Prof. Mitt Regan on “Will the Drone Strike Against al-Zawahiri Make the United States Safer?”

Today’s post in another installment in Lawfire’s® mini-series on the airstrike that killed Ayman al-Zawahiri.  In this essay Georgetown Law professor Mitt Regan analyses the potential impact of al-Zawahiri’s death on al-Qaeda and, in turn, on U.S. security. 

What makes Mitt’s contribution especially valuable is that he is the author of a new book that could not be timelier: Drone Strike–Analyzing the Impacts of Targeted Killing. 

Lawfire® readers may recall this was one of the books on our recent reading list (“Some summer reading recommendations (especially for those interested in national security!”).

What I particulary appreciate about Mitt’s essay is the balanced and measured way he walks us through the history of drone strikes on the Al-Qaeda Core (AQC) and, with that context, offers us a reasoned look ahead.  While I’ve long believed that drones (remotely piloted aircraft actually) are a vital element of an overall counterterrorism strategy (see, e.g., The Law of Armed–and Unmanned–Conflict), Mitt’s historical approach is invaluable. 

I think you’ll find his essay thoughtful and, better yet, thought provoking. (And don’t miss his comments on legal authority.)

Of course, be sure to read the other posts in the mini-series: Law and the Ayman al-Zawahiri airstrike: a dozen Qs and As. and Brian Lee Cox’s post, Al-Zawahiri Strike, Article 51 Self-Defense, and Future Implications for the AUMF.

Here are Mitt’s insights:

Will the Drone Strike Against al-Zawahiri Make the United States Safer?
By Mitt Regan

The recent drone strike that killed Al Qaeda leader Ayman al-Zawahiri was the culmination of more than 20 years of United States efforts to track the man whose alliance with Osama bin Laden in 1998 significantly magnified the threat posed by Al Qaeda. Will it mean that there is now less threat of an Al Qaeda attack in the United States?

On the one hand, Osama bin Laden anointed al-Zawahiri as his successor, a position he assumed after bin Laden’s death in 2011. Al-Zawahiri helped guide Al Qaeda through difficult times, including a challenge from the Islamic State. Al Qaeda now has more fighters than it did before the 9/11 attacks and has expanded into new regions. On the other hand, many regarded al-Zawahiri as an uninspiring leader and Al Qaeda has not launched a major attack in the U.S. since 9/11 or in the West since 2005.

While there is no shortage of opinion on the impact of the strike, there has been little attempt to draw on what we actually know about the effects of U.S. targeted killing operations over the last 20 years. My recent book Drone Strike–Analyzing the Impacts of Targeted Killing, represents an effort to analyze the impacts of strikes on Al Qaeda, civilian casualties, and local populations. It suggests that assessing the impact of al-Zawahiri’s death is a more complicated task than it may seem.

Impact on Al Qaeda Worldwide

First, my review of the research on U.S. targeting indicates that strikes on Al Qaeda leaders have not reduced the strength of the group or the overall number of attacks it conducts. Al Qaeda was a relatively mature organization when U.S. strikes began to accelerate, with standard procedures, policies, and succession arrangements that limited damage from the loss of particular individuals.

In addition, from the outset, Al Qaeda has been organized as a network of local affiliates with considerable autonomy on whether, where, and when to conduct attacks. The role of top Al Qaeda leadership, known as Al Qaeda Core (AQC), was to serve as a vanguard that provided strategic guidance and direction to the network. Since affiliates did not need to wait for instruction from top leadership to conduct attacks, it is not surprising that the deaths of Al Qaeda leaders did not reduce violence by the group. Al-Zawahiri’s death therefore is unlikely to have much, if any, impact on the Al Qaeda network as a whole.

Impact on Al Qaeda Core

My book concludes, however, that there is reason to believe the U.S. targeting campaign against AQC in the Federally Administered Tribal Areas (FATA) in Pakistan contributed to reducing the threat of Al Qaeda attacks in the U.S.. As the emir of Al Qaeda, al-Zawahiri was the leader of AQC. Does this finding in the book mean that his death will also reduce the risk of such attacks in the U.S.?

Perhaps, but not simply because al-Zawahiri was the head of AQC. To understand why the campaign in the FATA had the effect that it did, it is necessary first to appreciate that AQC has consistently emphasized the priority of attacking the “far enemy” in the U.S. as a predicate to removing the “near enemy” of apostate regimes in the Islamic world.

This is based on the conviction that the ability to establish Sharia law in this region requires first ending U.S. support for these regimes. As bin Laden wrote to a member of AQC, the way to do this is to “continue our direct attrition against the American enemy until it is broken and is too weak to interfere in the matters of the Islamic world.” Thus, he said, “The most important activities the [al-Qaeda] Organization can carry out are operations that directly affect the security and economy of all of the American people.”

Bin Laden’s correspondence is replete with this admonition, which Zawahiri likewise emphasized. Even as Al Qaeda lent support to affiliates’ local causes in recent years, al-Zawahiri reiterated that “America is the First Enemy of Muslims.” This reflects the continuing AQC insistence on the priority of attacking the “far enemy.”

When a significant portion of AQC fled to FATA after the fall of Afghanistan, leadership was able to establish a new safe haven to a significant degree. Asfandyar Mir’s extensive interviews in that region lead him to conclude that AQC was able to establish “a vast operational infrastructure.” As one Pakistani intelligence official told Mir, this included “training centers, suicide bomb training, IED [improvised explosive device] production, weapons and explosive handling, material printing, and lodging facilities.”

