing operations. In the military, agility, flexibility, and adaption are foundational qualities of successful warfighting, particularly when the circumstances change significantly and the realities on the ground upend the assumptions upon which the original plan was based.
Consequently, it is essential to “maintain freedom of action” to change, if necessary, a course of action, especially when it becomes obvious that things have gone terribly awry. Accordingly, let’s examine the legitimacy of a key assertion.
Locked-in by the Trump agreement?
Although President Biden makes claims about accepting responsibility for the debacle, he nevertheless almost always follows with statements assigning blame elsewhere. Foremost among these is his insistence that he was, in essence, locked into withdrawal by the 29 February 2020 Trump administration agreement with the Taliban.
This is inaccurate. In the first place, let’s note that President Biden has shown no reluctance to reverse any number of Trump actions, so it is unclear why he believes he could not do so here. Secondly, the agreement itself was a political commitment with a non-state actor that is non-binding under international and domestic law. For our third discussion point, let’s explore the international law aspect a bit more.
Fundamental change of circumstances
With the complete collapse of the Afghan government, there certainly has been a “fundamental change of circumstances” that existed at the time of the agreement’s making, and those that were reasonably anticipated to exist at the time of its final execution.
Accordingly, even if the agreement was somehow technically a “treaty,” under international law. the Vienna Convention of the Law of Treaties provides (art. 62) that a “fundamental change of circumstances” can be grounds for terminating or withdrawing from such an accord. It is true, as many critics have pointed out, that the Afghan government was not formally part of the agreement process, but it is beyond cavil that the U.S. government fully expected it to – at least – survive the troop withdrawal so central to the agreement, as did many Afghans.
Furthermore, the text of the agreement with the Taliban, as well as the circumstances and declarations surrounding its signing, makes it abundantly clear that the existence of an Afghan government through the withdrawal was an essential assumption forming the basis for the U.S.’s consent. The effect of the absence of an Afghan government at the time of the agreement’s final execution operates, in the word of the Vienna Convention, to “radically…transform the extent of obligations still to be performed under the treaty.” Consequently, even under treaty law, ample grounds exist to terminate or withdraw from the deal.
Material breach
Fourthly, and perhaps most importantly, the Taliban were in material breach of the agreement, another circumstance that the Vienna Convention (art. 60) says is grounds for terminating or suspending an agreement in whole or in part even if it were a treaty which the agreement with the Taliban is not.
As FactCheck.org details, the Defense Department’s report to Congress found “that the Taliban and al-Qaeda have been conducting ‘joint attacks’ in Afghanistan in apparent violation of the February 2020 withdrawal agreement.” It also relates:
“The Taliban did not appear to uphold its commitment to distance itself from terrorist organizations in Afghanistan,” the report said. “UN and U.S. officials reported that the Taliban continued to support al-Qaeda, and conducted joint attacks with al-Qaeda members against Afghan National Defense and Security Forces.”
The report went on to say, “General Kenneth F. McKenzie Jr., the commander of U.S. Central Command (USCENTCOM), said in June [2020] that the conditions for a full withdrawal, including a significant reduction in violence and a guarantee not to harbor al-Qaeda, had not yet been met.”
The impact of withdrawal “without conditions”
Finally, what the President did change about the Trump agreement has proven to be disastrous. Specifically, Duke Law grad and former ambassador for counterterrorism Nathan Sales points out, the critical mistake was to “have taken the Trump administration conditions-based approach and replaced it with a determination to leave no matter what the circumstances are on the ground.”
Washington Post columnist Marc Thiessen put it plainly in an August 16th essay:
Trump promised a withdrawal based on conditions on the ground. Biden explicitly rejected a conditions-based withdrawal, declaring “we cannot continue the cycle of extending or expanding our military presence in Afghanistan, hoping to create ideal conditions for the withdrawal.” By announcing that we were getting out no matter what the Taliban did, Biden gave the Taliban a green light to carry out the murderous offensive we now see unfolding. (Emphasis added).
Thiessen speculates how Trump would likely have responded to the material changes in the circumstances of the agreement, not to mention the Taliban’s breaches of it. He contends:
Trump’s Afghan policy was terrible, and I criticized his outreach to the Taliban. But does anyone really believe he would have let the United States be humiliated in this way? He would have unleashed a bombing campaign the likes of which the Taliban had not seen since 2001.
Ample evidence shows that Trump had no hesitation about using airpower to rein in the Taliban. As discussed last September in this post, the Washington Post reported that “[l]ast year, American warplanes dropped a record number of bombs on Taliban targets in Afghanistan, part of an effort that started in late 2018 to push the Taliban toward a deal to end nearly 20 years of conflict.”
In my May 2021 post, I tried to warn that the loss of airpower that the withdrawal agreement produces would be devastating to the Afghan military. The availability of combat aviation in its several forms was, as Reuters noted in 2019, “one of the few decisive advantages [the Afghan military enjoyed] over increasingly confident Taliban fighters.” In an August 25th essay in the New York Times, an Afghan general talked about how shattering the loss of airpower proved to be to his forces:
The Taliban fought with snipers and improvised explosive devices while we lost aerial and laser-guided weapon capacity. And since we could not resupply bases without helicopter support, soldiers often lacked the necessary tools to fight.
He also underlined the impact of the President’s “no conditions” approach to withdrawal:
Mr. Biden’s full and accelerated withdrawal only exacerbated the situation. It ignored conditions on the ground. The Taliban had a firm end date from the Americans and feared no military reprisal for anything they did in the interim, sensing the lack of U.S. will.
Let’s not forget that the need for a “conditions-based” withdrawal was central to military advice that the President Biden rejected. As the New York Times reported in April:
The current military leadership hoped it…could convince a new president to maintain at least a modest troop presence, trying to talk Mr. Biden into keeping a residual force and setting conditions on any withdrawal. But Mr. Biden refused to be persuaded.
Concluding observations
It is clear that the President was not – and is not – legally or morally obligated to adhere to the Trump administration’s withdrawal agreement with the Taliban. Decision-makers should keep this fact in mind as they continue to address the crisis.
Still, the President has also repeatedly claimed that his only options were to either withdraw by the 31st of August or introduce thousands more troops and ramp up the fighting at a considerable cost in American lives and treasure. Was he really confronted with that kind of Manichean choice?
Or was there a middle path – as the military recommended – where he could have proceeded with his aim of full withdrawal, but do so in a “conditions-based” way that could have avoided not just America’s humiliation, but also the emergence of what CNN is now calling a “terror hotbed” in Afghanistan? I’m convinced that the answer is “yes”.
We’ll discuss all that and much more in a future posts, so stay tuned.
But please take a moment today to offer prayers for the families of all the casualties in yesterday’s attacks but especially for the U.S. troops who paid the ultimate price, as well as those who have suffered terrible injuries doing what their country asked them to do.
We must never forget that freedom isn’t free when we send young Americans in harms’ way.
Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!
Update: Part 2 of the series, The dawn of America’s latest (“forever”?) conflict: the Over-the-Horizon War of 2021, is found here.