AQC used this capability to plan and coordinate attacks in the West or on Western targets. As Daniel Byman and Mir note, of the nine successful such attacks after 9/11 through 2011, seven were directed by AQC. Of the seven thwarted major attacks on Western targets after 9/11 through 2010, five were directed by AQC. One of these was a plot to simultaneously detonate liquid explosives in multiple airliners traveling from the U.K. to the U.S.

There was thus reason to fear that Al Qaeda regained its ability to conduct attacks against the West after the fall of Afghanistan. In response, the U.S. began to escalate drone strikes in the FATA beginning in 2008, which continued at a high rate until 2013. Al Qaeda correspondence, interviews with terrorist group members and government officials in the FATA, and local journalist reports at the time of the strikes indicate that this campaign significantly weakened AQC and eventually forced it to evacuate the FATA.

This evidence indicates that strikes killed key leaders, especially those responsible for coordinating attacks outside of Pakistan and Afghanistan. Between 2008-2011, AQC lost twenty-five major leaders to drone strikes. Over time, Al Qaeda found it increasingly difficult to find people with comparable experience and capability to succeed them.

A person responsible for reviewing replacements, for instance, reported that “the middle-level leadership and cadres are tormented by the killing…compensating [for the killing] is proceeding slowly…and the spy war does not provide a large opportunity.” As Bryce Loidolt concludes in his careful examination of correspondence in West Point’s Combating Terrorism Center archive, “Put simply, the evidence suggests that US drone strikes outpaced AQ’s organizational processes for managing personnel turnover and mentoring new personnel.”

In addition, the fear of strikes led Al Qaeda to significantly limit the movement of key personnel and their communications with the larger network. In October 2010, for instance, bin Ladin instructed al-Zawahiri to limit his communications within AQC to two people who would serve as a liaison to the rest of the organization, who should “not come to you frequently, even if that leads to the delay of some of the work during this phase.”

In 2011, an AQC leader writing under the pseudonym Hikmatullah Lodhi summarized the overall impact of strikes from 2008 until then: “We need to do our utmost to recover from the losses due to drone strikes . . . if leaders continue to be killed, the jihadi movement’s entire direction and pace can suffer. . . In short, drone strikes can overwhelm the strength of the mujahideen.”

Impact on Attacks in the United States

Compared with the significant AQC activity before drone strikes escalated, there has not been a successful attack on any Western targets directed by AQC since 2010, nor a successful large-scale attack since 2005. In addition, as Byman and Mir observe, there has not been even an attempted but thwarted plot since 2013. Counterterrorism measures that have hardened U.S. defenses likely are most responsible for the lower risk of a major Al Qaeda attack, but it is reasonable to believe that weakening AQC and depriving it of a safe haven where it could plan and train people for such attacks contributed to this decline.

Since evacuating the FATA, AQC has become more dispersed and Al Qaeda even more decentralized. A large part of the network’s growth reflects the addition of groups that focus on local issues and the “near enemy.” AQC has fewer resources to induce such groups to attack the far enemy, and it no longer has a safe haven where it can plan attacks, train people, and coordinate attacks in the West without the need to rely on affiliates.

These conditions mean that, while the strike campaign against AQC in the FATA contributed to reducing the threat of attacks in the U.S., strikes against AQC members like al-Zawahiri are unlikely to have the same effect.

The fact that al-Zawahiri was killed in Pakistan at a house in Kabul provided by the Haqqani network, however, potentially makes the strike more significant. There has been concern since the Taliban regained power that AQC could regain a safe haven in Afghanistan. This could provide AQC with the capabilities to match its intention of waging war against the far enemy. This in turn could increase the threat of Al Qaeda attacks in the U.S.

The targeting of al-Zawahiri therefore may serve the purpose of emphatically underscoring U.S. insistence that it is willing to take steps to prevent the Taliban from providing a sanctuary from which Al Qaeda can conduct transnational attacks. It is not the loss of al-Zawahiri as the leader of AQC itself that could reduce the threat to the U.S., but the fact that he was in Afghanistan. Had he been Yemen or Somalia, the claim would not be nearly as strong.

Final Thoughts on Legal Authority

Previous posts by General Dunlap and Brian Cox have provided thoughtful analyses of the potential legal bases for the U.S. strike. I will simply add that the argument that the strike against al-Zawahiri made the U.S. safer is plausible for the reason I have suggested, but it highlights that the U.S. must base its legal defense of the strike on the ground that al-Zawahiri was an enemy combatant in an armed conflict.

Were this not the case, the U.S. would need to defend the strike as an exercise of self-defense against an imminent threat. The purpose of the strike, however, was to prevent an imminent threat of attack from arising in the first place, by discouraging the Taliban from providing a safe haven for Al Qaeda. If, to use a common military phrase, an imminent threat is one step left of “bang,” the strike occurred three or four steps earlier.

At the same time, there appears to be growing skepticism about the U.S. claim that it continues to be in an armed conflict with Al Qaeda marked by concern about a “forever war.” I have suggested elsewhere that the assertion of a continuing armed conflict may no longer be plausible.

All this puts the U.S. in a difficult spot. U.S. officials believe that it must act to prevent AQC from acquiring a safe haven in Afghanistan, because waiting until it does may be too late to protect the U.S. Asserting a legal basis for strikes designed to do this, however, requires relying on what may be an increasingly tenuous legal theory. The strike against al-Zawahiri thus emphasizes the continuing challenges of applying international law to efforts to counter transnational terrorism.

About the author:

Mitt Regan is McDevitt Professor of Jurisprudence and Co-Director of the Center on National Security and the Law at Georgetown University Law Center, and Senior Fellow at the Stockdale Center for Ethical Leadership at the United States Naval Academy.

The views expressed by guest authors do not necessarily reflect the views of the Center on Law, Ethics and National Security, or Duke University (see also here).

Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!

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